| From: | Paul Stanley QC <PStanley@essexcourt.net> |
| To: | Phillip Morgan <phillip.morgan@york.ac.uk> |
| Hedley, Steve <S.Hedley@ucc.ie> | |
| CC: | obligations@uwo.ca |
| Date: | 13/03/2018 13:57:45 UTC |
| Subject: | RE: Mother as defendant |
I am apparently in a minority of one, but I can't really see what's wrong with Whipple J's judgment.
We have two questions, no: is there a duty of care? And was it breached?
No question (surely!) that a person owed a duty of care to 9 year old children he or she is watching/looking after. When SSR's parents dropped him off, they might easily have said "Look after little SSR", and no doubt J's mother would have said, "Of course I will."
At that point, we're done with the law. We've had to keep saying till we are blue in the face that a duty of care is a duty of care, not a duty "to do this, that, or the other particular thing ..."
There are findings of fact that (i) J was the kind of kid who needed to be kept under control, (ii) Mum knew that, (iii) if he'd been given a simple instruction not to put the golf-club over his head he would have obeyed it, and (iv) if he'd been told off the /first time/ he did it, he wouldn't have done it again.
The case against the operator of the amusement (which is, no doubt, insurance-backed, but then they get money for the service they provide) was that /they/ should have given clear instructions to young children. How could one consistently maintain that perfectly sensible conclusion and not regard Mum's failure to give instructions, either at the start of the game or at the first sign of trouble, as reasonable. What reasonable parent, when handing a golf club to a boisterous child, wouldn't give some sort of instruction. And in fact Mum had -- just not the ones that were needed.
Now we may all have our doubts about the factual findings. We may some of us, reading between the lines, suspect that the first instance judge and Whipple J had the impression that perhaps Mum, somewhere unspecified on the "perimeter" of the attraction and oblivious to the first swing, might not have been watching sufficiently, and that this may have coloured their view. We may, some of us, doubt whether one can be satisfied, even on a balance of probabilities, that a boisterous birthday boy would have taken any notice if he had been told not to raise the putter over his head. But there was a clear finding to that effect. But we didn't hear the evidence, and this /really is/ a classic issue of fact. What we can say, with some certainty, is that it was very odd for the first instance judge to regard the amusement operator as negligent for not doing essentially the very thing that it was apparently reasonable for Mum, who knew better than anyone about little J's temperament, not to do.
I'm more puzzled about why the case was brought against Mum, because it's not the kind of situation where one would expect there to be insurance. But that's not obvious from the report, and whatever one might think about the etiquette of suing a parent in
these circumstances, it's legally irrelevant.
Paul
It’s a shame that the current case does not discuss any of the key cases on parental liability, since it appears to represent a relaxation of the standard of care. For an excellent discussion of parental liability in tort law, I’d recommend Chapter 7 of Paula Giliker’s, Vicarious Liability in Tort, (which also contains a very interesting comparative account).
The approach in this case is likely to lead to uninsured losses, (and not only where it is the negligent parent's partner who is the sole freehold owner, or leaseholder). It would be somewhat odd if there would be a claim in negligence when the injured child is the friend of the crazy golf playing child, but not when the injured child is their younger sibling. However, home insurance policies typically cover liability arising from occupation of your home, or your private pursuits; but they often exclude bodily injury to any member of your family, or any person who lives in your home.
It would be interesting to see if insurers change the standard wording here.
Phillip
>I think it fairly obvious that these cases are brought simply
>to reach the insurance. That, however, ought not to be a bar
>to such claims in principle ...
... which is fortunate, given that (as we all know) *most* personal injury claims are brought 'simply to reach the insurance', and most of the remainder are brought ‘simply’ to reach the deep pockets of some other major corporate body (whether public or private). Negligence would be a very unimportant tort indeed, if in practice the only recourse it gave was against the individual actually responsible for the damage.
Steve Hedley
-----Original Message-----
From: Gerard Sadlier [mailto:gerard.sadlier@gmail.com ]
Sent: Tuesday 13 March 2018 02:09
To: Claire McIvor (Birmingham Law School) <C.McIvor@bham.ac.uk>
Cc: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca
Subject: Re: Mother as defendant
I think it fairly obvious that these cases are brought simply to reach the insurance. That, however, ought not to be a bar to such claims in principle. The ordinary rules of liability/duty should apply in the familial context as in any other and islands where there is "no duty" ought not to be carved out simply because one person is the parent or sibling of another - if that is to be relevant, very cogent reasons would be required.
Indeed, claims by children against a parent following a road accident are good examples of cases in which such claims are relatively common, are pursued to get at the insurance and (to the extent the damages lotary that makes up the common law system for the compensation of personal injuries is justifiable at all) are clearly justified.
In an Irish context, the obvious example of such a case succeeding is the old and perhaps dubious decision of the majority of a three judge Supreme Court in Moynihan v Moynihan [1976], a decision described (from memory) as absurd by the HCA in Scott v Davis but which I at least think was well reasoned and right, on the facts apparently found by the jury.
Kind regards
Ger
On 3/12/18, Claire McIvor (Birmingham Law School) <C.McIvor@bham.ac.uk> wrote:
> An obvious analogy would be Perry v Harris - the Court of Appeal
> intervened at lightening speed and overruled the decision on breach grounds.
> Traditionally the courts are opposed to the whole idea of parental
> liability.
>
> On the insurance point made by Andrew, might it be the case that the
> public liability element contain in most home insurance could be
> triggered? Dunnage v Randall comes to mind.
>
> Claire
>
> Sent from my iPhone
>
> On 12 Mar 2018, at 13:00, Andrew Tettenborn
> <a.m.tettenborn@swansea.ac.uk<
mailto:a.m.tettenborn@swansea. >> wrote:ac.uk >
>
> Some of the most interesting tort cases are at bottom factual
> determinations, but none the less important for that. Does anyone
> share my misgivings at Whipple J's determination today on appeal that
> a parent who holds a child's birthday party at a crazy golf course
> should find herself personally liable to a child hit in the eye by a
> golf club because she didn't specifically instruct her child not to
> swing? Seems to me that it adds new terrors to parenthood, especially uninsured parenthood.
>
> See The Bosworth Water Trust v SSR & Ors [2018] EWHC 444
> (QB)<http://www.bailii.org/ew/
cases/EWHC/QB/2018/444.html >>
> Andrew
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