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reflecting on the standard of care owed by an injured child and their parent

14 August 2018

Where children are injured in accidents and pursue civil claims, it is often necessary to consider whether a degree of fault rests with the child for contributing to the accident and/or parents for failing to adequately supervise the child. The recent case of Caine Steven John Ellis v Paul Kelly & Violet Ellis (2018) reflected on these issues.

An eight year old child was hit by a car while he crossed the road near a pedestrian crossing. He was visiting a playground without adult supervision but accompanied by some older children. His mother had given him instructions about road safety and the children were going to a nearby park that they were familiar with. While they were out some of the children went from the playground to the skate park which was separated from the playground by a quiet road with a pedestrian crossing. The claimant had crossed the road once without incident but when he returned to the playground he was struck by the defendant’s vehicle.

The defendant admitted primary liability but alleged contributory negligence against the claimant and brought a contribution claim against the claimant’s mother. Both were dismissed at trial.

In terms of contributory negligence, the age, intelligence and experience of the child were relevant when considering the standard of care. It was found there had been momentary misjudgement by the claimant balanced against reckless conduct by the defendant and in those circumstances it would not be just and equitable to find contributory negligence.

In considering the claim for contribution against the claimant’s mother, a finding against a parent in a similar situation was not ruled out, the Judgment including comment that “natural sympathy for a parent of a child who had been catastrophically injured could not stand in the way of finding legal responsibility”. However it was found that to hold the claimant’s mother responsible in this case would impose too high a standard on an ordinary parent. A key consideration was ensuring an over-cautious approach to parenting was not encouraged, it being acknowledged that children should be afforded a degree of freedom to foster growth and independence.

The case highlights the challenges and sensitivities in alleging fault on the part of a child and parent in circumstances where the primary cause of an accident rests with a third party. The opportunity for defendants to do so remains, but there will need to be persuasive evidence that negligence attaches and we can see from this decision that the wider social implications can influence the outcome.

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