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Every child is a citizen of his country and is governed by the rules and regulations prevailing there. But a child has certain exceptions which makes him different from adults. His incapability to distinguish between right and wrong, lack of farsightedness, innocence and naughtiness makes a child outstanding in the stream of adults. Minors can be sued if they are old enough to form intent to commit a particular tort or are sensible enough to prevent from a negligent act done by them. They can sue just like adults but through their next friends who are obviously their parents. Interestingly enough a child in the mother’s womb who suffered an injury due to an outsider can also sue the guilty for his injury, of course after coming in the world. Talking about parents, they can be held liable if they owed direct duty of care towards their child while he perpetrated a tort.
Further, in India there is no existing enactment for the minor in context of torts. But we have a provision in criminal law that a child of less than 7 years cannot be held liable for crime. Now, if we have a provision in criminal law, why not pass an act which keeps torts and minor in mind, knowing the fact that children are more prone to civil wrongs instead of committing crimes. This article is an attempt to make the reader aware of the law of torts (civil wrongs) governing minor i.e. a person below the age of maturity and surface up the intricacies in the prevailing laws.
MinorIn India a person of 18 years or above becomes major, but, if a guardian is appointed before that age or a property is taken under superintendence by the court then the age of majority is raised to 21. Under common law, age of majority was reduced to 18 from 21 after the introduction of Family Law Reform Act, 1969.
1. Capacity to be sued
1.1 Age Factor
There is no minimum age for the existence of tortuous liability . A minor, can be very well sued like an adult, if the action committed by him is in contrast with the reasonable action expected from the child of that age in a particular situation.
In Gorely v. Codd  1 W.L.R. 19 , Nield J. held a boy of age more than 16 years for shooting the claimant with an air rifle in the course of “larking about”.
In the foregoing case of Tillander v. Gosselin (1966) 60 D.L.R. (2d) 18 the High Court of Ontario, Canada, established that a minor can be sued “if he is old enough to form an intention to do the necessary act” . Similarly in negligence, where intention is not the pre-requisite, the court in Mullin v. Richards established that a 15 year old school girl was not negligent when she injured a school friend while fencing with a plastic ruler. Therefore a minor is negligently liable if “he failed to show the amount of care reasonably to be expected from a child of that age”.
As per notion, a minor is not worth suing because of his incapability to reimburse damages. But, if the affluent society is considered and when we see that a “judgement debtor now without funds may acquire them (damages) later, and that he may be sued on the judgment, or execution may be issued on it, up to six years from its date, or even after that period with the leave of the court” , the notion appears untrue.
Contributory NegligenceWhen contributory negligence is alleged against any minor then “the test is, what degree of care for his own safety can an infant of the particular age reasonably be expected to take”.
The Pearson Committee (UK) in 1978 took the view that a child less than 13 should not be held contributory negligent. But, unusually in Armstrong v. Cottrell and Morales v. Eccleston court dealt with facts and children of less than 13 years of age were held liable. Explicitly, almost same standard of care i.e. ability to do an act according to the age is applied in contributory negligence.
Tort and ContractA minor is liable in tort as an adult but the tort must be independent of the contract. A minor’s agreement is void even if he fraudulently represents himself to be of full age as established in Sadik Ali Khan v. Jaikishore. Similarly, in R. Leslie Ltd v. Shiell  3 K.B. 607 at 620 a minor was immune to any contractual charges or reimbursement inspite of availing loan facilities by fraudulently projecting himself of full age. In the same case it was established that it is possible to compel a minor for specific restitution if he fraudulently acquired some property and is still in control and possession of that property.
Though, now, the common law court has discretion to order the transfer back of the property acquired even without fraud, if still in possession, under section 3(1) of the Minors’ Contracts Act 1987. In case of a bail, contract with minor is not necessary for restoration of the goods on the determination of the bailment.
Capacity to sueA minor must sue by his ‘litigation friend’ or the ‘next friend’ (usually father) for any wrong done to him. Apart from this, a minor is in no way different from an adult. An unemancipated minor may even sue his parent for negligence. In an American case a father was held liable for running his business vehicle over his son while the plaintiff was playing in the field.
en ventre sa mereIt is interesting to notice that a child who is born ‘alive’ can bring an action for the disability/injury suffered in his mother’s womb by some wrongful act of the tortfeasor. The Roman maxim ‘Nasciturus pro iam nato habetur’ though was held right by the English law earlier but the image remained blurred. Then, on the recommendation of the Law Commission the British Parliament passed ‘Congenital Disability (Civil Liability) Act’ (CDA) in 1976, whereby, an action for the injury to unborn child has been permitted in certain cases. This act was referred to by the Supreme Court of India in Union Carbide Corporation v. Union of India , in which it held that those children who congenitally suffered injury due to toxic effects of Bhopal Gas Tragedy are entitled to be compensated. This decision certainly surfaced the broader dimension of this English Act by treating whole of the corporation as a unit.
The nature of duty in these cases is derivative i.e. court should come to a decision after wary examination of the facts that whether a person is really liable. Different cases have different background and they should be dealt as per their facts. Few exceptions are answered by the Act but some are sill speculative. For instance, a child may sue manufacturer for damages if he suffered injury due to some drug intake by his mother even if it doesn’t affect the mother but contravenes the law under Consumer Protection Act. On the flip side child’s damages are reduced when the parents shared the responsibility for the child being born disabled. Further, a child can even sue his mother if he suffered pre-natal harm when his mother was pregnant and driving the motor vehicle negligently. It is not clear whether she should have knowledge of pregnancy. Otherwise general rule is that a mother is immune to such liabilities. But, immunity is not extended to father. He can be very well held liable if he assaults his pregnant wife and that act renders to unborn child, any harm.
