Author Name:   neelabhnluo

It is an article which focuses on childish behaviour and tort law.

Childish Behavior and Law of Torts

“The law of torts imposes duties on, to and about children. This chapter seeks to provide an overview of these duties. But the law of torts does not purport to provide an exhaustive catalogue of the entitlements or obligations of children. For instance, it is orthodox doctrine that duties which are imposed by statute, including duties backed by criminal sanctions, will not support a tort-style claim for damages unless there is evidence that Parliament intended the duty concerned to support such claims. And it is equally orthodox that obligations which are categorised only as moral or social duties will not support such claims. The law of torts does not deny the existence of such duties or their utility: It merely leaves their enforcement to other mechanisms: The apparent gaps in tort law’s protection of the interests of children may be a product of tort law’s perception of the purpose of tort law rather than tort law’s perception of children.”

Children in tort come under a special category since a tortuous act committed by a child cannot be compared with a tortuous act committed by a ‘reasonable man’ or an adult. Children have certain exceptions which makes them different from adults. This depends on various factors such as maturity of mind, maturity of age, mental capacity, ability to reason, standard of care, incapability to distinguish between right and wrong, lack of foresightedness etc. these factors depend from region to region i.e. it depends on the law of torts of that country e.g. - in some countries maturity of mind is considered where as in some countries maturity of age is considered to determine liability of children. There is a great ambiguity in torts for the wrong committed by individuals from the age of 0 to the ‘age of maturity’ as there is no clear answer.

Childish behavior in law of torts is when a child indulges in acts which are likely to cause injuries to others, voluntarily or involuntarily e.g. - A child uttering slander or committing assault. It is termed as childish because a child generally is under no responsibility rather learning to take responsibilities and acts out of innocence. The children sometimes have to play a dual role here the parents come into play. Sometimes a child is expected to be confined to his age and act accordingly; on the other hand a child is expected to act responsibly for his own acts and towards others. The harmful action of a child may be assumed to arise out of failed supervision and direction on the part of a parent. Responsibility both for the child and on behalf of the child is placed implicitly or explicitly on the shoulders of the adults in children’s life. The liability of children’s tortuious acts is extended to their parent in some cases.

Even in the cases involving negligence on the part of children, the children are sometimes immune from the fact that they were negligent on the grounds of age maturity etc. but it again varies in different countries such as in common law the negligent act of a child is considered to be out of ‘childish behavior’. In some countries children are considered to be incapable of being negligent below a certain age such as in Canada, children of very young age about till 9 years of age are "totally immune from tort liability"

Nowadays it is seen that children are indulging in adult activities such as driving an automobile, cyber crimes etc. i.e. they act out of their age and are more aware about the happenings around them, here the immunity from negligence may be lost. Also it is found that children indulge in mischievous acts such as calling the Police, Fire station etc. for no reason but out of mischievous intent, here the psychological aspect comes into play. These incidences are in much relevance with the existing Law of Torts.

Chapter I
Responsibility of children for injuries to others
The primary position is that children of all ages are subject to the same tort obligations as adults. Thus children must not, for instance, utter slanders or commit assaults. But this is in contrary to common law, in common law children are treated differently from adults. This equation of children with adults is subject to three qualifications.

First, the courts have refused to hold minors liable for torts where the effect would be to escape the rules which make many contracts unenforceable against minors. In this context a distinction has been drawn between attempts to present an action for breach of contract as a tort and tort claims arising out of behaviour “outside the purview of the contract”.

Second, in some circumstances children may be effectively immune from certain forms of tort liability because they are judged to be incapable of forming the state of mind necessary for commission of the particular tort. A child judged incapable of anticipating that his or her actions may have harmful effects for people in the claimant’s position cannot be found to have been negligent. This has made it important to clarify what state of mind a claimant must demonstrate in a defendant in order to prove a trespass to the person. In Fowler v. Lanning, Diplock J held that the plaintiff must prove either that injury was intended by the defendant or that the defendant was negligent. In Morriss v. Marsden, Stable J held that only the act which amounted to trespass had to be intended and that it was sufficient if the defendant was shown to have understood the nature and quality of the act. Professor John Fleming has pointed out that these decisions entail “the incongruity that an infant, too young for negligence because incapable of appreciating the risk, may well be old enough for a more heinous ‘intentional’ wrong although equally innocent of moral culpability.”

