Jing Zhi Wong - Claims against Children

Wong on Civil Liability

Claims against Children; Minors; Parents

Work-in-progress, 7 February 2025 (last updated)

[A] Parent's Care and Control of Child

"Minority is not a defence as such in torts. The Tribunal is satisfied that children are responsible for the consequences of their own wrongful acts and are therefore capable of being sued[9] as long as they understand the seriousness of and consequences of their actions. A litigation guardian must be appointed as otherwise all steps taken in the action including judgment will be taken to be irregular and set aside.[10] [9] Gorely & Anor v Codd & Anor [1967] 1 WLR 19 [10] Surrey Insurance Co Ltd v Nagy [1968] SASR 437 at 439 54. The Tribunal has considered all of the evidence and is satisfied that, given the first respondent did not deny liability for the damage to the carpet and the white lounge (see [48]) and of the steps taken to obtain evidence of the cost of repairing the carpet damage (see [49] and [80]) that he understands both the seriousness of and the consequences of his actions. The Tribunal is also satisfied and finds that the first respondent’s actions were direct, voluntary and intentional. He should be liable for his actions. 55. In relation to the liability of the second respondent; at common law, parents are not vicariously liable for the actions or omissions of their children, whether intentional, reckless or negligent, unless there exists some other relationship between the parent and child such as employer and employee.[11] A parent may be responsible if his or her child acted on the parent’s behalf, or with the parent’s consent, or if the parent did not properly supervise or control the child and this led to the loss. Such personal liability requires proof of negligence in the parent. So far in Australia only the Northern Territory imposes statutory liability on parents for intentional damage of property by a child ordinarily resident with them and not in full time employment which is subject to a maximum limit of $5,000.[12] [11] Butterworths, Harold Luntz and Ors, Torts Cases and Commentary 7th ed at 7.7.30 [12] Law Reform (Miscellaneous Provisions) Act (NT) section 29A 56. In Smith v Leurs[13] the High Court of Australia considered whether or not the parents of a boy aged 13 years who injured another child with a shanghai were liable for the actions of their child. Starke J said: The question whether parents have exercised the care that reasonable and prudent parents would have exercised in the control of a child is one of fact having regard to all the circumstances of the case, and the answer to that question must vary with those circumstances. In the present case, the Supreme Court on appeal concluded that the parents had not been guilty of any breach of their duty in allowing the infant defendant to have possession of a "shanghai" and that conclusion appears to me reasonable and proper in the circumstances of this case. The opposite conclusion would exact from parents an obligation to control their children almost impossible of performance. Dixon J said: ... It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. ... The standard of care is that of the reasonably prudent man, and whether it has been fulfilled is to be judged according to all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected. [13] (1945) 70 CLR 256 57. The Tribunal has carefully considered all of the evidence before it. There was no evidence before the Tribunal that would enable the Tribunal to be satisfied that the first respondent was acting as the second respondent’s agent or with her authority at the time of this incident. Nor was there any evidence before the Tribunal that would enable the Tribunal to find on the balance of probabilities that she was negligent in not exercising proper control or supervision over the first respondent. 58. The Tribunal is not satisfied that the second respondent is liable for any of the damage claimed by the applicant. The application against the second respondent will be dismissed.": GC v OC & OJ [2016] ACAT 125, [53]-[58] <https://jade.io/article/782010>.

