chapter  14
Children
Pages 10

Generally speaking, the case-law has evolved over the past two centuries to the point that a negligent defendant may no longer hide behind the conduct of children.1 Intervening conduct by a third party not responsible, or at least not fully responsible, for his or her own actions will be much less likely to constitute a novus actus interveniens.2 Thus, an act of a child is much less likely than an act of an adult to sever the causal chain, even though the child may have been acting deliberately at the time.3 In considering an attempt to draw a distinction between loss caused to the plaintiff by failure to control an adult of full capacity and loss caused by failure to control a child, Lord Reid has observed, ‘[a]s regards causation, no doubt it is easier to infer novus actus interveniens in the case of an adult…’4

A young child’s inherent inability to recognise and appreciate risks is central to a consideration of whether his or her conduct should relieve the defendant of liability. A child’s innocence and lack of experience may result in his or her perceiving as attractive or alluring a situation which an older person would rightly regard as a situation of danger. The case authorities are replete with judicial observations to this effect. For example, Lord Sumner has observed:

Children acting in the wantonness of infancy…may be and often are only links in the chain of causation extending from such initial negligence to the subsequent injury. No doubt each intervener is a causa sine qua non but unless the intervention is a fresh, independent cause, the person guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such interventions and to have foreseen that if they occurred, the result would be that his negligence would lead to mischief.5