Thirdly, even when children are subject to ordinary tort duties they are not expected to meet adult standards. Instead the standard of care demanded of a child will be moderated to reflect the child’s age. This proposition is supported by McHale v. Watson, a case arising from Barry Watson, aged twelve, throwing a metal spike at a wooden post. He intended the spike to spear into the post, but instead it was deflected into the claimant’s eye. Windeyer J held that Barry’s age was not a personal characteristic which could be disregarded when evaluating his behaviour: “Childhood is not an idiosyncrasy.” Upholding this conclusion on appeal, Kitto J. argued that “In regard to the things which pertain to foresight and prudence – experience, understanding of causes and effects, balance of judgment, thoughtfulness – it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults.”

Applying this to the facts of the case he stated-
“It is, I think, a matter for judicial notice that the ordinary boy of twelve suffers from a feeling that a piece of wood and a sharp instrument have a special affinity. To expect a boy of that age to consider before throwing the spike whether the timber was hard or soft, to weight the chances of being able to make the spike stick in the post, and to foresee that it might glance off and hit the girl, would be, I think, to expect a degree of sense and circumspection which nature ordinarily withholds till life has become less rosy.”

This approach was accepted in England by the Court of Appeal in Mullin v. Richards. Although the facts were never finally settled, one view is that a plastic ruler broke while two fifteen-year-old girls were battling, and a shard from it pierced one girl’s eye. The injured girl sought damages for the other’s negligence. The Court of Appeal held that in asking the two relevant questions about foreseeability - Whether the defendant girl ought to have realised that her actions gave rise to a risk of injury, and whether the injury actually sustained was of a different kind from that which the defendant ought to have foreseen as the likely outcome of her lack of care. – The trial judge should have considered what ought to have been foreseen by an ordinarily prudent and reasonable fifteen-year-old schoolgirl. The test was objective to the extent that the defendant could not rely on being abnormally dim-witted, quick-tempered, absent-minded or inexperienced compared to ordinary children in her own age group, but the test was subjective to the extent that it took account of what could ordinarily be expected as to knowledge, understanding and experience from a child in that age group. A child’s age will cease to be relevant in setting an appropriate standard of care when the child reaches the “years of discretion”, but this status does not depend on reaching any fixed age.

Chapter II
Children and lack of Tortious capacity
Age limit versus individual maturity of children-

In English Legal system and in India-
In English Legal system there are no age groups under the law of torts to determine the tortious liability of children unlike in criminal law which gives the age limitation as to when a minor is responsible for the criminal act. The tortuous liability of an adult is determined by that of standard of ‘reasonable man’ but in case of children it is a tricky area.

Under criminal law in India, Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. It also provides that a child up to 12 is not capable of committing an offence. Thus for a minor there is a total immunity from criminal liability up to the age of 7 and from 7-12 it depends upon the capacity of understanding of child. From 12-18 year of age, the minor is liable for the criminal acts committed. The minors of 12-18 years of age are not exempted from criminal liability because the minors are considered to have sufficient maturity to determine consequence of their acts and fully aware of what they do. In England the minimum age of criminal liability is 10 years. The minors are divided in to mainly two categories from 10-13 as children and from 14-18 as young persons. But the law of torts provides no provision for minors.

A person is incapable of committing a tort if having disabilities. For this purpose the law recognizes two forms of disability, infancy and unsoundness of mind; our area of concern is infancy. Infancy simply means a person under the age of 18. In India the age of majority is 18 years, but if a guardian is appointed before that age by a court or a property is taken under superintendence by the court of wards, then the age of majority is 21 years. In India, The age of majority was reduced to 18 from 21 after the introduction of Indian Majority Act, 1875 and in England after the introduction of Family Law Reform Act, 1969.