[B] Liability for Damage - Children

"Minority is not a defence as such in torts. The Tribunal is satisfied that children are responsible for the consequences of their own wrongful acts and are therefore capable of being sued[9] as long as they understand the seriousness of and consequences of their actions. A litigation guardian must be appointed as otherwise all steps taken in the action including judgment will be taken to be irregular and set aside.[10] [9] Gorely & Anor v Codd & Anor [1967] 1 WLR 19 [10] Surrey Insurance Co Ltd v Nagy [1968] SASR 437 at 439": GC v OC & OJ [2016] ACAT 125, [53].
Halbury's Laws of Australia, [415-90]: "In the case of a tort, which requires only an intentional act and not an intention to cause harm, a minor1 will be liable if he or she was capable of intending the act.2 In negligence, the standard of care expected of a minor is one which could be expected of a reasonable person of similar age, experience and intelligence.3 The minor’s capacity for contributory negligence will also be determined by the minor’s age and experience.4 If the tortious act is a breach of a contract upon which the minor could not be sued in contract law, then the minor may not be sued in tort.5 Notes 1 A ‘minor’ is a person who has not yet attained the age of 18 years: (ACT) Age of Majority Act 1974 s 5 (NT) Age of Majority Act 1974 s 4 (NSW) Minors (Property and Contracts) Act 1970 s 9 (QLD) Law Reform Act 1995 s 17 (SA) Age of Majority (Reduction) Act 1971 s 3 (TAS) Age of Majority Act 1973 s 3 (VIC) Age of Majority Act 1977 s 3 (WA) Age of Majority Act 1972 s 5. 2 Hart v A-G (Tas) (1959) 14 Tas R 1 Positive treatment indicated (minor will be liable so long as he or she is of sufficient age to have intended to carry out the act of trespass, even though, by reason of youth, he or she did not realise the wrongful nature of the act; 5 year old child who intended to slash playmate held liable even though seriousness of the act not appreciated by the child); Smith v Leurs (1945) 70 CLR 256 Positive treatment indicated; [1945] ALR 392; (1945) 19 ALJ 230. See also Tillander v Gosselin (1966) 60 DLR (2d) 18 (minor held too young to intend the act). 3 McHale v Watson (1964) 111 CLR 384 Positive treatment indicated at 386; [1965] ALR 788; (1964) 38 ALJR 267; BC6400440 per Windeyer J; Bullock v Miller (1987) 14 Tas R 129 Positive treatment indicated; 5 MVR 55; (1987) Aust Torts Reports ¶80-128; BC8700006, SC(TAS); Chan v Fong (1973) 5 SASR 1 Neutral treatment indicated at 5-6 per Walters J; H v Pennell (1987) 46 SASR 158 Positive treatment indicated at 177; (1987) Aust Torts Reports ¶80-112; BC8700303 per Olsson J, SC(SA), Full Court; Mullin v Richards [1998] 1 All ER 920 Citation information only at 924-5; [1998] 1 WLR 1304 per Hutchison LJ. 4 Bullock v Miller (1987) 14 Tas R 129 Positive treatment indicated; 5 MVR 55; (1987) Aust Torts Reports ¶80-128; BC8700006, SC(TAS); Charles v Zadow (1981) 28 SASR 492 Neutral treatment indicated. No rule of law would preclude a child of any particular age from being capable of negligence: Cotton v Cmr for Road Transport and Tramways (1942) 43 SR (NSW) 66 Positive treatment indicated; 60 WN (NSW) 42; Farrall v Stokes (1954) 54 SR (NSW) 294 Citation information only; 71 WN (NSW) 213; Griffiths v Doolan [1959] Qd R 304 Positive treatment indicated; Goode v Thompson (2001) Aust Torts Reports ¶81-617 Neutral treatment indicated; [2001] QSC 287; BC200104606 at [28]-[36] per Ambrose J, SC(QLD). Compare Cirjak v Todd (1977) 17 SASR 316 Positive treatment indicated at 317-18 per Bray CJ (child of 4 years and 11 months too young to be liable for contributory negligence); Beasley v Marshall (1977) 17 SASR 456 Positive treatment indicated. 5 Jennings v Rundall (1799) 8 Term Rep 335 Cautionary treatment indicated; 101 ER 1419; R Leslie Ltd v Sheill [1914] 3 KB 607 Cautionary treatment indicated; [1914-15] All ER Rep 511. This is not the case if the tortious action falls outside the contract: Burnard v Haggis (1863) 14 CBNS 45 Cautionary treatment indicated; 143 ER 360; Ballett v Mingay [1943] 1 KB 281 Positive treatment indicated; [1943] 1 All ER 143; (1943) 168 LT 34. See also Walley v Holt (1876) 35 LT 631. Note that the position has been modified by statute in New South Wales: (NSW) Minors (Property and Contracts) Act 1970 s 48.".