Concept of ‘Wrongful life’ refers to a condition when a child’s disability is negligently not diagnosed pre-conceptually and he is born disabled. It is debatable whether defective or negligent selection of embryo or gamete in modern times would lead to the liability. It is distinguished from ‘Wrongful birth’ because in this parents claim for damages to themselves resulting from the child’s birth. Common Law does not permit any action for wrongful life as decided in McKay v. Essex Area Health Authority  Q.B. 1166, by the Court of Appeal.
Thus, in the light of above, doctrine of en ventre sa mere appears a justified tool of dispensing justice to the victim i.e. the child unborn. It is fair enough to compensate that child who was the most innocent party possible and suffered abnormality due to the wrongful act of the offender.
Issue arises that whether a child should be put to the test of age in his Capacity to sue?Take a hypothetical situation- A child of 8 is standing in his garden adjoining the main road. A passer-by finds that child cute enough to tease. He pretends picking up a stone and throwing it towards child. Due to apprehension child runs inside the home and tells his father about that person throwing stones in the garden. Father sues the guy for trespass and assault, believing his child. Even if the guy proves himself innocent, he would like to go for Malicious Prosecution due to the discomfort offered to him.
Another situation- Two children A and B, again less than 10 are playing with plastic gun in A’s home. A, who have only his companion B with him in home gets hurt on the arm with a plastic bullet. He starts crying sadistically and calls up his mother in the office dealing with important assignment and says that he has been shot on left arm. Being a mother she gets worried of her child and suffers a loss in the official assignment. Can B or his parents be sued for the loss suffered by A’s mother?
Therefore, it is noticeable that a child not matured enough may exaggerate the facts and his statements may lack credibility. So, in those cases where no major witness is available a remedy must be formulated to avoid various complications in the legal procedures.
Vicarious liability of adultsFrench law is strict on parents and they are often held liable for the tort committed by their children. Though, in English common law, there is no such vicarious liability but parents, guardians or any supervising adult may be held liable if they owed to the child direct duty of care or gave the child the opportunity to cause damage. Characterised by notions of responsibility, authority and control two duties of protecting children from the harm of third party and controlling them in order to prevent harm to third parties, lie upon the parents.
In Newton v. Edgerly  1 WLR 1031, father was held liable when he supplied his 12 year old son (who was young for his years) with a .410 rifle without proper instructions and an accident occurred. Similarly lack of supervision by the authorized body may render it vicariously liable. As apparent in Fowles v. Bedfordshire, in which a local authority was held negligent in allowing young people to do gymnastics at a youth centre without supervision. In contrasting cases like Goreley v. Codd and North v. Wood parents were not held liable because their children were found matured enough to carry out their duties.
It is also observed that when circumstances make a relationship of an employer and employee between parents and children and the tort is committed by the children in the course of employment, then, parents become vicariously liable. For instance, if a father who is a mechanic by profession asks his son (who works with him) to improve the functioning of breaks of a car, and instead of mending it, he damages the clutch wire negligently, then, father will be vicariously liable. Interestingly, Lord Reid in Carmarthenshire County Council v. Lewis compared an infant/minor with an animal. In his weird and wonderful judgment he held –
“Moreover, a person who brings his animal on to a road or street and then negligently fails to look after it there is not free from liability. Counsel for the appellants did not argue that this rather illogical distinction should be applied to children, and it would be strange if a person in charge of a child were under a different duty according to whether he let the child stray from his house or garden or took the child onto the road and then let it stray there”. Therefore, parents or adults have a duty (subject to conditions) to take care of the child (who is like an animal) under their supervision.
India- Torts and Minors: A rare comboThere is no case law in India on this point. Though, the court may refer to English cases and statutes whenever such a situation arises like it did in Bhopal Gas Tragedy case but there is no indigenous enactment which abstain us from peeping in the Common Law Acts as such. Although, Hindu jurisprudence recognises the property rights of the male child in the womb but absence of secular law on this factor has always been felt.
We have our own constitution and our own bodies to frame the laws/acts and execute them. Then, is it defensible to sit in a python posture and wait for some celestial power to bless us with the indigenous laws? No! Attempts should be made to frame the law appropriately keeping in mind under 18 population. Torts is a non statutory law. Its domain can not be restricted by writing it down on the paper because of its infinite scope. But, those laws which can aid the marginalized sector of the legal society such as minors must be framed and executed. Like the CDA,1976 framed by Englishmen, we can also come up with some new laws owing to the conditions of minors in India. Those laws may be on English lines. No objection to that! But, at least parliament should come up with some logical official slip to make our provisions complete.
Science and IQ of children are ever advancing. My cousin of 10 can effortlessly surf internet and chat with new people. He is well aware of the environment around him. He almost knows what is wrong and what is right. If I was a judge, and he shoots some one, like a 12 year old boy in Newton v. Edgerly did, then I would have certainly made him liable.
On the flip side developing country of India have children who commit tort out of their impecunious circumstances. Here, the psychological aspect comes into play which needs to be sorted out by the high thinking people of the Republic. Therefore, it implies that grounds in torts for minors require regular upgrading with changing times. In India due to variety, we need variance in laws subject to different conditions. But the pre-requisite of variance via exceptions and qualifications in law is the framing of an undefined (which has flexibility) law according to prevailing conditions.
Conclusively, we recognize various conditions in which a minor can be sued or can sue. As discussed, a minor should be treated on the grounds of reasonability out of his age. This forms the crux of the whole point. It is certainly better if the law is comparatively linient with the minors, because though in English law we have a condition that a minor can reimburse the damages in the later part of his life if he lacks assets to compensate at that time, but, in other common law countries and India there is no such enactment.
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