Learning Outcomes
This article explains how the standard of care in negligence is adjusted when the defendant is a child. It clarifies the objective test applicable to children and contrasts it with the standard applied to adults. After studying this article, you should be able to identify the relevant legal principles governing the standard of care for child defendants and apply these principles to SQE1-style multiple-choice questions involving scenarios with children potentially in breach of duty.
SQE1 Syllabus
For SQE1, you are required to understand how the standard of care in negligence is determined and applied, including modifications for specific defendant types like children. You will need to apply this knowledge to factual scenarios to assess breach of duty.
Your revision should focus on:
- The general objective standard of care (the reasonable person).
- The modified objective standard applied to children.
- Key case law illustrating the application of the standard to children (e.g., Mullin v Richards).
- Factors influencing the standard, such as the child's age and the nature of the activity.
- How to differentiate the child standard from standards applied to adults or professionals.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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What is the general standard of care applied in negligence?
- The standard of the defendant themselves.
- The standard of the most careful person possible.
- The standard of the reasonable person.
- The standard dictated by the claimant.
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How is the standard of care modified when the defendant is a child?
- Children are immune from negligence claims.
- The standard is lowered to that of a reasonable child of the same age and experience.
- The standard is raised because children are unpredictable.
- The standard is the same as for an adult.
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Which case involved two 15-year-old girls fencing with rulers?
- Bolam v Friern Hospital Management Committee
- Donoghue v Stevenson
- Caparo Industries plc v Dickman
- Mullin v Richards
Introduction
Establishing a breach of duty is the second key element in proving negligence, following the establishment of a duty of care. A breach occurs when the defendant's conduct falls below the standard of care legally required in the circumstances. The general standard is objective – that of the ‘reasonable person’. However, the law recognises that this standard requires modification in certain situations, particularly when the defendant is a child. Understanding this adjustment is essential for applying negligence principles correctly.
The General Standard of Care: The Reasonable Person
Before examining the standard applied to children, it is essential to recall the general standard. The law requires individuals to behave with the degree of care that a reasonable person would exercise in the same circumstances (Blyth v Birmingham Waterworks (1856)). This is an objective standard, meaning it does not usually take into account the specific defendant’s personal characteristics, such as their level of experience or intelligence (Nettleship v Weston [1971]). The focus is on what level of care society expects from its members in a given situation.
The Lower Standard for Children
The courts recognise that children cannot be expected to possess the same level of judgment, foresight, and understanding of risks as adults. Consequently, the objective ‘reasonable person’ test is adapted for child defendants.
Key Term: Standard of Care for Children The standard by which a child's conduct is measured in negligence; it is the degree of care expected from an ordinary, prudent child of the same age, intelligence, and experience under similar circumstances.
This adjusted standard acknowledges that a child's capacity to appreciate danger and act safely develops with age and experience. It would be unfair and unrealistic to hold a young child to the same standard as a competent adult.
The Objective Nature of the Child Standard
While the standard is adjusted, it remains objective for that age group. The question is not whether this particular child did their best, but whether their conduct met the standard expected of a reasonably careful child of their age and experience.
Key Case Law: Mullin v Richards [1998]
The leading case illustrating this principle is Mullin v Richards [1998] 1 WLR 1304 (CA).
Worked Example 1.1
Two 15-year-old schoolgirls, Holly and Jessica, were engaged in a mock sword fight using plastic rulers during a lesson. One ruler snapped, and a fragment hit Holly’s eye, causing significant injury. Holly sued Jessica for negligence. Would Jessica be found in breach of duty?
Answer: Applying Mullin v Richards, Jessica's conduct must be judged against the standard of a reasonable 15-year-old schoolgirl. The Court of Appeal held in Mullin that such horseplay was common, and the risk of serious injury from a snapping ruler was not one that a reasonable 15-year-old would foresee. Therefore, Jessica would likely not be found in breach of her duty of care.
Factors Considered
When applying the standard, courts consider:
- Age: The primary factor. A very young child might not be found negligent at all if they lack the capacity to understand the risk involved. Older children are expected to exercise greater care.
- Experience: A child with particular experience in an activity might be expected to show more care in that context than an inexperienced child of the same age.
- Intelligence: While the standard is generally based on age, a child's individual intelligence might be relevant in assessing their understanding, though this is less commonly a deciding factor than age.
- The Nature of the Activity: If a child engages in an activity typically considered ‘adult’ (e.g., driving a vehicle, albeit unlawfully), they may be held to the higher, adult standard of care expected for that activity (Nettleship v Weston regarding learner drivers is relevant by analogy, although that case involved an adult learner).
Worked Example 1.2
Leo, aged 10, is cycling his bike on the pavement. He swerves suddenly to avoid a pedestrian and collides with Maya, knocking her over and causing her minor injuries. Maya claims Leo was negligent. The evidence shows Leo is an experienced cyclist for his age.
How would the court assess Leo's standard of care?
Answer: The court would assess Leo's actions against the standard of a reasonable 10-year-old cyclist with similar experience. His experience is relevant. However, even an experienced 10-year-old might not possess the same traffic awareness or reaction speed as an adult. The court would consider if a reasonable 10-year-old cyclist would have foreseen the risk and could have avoided the collision by exercising appropriate care for that age and experience level. Swerving suddenly might be considered reasonable for a child startled by a pedestrian, even if an adult might have reacted differently.
Relationship with Contributory Negligence
The same principles apply when assessing contributory negligence against a child claimant. A child is expected to take the degree of care for their own safety that is reasonable for a child of their age and experience (Gough v Thorne [1966]). A very young child may be incapable of contributory negligence.
Exam Warning
Do not confuse the objective standard for a child with a purely subjective standard. The test is not whether this specific child did their best, but what a reasonable child of that age and experience would have done. Also, remember that for inherently dangerous adult activities, the child may be held to the adult standard.
Revision Tip
When analysing problem scenarios involving children, always state the modified standard clearly: "The standard of care is that of a reasonable child of [X] age with [relevant described] experience." Then apply the facts to that specific standard, considering foreseeability from the viewpoint of such a child.
Key Point Checklist
This article has covered the following key knowledge points:
- The standard of care in negligence is generally objective – that of the reasonable person.
- This standard is modified for child defendants to reflect their age and experience.
- The test applied to children is that of a reasonable child of the same age and experience.
- Key case law includes Mullin v Richards, illustrating the application of the modified standard.
- Factors such as the nature of the activity (child vs. adult) can influence the standard applied.
- The standard remains objective for the specific age group, not purely subjective to the individual child.
- Similar principles apply when assessing contributory negligence by a child claimant.
Key Terms and Concepts
- Standard of Care for Children