A minor can sue and can be sued under the law of torts. Primarily minors do not enjoys any special protection in a suit filed against them for their tortuous acts but their age has to be taken in to consideration when any mental element such as intention, malice or negligence on their part is important for deciding their tortuous liability. In Tillander v. Gosselin, the defendant a child aged 3 dragged another child of same age for several feet and caused grievous injuries but as his intention and negligence on his part could not be proved because of his tender age, he was not held liable.

Ability of reason and Required standard of care-
Ability of reason-
The ability of a minor to differentiate between good or bad, right or wrong is the ability of reason. A minor of 3 years old who drags another of same age for several feet and causes grievous injuries could not be expected to have same ability of reason as a minor of age 17 years who drives a motor vehicle without license is expected to have. Thus in cases of minors who indulge in violent assault, libel, slander, trespass, fraud, etc. , taking the individual maturity and ability of reason into account, the minors could be as much liable as any adult for the tortious acts. This is because for the commission of these acts a minor must have had reached a sufficient level of maturity.

Required standard of care-
The standard of care applicable to children is that of an ordinarily prudent and reasonable child of the defendant’s age. This can be taken as a test to determine whether the injury caused to the plaintiff by the minor tortfeasor was foreseeable or not and also in determining what precautions the defendant could have reasonably been expected to take to prevent the risk of injury. In the case, Mullin v Richards, two fifteen-year-old schoolgirls were fighting with each other with plastic rulers. One of the rulers snapped as a result a piece of plastic entered one of the girl’s right eye, resulting in a permanent loss of sight from the eye. The girl brought proceedings for negligence against both the local education authority and her classmate. At first instance, the judge rejected the claim against the authority, as no breach of duty was proven, but found that both schoolgirls had been guilty of negligence of which the plaintiff’s injury was the foreseeable result. He made an award of damages against the defendant schoolgirl, subject to a deduction of 50% in respect of the plaintiff’s contributory negligence. Hutchison L.J observed that “the question for judge is not whether actions of the defendant were such as an ordinary prudent and reasonable adult in the defendants situation would have realized gave rise to risk of injury, it is w whether an ordinarily prudent and reasonable 15 year old schoolgirl in the defendant’s situation would have realized as much.” of her age. The Court of Appeal ruled that it was necessary to adapt the standard of care to reflect the fact that the defendant was a 15 year old schoolgirl, not an adult. Therefore in cases of contributory negligence same principle is applied, “the test is what degree of care for his own safety can an infant of a particular age reasonably be expected to take”

Tortious Liability of Minors in Cases Involving Contracts-
A minor is incompetent to contract and an agreement entered into with a minor is void. However if a minor is benefiting from a contract entered with him, the contract is valid and enforceable. The cases in which a minor commits a tortious act in connection to a contract made by him, if a suit is filed against him under tort, it would be merely a breach of contract and not a tort and an action brought against a minor under contract cannot be changed into an action of tort, in words of Lord Kenyon “If it were in the power of plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the law affords to the infants.”

In Jenning v. Rundall a minor hired a mare for a short ride and injured it by riding it too far, the plaintiff brought an action under contracts but it failed as the contract was not enforceable then the defendant was not able to bring an action under torts as it was held that, “A plaintiff cannot convert a action founded on a contract into a tort, so as to charge an infant defendant.” According to Lord Kenyon, “The law of England has very wisely protected infants against their liability in cases of contract; and the present case is a strong instance to show the wisdom of that law.” Even in Leslie (R) Ltd. v. Sheill a minor fraudulently pretended to be of age in order to obtain a loan of money but the lender could not sue under contract so the plaintiff sued the minor under torts for deceit. The English Court of the King’s Bench held that “Sheill could not be sued for deceit because that would make a minor indirectly liable for an unenforceable contract. The court could only order restitution if the lender could prove Sheill still possessed the actual notes and coins he had borrowed.” and the suit failed.

