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Unlike adults, children often do not have the maturity to know what to do when walking across or near roadways. Without adult supervision or an understanding of road safety, children may risk becoming involved in an accident and be found to share some responsibility.

The Ontario Court of Appeal has recently released a decision, highlighting the discretion of judges with respect to the issue of contributory negligence of children.[1] Contributory negligence is generally a defence to a negligence claim. This occurs where a plaintiff caused or contributed to the accident or may not have acted in a safe and prudent manner. In these circumstances, the amount of compensation is reduced by a certain percentage because of the plaintiff’s own negligence.

In Saumur v Atoniak, trial judge, Justice Paul Perell, ruled that a nine year old Hamilton boy was not contributory negligent when he was hit by a car on his way to school, even though he failed to look both ways before crossing the street.[2]

To determine whether the boy was contributorily negligent, the Court was tasked with answering the following question: Did the child exercise the care expected from a child of like age, intelligence and experience?

Counsel for the Defendant argued that the child failed to look both ways before crossing the street and that he ought to have known better.

While the trial judge found that the child was of average intelligence, was familiar with this route to school, and had been taught to look both ways before crossing the street, he also found:

  • That the child was not equipped to judge distance and speed at his age;
  • That there was insufficient evidence to show that the child was experienced navigating busy streets; and,
  • That the City of Hamilton failed to have a crossing guard stationed at the intersection at a time when it was meant to.

The trial judge ultimately concluded that the child did not act below the standard of a reasonably prudent child of his age and of similar intelligence. The trial judge ordered the City of Hamilton to pay the child and his family nearly $8,000,000.00 (eight million dollars) in damages.

On appeal, the City of Hamilton argued that being forgetful, confused, or distracted was no excuse for the child’s negligence. The Court of Appeal, however, determined that the trial judge was entitled to draw the inferences that he did in order to come to his decision. The Court accepted that children often lack the judgment and maturity of adults, which may cause them to become more easily distracted or confused. While the Court of Appeal held that another finding may have been available on the facts of the case, it concluded that the trial judge had not made any errors of fact or of law.

This decision reminds us that, whether a child has been contributorily negligent is a highly contextual assessment—it depends on the specific facts of each case. Important factors may include:

  • The age of the child;
  • The cognitive capabilities of the child;
  • The child’s familiarity with road safety and with the route on which he or she was travelling;
  • Whether the child looked both ways before crossing;
  • Whether the child was walking or running; and
  • Whether the accident occurred in a school zone or at a designated cross walk.

Evidence from parents, teachers, and health care providers, regarding a child’s knowledge of and experience with road safety as well as their maturity and cognitive abilities will be important.

Whether your children walk to school, ride their bikes, or take the bus, they should be taught about road safety as soon as they are old enough to walk outside of the house. To avoid injury, you should ensure that your children understand what you are saying by explaining things in an age-appropriate manner, practicing it with them, and leading by example.

Even with the best preparation and prevention strategies, your child may still be the victim of an accident. If your child is injured, whether by a motorist or otherwise, it is important to contact a qualified personal injury lawyer quickly to ensure their rights are protected.

[1] Saumur v. Antoniak, 2016 ONCA 851

[2] 2015 ONSC 2380

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