Friday, 8 September 2017

Can children be sued for damages for injuries? Part 2

While it is obviously proper for the parents to face legal action over their child's actions, subjecting a preschooler to the possibility of a judgment being entered against him or her should not be a legal option in any scenario. In English common law, (decisions made by judges) there is no such vicarious liability but parents, guardians or any supervising adult may be held liable if they owed to the child a  direct duty of care or gave the child the opportunity to cause damage.

Every child is a citizen of his country and is governed by the rules and regulations prevailing there. But a child has certain exceptions which makes him different from adults. His incapability to distinguish between right and wrong, lack of farsightedness, innocence and naughtiness makes a child different in the relationship of liability between himself and adults. Minors can be sued if they are old enough to form an intent to commit a particular tort or are sensible enough to recognize the dangerousness of the negligent act and recognize the necessary steps to  prevent the act of being done by them. 

They can sue just like adults but through their ‘next friends’ who are obviously their parents or guardians. Interestingly enough a child in the mother’s womb who suffered an injury due to an act by an outsider can also sue that person for his injury, of course after coming in the world. If he didn’t survive the injury before being born, that he obviously can’t sue.

It would appear that in some countries, there is no minimum age for the existence of tortuous liability. A minor, can be very well sued like an adult, if the action committed by him is in contrast with the reasonable action expected from the child of that age in a particular situation.

Now there is a conundrum. How do we compare his actions with one who is of the same age and expected to conduct himself in a proper manner? What is the standard that the court can use in making the comparison?

In Gorely v. Codd, a 1967 case heard in Canada, Justice Nield ruled that a boy of age more than 16 years was personally liable for shooting another person with an air rifle in the course of “larking about”. In the case of Tillander v. Gosselin, a 1966 case, the High Court of Ontario in Canada, established that a minor can be sued “if he is old enough to form an intention to do the necessary act”  

Where the intention is not the pre-requisite, the court in Mullin v. Richards established that a 15 year old school girl was not negligent when she injured a school friend while fencing with a plastic ruler. The court ruled that a minor is negligently liable if “he failed to show the amount of care reasonably to be expected from a child of that age.” I suppose in that particular case, both children were doing the same foolish thing and as such, each was acting foolishly.

I disagree with the Mullin/Richards decision. Suppose both of them were shooting rifles in each other’s direction and Richards accidentally kills Mullin. Am I to understand from the judge’s ruling that Richards couldn’t be civilly liable because that child didn’t form the intention to shoot and kill Mullens? If that was the law of the land, then a drunk driver couldn’t be held liable for the death of a pedestrian he accidentally kills because of his foolishness in being drunk while driving a motor vehicle because he didn’t form the intent to kill the pedestrian. It doesn’t make sense at all. In the Mullin/Richards, both of the children had to know how dangerous it was for them to fence with rulers, knowing that eye injuries may follow.

In McHale v Watson a Canadian case heard in 1966 after a 12 year old boy threw a metal dart at a post but the dart glanced off the post and hit a 9 year old girl in the eye. The boy was found not to be negligent because a boy of 12 years could not be expected to foresee that the dart might not stick into the post and could go off at a tangent and hit someone. If the boy had been seventeen years old, the court would probably have ruled differently.

Further, the boy's father was not found to be liable, even though he had provided the boy with the dart. The court found that the boy was old enough to handle a dart and could reasonably have been expected to do so safely; the eventual misuse of the dart was not reasonably foreseeable as far as both the child and his the father were concerned. This result would have been different if the child had been younger or if the father had provided the child with a gun.

The capacity of a child must be considered and decided in each case. Obviously, the closer a child is to adulthood, the more the standard of care will resemble that required of an adult. A child who engages in an adult activity such as driving a car or handling a gun may be expected to meet the standard of care applicable to an adult.

Parents can be held liable if they owe a direct duty of care towards their child while he perpetrates a tort. If a parent knows their child is prone to behave in a way which could endanger others, then the parent may have some degree of liability.

In my opinion, I feel that the father would have been held liable if he was present when his son threw the dart. Obviously, the injured child was too close to the post. The father of the boy would have to ask the other child to move far enough from the post before his child threw the dart.  If he didn’t do this, then he would be liable for the damages claimed for the injuries of the child hit by his son’s dart. 

