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December 13, 2010

Liability of parents for harm committed by their children upon others


So as to tie in with my previous blog entry concerning the completely different- not to say the oppositional- approaches of tort in the French and English legal system, I would like to focus on the third party liability in tort- particularly with regard to the liability of parents for harm committed by their children upon others.
Within both regimes, the principles underlying a parental liability are based on the existence of a special relationship of authority and control, however in practice, the application diverges entirely.
No responsibility arises on the part of parents to restrain their children from causing harm to third parties out of the fact of their parenthood; parental liability occurs in cases of negligence during wrongdoings of their children.

So as to estimate a breach of duty, the House of Lords considers the age of the child (North v Wood) as well as the nature of the object involved, in such a way that an object, which is dangerous per se, establishes mostly a parental liability on the mere fact of allowing the child to be in possession of, for example, a weapon. (Newton v Edgerley).
However, in cases of employing objects, which only have the potential to be dangerous if mishandled by its user, a simple duty to warn and instruct without the further demand to supervise, consists. (Donaldson v McNiven)

Without doubt, in contrast to the broad limitation of parental liability under English law, whereupon family harmony is being treated as sacrosanct, the victim oriented approach of the French system offers a strict and much more radical trait by implementing a general regime of no-fault liability for the acts of others. Since the Bertrand decision, parental liability was no longer based on the duties to educate and supervise; from now on, the only defences available to parents under Art.1384 IV CC would be those of force majeure and contributory negligence.

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