Liability For Negligent Act Of A Minor Under Australian Law

Liability of Minors for Wrongful Acts

The issue in this case is to ascertain whether Zoka Zola and Wayne have a remedy as to the negligence of Bilbo Junior, a 16 years old boy.

A minor is generally free from any charges pertaining to a tortious act committed out of sheer inexperience or tender age. However, the common law does hold minor responsible for wrongful or tortious acts where such wrongful act has caused a severe hurt, injury or damage to the plaintiff, personally or materially.

An act of negligence involves a duty of care and the breach of such duty. Under the law of tort, a child’s age is an important factor to determine the liability of the child as to the damage caused by the child. The age of the child determines the level of duty of care that can be expected from the child. Additionally, the intellect of the child is taken into consideration as well, for determining his duty of care and the damages that he or his parents would be liable to pay eventually. Children are usually kept out of liability of tortious negligence for they lack the ability to compensate the victim. However, as per the situation, the parents of the children are held liable to compensate the person who have experienced severe hurt or injury. In some cases, Insurance policies and household assets are taken into consideration by the court in order to award the victim the compensation that he deserve.

In the case of McHale v Watson [1966] HCA 13 it was held that a child must be of competent and appropriate age to take the responsibility of the tortious or wrongful act. Similarly, for holding a child responsible for intentional tort, the child must be at least 16 years of age, as per the Australian Law Reforms Commission (Alrc.gov.au 2018). According to the commission, it would be right to make a child liable for a tortious act below the appropriate age.

The principles of vicarious liability does not apply to a parent-child relationship, therefore a parent of a child cannot be made vicariously liable for the tortious act of the child. However, the parents can be made liable to pay the compensation for the child’s wrongful act if such act has resulted out of the failure of the parent to carry out their duty of care. The parents of a child has a duty of care towards their child. If a child commits a tortious act on account of his parents’ failure to carry out their duty of care, the parents would be held liable for such tortious act of the child.

Duty of Care and the Breach of Duty

The parents of a child are under the obligation to keep a watch on their child’s activity and in absence of such supervision, if the child commits a wrong, the parents would be held liable to compensate for failing to keep an eye on their child. Similarly, the parents of a child are supposed to keep a dangerous article keep out of their children’s reach as the access of such article would bring them or other people harm. Failure of do so make a person suffer severe hurt or financial injury and in that case the parents would be held liable to not restricting the child to get access of such dangerous article.

As per the Australian Law Reform Commission, the appropriate age of a child to be held liable for a tortious act should be the age of 16 or above.  Charging a child below the age of 16 for a tortious act would not be right (Alrc.gov.au 2018).

In this case, Bilbo Junior who was 16 years old went out for a joy ride on his parents’ car without letting them know, along with his best friend Wayne. Bilbo was an inexperience driver and therefore could not take control of the car as he was driving way above the speeding limit. Losing control over the car, he hit Zoka Zola when he was lying injured on the edge of the road. Here, Zoka Zola would not be held to be liable for contributory negligence as he was lying on a safe distance from the road, which was traceable from a distance. The collision severely injured Zoka who became quadriplegic. Bilbo’s friend Wayne suffered serious injuries in the accident as well.

In this case, Bilbo would be held liable for his negligent act which caused serious injuries to Zoka and Wayne as he is 16 years of age. Additionally, Bilbo’s parents would be held liable as well for the negligent act of their son as they failed to secure the car, which is a dangerous article to be operated by a 16-year-old inexperienced youth like Bilbo. His parents failed to carry out their duty of care towards their son which resulted to the accident.

Conclusion

Therefore, Bilbo’s parent would be held liable to pay damages to Zoka Zola and Wayne for their son’s negligent act. 

References

Alrc.gov.au. (2018). Exemption or defence for children and young persons | ALRC. [online] Available at: https://www.alrc.gov.au/publications/11-defences-and-exemptions/exemption-or-defence-children-and-young-persons [Accessed 9 Dec. 2018].

Parental Responsibility for Child’s Tortious Act

McHale v Watson [1966] HCA 13 

The issue in the case is to ascertain as to whether Kelly owes a duty of care to Mario and Nancy.

Negligent statement refers to the statement made by a person without knowing whether it is right or not. A person who has no idea about the truth behind such statement makes it. Believing such a statement, when a person acts on it and suffers injury, it is regarded as a negligent statement causing injury (Lando 2016). On the other hand, negligent misrepresentation refers the wrongful representation of a fact or a person, not know the authenticity of such fact or person, resulting to a severe injury or loss. A person is not lying directly in case of negligent misrepresentation, but has been convincing another person pertaining to fact or another person about which or whom he has no affirmative idea (Filip, Labelle and Rousseau 2015).  

When a person convince another to enter into a contract with a person about whose business abilities he has no idea about, is said to have negligently misrepresented. Had the person not convinced the other person to enter into the contract, which made him suffer a severe financial loss, the other person would not have entered into such contract.

Negligent misstatement and negligent misrepresentation are two sides of the same coin as one is the reason behind the other. Financial loss is effected when the plaintiff believes and depends on the negligent misstatement and misrepresentation of a person who had convinced the plaintiff to enter into the contract that eventually resulted to an injury to him.

In the landmark case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, Heller and Partners, a bank vouched for the credibility of Easipower to Hedley Byrne & Co Ltd who wanted the information about Easipower for granting credits to it. On receiving positive feedback from the bank, Hedley Byrne & Co Ltd granted credits to Easipower and suffered a severe loss. On usual course, the court awarded damages to the plaintiff.

In another landmark case, a person bought a product based on the advice of a vendor, which he even got the fact checked with an expert agent, which however, turned out to be false. The court held that the vendor would not be liable to compensate, as the person did not act solely upon the advice of the vendor.

In this case, Kelly convinced Mario and Nancy, as she has to know that they plan to invest in a business. Mario and Nancy did not know Ben and therefor had to rely on Kelly. Kelly convinced on Mario and Nancy that they would lose an opportunity if they do not invest on Ben’s flourishing business. Had Kelly not convinced Mario and Nancy to enter into the contract, which made them, suffer a severe financial loss, Mario and Nancy would not have entered into such contract. Financial loss is effected when Mario and Nancy believed and depended on the negligent misstatement and misrepresentation of Kelly who convinced Mario and Nancy to enter into the contract that eventually resulted to an injury to them.

Although Kelly told Mario and Nancy to use their sense of judgment for the agreement, yet her convincing words as to the ‘fantastic’ opportunity that Mario and Nancy would miss if they do not invest on Ben’s business is enough to establishment the fact that Kelly is liable for negligent misstatement and misrepresentation. If Kelly had not introduced herself to Mario and Nancy and convinced them about the investment, they would not have experienced the severe economic loss. When Kelly convinced Mario and Nancy to enter into a contract with Ben, about whose business abilities she had no idea about, Kelly is said to have negligently misrepresented. Therefore, this makes Kelly liable to compensate Mario and Nancy.

Conclusion

Therefore, to conclude, Kelly owes a duty of care to Mario and Nancy. 

References

Filip, A., Labelle, R. and Rousseau, S., 2015. Legal regime and financial reporting quality. Contemporary Accounting Research, 32(1), pp.280-307.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Lando, H., 2016. Optimal rules of negligent misrepresentation in insurance contract law. International Review of Law and Economics, 46, pp.70-77.