Mums, Babes and Legal Liability

Abstract

"Cherishing children is the mark of a civilised society." (Joan Ganz Cooney). "Adults are obsolete children." (Dr Seuss) "Young [children]...despite their mischievous tendencies, cannot be classed as wild animals...in control of their children, parents must not omit to do that which a reasonable man...would do." (Smith v Leurs). Parenthood is arguably one of the most difficult tasks that an individual will perform in their lifetime. The reasons for this are generally obvious. Parenthood is a 24 hours, 7 day a week vocation. No paid and/or unpaid role in society required that type of commitment. Aside from being all encompassing parenthood is also difficult given the unpredictability of what the role is going to encompass. One should also not underestimate the joy that most children give to their parents. Given the pressures that accompany parenthood, should parents be legally liability to their children in negligence? Many people in society no doubt feel that it is morally repugnant to increase the pressures that are placed on parents. This sentiment is reflected in the courts as courts are reluctant to place the burdens of liability on parents. Many policy reasons for denying parental liability have been used in negligence cases. Some of the reasons most commonly used include for denying liability include the reluctance to intrude with domestic relations, the difficulties of finding a standard of care and floodgates issues. One of the other reasons that has been used is the problem with funding a damages payout. In many instances there is not an available pool of insurance funding to cover an alleged case of parental liability. This article is going to explore whether or not given the change in thinking regarding insurances cases, that the availability of insurance is the only or at least the most important consideration in terms of allowing liability in a parental liability case. This concept will be explored in light of the recent case of McNeilly.