HERGOTT: Children held accountable for injuries

Lawyer Paul Hergott discusses liability insurance in his latest column

A child, whose own carelessness contributes to their injury, can indeed be held accountable.

This is the third in a series of columns reviewing legal duties when a child, darting out from behind a parked car on a residential street, is struck by a car. The series is based on the legal decision of Bourne (Guardian ad litem of) v. Anderson, 1997 CarswellBC 667.

My first column, just before Halloween, reviewed the duties of a motorist who becomes aware of children present on a residential street. Their duty is to take special precautions such as immediately slowing down and keeping a sharp lookout so that if a yet unseen child darts out, a collision can be avoided.

I then reviewed the duties of parents. They are not held to the standard of producing perfectly obedient little soldiers, nor to keep their children on a leash. But there is a “parental duty of care” to reasonably teach our children about road safety and to monitor their behaviour to ensure those lessons are sticking. If they fail in that duty, a parent can be held partly accountable.

That leaves the child who darted out.

An adult who darts out in traffic will have no entitlement to compensation unless the motorist hitting them is also negligent, and in that case there is an assessment of their respective percentages of fault. The injured pedestrian’s compensation is limited to the percentage fault of the motorist.

Children are handled differently. Duties of care are always about what’s reasonable. It would not be reasonable to hold a six or seven year old child to the same standard of care as that of an adult.

The court first considers the standard of care expected of a child of similar age, intelligence and experience. And then compares the victim’s behaviour against that standard.

The judge in the Bourne case noted that the question is not an easy one. He explained the puzzle as follows: “What causes me much concern is the well-known fact that generally speaking young children are forgetful and easily distracted, and often the need to take care for their own safety, and safety lessons drilled into them, fail them or are forgotten when crossing or attempting to cross a street. And this is particularly so if they are involved in some sort of a game with an older child or children; for example, a child chasing a ball, or another child, onto a street. Given the propensities of young children, I find it difficult to postulate the care to be expected from the reasonable child in such circumstances.”

The judge found that seven year old had been capable in law of being contributorily negligent because of his age and road safety training. But he was unable to say that the child’s conduct in the circumstances of getting caught up in a game of hide and seek with his older (nine years old) friend who had safely crossed the street immediately ahead of him was any different from what might have been expected.

The end result was that the child was entitled to full, fair compensation for his injuries and losses.

Please very carefully guard against getting to the point of your liability insurance company pointing fingers at a child or their parents to avoid having to fully compensate a child for their injuries and losses. How? Jack up your level of care and awareness behind the wheel and keep in mind how forgetful and easily distracted children are.

Missed a column?

Hergott: Who is responsible when a child gets hurt in the street?

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Influx of tourists helping to nurse Penticton’s economy back to health

The city has seen visitors multiply tenfold in recent weeks

Two vehicle crash on Highway 97 in Penticton

The crash happened before 3:30 p.m. in front of the Lakeside Inn and Suites

Pooch abandoned at Penticton doggy daycare suffered from oral disease

A fundraiser for Okie held by the BC SPCA surpassed its goal of $1,700

Keremeos Volunteer Fire Department receives $25k grant

Money used on a truck with low volume, high pressure water pump to fight wildfires

Ryga Arts Festival to include virtual and in-person events

Arts festival in Summerland will run from Aug. 15 to 23

B.C. sees 25 new COVID-19 cases, community exposure tracked

One death, outbreaks remain in two long-term care facilities

VIDEO: Vancouver Island cat missing 18 months reunited with family

Blue the cat found at Victoria museum 17 kilometres from home

COVID-19 cases identified in Kelowna, after public gatherings

Those who were downtown or at the waterfront from June 25 to July 6 maybe have been exposed to COVID-19.

VIDEO: Alberta man rescues baby eagle believed to be drowning in East Kootenay lake

Brett Bacon was boating on a lake in Windermere when he spotted the baby eagle struggling in the water

Summerland Blossom Youth Ambassador Program to hold coronation

Event will be held by video as a result of COVID-19 precautions

Vernon shutterbugs capture rainbow

A rain event July 9 made way for a glorious sight

Couple shaken up after homophobic encounter at Kelowna mall

‘We’re not in the States; we’re not in some little hick town; we’re in Kelowna, British Columbia, Canada. And it still happens’

Summerland to allow in-person attendance at July 13 council meetings

Two meetings will be held at Summerland Arena Banquet Room to accommodate public

Fundraiser kicks off for Lake Country families displaced by house fire

A GoFundMe campaign has been launched to raise $5K for those who lost everything in early morning blaze

Most Read