Children’s Liability in Negligence
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Marta Pantaleón Díaz
Abstract
This article enquires as to the principles that should govern children’s liability in the tort of negligence in England and Wales and its functional equivalents in other European legal systems. Infants are currently exempted from liability in negligence in virtually every European jurisdiction. In most of them, this result is achieved by making basic moral responsibility a requirement for liability under this tort, while in others it is brought about by tailoring to the defendant’s age the standard against which her conduct is measured. I argue that, whereas neither of these approaches is entirely consistent with the internal logic of the tort of negligence, their common practical outcome is grounded in the combined force of two main policy reasons: children’s general impecuniosity and their inherent inability rationally to manage their own affairs. It is my contention that these reasons can be honoured, while at the same time preserving doctrinal and theoretical integrity, by recognising a (defeasible) infancy defence to liability in negligence.
Endnote
An earlier draft of this article was presented as a dissertation for my Magister Juris degree at the University of Oxford. I am very grateful to the examiners, to my dissertation tutor, Professor James Goudkamp, and to my Tort tutor, Professor Donal Nolan, for their very useful comments on the thesis. I would also like to thank them, and all of my other Oxford teachers, for all their guidance and advice throughout the year. I am also very grateful to Professor Miquel Martín-Casals for his help throughout the publication process, and to Professor Ken Oliphant and the JETL’s anonymous reviewer for their constructive comments on the draft. The usual caveat applies.
© 2018 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Frontmatter
- Articles
- What Do We Mean By EU Tort Law?
- Children’s Liability in Negligence
- Illegal Earnings
- Extending the Frontiers of Tort Law: Liability for Ecological Harm in the French Civil Code
- Case Commentary
- The Recognition of Punitive Damages in Italy: A commentary on Cass Sez Un 5 July 2017, 16601, AXO Sport, SpA v NOSA Inc
- Review Article
- Understanding Tort Law by the Kantian Moral Principle of Human Freedom
Articles in the same Issue
- Frontmatter
- Frontmatter
- Articles
- What Do We Mean By EU Tort Law?
- Children’s Liability in Negligence
- Illegal Earnings
- Extending the Frontiers of Tort Law: Liability for Ecological Harm in the French Civil Code
- Case Commentary
- The Recognition of Punitive Damages in Italy: A commentary on Cass Sez Un 5 July 2017, 16601, AXO Sport, SpA v NOSA Inc
- Review Article
- Understanding Tort Law by the Kantian Moral Principle of Human Freedom