It is obvious that if a child has not matured enough to fully comprehend what he is doing, he may exaggerate the facts and subsequently his statements may lack any credibility. So, in those cases where no major witness is available, a remedy must be formulated to avoid various complications in the legal procedures. The remedy is simple enough. The matter should not go to court.

If a child is sued, the action can be started in the usual way by serving the documents on the child, but the case is initially defended on the child's behalf by an adult (usually a parent) who is called a guardian ad litem or litigation guardian. This person defends the proceedings in the name of the child. A writ (a claim) can also be served on a child by serving it on one of the child's parents or his or her guardian.

If the child is under the age of twelve, he or she shouldn’t be sued for a wrongdoing however, the parents can be sued if it is established that the child was in need of supervision and didn’t get it at the time of the incident or if the child’s upbringing was so careless, the child acted in a mischievous manner.

For children over twelve years of age, I am convinced that such children (unless they are mentally incompetent) should be held liable for the wrongdoings they commit if damage, injuries or death ensues.

The foregoing was previously published in my blog years ago. I have included it in this current article so that you will have a better understanding as to what follows in this article. 

Recently, a Toronto mother has filed legal action against a school, its principal and the Catholic board, seeking a total of $600,000 plus costs, after her child suffered a broken arm when fellow students were roughhousing nearby on a playground.

Let me say that demanding $600,000 for a broken arm is justied. I will explain why later in this article. I can also presume that her lawyer chose that figure because if he wins the case, he will claim a percentage of the award between 15 and 30 percent for himself as his contingency fee.        

It was an icy day in March 2015 when two 10-year-olds at a Toronto Catholic school engaged in a pushing prank that went wrong. The shove sent a classmate falling to the ground, causing him to break his arm.

Two years later, the two children have been named by the school board’s insurer in a lawsuit arising from the incident, raising alarm about legal liability of students involved in schoolyard skirmishes. It is not unusual to wait two years before making a claim in Ontario because the law states that a claim must be made before the two-year period expires.

n June, 2017,  the Ontario School Boards’ Insurance Exchange, which provides coverage for schools that is acting for the Catholic board, filed a cross-claim against the two children, arguing the school, principal and board should not be held responsible and the children should be accountable for all damages because they broke the rules against roughhousing on school property.

Actually those two nasty ten-year old children were more than just roughhousing.  They were pulling a dangerous prank on the injured child when one of the nasty boys was on his hands and knees behind the injured boy and the other nasty child then pushed the injured boy backwards. The injured boy subsequently broke his upper arm in the fall.         

That kind of conduct in a public playground (a playground in a school is a public playground) is strictly forbidden because of the risk of injuries but these nasty children chose to ignore the risk that is inherent in that kind of behavior.   

The cross-claim argues the students were “negligent” and did not respect the school’s “hands off other students” policy.

Both children; a boy and a girl who were in Grade 5 at the time of the prank being done are currently Grade 8.

One of the children was interviewed by his family’s insurance adjustor this summer after notice that the school board’s insurer had filed a cross-claim for damages against both kids. He was asked to recall events from more than two years earlier. The other mother said her family does not have liability coverage.

Experts in insurance law say that although the action may seem shocking to many, naming minors in lawsuits is not uncommon and is usually aimed at triggering a parent’s insurance policy to cover the costs of a settlement.

The statement of claim in this case alleges that on that March day in 2015, the two kids had been going around the schoolyard pushing other children. When they approached the boy, he told them he didn’t want to be pushed, but they did it anyway. The fall broke his upper arm.

In an interview, the mother of one of the kids described it as “a game” among students in which one person crouches behind the victim, and another one pushes them, sending them falling backward. Both parents said their children had not intended to cause harm. When it became apparent the boy was hurt, the boy involved in the pushing helped take him to the school office, his mother said.

Suppose a driver who was racing with another stupid driver and loses control of his car and smashes into a pedestrian and he remains with the seriously injured pedestrian and the pedestrian becomes seriously disabled as a result of the needless accident, should the pedestrian still sue the driver for damages?  Of course.

The mother of the boy who played a part in that stupid prank was a stupid woman to refer the prank as a game. That is not unlike the mother of the driver claiming that her son was simply playing a game on the road.