Halsbury's Laws of Australia, [110-2690]: "At common law minors, when old enough to appreciate the seriousness and consequences of their actions, are liable in tort.1 This is, however, subject to the qualification that a minor is not liable in tort where to hold the minor liable would amount to the indirect enforcement of an otherwise unenforceable contract.2 On the other hand, minors are not totally immune in that they will be liable if the wrongful act is independent of the contract in the sense of not being an act of the kind contemplated by the contract.3 Where a minor has induced another by fraud to enter into a contract, usually (though not necessarily) by a misrepresentation that the minor is of full age, fraud does not, whether by the operation of an estoppel or otherwise, render a minor liable on the contract.4 Further, the minor cannot be held liable for the tort of deceit,5 or on a failure to return goods purchased under a contract which is not binding on the minor.6 Notes 1 See, for example, Jennings v Rundall (1799) 8 Term Rep 335 Cautionary treatment indicated at 337; 101 ER 1419 at 1421; Bristow v Eastman (1794) 1 Esp 172 Positive treatment indicated; 170 ER 317; R v McDonald (1885) 15 QBD 323 Citation information only at 328; Re Henderson (1916) 12 Tas LR 40 Citation information only. See further tort [415-90]. 2 Thus, a minor who hires goods and damages them by negligent use may not be sued in tort, because to allow such an action would, it is said, in substance amount to holding the minor liable for the breach of contract: see Jennings v Rundall (1799) 8 Term Rep 335 Cautionary treatment indicated; 101 ER 1419. See also [110-2680], [110-2745]. 3 See, for example, Burnard v Haggis (1863) 14 CBNS 45 Cautionary treatment indicated; 143 ER 360 (minor who hired a horse and was expressly told that it was not fit for jumping was held liable in tort when the horse was injured in attempting to jump it over a fence because the act was not within the object and purpose of the hiring); Ballett v Mingay [1943] 1 KB 281 Positive treatment indicated; [1943] 1 All ER 143; (1943) 168 LT 34 (minor who hired a chattel held liable in detinue when he failed, because he had wrongfully disposed of it to a third party, to return it on the expiration of the hiring). See also Walley v Holt (1876) 35 LT 631. The same reasoning has been applied where it was sought to make a minor who had misappropriated money liable in restitution: see Bristow v Eastman (1794) 1 Esp 172 Positive treatment indicated; 170 ER 317; Re Seager; Seeley v Briggs (1889) 60 LT 665; Peters v Tuck (1915) 11 Tas LR 30 Neutral treatment indicated. See, however, R Leslie Ltd v Sheill [1914] 3 KB 607 Cautionary treatment indicated at 621; [1914-15] All ER Rep 511 per Kennedy LJ, CA. Compare [110-7360]-[110-7395]. Generally see restitution [370-2255]. 4 See, for example, Levene v Brougham (1909) 25 TLR 265 Citation information only; R Leslie Ltd v Sheill [1914] 3 KB 607 Cautionary treatment indicated; [1914-15] All ER Rep 511, CA; Watson v Campbell (No 2) [1920] VLR 347 Cautionary treatment indicated. 5 See, for example, Liverpool Adelphi Loan Assn v Fairhurst (1854) 9 Exch 422 Positive treatment indicated; 156 ER 180; R Leslie Ltd v Sheill [1914] 3 KB 607 Cautionary treatment indicated; [1914-15] All ER Rep 511, CA. See also [110-2680]. 6 See [110-2675].".
Halsbury's Laws of Australia, [110-2745]: "The rule protecting a minor from liability in tort where the cause of action in tort is in substance a cause of action in contract1 has been abolished in New South Wales.2 Notes 1 See [110-2690]. 2 See (NSW) Minors (Property and Contracts) Act 1970 s 48."