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Civil Liability of Children

Children have legal liability under both criminal and civil law. In criminal law, children cannot be held liable until the age of ten.  Whether a child is liable in a civil matter will depend on the circumstances of the individual case. This article deals with the civil liability of children in tort law matters in Australia.

A person’s liability in a tort matter is generally assessed based on the standard of care that can be expected of them. In matters involving children, the older the child is, the more the standard of care required of them will correspond to that expected of an adult. If a child is engaging in an activity that requires the standard of care expected of an adult, the child will be expected to meet that same standard of care. Some examples include handling a gun or driving a vehicle.

The leading case that considers the civil liability of children is McHale v Watson (1964) 111 CLR 384.  In this case, it was found that a child who threw a metal dart that ended up permanently blinding another child was not liable for the injury.  The child who threw the dart was twelve years old at the time. It was found that as he could not have foreseen the injury that occurred due to his actions, he could not be liable for it.

Liability of parents for their children’s actions

Vicarious liability is when one party is held liable for the actions of another. For example, an employer may be held to be vicariously liable for the tort of its employee. Parents are not vicariously liable for the torts of their children.

However, if an injury arose due to inadequate supervision of a child, a parent could be held liable for this on the basis that they inadequately supervised the child. This liability is based on the principle that parents have a duty of care towards those likely to be affected by the acts of their children. If a parent is aware that their child tends to behave in a way that could be harmful to others, they must monitor their child’s behaviour more strictly and control them.

Bringing an action for a child or against a child in court

Where an action is brought on behalf of a child or against a child, some special processes and procedures need to be observed.  At law, a person under the age of eighteen cannot bring an action against another person without a litigation guardian.  The litigation guardian’s name is to appear on all the court documents.  It is also the litigation guardian’s responsibility to pay any court costs that may be ordered to be paid. Most often, it is the child’s parent who acts on their behalf. It should be noted that time limitations for civil actions begin when a child turns eighteen in most cases. However, in some cases, the time limit may be shorter for injuries relating to personal injuries.

If a child is a defendant in a civil proceeding, the action does not need to describe the child. Usually, the service of court documents is to be on the parents or guardians of the relevant child or the person who resides or cares for them. In some instances, if service is made to the child, a court may accept that service of documents as good service.  The defendant child will also need to have a litigation guardian.

Litigation guardians for plaintiff matters are not personally liable for costs unless they have engaged in some form of misconduct and are found guilty for that conduct.

Payments to children where civil claims are successful

Suppose a is claim brought on behalf of a child and the parties to that action wish to settle that claim out of court. In that case, the settlement must be approved by either the Public Trustee, Magistrates Court, District Court and Supreme Court (depending on which is the correct forum for the matter). This also applies in situations where a hearing has not commenced.

Proceedings in Tribunals

Tribunals, unlike courts, do not require children to have a litigation guardian.  If a child has capacity, they can instruct a lawyer to act on their behalf or represent themselves. If a child is too young to represent themselves, parents or guardians can bring actions on their behalf in most tribunals.  Tribunals can also allow for special processes to be followed while a child gives evidence.

Evidence given by children

Depending on their level of maturity and understanding, a child witness may or may not be able to take an oath in court. If a child is unable to understand the nature of an oath, the child may provide unsworn evidence after indicating that they understand the importance of telling the truth  Where a child is under twelve years of age expert evidence may need to be given about the intelligence of the child so that a court may determine whether such evidence should be admitted.

Depending on the circumstances of the case, a child may be able to give evidence in a different way to the other witnesses. For example, where the subject matter involves a crime that has been committed against a child, a child may be able to give evidence behind screens or as pre-recorded evidence. This is to ensure that the experience of providing evidence is not too traumatic for them. Children may also be able to have support workers with them while going through the process of giving evidence.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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