Case Summary – Responsibility for an Injured Child
A recent case involving an injured child illustrates the difficulty of assessing responsibility for damages to children where there may be some fault on the part of the child. A recent decision, Samur v. Antoniak, involves a child who was struck crossing the road on his way to school.
There was no crossing guard on duty at that time, and the City of Hamilton was found to be responsible for the accident. One issue in the case asked whether there should be a finding of contributory negligence against the child plaintiff. In a decision touching on several issues, the Ontario Court of Appeal upheld a finding that there was no such negligence.
What is contributory negligence?
When you are injured in an accident, you may have a good case that someone else is at fault, this is the potential defendant. However, it may be that some action, or inaction, on your part contributed to the end result. A common example of contributory negligence is where someone in a car accident was not wearing a seat belt, which led them to suffer more serious injuries.
Any action, or failure to act, that falls below the expected behaviour of a reasonable person in your circumstances, may be considered contributory negligence. Since it is commonly understood by adults that a seat belt prevents injuries, failure to do so will be seen as a failure to act reasonably
Where a court finds contributory negligence, they divide responsibility between the parties. Any final award will then be reduced by the percent to which you have contributed to the accident. In our seatbelt example, in Canada, this may range from 5% to 25% depending on the location and circumstances.
How are children assessed differently than adults?
Children are not held to the same standards of behaviour as adults. This is true at the dinner table, in social interactions, and equally true at law. Courts understand that children have not learned about certain things, and that they are physically and mentally less capable than adults.
Accordingly, accidents involving potential contributory negligence with injured children are assessed carefully, on a case-by-case basis. In the case of Samur, he did not look both ways before crossing the street, and was struck by a car. The Court had to consider whether a nine-year-old child, acting reasonably on a busy street, would know to stop and look both ways, and be able to judge the speed and distance of oncoming traffic.
The lower court’s decision and the appeal
At trial, the court had concluded that Samur did not have experience crossing such a busy road, and his confusion with the situation was exacerbated by the absent crossing guard. The judge found that children at his age are apt to be forgetful in these unfamiliar circumstances, and this led to his failure to do what he had been taught: look both ways before crossing the road. Ultimately, Samur was seen to have acted like a reasonable, prudent nine-year-old, and did not contribute to the accident.
The City of Hamilton appealed on a number of issues, including this finding. However, the Court of Appeal disagreed and upheld the trial findings, explaining that the determination of contributory negligence is heavily grounded in the facts of the case and the discretion of the judge. The trial judge did not make any reversible error in ascertaining and setting out the facts that informed his finding, and therefore his decision was upheld.
Cases involving children
This decision shows just how complicated a claim can be where it involves an injured child. At Derfel Personal Injury Lawyers, we have the expertise to skillfully assess your claim and present the facts in the best way possible, to maximize the impact of your story. If you or your child has been involved in an accident, and you have questions, contact us today.