Children and the Standard of Care: Can you Sue Children for Negligence?

While the law often concerns itself with compensating children who are injured as a result of negligence, it sometimes also has to grapple with whether a child can be held responsible for the injuries or loss suffered by others. When a child can be found liable for the injuries of another was front and centre in Perilli v Marlow, 2018 BCSC 495 (CanLII).

In that case the plaintiff, Mr. Perilli, had been jogging when he came upon the 10-year-old child defendant, Ms. Marlow, riding a bicycle on the left shoulder of a road next to her two friends, who were riding on a sidewalk. As the plaintiff attempted to go around Ms. Marlow, she maneuvered to the right and Mr. Perilli caught her tire and fell, sustaining various injuries including a shoulder injury that required surgical repair.

Mr. Perilli sued Ms. Marlow for various infractions of the Motor Vehicle Act and for negligent conduct including cycling without due care and attention, changing direction without signalling and cycling recklessly or carelessly. As discussed in my article, Cyclists: Enjoy the Ride in Safety, cyclists generally have the same rights and responsibilities as the driver of any other vehicle. Mr. Perilli also sued Ms. Marlow’s grandparents based on failing to properly instruct Ms. Marlow on the safe operation of a bicycle.

There was no dispute that Ms. Marlow owed a duty of care, but the limits of that duty and whether she acted reasonably in the circumstances was up for debate.

The court began its analysis by observing that a violation of a traffic law brings with it a heightened duty of care but does not establish negligence in and of itself. The court then went on to observe that the standard of care is not perfection, but that of an ordinarily prudent person. This standard is then further adjusted for children to the reasonable conduct of a child of a similar age, intelligence and experience. Children are assumed in fact and in law to have momentary lapses in judgment and awareness.

On the more technical arguments the court found that Ms. Marlow had not breached the statutory requirements to not be on a sidewalk, ride abreast or to signal when turning (she had adjusted her course, not turned), but the court did find she had breached the statutory requirement to ride as near as practicable to the right side of the road. The court later found that riding on the left side of the road had no impact on the accident (although that was also a breach of the Motor Vehicle Act).

The court observed that Ms. Marlow had noticed Mr. Perilli and had moved closer to the sidewalk to let him pass. She looked back twice, but Mr. Perilli did not take this opportunity to pass. When Mr. Perilli did not pass, Mr. Marlow returned her attention forward and returned to her original riding position a few seconds later. It was when she returned to her original position that Mr. Perilli caught her tire and suffered his injuries.

The court found that Ms. Marlow had reasonably observed Mr. Perilli and moved out of the way to allow him to pass. It was also reasonable for her to conclude on looking back again that he was not going to pass and to return to her original riding position. The court did not find this maneuver to be sudden or dangerous. The court rejected the notion that Ms. Marlow was required to continually check for Mr. Perilli, which would have put her and others at greater peril. Though her actions were not perfect, Ms. Marlow’s conduct met the standard of care imposed on her.

Had liability been found, it was conceivable that Ms. Marlow’s grandparents or parents could have been held responsible for her negligence or that there may have been some insurance policy that might have paid compensation for Mr. Perilli’s injuries. Although the Parental Liability Act can make parents responsible for damages or harm caused by their child up to $10,000, the act requires that the child intentionally takes, damages or destroys the property of another and, as such, would not apply to Perilli v Marlow.

Perilli v Marlow is illustrative of the standard of care applicable to children and that children can and are found liable for breaching that standard of care. The case is also illustrative that the law accounts for the age, experience and intelligence of a child and that the chance of a finding of liability against a child generally grows more remote as a child defendant is younger. Perilli v Marlow is a reminder that it is good practice for parents and caregivers to instill in their children a general sense of responsibility for their actions and awareness of the law in order to reduce the chances that a child is exposed to harm or that their conduct might result in any liability of the child or their parents or caregivers.

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