1. Children as plaintiffs
A child can sue in negligence through his next friend in the same way as any other plaintiff, but the court takes the child’s age and maturity into account in assessing issues such as contributory negligence and the level of care required from the defendant.
Pre-natal injury and liability at birth
Before birth, the foetus lacks capacity to sue and no duty is owed to it. However, after birth, the child may sue for injury suffered before birth. Under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23), a child born with a congenital disability caused by an injury suffered before birth can bring a tort claim in their own right. For legal purposes, the injury is treated as having occurred immediately after the child is born. However, a child has no action against his mother for injuries caused while the child was in the womb.
Duty of care owed to children
Because children are less capable of recognizing danger, the law imposes a stricter duty on those who deal with them or whose property they visit.
Occupiers must be prepared for child visitors to be less careful than adults. They have a duty to protect children from “allurements”, which are objects or conditions that may tempt a child into danger, such as poisonous berries or an abandoned, rotting boat.
Anyone putting a dangerous article (like petrol or a weapon) into a child’s hands is under a duty to ensure the child does not injure himself or others. For instance, a vendor was held liable for selling petrol to a nine-year-old who later set himself on fire.
Contributory negligence
When a child is the injured party, the court may reduce his compensation if he is found to be “contributorily negligent”, meaning he failed to take reasonable care for his own safety.
A child can be found contributorily negligent, but he is only guilty of contributory negligence if he has reached a level of maturity where he can be reasonably expected to appreciate the danger and take precautions for his own safety.
The child will not be judged by the adult “reasonable person” standard. The question is whether the child showed the care reasonably expected from a child of similar age, intelligence, and experience in the same situation, and any reduction in damages must be “just and equitable” under section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23).
Generally, a very young child cannot be guilty of contributory negligence. In Hong Kong, while a six-year-old has been held contributorily negligent in some instances, the circumstances for imposing such liability on a child of tender years must be “clear cut and powerfully convincing”.
The contributory negligence of an accompanying adult is not imputed to the child. However, a child suing for congenital disabilities under the Law Amendment and Reform (Consolidation) Ordinance is identified with the contributory negligence of the parent. In other words, if a parent shared responsibility for the child being born disabled, damages are reduced to an extent the court thinks is just and equitable.
