Hergott: Who is responsible when a child gets hurt in the street?

Lawyer Paul Hergott looks at parents responsibility for when a child is hurt playing in the street

Is there parental accountability if a child darts out on the street and is injured?

The context is the court decision of Bourne (Guardian ad litem of) v. Anderson, 1997 CarswellBC 667. I referred to that decision last week when cautioning drivers to slow down and keep a sharp lookout anywhere children might be trick-or-treating.

The motorist in that case was driving on a residential street. Two boys were hiding from and sneaking up on a sister. One of the boys had just darted across the street in front of the motorist, leaving the other one crouched, out of view of the motorist.

The court made a common sense finding: Once a driver becomes aware of the presence of children on a residential street, the driver must take special precautions for the safety of other children who might come onto the street as well.

Special precautions would include immediately reducing speed and keeping a sharp lookout.

Had those special precautions been taken, the motorist would have been able to avoid hitting the next child who darted out after the first. She was therefore found liable for the injuries to the child.

Her clever insurance company, though, sought to pass the blame on to the injured child’s parents. They said the child’s parents should have done a better job of instructing and training their son about street safety.

In legal terms, they were saying that they breached their “parental duty of care”, a duty that us parents owe to our children as well as to others who might be harmed by our children.

We are not held to the unreasonable standard of creating perfectly obedient little soldiers. Nor are we required to keep our children on leashes to eliminate any chance that they might hurt themselves or others.

But we are, indeed, held to a reasonable standard of care when it comes to supervising and controlling the activities of our children.

The parents testified that they had instructed their children to cross the street only at the corner, to look both ways and never to go between parked cars.

The mother believed that her son, aged seven years and four months at the time of the collision, understood the rules, which she never saw him disobey. The father had specifically explained to his son the danger of going onto the street from between parked cars and of playing around parked cars, because the drivers of approaching vehicles would not be able to see him. It seemed to the father that his son understood.

The judge concluded that there was no evidence of negligence on the part of either parent in instructing and training their son about street safety and the claims against the parents were dismissed.

But there was another way the defending insurance company tried to avoid the accountability of the negligent motorist. They also pointed their finger at the injured child.

His parents had taught him about street safety. He was told to cross at the intersection, but instead crossed between parked cars. He also failed to follow the rule about looking before crossing the street. He clearly failed to look out for his own safety and the defending insurance company sought to reduce his entitlement to compensation on the basis of a legal concept of “contributory negligence”.

I will address that issue, of when children will be held accountable for looking after their own safety, in my next column.

Missed a column?

Hergott: Driving and talking to a passenger

Like us on Facebook and follow us on Twitter.

Just Posted

Cawston United Church hosts Christmas Concert Dec. 13

The Dragonfly Learning program’s students will take the stage starting at 5 p.m.

South Okanagan elderly accident victim ‘a tough customer’

Penticton Fire Department crews rescue elderly man who rolled his ATV down an embankment

Alleged Penticton shooter John Brittain waives preliminary trial

Brittain will return to court in January to schedule a trial date

Santa Parade lights up the streets of Penticton

People lined Main Street through the rain and chill in the air.

Help the RCMP cram the kennel today at Cherry Lane

RCMP officers and volunteers will be filling kennels with donated food and pet supplies.

Video: Magicians and Bubble Wonders highlight Penticton Shriners Variety Show

The annual fundraiser filled the Cleland Community Theatre on Sunday.

Tavares scores twice as Maple Leafs earn 4-1 win over Canucks

Vancouver sees two-game win streak snapped

UPDATED: No survivors in Gabriola Island plane crash: RCMP

Coroner confirms multiple fatalities after small plane goes down Tuesday night near Nanaimo

VIDEO: Harbour Air makes history with first electric aircraft test flight

Successful flight marks first of its kind in the world

The Grinch who Stole a Hedge: Security camera captures Chilliwack tree theft

RCMP arrives as person calmly walks away with tree in downtown area

Salmonella outbreak in Canada linked to rodents and snakes

92 cases of salmonella across six provinces, including B.C.

Meng Wanzhou wins right to more documents involving arrest at Vancouver airport

Defence lawyers allege the Huawei executive was unlawfully detained, searched and interrogated

RCMP traffic services moves to Falkland to slow speeders

Falkland detachment to serve as new HQ for RCMP’s North Okanagan Traffic Services

Most Read