Child Safety Solicitors Dublin & Compensation Solicitors Dublin

Each year 10,000 children die needlessly in the European Union due to unintentional injuries. In 2005 104 children died in Ireland as a result of an accident. (European safety Alliance)

It is therefore necessary to look at how young people, particularly those injured in accidents are offered protection by the law and can recover damages for the injury caused to them.

A minor is usually described as a person who has not yet reached the age of majority. In Ireland the age of majority is 18. This means that until a plaintiff reaches 18 years of age the law puts in place certain safeguards to protect the interests of the minor. Examples of such additional protections can be found in criminal and contract law.

Under the 1908 Children's Act children under the age of seven were presumed not to have the means really to commit crime.

However the 2001 Children's Act altered the scope of juvenile justice by placing the age of criminal responsibly at 12 years of age.

As a result of public policy concerns the age of criminal responsibility has however been amended once more by the Criminal Justice Act 2006, which puts the age of criminal responsibility at 12 years of age except in cases regarding the serious indictable offences of murder, manslaughter, rape and sexual offences.

 

Children aged between ten and twelve can therefore be charged with these serious offences.

With regard to contract law, the general rule at common law is that a minor does not have the capacity to enter into a legally binding contract. There are two exceptions to this rule, contracts for necessaries and beneficial contracts of service will be held to be valid if they are in the best interests of the minor. Contracts for necessaries usually include contracts for food, clothing and lodging; however the courts have held that contracts for items regarding education and further training such as school books and training uniforms and vehicles for work are also enforceable.

Such items were held to be necessaries in the following cases

First Charter Financial Bank v Musclow ( 1974)

Soon v Wilson (1962)

Roberts v Gray

Beneficial contracts for services usually involve contracts for apprenticeships or contracts with agents or managers, and are only enforceable if they are to the advantage of and in the best interests of the minor. The issue of agents including penalty clauses in a minors contract was discussed by the Canadian courts in Toronto Marlborough Hockey Club v Tonelli (1979) where the court held that a clause stating that a young hockey player must pay over a percentage of his earnings to his Agent if he is signed as a professional player was not in the interests of the minor and therefore the contract was unenforceable.

The Age of Majority Act 1984 reduced from 21 years to 18 years the commencement of legal Adulthood in the Republic of Ireland.

With regard to civil liability, in general terms a minor is liable for his torts to the same extent as an adult, however in reality minors do not have any practical liability.

Minor children who have been injured or hurt as a result of the defendants negligence or breach of duty can sue through their parent or guardian who is known as their next friend. Any settlement or payment that is granted on behalf of a minor plaintiff is held in trust by the courts for the Plaintiff, until he or she reaches 18.

Minor plaintiffs can also apply directly to PIAB to have their claim assessed and to seek compensation. The main difference regarding the procedures used by PIAB when assessing claims by minors in contrast to clams by adults is that any settlement granted in favour of a minor must be first approved by a Judge. A Judge may disapprove of any settlement even if the minor parents and solicitor want to accept the settlement. Again all or most of the settlement money is lodged in the court until the child turns 18, the plaintiff can then apply directly to the court for the payment and any interest gained on it will also be awarded to him or her.

Contributory negligence is defined in Section 34(1) of the Civil Liability Act 1966 and provides that a defendants liability is reduced in proportion to the extent to which the Plaintiff contributed to the injury or loss by failing to exercise reasonable care for his or her own safety. Specific rules have been developed by the Irish courts to determine whether minor plaintiffs can be held to have contributed to their injury or loss by failing to exercise reasonable care for his or her safety.

In cases where a defendant claims that a child contributed negligently to an injury by his or her own behavior the trial judge will have regard to what is considered reasonable based on the facts of the particular case, and will look at the age of the child, the mental development of the child and other circumstances which may be relevant to the case.

This classic test for the contributory negligence of a child was laid down in Flemming v Kerry County Council.

In particular the trial Judge will look at the age of the child, however it is uncertain as to the minimum age to which a child can be held to be contributory negligent.

The Irish courts do however appear to hold that children from 9 years old and upwards are capable of contributory negligent. In the recent case of Hession v Hession(2005) the Court looked at both the age and mental capacity of a minor plaintiff in assessing whether she could be held contributory negligent. The girl was crushed against a wall, when trying to prevent her fathers car from moving after the hand-break had been left off. The Court held that while the girl had acted foolishly, it was an intuitive reaction and was not a deliberate exposure to risk. The court had specific regard to the fact that she was only 14 years of age and held that there was no contributory negligence.

With regard to the standard of care to be applied in cases of contributory negligence of children, the Irish courts favor a subjective approach. This can be illustrated by the case of Flemming v ESB where the Supreme Court upheld a finding of Contributory negligence against an 11 year old child. In this case the court had particular regard to the fact that the plaintiff had been warned numerous times by his parents not to go near the sub-station. Further the court held that there were prominent warning signs surrounding the station which the child was capable of reading and understanding.

This subjective test regarding the standard of care in assessing whether child are contributory negligent for their injuries is followed by the Canadian and American Courts. If a child is injured by a hazardous item whilst trespassing on the defendants land, the court will have regard to the doctrine of attractive nuisance. The doctrine of attractive nuisance relates to situations where a child is attracted or lured onto the defendants land and is subsequently injured by dangerous items on the land. The doctrine was first formulated into Irish law in the early 1900's as a result of a number of children being injured by turntables in railway stations. The Courts held that that such hazardous items were similar to an attractive trap for children and consequently the landowner had in effect invited the child onto the land and therefore owed the child a duty of care. The doctrine usually applies only to young children who are unlikely to appreciate the dangers and avoid them.

The doctrine holds that and owners owe a duty of care to trespassing children when the trespass by the child is foreseeable, the landowner knows or has reason to know of the danger is no reason to think the child, by reason of their age would not be able to protect themselves from the danger.

The doctrine of attractive nuisance has been affirmed into Irish law in a number of cases including Cooke v Midland Great Western Railway Company (1901) Swift v Westport Urban District Council (1945) Patrick Smith v Industrial Gases (IFS) (1950).

However in the recent case of Michael Ryan v Golden Lane Co-operative Mart Ltd (2007) the court held that the item which caused injury must be a dangerous item. The minor plaintiff was injured when a metal gate hit against him. The court held that here was no evidence that the gate was defective, but was simply a gate and therefore could not be held to be an allurement to a child.

In the United States of America a number of recent decisions have concerned whether residential swimming pools can be considered allurements to children. In the recent case of Bennett V Stanley 92 Ohio St.3d 35, 748 N.E.2d 41 (2001) the Ohio Supreme Court had to consider whether the child was owed a duty of care even though he was a trespasser. The court to consider whether the defendants who were the Plaintiffs neighbors were liable for the death of a mother who drowned whilst trying to save her child who fell into the defendants pool whilst trespassing. The Ohio Supreme Court adopted the attractive nuisance doctrine holding that a child who trespasses is treated differently than an adult trespasser. The court also held that the mother who died while attempting to rescue her child assumed the status of the child and so was also owed a duty of reasonable care.

International research, particularly in Canada, has shown that many injures were caused by incidents that were predicable and preventable. Recommendations issued by Safe Kids Canada are most useful

 *In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

(c) Brian Morton & Co. Solicitors. All rights Reserved.



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