Young people’s legal liability

Young people’s civil liability

Contracts and leases

The general rule is that a young person under the age of 18 is not bound by a contract. However, it is possible to be bound by a contract for things that are necessary for survival (e.g. food, housing, medical services). To find out whether a contract that has been signed by a young person is binding or not, seeYoung people”, in How contract law works.

Some traders will allow a young person to enter into a contract for goods or services if the young person has a guarantor. A guarantor is someone over 18 who can be sued if the person fails to pay. For more information about being a guarantor, seeGuarantees”, in Mortgages, credit cards and other finance products.

A young person under the age of 18 can rent a flat or house and can sign a lease. More importantly, if the rent is not paid or damage is caused to the property, that person can be sued by the landlord. This is because housing is a necessary item for survival. For more information about leases and tenancy problems, see Tenancy.

Civil wrongs

Children are generally liable for the consequences of their wrongful acts, but the degree of reasonable care required of them depends on the standard normally expected of children of like age, intelligence and experience.

In the case of a very young child in a negligence action, or where a particular state of mind (e.g. malice) is required, the child may be aware of what they are doing and may know that the action is wrong, but still be incapable of foreseeing its consequences. In such a case there would be no liability in negligence.

In the case of McHale v Watson [1964] HCA 64, a 12-year-old boy threw a metal dart at a post, but it glanced off the post and hit a nine-year-old girl in the eye. He was found to be not negligent as a boy of his age could not be expected to foresee that the dart would not stick into the post.

The capacity of a child is to be considered and decided in each case. Obviously, the closer a child is to the age of 18, the more the standard of care resembles that required of an adult.

Parents’ liability

Normally parents are not liable for wrongful acts committed by their children. However, parents may be liable if the child was acting as the parents’ agent or with their authority. Or where a parent has not exercised proper control over or supervision of the child, which resulted in a civil wrong being committed.

In McHale v Watson (see above) the defendant’s father was not considered to be liable – even assuming that he had given the boy the dart – as the boy was old enough to handle the dart and could reasonably be expected to use it safely. The eventual misuse of the dart was not reasonably foreseeable as far as the father was concerned. Of course, the result may well have been different if the child had been eight or nine years old, or if the father had provided him with a gun or other dangerous object.

If a child’s parents know their child has vicious or uncontrollable tendencies, the parents have a much stricter liability for control.

Civil procedure

Litigation guardians

A litigation guardian is an adult who acts in court for a young person under the age of 18. The litigation guardian’s name appears on the court documents and they guarantee to pay any costs. Usually a young person’s parent or legal guardian acts as their litigation guardian.

It doesn’t matter whether a young person under 18 is the plaintiff (i.e. a person who brings a civil action against another person), or if they are the defendant (i.e. a person against whom a civil action is brought), they need a litigation guardian.

Serving a person under 18

A writ may be served on a person under 18 by serving it on their parent or guardian.

Damages

If a person under 18 receives damages (e.g. for injuries) the money will be paid to the court until they are 18. Payments can be advanced for education and other reasons the court thinks are in the young person’s interests.

Under section 100(5) of the Magistrates’ Court Act 1989 (Vic), a person under the age of 18 may proceed before a Magistrates’ Court for the recovery of any sum of money payable to the young person under a contract of service or a contract for services.

Young people’s criminal liability

Children under 10

It is conclusively presumed that a child younger than 10 cannot commit a criminal offence (s 344 CYF Act).

Children under 14

For a child younger than 14 to be found guilty of a criminal offence, the prosecution must prove they were aware of the serious wrongfulness of their action (see R (a child) v Whitty [1993] 66 A Crim R 462). However, for a child of normal intelligence, proof they committed a significantly serious act may of itself be enough to satisfy a court that the child was so aware (see R v ALH [2003] VSCA 129).

Children over 14

A child over the age of 14 is regarded as having the same knowledge of wrongfulness as an adult. Ignorance of the law is not an excuse for any offence.

Children’s Court

Unless charged with killing someone, a person younger than 18 at the time of the alleged offence, and who is still younger than 19 when the case goes to court, will go (at least initially) to the Children’s Court. (See The Children’s Court.)