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.
In Ontario personal injury law, however, courts apply a significantly different and more protective legal standard when assessing a child’s conduct. This reflects the reality that children process risk, distance, and consequences differently than adults.
What is contributory negligence?
Contributory negligence is a legal doctrine that may reduce damages where an injured person is found to have failed to take reasonable care for their own safety. 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. In cases where the plaintiff caused or contributed to the accident, the amount of compensation is reduced by a certain percentage because of the plaintiff’s own negligence.
Can children be contributorily negligent?
Yes. In Ontario, children can be found contributorily negligent, but only in limited circumstances and under a modified legal standard that accounts for their age, maturity, and understanding. A child can be found partially responsible for an accident if their conduct falls significantly below what would reasonably be expected of a child in comparable circumstances. However, the threshold is high, particularly for younger children, because courts recognize their limited ability to assess risk, danger, and consequences.
How courts assess children’s 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? This legal test is central. Courts do not measure a child’s conduct against an adult standard, but rather against what is reasonably expected from a child of similar age, intelligence, and experience in comparable circumstances.
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.
Key factors courts consider when determining contributory negligence
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.
Courts will often weigh a combination of developmental, environmental, and safety-related factors, including:
- The age and stage of development 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.
The court’s decision in Saumur v Atoniak
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.
Why child personal injury cases are highly contextual
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.
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. Courts also increasingly consider systemic safety factors, such as municipal infrastructure, traffic control measures, and whether reasonable safeguards were in place to protect child pedestrians.
Road safety and prevention
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.
Consistent reinforcement, repetition, and supervised practice are often more effective than one-time instruction when teaching young children road safety habits. 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.
How Siskinds can help
At Siskinds, our personal injury team has extensive experience handling complex cases involving injured children and contributory negligence disputes. We understand how Ontario courts assess child conduct and how to present evidence that reflects a child’s true developmental capacity and real-world circumstances.
We work with medical professionals, educators, and other experts to build a clear evidentiary record.
If your child has been injured in a roadway or pedestrian accident, it is important to consult a personal injury lawyer to determine if you have a claim. Contact our personal injury team for a free consultation.
[1] Saumur v. Antoniak, 2016 ONCA 851
[2] 2015 ONSC 2380