In many jurisdictions, compensation awarded to child victims can be reduced by courts on the ground that the child has been contributorily negligent.
Different jurisdictions adopt different approaches in determining whether, and to what extent, a child can be held responsible for failing to take care for their own safety. It has been observed in a number of countries that national courts consider various factors in such cases, including the child’s age, intelligence and experience.[1]
Some countries have no minimum age threshold in place below which children are immune from being found contributorily negligent.[2] Other countries have adopted age-based rules restricting whether and when children can be found contributorily negligent.[3] These sorts of rules often apply in the case of young children recognised as incapable of taking care of themselves. However, many age-based rules predate contemporary knowledge about childhood and child development.[4]
Decisions about childhood contributory negligence also engage children’s rights. Almost all countries in the world have ratified the United Nations Convention on the Rights of the Child.[5] This Convention provides that ‘[t]he child, by reason of… physical and mental immaturity, needs special safeguards and care, including appropriate legal protection’.[6] The Convention also recognises the evolving capacities of children, and their ability to act in ways that influence their own lives and the lives of others.[7]
Accordingly, the International Project on Childhood Contributory negligence seeks to develop and share knowledge about (i) this area of law and (ii) the relationship between law and other disciplines regarding paradigms of childhood understanding, capacity and responsibility. In particular, this Project seeks to promote deeper consideration of when, why and how findings of childhood contributory negligence are made by courts and to evaluate the contemporary rationale(s) for such findings.
[1] See, e.g., America (Restatement (Second) of the Law of Torts (1965) s 464(2)); Australia (Goldsmith by her tutor and Guardian v Bisset (No 3) [2015] NSWSC 634, para 133, citing McHale v Watson [1966] HCA 13); Canada (Wade v N.C.R [1978] 1 SCR 1064, at 1076); England (Contributory Negligence, 2nd ed, Goudkamp J, Nolan D, 2023, Oxford: OUP, at 3.10); Scotland (Scottish Law Commission, Legal Capacity and Responsibility of Pupils and Minors, Report No. 110, 1987, at 5.1).
[2] England and Scotland, e.g., fall into this category and children as young as age 5 (Scotland: Mckinnell v. White 1971 SLT (Notes) 61) and age 7 (England: N (a child) v Newham LBC [2007] CLY 2931) have been found capable of contributory negligence. See also Scottish Law Commission Legal Capacity and Responsibility of Pupils and Minors and Contributory Negligence, 2nd ed, Goudkamp & Nolan, ibid.
[3] See, e.g., South Africa (Zitzke, E., “Transforming Age-related Capacity for Fault in Delict”, South African Law Journal 2021 (138), 367–396) and the variation across American States on what is sometimes termed the ‘rule of sevens’ (Perrochet, L. and Colella, U., “What a Difference a Day Makes: Age Presumptions, Child Psychology, and the Standard of Care Required of Children”, Pacific Law Journal 1993 (24) 1323, 1336–37).
[4] See discussion in Zitzke ibid and in Barnes Macfarlane, L-A., “Children’s Rights and Childhood Negligence Proceedings: the Inevitable Questions”, The International Journal of Children’s Rights 2024 32(3), pp. 533-559. See also, e.g., Wann, J.P., Poulter, D.R., Purcell, C., “Reduced Sensitivity to Visual Looming Inflates the Risk Posed by Speeding Vehicles When Children Try to Cross the Road”, Psychological Science 2011 (22(4)), 429–434.
[5] United Nations Convention on the Rights of the Child 1577 UNTS 3, 20 Nov 1989, entered into force Sept 1990. To ‘ratify’ an international treaty, such as this Convention, means to agree to be bound by that treaty and to implement its terms in national laws and policies.
[6] Convention Preamble. See also Lansdown, G., The Evolving Capacities of the Child (Florence: UNICEF Innocenti, 2005).
[7] Tobin, J. and Varadan, S., “Article 5: The Right to Parental Direction and Guidance Consistent with a Child’s Evolving Capacities” in J. Tobin (ed.), The UN Convention on the Rights of the Child: A Commentary (Oxford: OUP, 2019). See also Barnes Macfarlane, L-A., “Rethinking childhood contributory negligence: ‘blame’, ‘fault’ – but what about children’s rights?”, Juridical Review 2018 (2), 75-97; Varadan, S., “The Principle of Evolving Capacities under the UN Convention on the Rights of the Child”, The International Journal of Children’s Rights 2019 (27), 306–338, and Daly, A., “Assessing Children’s Capacity: Reconceptualising our Understanding through the UN Convention on the Rights of the Child”, The International Journal of Children’s Rights 2020 28(3), 471–499.
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