The place of the child in Kenya’s legal system and jurisprudence under the law of tort

  

Date Posted: 11/22/2012 9:58:18 AM

Posted By: Brendah Aroko  Membership Level: Gold  Total Points: 3317

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a)Neighbor principle
Lord Atkin’s neighbor principle found in the case of Donoghue vs Stevenson considers a child as a neighbor in instances of negligence. Hence all citizens ought to take reasonable care to avoid acts or omissions which one would reasonably foresee would be likely to injure a child.
Children can therefore sue in cases of negligence but with the help of a guardian.

b)Disability
There has been a principle created in respect of children who are born disabled because of a wrong done to one of their parents before they are born.
For people born on or after July 22, 1976, the sort of claim that can be made is determined by the provisions of the Congenital Disabilities (Civil Liabilities) Act 1976.
The child may sue for disability resulting from injury to the parent which affects the pregnancy, or during birth or his/her ability to have normal children. In order to sue, there should be no contributory negligence by the parent.

c)Negligence by the mother
A child can sue his/her mother for injury resulting from her careless driving during her pregnancy. (Civil liability Act). The insurance company will defend such a child’s claim. However, general immunity does not extend to the father.

d)Right to protection
A child can sue the local authority for failure to protect him/her from abuse and torture. In X v Bedfordshire CC, the claimant( a minor) sued his local authority for not taking care of him when he was exposed to neglect and abuse at home. The House of Lords held that the local authority owed him no duty of care. However, the European Court of Human Rights held that the child should be compensated by the UK government on the basis that it had breached two obligations under the ECHR, i.e.:

i)It had allowed the claimant to be subjected to inhuman and degrading treatment contrary

to Article 3
ii)It had denied him a right to an effective remedy e.g. appointing a social worker

e)Education
Local authorities have a duty of care to look after the welfare of pupils in state schools.

f)Standard of care under tort law
Standard of conduct applying to children in Tort law remains objective. In Mullin v Richards, a 15 year old girl was playing with her friend. They were fencing using rulers when one ruler snapped and a piece of plastic flew into the plaintiff’s eye and caused blindness. Injury was held not to reasonably foreseeable by such a child- the game was common and the girls have never been warned that it could be dangerous.

g)conduct of a child defender
This is judged by reference to the standard of conduct expected of a reasonable child of the defendant’s age.

h)Occupier’s Liability
Section 2(3) (a) of the Occupier’s Liability Act 1957 under Tort law states that an occupier must be prepared for children to be less careful than adults. E.g in the case of Glassgow Corp vs Taylor, whereby the child ate poisonous berries from the defendant’s land since they looked like blackcurrants.

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