The Gazette 1980

MARCH/APRIL

1980

GAZETTE

purpose, is in the de facto service of the person who makes the request and for whom the duty is being performed." 15 Walsh, J. referred to the "family car" cases 16 where liability was imposed on parents, stating that they showed that vicarious liability could rest on gratuitous or de facto service. He added: "It may well be, as has been suggested by one noted writer, 17 that the fact that this imposition of vicarious liability has apparently been confined to motor-car cases is because it was developed as a means of reaching the insurance company of the owner of the car. Whatever may be the reasons for the develop- ment of the doctrine in a particular area, the reasons cannot mask the basic principle of law involved." 18 Henchy, J., dissenting, saw: "no justification for stretching the law so as to make it cover the present claim when, by doing so, the effect would be that liability in negligence would attach to persons for casual and gratitous acts of others as to the performance of which they could not reasonably have been expected to be insured . . . it would be unfair and oppressive to exact compensa- tion damages from a person for an act done on his behalf, expecially in the case of an intrinsically harm- less act, if it was done in a negligent manner which he could not reasonably have foreseen and if — unlike an employer, or a person with a primarily personal duty of care, or a motor-car owner, or the like — he could not reasonably have been expected to be insured against the risk of that negligence." 19 Moynihan v. Moynihan 20 would appear to be a decision of considerable importance in relation to the liability of parents for the torts of their children. Whilst it proceeds on the basis of liability for control over domestic hospitality, which was "not in any way dependent upon the relationship of mother and daughter", 21 nevertheless the fact remains that the grandmother was held liable for her daughter's conduct. It is relatively easy to conceive of applica- tions of the principle that would extend into areas now only partially covered by the concept of parental negligence (discussed below). If a host asks his ten- year-old son to entertain a guest while the host is in the kitchen for a few minutes, and the son injures the guest with a bow and arrow, 22 the parent may or may not be liable under the law of negligence, depending on a number of factors, such as his awareness of the child's previous propensities. If, however, the ratio of Moynihan is to apply, the host may be vicariously liable without consideration of these factors. 23 3. Where the Parent is Negligent in Affording his Child an opportunity to injure another A parent may be negligent in affording his child an opportunity to injure another. 24 The negligence may consist of a wide range of behaviour, which may conveniently be summarised under three headings. (a) Dangerous Things It may be negligent for a person to leave dangerous things within access of a child in circumstances where injury to the child or another is foreseeable. A clear case is where a person leaves a loaded gun within reach of a

young child. Liability will not depend simply on the relationship between parent and child that may exist in such a case but rather on the foreseeability of harm 25 and the reasonableness of attributing blame to the defendant for his lack of care. This was well illustrated in the lead- ing Irish decision on the subject, Sullivan v. Creed. 26 There, the defendant, a farmer who had been shooting rabbits on his property, left his gun loaded and at full cock standing inside a fence on his lands. His fifteen-year- old son, not realising that the gun was loaded, pointed it in play at the plaintiff and accidently shot him. A verdict for the plaintiff was upheld by the Court of Appeal. FitzGibbon, L.J. stated: "The scope of the duty is the scope of the danger, and it extends to every person into whose hands a prudent man might reasonably expect the gun to come, having regard to the place where he left it. The ground of liability here is not that the boy was the defendant's son, but the fact that the gun was left without warning, in a dangerous condition, within reach of persons using the pathway, and the boy was one of the very class of persons whom the defendant knew to be not only likely but certain to pass by, viz. his own household." 27 A parent (or other person) may also be liable where he or she negligently entrusts a dangerous thing to a child in circumstances where injury to the child or another is foreseeable. Whether or not the entrustment was negligent " . . . must depend upon the exact facts of every case". 28 (b) Child's Dangerous Propensities A parent may be liable in negligence where he knows or ought to know 29 of a particular dangerous propensity of his or her child and fails to protect others against injury likely to result from it. Thus, for example, if the parent is aware that his or her child has attacked other persons previously, 30 or has displayed a tendency to steal, 31 or to set fire to property 32 or to drive dangerously, 33 he or she may be liable for failing to take the steps necessary to protect others from harm likely to result from a repetition of such conduct. The steps that the parent will be required to take will depend on the circumstances of the case. The proper approach may be to discipline the child, encourage him to mend his ways, remove him from likely sources of temptation or warn his potential victims. Clearly the age of the child and the nature of the danger will greatly affect how the parent should behave. It is settled, however, that the parent is not an insurer: he will not be liable where his reasonable best was not sufficient to prevent theinjury. 34 (c) Failure to Control Child Properly Where a parent fails to control a child properly, he or she may be liable for injuries resulting to others (or, indeed, the child himself or herself)- 33 In Curley v. Mannion , 36 the Supreme Court held that it might be negligence for the owner and driver of a car to permit his passenger to open a door without checking that no traffic would thereby be endangered. The case involved the 13-year-old daughter of the driver opening a door in the path of a cyclist. O'Dalaigh, C.J. stated that, in his judgment: "a person in charge of a motor car must take reason- able precautions for the safety of others, and this will

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