On the other hand in Ballet v. Mingay the defendant a minor hired a microphone and amplifier which he improperly parted with a friend and did not return it back to the plaintiff, the minor was held liable for not returning back the good. Even in Burnard v Haggis a minor hired a mare for a ride and was expressly told that it was not fit for leaping but it was subjected to a fence and in order to make it leap by the minor it fell on a sharp pointed stick projecting out of the ground near the fence and was so injured that it died. The minor was held liable as plaintiff had warned the defendant from leaping the mare and the act of leaping was outside the contract. Therefore if a minor does something outside contract then the minor can be held liable in tort.

Chapter III
Role of Parents and other supervising authority of children
Role of Parents:
Parents are often not strictly liable for unlawful acts committed by their children. However, the liability can be compatible with the general principle that directs the parent authorizes or ratifies the act of child, or when the parent is the employer of the child and the child commits a crime in connection with this work.Additionally, the head of a household is strictly liable for harm done by an animal of which a household member under the age of 16 is the owner or keeper. Outside these exceptional cases, parental liability can arise only on the basis of personal fault, that is, for breach of the parent’s duty to take reasonable care in the supervision of the child. In principle, the extent of supervision required of parents also depends on the child's age and mental capacity, and there may come a time when the parent is not obligated to supervise in person and you can reasonably count on the child, taking appropriate precautions himself or herself. Position of this principle can be understood in the case of North v Wood. In this case, father was not liable for injury done by his 17-year-old daughter’s dog, which he knew to be savage but allowed her to keep, as she was old enough to be regarded as its keeper.

In accordance with general tort law, the burden of proving a violation of parents duty of care to the victim (plaintiff). The duty to take reasonable care in the supervision of a child may be imposed not only on parents in the strict legal sense but also on those acting in loco parentis (instead of a parent), for example, school teachers or the child’s education authority. Anyone who assumes responsibility for looking after a child owes the same duty for as long as responsibility is assumed. Whether the parent’s duty arises by virtue of an assumption of responsibility on a specific occasion or by virtue of a blood tie, custody or some similar criterion has not been tested in English law.

As already noted, it has not yet been determined whether custody itself gives rise to a duty to supervise, or whether it is only an assumption of responsibility on a specific occasion that can have this effect, and it cannot be predicted with confidence how the courts will treat cases of injury caused by the children of unmarried, separated or divorced parents. It is thus not particularly relevant to consider the principles of family law on the basis of which custody is allocated.

In the absence of contrary agreement, the standard of care in English law remains the same, i.e. the standard of a reasonable person. What is required of the reasonable person of course varies according to the precise circumstances, including the intensity of the danger.

The parents and the child may be jointly liable as several tortfeasors responsible for the same damage. The claim against the parents is distinct from that against the child, and the failure of one does not prevent pursuit of the other. The claims may be brought separately, though it is more likely that they will be brought and heard together.

Role of other institutions:
The duty to supervise the child is owed by the person or persons assuming responsibility for doing so. It is quite possible that the duty could be owed by the child’s employer or by the owner of the children’s home, boarding school or other institution where the child is living. The duty might also be owed by staff members assigned with the supervision of the child.

It is clear that schools (or the public authorities which control them) have a duty to supervise their pupils, and may be liable both for accidents caused by the pupil’s youth and inexperience and for the pupil’s intentional wrongdoing. The school’s responsibility may normally be expected to extend for the duration of the school day, though it may last longer if (say) a very young child is not picked up from school on time.

