The Gazette 1980

JANUARY FEBRUARY 1980

GAZETTE

A Minor Confusion: Children and the Law of Negligence

WILLIAM BINCHY*

ating the danger, and reasoning in reference to it, any more than if he had been a brute animal." Manifestly, it would be nonsense to speak of a six-month- old infant as being capable of being guilty of contributory negligence. But the point at which a child may become so has given rise to some uncertainty. The age of 3 years appears to be the youngest at which the Courts have seriously canvassed the possibility of a child having the requisite capacity. In Macken v Devine, s Gleeson, J., in the Circuit Court, held that a 3-j-year-old plaintiff who had fallen down unguarded steps was not guilty of contributory negligence since he "had not sufficient sense to understand the risk and was incapable of appreciating the danger". In the Canadian decision of Kaplan v Canada Sqfeway Ltd ., 6 Disbery, J., of the Saskatchewan Queen's Bench, expressed the opinion that it would be "absurd" to regard a child of that age as being capable of contributory negligence. In the old English decision of Gardner v Grace, 1 where the plaintiff was 3f- years-old, Channell, B., stated that "the doctrine of contri- butory negligence does not apply to an infant of tender age". Cases in the United States of America 8 are also over- whelmingly opposed to holding 3-year-olds capable of contributory negligence. As the child moves towards 4 9 and 5 10 the Courts become increasingly doubtful that he is incapable of contri- butory negligence. By the time he reaches 6, he is likely to be held to have the requisite capacity, at all events where he is a bright child. 11 Cases have been reported, 12 however, where the Courts have held children above this age incapable of contributory negligence. The Irish authorities are strongly of the view that 9-year- olds are capable of contributory negligence. In Behan v Thornhill , 13 the Supreme Court upheld the verdict of Davitt, P., dismissing an action for negligence brought by a 9-year-old plaintiff arising out of a collision with the defen- dant's car. The plaintiff was undoubtedly a bright child — Davitt, P., stated that he had "seldom seen a brighter boy in the witness box" — but the case did not proceed on this finding alone. Davitt, P., stated: " . . . I think that a boy of 9 years is capable of contri- butory negligence. It has been held in some cases that younger boys could not be capable of contributory negligence, but I am satisfied that a boy of 9 years can be capable of contributory negligence." Similarly, in Courtney v Masterson , 14 Black, J., in the High Court, stated that he was "not prepared to accept the contention that a boy of 10 years is incapable of contributory negligence." Whilst the Courts have tended to ask whether children of a certain age may be regarded as having the capacity for contributory negligence, it is clear that this is not the best approach and that it is not in harmony with the statement

The position of children regarding negligence and contri- butory negligence is a matter of considerable practical importance but has been discussed only rarely in Irish legal periodicals. The present article attempts to set out the main features of the law. Contributory Negligence 1 It is best to begin with a consideration of contributory negligence, since this aspect of the subject has given rise to considerable judicial analysis, in contrast to negligence where the cases are very scanty. The reason for this differ- ence is relatively easy to determine: whilst it is in the nature of children to get into situations of danger, frequently resulting in injuries to themselves, it is less frequent that a person injured by a child will contemplate suing the child, 2 who normally will have no assets. The classic statement of the relevant legal principles regarding the contributory negligence of children was made by O'Byrne, J., in Fleming v Kerry County Council: 3 "In the case of a child of tender years there must be some age up to which the child cannot be guilty of contributory negligence. In other words, there is some age up to which a child cannot be expected to take any precautions for his own safety. In cases where contributory negligence is alleged against a child, it is the duty of the trial Judge to rule, in each particular case, whether the plaintiff, having regard to his age and mental development, may properly be expected to take some precautions for his own safety and consequently be capable of being guilty of contri- butory negligence. Having ruled in the affirmative, it becomes a question of fact for the jury, on the evidence, to determine whether he has fallen short of the standard which might reasonably be expected from him having regard to his age and development. In the case of an ordinary adult person the standard is what should be expected from a reasonable person. In the case of a child, the standard is what may reasonably be expected, having regard to the age and mental development of the child and the other circumstances of the case." A number of aspects of this statement of the law require further consideration. (a) Minimum Age O'Byrne, J., is clearly correct in stating that "there must be some age up to which the child cannot be guilty of contributory negligence". As Chief Baron Palles observed in Cooke v Midland Great Western Ry. of Ireland:* " . . . the doctrine of contributory negligence is entirely grounded upon the fact that man is a reas- oning animal, and has no application to the case of a child of such an age as to be incapable of appreci-