The Gazette 1980

JANUARY-FEBRUARY 1980

GAZETTE

his judgment, 23 Mr. Justice Walsh appears clearly to favour the subjective standard (whilst considering that, on the facts of the case, a more objective standard (of age and experience, but not mental development) would have yielded the same result). Mr. Justice Henchy considered that the relevant standard was that "to be expected from a boy aged 11 years of the plaintiff's education and general background . . ." 26 Mr. Justice Griffin did not refer to the standard in express terms but he appears to have favoured the subjective approach to the extent that he considered 27 the plaintiff's capacity to read — rather than that of the ordinary 11-year- old — to be of major significance. Mr. Justice Budd concurred 28 with the judgment of Mr. Justice Walsh. The brief treatment of the issue by FitzGerald, C J ., does not indicate a clear leaning towards either the objective or subjective approach. The better view would appear to be that McNamara 30 represents a clear preference on the part of the Supreme Court for the subjective approach. This approach is also favoured by the Courts in Canada 31 and the United States. 32 In England 33 and Australia 34 the position is less clear, but the objective approach appears to command support. Negligence As has been mentioned, there have been very few decisions on the question of the negligence of children. There have been statements 33 to the effect that minority will not afford a defence to an action for negligence, but the better view 36 appears to be that the negligence of a child should be judged by the same standard as that regarding his contributory negligence. Children Performing Adult Activities Reference should be made to a development in the law in a number of countries overseas — including the United States of America, 37 Canada, 38 Australia 39 and New Zealand 40 — which has not so far taken place in Irish law. Courts in these countries have imposed the adult standard of negligence on children performing adult activities, such as driving a car. In the leading decision on the subject, Dellwo v Pearson, 41 where the defendant, a 12-year-old boy, injured the plaintiff operating a power boat, Loevinger, J., of the Minnesota Supreme Court argued that "while minors are entitled to be judged by standards commensurate with age, experience, and wisdom when engaged in activities appropriate to their age, experience and wisdom, it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others . . . One cannot know whether the operator of an approaching automobile, airplane, or power boat is a minor or an adult, and usually cannot protect himself against youthful imprudence even if warned." This concentration on the expectations of the victim, rather than the responsibility of the child, may be regarded by many as inappropriate. The doctrine of "adult activities" has been carried to ludicrous lengths in the United States of America, the Courts holding that skiing 42 and even golf 43

of O'Byrne, J., in Fleming v Kerry County Council, 15 already quoted. As anyone who has had any experience of dealing with young children will appreciate, children develop at different speeds: one 6-year-old may be fully aware of the dangers of a particular situation whilst his friend of the same age may have no such appreciation. This subjective element is recognised where the child has been found to be capable of contributory negligence: it should also be stressed, as O'Byrne, J., has done, where the threshold issue of capacity for contributory negligence is being determined. (b) Standard to be Applied in Determining whether a Child was Guilty of Contributory Negligence There is a surprising degree of confusion in this country as to the standard to be applied to a child, admittedly capable of contributory negligence, in determining whether he was, in the circumstances of the case, guilty of contri- butory negligence. O'Byrne, J., in Fleming vKerry County Council, 16 favoured the subjective approach: the standard was "what may reasonably be expected, having regard to the age and mental development of the child and the other circumstances of the case." Yet, in the subsequent Supreme Court decision of Duffy v Fahy 11 Lavery, J., expressed uncertainty as to the meaning of O'Byrne, J.'s, statement, considering it to be "susceptible of meaning either the mental develop- ment of the individual concerned or the mental development of the normal or average child of that age. He regarded it as "unnecessary to consider the matter further or to express an opinion thereon". 1 ' In Kingston v Kingston, 19 Walsh, J., favoured the objective approach, looking only to the age, and not the mental development, of the child. Other decisions over the years have been divided on this matter: some 20 have clearly endorsed the subjective approach, but others 21 have professed to favour the objective standard. The most recent decision in which the matter was discussed by the supreme Court is McNamara v Electricity Supply Board. 21 The case is, of course, a leading one on the subject of occupiers' liability, but in the present context it is the treatment of the plaintiff's contributory negligence that is relevant. It will be recalled that the plaintiff, an 11-year- old boy, was injured when climbing on the defendant's electricity sub-station. He had been warned by his father not to go there. He was aware of the existence of a number of notices around the sub-station warning persons of the danger but claimed that he had never read them although he was able to read. The jury found that he had not been guilty of any contributory negligence and the defendant appealed against this finding (among others). The standard of care appropriate to the plaintiff was discussed in a number of the judgments delivered in the Supreme Court. Mr. Justice Walsh stated that '"the test to be applied is that stated by O'Byme, J., in Fleming v. Kerry County Council, 13 which is that it is for the jury to determine whether the boy fell short of the standard which might be reasonably expected from him having regard to his age and his development." 24 In this passage and in the passage following afterwards in

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