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Children and negligence

Please note that new Uniform Civil Court Rules 2020 commenced on 18 May 2020 for most civil legal proceedings in the Magistrates, District and Supreme Courts of South Australia. The new Rules govern the procedure for personal injury claims, including negligence.

A child is generally responsible (liable) for the consequences of his or her wrongful acts. However, the degree of reasonable care required of a child depends on the age of the child and the standard of care normally expected of a child of that age.

To some extent the rules applying to children are different from those for adults who commit wrongful acts, especially where a person's state of mind is an essential consideration. A young child may be aware of what he or she is doing, and even know that the action is wrong, but still be incapable of foreseeing its consequences and will therefore not have acted negligently.

For example, in McHale v Watson (1966) 115 CLR 199, a 12 year old boy threw a metal dart at a post but the dart glanced off the post and hit a nine 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.

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.

Parental liability

Normally parents are not liable for wrongs committed by their children. However, they may be liable for a wrong committed if:

  • the child was acting as their agent;
  • the child was acting with the parent's authority; or
  • where it is found that a parent has not exercised proper control or supervision over the child.

For example, in McHale v Watson (described above), the boy's father was not found to be liable, even though he had provided the boy with the dart. The court found that it was not negligent to allow a boy of 12 to have the item in question (i.e. a dart) and that the eventual misuse of the dart was not reasonably foreseeable as far as the father was concerned. This result would have been different if the child had been younger or if the father had provided the child with a gun. 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.

Children and negligence  :  Last Revised: Thu Jun 4th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.