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Article
The law of intervening causation and children
Tort Law Review (2011)
  • Douglas Hodgson, The University of Notre Dame Australia
Abstract
Since 1959 when the United Nations General Assembly adopted the
Declaration of the Rights of the Child, the human rights of children have been
squarely placed on the international agenda. The legislation and policy-
making of United Nations member states have been informed by international
normative standards laid down in such instruments as the United Nations
Convention on the Rights of the Child. The common law, however, has a
much longer history of, and experience in, protecting children, extending over
almost two centuries. In the realm of negligence, judges have been reluctant
to allow pleas of novus actus interveniens and contributory negligence to
succeed against children, considering their inherent traits of vulnerability and
curiosity, their penchant for meddling with allurements, and their inexperience
with identifying and appreciating risks to their own safety. This article
examines on a comparative law basis how common law judges have
historically addressed the application of novus actus interveniens and
contributory negligence to child plaintiffs, particularly in firearms and other
potentially dangerous article and substance cases. The author argues that
the judicial resolution of these issues will depend considerably on the facts
and circumstances of each case as well as the age of the child plaintiff.
Although children of tender years should rightly be made immune from novus
actus interveniens and contributory negligence, adolescent children who
possess relatively greater maturity and life experience should no longer be
the beneficiaries of a benign judicial paternalism in light of the principle of
personal responsibility as recently relied on by the High Court of Australia
and the notion of “functional capacity” which permeates the Convention on
the Rights of the Child.
Disciplines
Publication Date
2011
Citation Information
Hodgson, D. (2011). The law of intervening causation and children. Tort Law Review, 2011(19), 149-160.