The Gazette 1980

APRIL 1980

GAZETTE

Liability in Tort of Parents for Damage Caused by their Children William Binchy

compensation from insurance companies. 10 The decision of the Supreme Court in Moynihan v. Moynihan 11 in 1975, however, adopted a broader approach. The facts briefly were that a two-year-old infant, when visiting her grandmother's home, was scalded by a teapot as a result of the alleged negligence of her aunt (the grand- mother's daughter), who was living in the grandmother's home at the time of the accident. The infant sued her grandmother, 12 claiming that she was vicariously liable for her daughter's negligence. The trial judge, Gannon, J., withdrew the case from the jury, but the Supreme Court 13 reversed. Walsh, J., who delivered the majority judgment (with which O'Higgins, C.J. concurred) based liability on the hospitality extended to the plaintiff by her grandmother: "The negligence attributed to [the aunt] was not the casual negligence of a fellow guest but may be regarded as the negligence of a person engaged in one of the duties of the household of her mother, the defendant, whose duties were being carried out in the course of the hospitality being extended by the defendant. The nature and limits of this hospitality were completely under the control of the defendant, and to that extent it may be said that her daughter . . . in her actions on this occasion was standing in the shoes of the defendant and was carrying out for the defendant a task which would primarily have been that of the defendant, but which was in their case assigned to Iher daughter]. As the defendant was the person providing the hospitality, the delegation of some of that task to her daughter . . . may be regarded as a casual delegation. [The daughter's] performance of it was a gratuitous service for her mother. It was within the control of the defendant to decide when the tea would be served and where it would be served and, indeed, if it was to be served at all. It was also within the control of the defendant to decide how it was to be served." 14 In an important passage in the present context, Walsh, J. stressed that: "[t]his power of control was not in any way dependent upon the relationship of mother and daughter but upon the relationship of the head of a household with a person to whom some of the duties of the head of the household had been delegated by that head. The position would be no different, therefore, from that of a case where the head of a household had requested a neighbour to come in and assist in the giving of a dinner party because she had not any, or not sufficient, hired domestic help. It would produce a strange situation if in such a case the 'inviter' should be vicariously liable for the hired domestic help who negligently poured hot sauce over the head of a guest but should not be equally liable for similar negligence on the part of the co-helper who was a neighbour and who had not been hired. In my view, in the latter case the person requested to assist in the service, but who was not hired for that 35

INTRODUCTION The liability of parents for damage caused by their children is a matter of some practical concern for many solicitors. Frequently, of course, parents admit their moral responsibility for the misdeeds of their offspring and pay without protest for a broken window or a broken nose. But are they legally obliged to do so? The present The general principle is that parents are not, as such, liable for the torts of their children. 1 In Moon v. Towers, 2 Willes, J. stated that he was "not aware of any such relation between a father and son, though the son be living with his father as a member of his family, as will make the acts of the son more binding upon the father than the acts of any body elsé." A number of important exceptions, however, limit the scope of this rule. These will be considered in turn. EXCEPTIONS I • Where the Parent has Directed, Authorised or Ratified the Act of the Child "It seems clear that if the parent has directed, or consented to, or ratified, the child's acts which cause the damage, the plaintiff will be able to recover damages from the parent as an independent tortfeasor: qui facit per alium facit per se." 3 This has generally been considered to be the position b y the commentators, 4 but the decided cases are few. In Wat ers Vm o'Keeffe , 5 the children of the defendants, without their authority, erected a gate on their property. The plaintiff was injured when it fell on him while he was climbing on it. The defendants were held not liable for his injuries since their children had acted without their authority. The leading English decision is Moon v. Towers. There, the Court held that there was no evidence of ratifi- cation on the facts of the case. The judges expressed some doubt, however, as to whether the parent would have been liable if ratification had been found. 7 A parent may be vicariously liable for a tort committed by his child where a master-servant relationship exists between them. 8 Liability may arise not only where there is an express contractual relationship (as, for example, where a dentist employs his daughter as a receptionist), but also where no formal contractual relationship exists between them. In many common law jurisdictions, children driving cars owned by their parents have been regarded by the courts as being in a service or agency relationship, so that liability may be imposed on the Parents in relation to the children's negligence. 9 These decisions were generally regarded as being sui generis involving a device to enable injured persons to recover 2 - Where the Parent is Vicariously Liable for the Child's Tort article examines this question. THE GENERAL PRINCIPLE