The Gazette 1980

GAZETTE

MARCH 1980

include the duty to take reasonable care to prevent conduct on the part of passengers which is negligent. In the present case that duty is, it seems to me, rein- forced by the relationship of parent and child; and a parent, while not liable for the torts of his child, may be liable if negligent in failing to exercise his control to prevent his child injuring others." 37 Walsh, J. observed that the steps which the person in charge of a car should take to protect others from injury must be determined in the light of the exact circum- stances of each case: "In this case the defendant by reason of the fact that he was the parent of the tortious child could be held to have had an authority over the child. By reason of his proximity to the child he could be held to have been in a position to exercise that authority." 38 A number of specific aspects of parental liability based on negligence require consideration. (0 The Age of the Child Clearly, where the child is very young, the parents' responsibilities are high and they will not be permitted to excuse themselves by having relied on their child to behave carefully when the child's immaturity and lack of experience would not warrant that trust. It has been well observed, however, that: "I a Is they approach maturity, and as an aid in their attaining it, adolescents require more freedom, and hence less supervision, than . . . young children. As a child grows older there are fewer situations in which bis parents have the ability to control him. Concomitantly, as he grows older there should be fewer situations in which they have a legal obligation to do so." 39 The precise age at which parents cease to be responsible either vicariously or personally for injuries caused by their children is uncertain. It would appear that he age of majority has no magic in this context: parents m a y be liable in relation to children of full age but obviously the scope of liability would normally be more restricted in such cases than where the child is a minor. (ii) Which Parent is Liable? Somewhat suprisingly the decisions on parental 'ability do not contain a clear analysis of this question. sually the father alone is sued; sometimes both parents ar e defendants; most rarely, the mother alone is sued. 'early, the question of which parent is the proper one to sue will depend greatly on the facts of the case. If a father a s supplied his child with a gun, he is the obvious person ° sue - if a mother lets her child escape onto the roadway w hue she is shopping, it will not usually occur to a driver J^ho is injured while swerving to avoid the child to sue the a ther who is at the time busy at work in an office many roues away. It should, however, be possible to argue that, aving regard to constitutional, statutory and judicial evelopments in recent years, the father no longer should e regarded as having more responsibilities in this context . la n the mother in a case where both parents were rovolved in the conduct which brought about the Plaintiffs injury.

on the subject, since there is a suprising divergence of approach. Broadly speaking, the other common law jurisdictions take the same position as in this country. New Zealand 40 and the common law provinces of Canada 41 are virtually identical with our law. Australia seems somewhat more indulgent to parents. 42 The approach in the United States of America 43 is also similar to that of our law, but statutes in forty-five states have altered the position to a certain extent. Directed at curbing juvenile delinquency, these statutes impose liability on parents for damage intentionally inflicted by their children on persons or property. 44 Normally the statutes specify a maximum amount that may be awarded. A statute in Georgia which contained no damages ceiling and which imposed liability irrespective of fault was struck down 43 on the ground of deprivation of property without due process of law. The court distinguished this statute from those involving limited liability on the basis that the latter should be regarded as essentially penal rather than compensatory. It is the civil law system which is of most comparative interest, since it approaches the question of parental liability from a different starting-point than that of the common law. It begins with the general principle that a person is liable not merely for damage that he himself causes by his own act but also for damage caused by the acts of persons for whom he is responsible. 46 The Civil Codes of most jurisdictions specifically impose on parents liability for damage caused by their minor children who are living with them. Normally parents will be relieved of liability where they can show that they "could not have prevented the damage". In effect, if they can establish that they were not at fault, they will be relieved of liability. Thus the practical difference between our law and that of the civil law system is that parents in this country are presumed not to have been at fault unless the contrary is proved whereas in civil law jurisdictions the reverse presumption applies. 47 Whether it would be desirable for our law to adopt the civil law approach on this subject is a matter of debate. In favour of doing so it could be argued that the trend of tort law is already firmly directed towards extending the range of liability 48 and that, if parents are not liable for damage caused by their children, the victim may frequently go without compensation since the child (if liable) will not normally be worth suing. As against this, it has been argued that vicarious liability should not apply to parents in the same way as to employers, since: "employers in fact have greater control over the behaviour of their employees on the job than do parents over their children. The employer can select his employees, discharge them, and prescribe rewards and punishments to which rational beings will respond. Children tend to be ungovernable; natural parents do not choose their children; children cannot be fired for having been careless. A rule of strict parental liability would have little regulatory effect." 49 One commentator has suggested a more radical solution: "iFlrom an historical perspective a child, as a form of personal property, might be subject to deodand. Not an unattractive possibility, at least to a parent." 50 Footnotes on Page 44

COMPARATIVE ASPECTS is useful to look briefly at the law in other countries

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This article is written in a personal capacity.