The prankster’s parents were contacted by the police after the incident was reported, but no charges were laid.  The injured child left the school before the end of the year.

Two months after the incident, the parents of one of the pranksters received a series of lawyer’s letters indicating that their son would be held responsible for the victim’s injuries and suggesting that they advise their insurer.

The injured boy suffered “great pain” as a result of the broken arm, while his mother was forced to take time off work and pay for child care and medical expenses as a result of the injury, lawyer Jane Lo of Toronto firm Klaiman Edmonds wrote in one letter on behalf of her client.

“I have instructions to resolve this dispute in the amount of $5,000 in exchange for not naming (the boy) in the action,” Lo wrote in another letter, dated June 1, 2015. “My client will be willing to provide a release for that purpose.”

The family did not respond to that proposal or follow-up letters, including one in July that warned if they failed to do so “we may commence a lawsuit without notice to you.” When they heard nothing further, they figured the matter had “blown over.”

Asked about the letters, Lo told the Star her client “felt that there was liability on the part of the children and we wanted to see if there could be a quick resolution. Unfortunately they didn’t accept the offer and we had to continue on with the action.”

The parents of the boy who was also responsible for the injuries to the victim were extremely stupid for refusing to accept the offer. Now they are facing a $60o,00 claim for damages.

Back in the 1970s, I tripped on a wire in our home and put my right arm outward to prevent my head from hitting the floor of our living room. My upper arm was subsequently broken. I can’t describe the pain I endured. Even today, I feel the pain when I move my arm in certain positions. Several years ago, I was a passenger in a plane that crashed in the runway. The rear of the plane was on fire from the rear engine catching fire when it hit the runway. Everyone got out of the plane safely except me. I couldn’t unbuckle my seat belt because of my broken arm. Eventually, a stewardess ran back into the plane and rescued me.

The boy who was the victim of the stupid prank is going to suffer pain in his right arm for a very long time. In my opinion, the $60,000,00 claim is justified.

In June, 2017, the Ontario School Boards’ Insurance Exchange, which provides coverage for schools and is acting for the Catholic board, filed a cross-claim against the two children, arguing the school, principal and board should not be held responsible and the children should be accountable for all damages because they broke the rules about roughhousing. The cross-claim argues that the students were “negligent” and did not respect the school’s “hands off” policy. 

The parent’s statement of defence argues that the alleged injuries and damages outlined in the suit are “exaggerated, remote and not recoverable at law.” Good luck on the defence.

Last year, the insurance exchange collected details about more than 85,000 incidents involving injuries and in turn potential liability, according to the website. Incident reports are filed when students, volunteers, visitors or other non-employees are injured on school premises or while under school supervision. It would appear that schools are dangerous places to be in.

Insurance lawyers say while age 10 is unusually young for such a lawsuit, suing a minor is not unusual and cross-claims are a tactic to spread liability and costs among defendants.

In one case that named a 7-year-old who hit another student in the head in a Toronto schoolyard in 1998 dragged on for 15 years before the injured child was awarded more than $4 million in damages.

This kind of scenario really highlights the kinds of things that can happen in today’s society and that’s one of the reasons you should buy insurance to cover such a contingency.

Ontario school boards sell Student Accident Insurance, but it only covers injuries for the child who’s insured, not if they hurt someone else.

Standard policies for homeowners and tenants typically include liability coverage of $1 million to $2 million for policyholders, their kids and other household members.  Coverage includes the cost of hiring a lawyer, which can surpass the cost of a settlement or judgment, and can run into six figures “even if you’re in the right.

There is much to learn from this case. First, don’t ignore letters sent to you. Second make sure that you instruct your children to not pull pranks on other children that can injure them.

When I was ten years of age living in a small town, I and another boy stuffed a rag in the exhaust of a neighbor`s  car so that the exhaust smoke would back up into the inside of the car. A neighbor saw us do it and ordered us to remove the rag. He then told us that not only would smoke fill the inside of the car, but also dangerous and deadly fumes that could kill the driver or render him unconscious thereby causing him to smash into another car and cause the death of someone else in the other car. That was the last time I ever did a prank that could cause injuries or death. 

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