The responsibility will also extend for the duration of any school trip which the pupil goes on. In one recent case, where the claim related to the bullying of one pupil by another, it was judicially accepted that a school may owe a duty of care even in respect of events that occur outside school, though the court emphasised that those occasions where liability would arise would be “few and far between”. We must remember that the right is a due diligence. It is not every accident on school grounds during school hours that give rise to a liability in damages and it is certainly not conclusive of fault that the accident happens in the presence of a teacher. Neither do pupils have to be supervised for every moment of the school day or put into metaphorical straight jackets. When a student causes an accident in a public school, the responsibility can be put the teacher must intervene (if you can set) and / or local education authority. Responsibility of the latter can be personal or vicarious (or both). It is difficult to imagine circumstances in which the central government could be responsible. When an accident happens in a private company school, the teacher will again be held responsible for any breach of its duty of care, and school (if you have legal personality) or their owners can be indirectly liable for damage caused by the teacher. The school or its owners can be personal liable for breach of its duty of care.

# Roderick Bagshaw, CHILDREN THROUGH TORT, at http://papers.ssrn.com/abstract=281624 (Oct. 02, 2010)
# (1799) 8 TR 335, 337 per Lord Kenyon CJ, “If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a Court of Justice.”
# Emerging Issues in Tort Law; p.64
# Canadian Tort Law
# J Salmond, The Law of Torts (London, Sweet and Maxwell, 6th ed. 1924), p 69, “A minor is in general liable for his torts in the same manner and to the same extent as an adult.”
# (1799) 8 TR 335, 337 per Lord Kenyon CJ, “If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a Court of Justice.”
# (1841) 1 QB 29 (seven);Gough v. NCB [1954] 1 QB 191 (six-and-a half); but Bramwell B suggested that a four-year-old could be liable in Mangan v. Atterton (1866) LR 1 Ex 239, 240
# [1959] 1 QB 426
# [1952] 1 All ER 925
# (1964) 111 CLR 384 (High Court of Australia: first instance); (1966) 115 CLR 199 (High Court of
# Australia: appeal).
# [1998] 1 WLR 1304.
# Duty of care
# S.83, Indian Penal Code
# S.82, Indian Penal Code
# Children and Young Persons Act 1933, sec. 50
# Winfield & Jolowicz p.1114
# S.3, The Indian Majority Act, 1875
# (1967) ACJ 306 (High Court of Ontario, Canada)
# Tillander v. Gosselin (1967) ACJ 306 (High Court of Ontario, Canada)
# Mullin v Richards [1998] 1 (WLR) 1304
# [1998] 1 WLR 1304.
# Delhi Transport Corporation v. Kumari Lalita, (1983) ACJ 253
# S. 11, Indian Contract Act, 1872
# Leslie (R) Ltd. v. Sheill (1914) 3 KB 607
# (1799) 8 TR 335
# Jenning v. Rundall (1799) 8 TR 335
# (1914) 3 KB 607
# (1943) KB 281
# (1863) 32 LJ (CP) 189
# Law Reform Commission (Ireland), 27–32.
# Animals Act 1971, sec. 2 (England)
# Newton v Edgerley [1959] 1 WLR 1031 (father’s failure to instruct son in use of gun when other children were around).
# North v Wood [1914] 1 King’s Bench (KB) 629
# Carmarthenshire County Council v Lewis [1955] AC 549
# Children in Tort Law: Children As Victims, Miquel Martín-Casals, pg 164
# Carmarthenshire County Council v Lewis [1955] AC 549 (driver injured after swerving to avoid a young child who had strayed from the playground of the defendant’s school)
# Barnes v Hampshire County Council [1969] 1 WLR 1563 (liability to the child). Older children may need less supervision at the end of the school-day, or none at all.
# Bradford-Smart v West Sussex County Council [2002] 1 FCR 425
# Ricketts v Erith Borough Council [1943] 2 All ER 629
# Wilson v The Governors of the Sacred Heart Roman Catholic School [1998] PIQR P145 (not necessary to have a duty teacher supervise students’ passage from school buildings to school gate after class)

The  author can be reached at: neelabhnluo@legalserviceindia.com

ISBN No: 978-81-928510-1-3
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