Capacity

Minors

The principles applicable to negligence and contributory negligence on the part of children are broadly the same as those which apply to persons of full age.  There have been few reported cases where negligence on the part of children has been a central issue.

Children are potentially liable for their civil wrongs from a very young age. Cases have held that a child may be liable for his voluntary actions,  from as young as seven years and possibly younger. As children reach the age of seven and upwards,  they are generally expected to look out, at least to some degree, for their safety and that of others, having regard to their age and capacity. This is so, even in the case of trespass, which requires some element of intent or voluntariness.

Most courts have preferred a subjective approach. They have regard to the age and mental development of the child and the circumstances, in judging whether the child is capable of negligence or contributory negligence. Other courts have taken an objective approach and have regard to the standard that should be expected of a child of that age, having regard to his education and background. This contrasts with the objective approach, which looks more at the child’s individuals capacity.

Contributory negligence may arise in relation to children. A child of sufficient years of almost any age,  regardless of his mental development,  is expected to take some precautions for himself.  Provided he is beyond the so-called tender yeards, then he or she will be capable in principle, of contributory negligence. It will then be a question of whether the child has, in fact, failed to meet the standard that might reasonably be expected of him in the circumstances.

It appears that a child of very tender years, such as below four years of age, is incapable of contributory negligence. However, age is not the key determinant. There have been cases where children aged four and five, have been held to be capable of contributory negligence, where they have failed to take due care.

Contrast with Contract and Reform

The Infants Relief Act, which invalidates most contracts to which children are purportedly party,  does not apply to civil wrongs. Where torts/ civil wrongs (technically) arise out of a contract and runs parallel to the contractual obligation, children will not be liable under the Act. Where, however, there is an independent tort / civil wrong,  even with a contract in the background,  the Act does not apply.

The Law Reform Commission has issued a report on the liability of minors in tort and has looked at issues of minor’s negligence and contributory negligence. The Commission favoured the subjective test. This appears to have had the most support in such cases as exist on the matter in Ireland. The Commission proposed that the subjective standard should not apply to persons aged 16 and older.

Mental Capacity

In the case of persons who lack mental capacity, tort / civil wrong liability may arise depending on the degree of intentionality, carelessness or voluntariness required by the particular tort. It appears that in the case of wrongs that require specific intent,  a person’s mental condition may deprive him of the capacity to form this intention.

In the case of the trespass, whether to goods, land or persons, the degree of intention required is minimal. Although trespass is said to encompass a group of intentional civil wrongs, it is enough that the person is aware of what he is doing and that the action is voluntary. In some other cases, such as malicious prosecution, specific intent is required.

The defendant need not intend the actual consequences of what he does nor even know that what he is doing is wrong. It is enough if he is aware of the nature and the quality of what he has done. Therefore, short of where a person is acting involuntarily, such as in the case of automatism, tort law is likely to hold him liable.

Commission Proposals

The Law Reform Commission published a report on liability for the civil wrongs of mentally disabled persons in 1985. In relation to trespass, the Commission recommended that where the defendant was so affected by mental disability, so as to lack substantially the capacity to act freely and as a result of this incapacity, did the act complained of, he should not be held. This is on the basis that he would be otherwise liable for acts equivalent to involuntary actions.

However, where the conduct was voluntary, the Commission proposed that could be relieved of liability where his disability was such as to prevent him from acting with the purpose of bringing about the effect in question.

In the case of negligence or contributory negligence, the Commission recommended that a person should be liable unless he could establish that at that time in question, he was suffering from a serious mental disability, which affected him in the performance of the act and that this disability made him unable to behave according to the standard of care appropriate to a reasonable person.

Corporates

Companies may sue and be sued and held liable for torts / civil wrongs, in much the same way as an individual. The company or corporation itself will usually have the state of mind and actions of its senior officers and controllers imputed to it, for the purpose of tort laws

Certain civil wrongs cannot be perpetrated on companies, due to their inherent nature as intangible bodies corporate. Companies and other corporate entities are incapable of suffering personal injury or assault.

Companies are entitled to the protection of their reputation, property and assets. Companies can sue in respect to defamatory statements. They may suffer serious loss and indeed more financially serious reputational damage than an individual.

Companies are vicariously liable for the acts of their employees. Many civil actions are taken against companies and corporate entities arising from negligence and breach of duty by their employees.

Unincorporated Entities / Arrangements

Partnerships may sue and be sued in their partnership name under rules of court. Partners are jointly and severally liable for the civil wrongs of their partners, which occur in the course of the company’s business. They are also vicariously for the civil wrongs of their employees.

Clubs and other unincorporated associations, which are not separate legal persons, cannot sue or be sued as common law. The rules of court provide that where numerous have an interest in the same manner, one or more may sue or be sued or may be authorised by the court to defend any claim or matter on behalf of, or for the benefit of all the persons with an interest. This does not allow a class action in the sense allowed in other jurisdictions.

The general principle is that a person may not sue a club, of which he is a member. The rules have caused injustice on occasions. The courts have sought to avoid the principle where possible. Where clubs have not followed their own rules in terms of admission of members, the courts have been willing to find that a claimant who has suffered an injury is not a member for the purpose of the rules.

Some bodies have a status equivalent to that of companies under various pieces of legislation. Trade unions are not incorporated, but legislation provides that they may sue and be sued once registered. Although they’re not established by law as a corporation, they are regarded as having a separate legal identity and have been so recognised by the courts.