Abstract
This article enquires as to the principles that should govern children’s liability in the tort of negligence in England and Wales and its functional equivalents in other European legal systems. Infants are currently exempted from liability in negligence in virtually every European jurisdiction. In most of them, this result is achieved by making basic moral responsibility a requirement for liability under this tort, while in others it is brought about by tailoring to the defendant’s age the standard against which her conduct is measured. I argue that, whereas neither of these approaches is entirely consistent with the internal logic of the tort of negligence, their common practical outcome is grounded in the combined force of two main policy reasons: children’s general impecuniosity and their inherent inability rationally to manage their own affairs. It is my contention that these reasons can be honoured, while at the same time preserving doctrinal and theoretical integrity, by recognising a (defeasible) infancy defence to liability in negligence.
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Marta Pantaleón Díaz, Children’s Liability in Negligence, Journal of European Tort Law, Volume 9, Issue 1. Published Online: 2018-05-07. DOI: https://doi.org/10.1515/jetl-2018-0101.
First posted 2018-05-07 07:44:58
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