As a father myself, the idea of children being held liable hits home for me. We generally consider children to be innocent and incapable of the kinds of wrongdoing that we generally associate with adults. The law, however, does not have the luxury of turning a blind eye to this. Last month, the Court of Appeal dealt with the issue of the possible contributory negligence of a child who was injured while crossing the road. A link to this decision can be found here.

Just like adults, children can be found negligent in law. All people, adults and children alike, are held to a certain standard of care. In the case of children, the test is whether or not a child has exercised the care expected from children of similar age, intelligence and experience. If you take a moment to consider this, you can see how difficult an analysis this can be.

In the case before the Court of Appeal, the litigants agreed that the injured boy was old enough to be found contributorily negligent. However, they disagreed as to whether or not he was in fact contributorily negligent.

The Court of Appeal deferred to the trial judge’s findings that the boy was of average intelligence, had been taught to look both ways before crossing, did not remember to look before crossing, and knew better. At the same time, the trial judge concluded that the boy did not have experience crossing a busy four-lane highway unsupervised. The appellate court also deferred to this finding.

As parents, we sometimes get frustrated with our children for doing things that we feel “they should know better” than to do. I will readily admit that I am guilty of this with my own children from time to time.

Yet, the Court of Appeal reminds us that “children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which “they should know better”, are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context”.

It is important to keep in mind that the thought processes of children are and should be treated differently – not only in fact, but also in law. This is underscored by the fact that children are afforded special legal representation not available to adults, by way of the Office of the Children’s Lawyer. Bearing in mind their vulnerability, children should be treated with utmost care and concern by the law, and not just their parents.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.