Children as culprits under tort law : a comparative study

Abstract

Twenty-two years after the last study of the responsibility of the acts of the minor under the law of tort, this study aims at examining and understanding how well (or not) Maltese law fares in regards to its Civil Law treatment of child tortfeasors, in particular when compared to other jurisdictions of the European Union. The focus of this study thus, is to examine the civil liability for the damage or injury caused by the child tortfeasor, in the ambit of local and foreign Civil Law. This study examined three core aspects of this issue, namely the liability of the child tortfeasor, the liability of such child's parents and the liability of the school which such minor attends. The study finally analyses Malta's performance in relation to liability for the child's acts causing damage or injury and concludes with suggestions for improvements while highlighting local achievements. The current study aims at comparing the treatment of child tortfeasors in the English, French, Italian and Maltese jurisdictions, with the ultimate goal of gaining a clearer picture of the Maltese position on such matters, especially since such countries have had such great influence over Maltese Civil Code provisions. In the process various fault-lines and debatable aspects of our law were identified, in particular regarding the meaning of custody and the existence or otherwise of a presumption of fault vis-a-vis the parents and the apparent impossibility of shifting the responsibilities of the parents onto the teachers, even though the latter are known to be acting in loco parentis. This study outlines the need for specific legislation in relation to damages caused by minors within the school setting since a lack of Civil Court decisions in this regard implies a multitude of reasons. Furthermore, Malta has no legal provisions regulating the liability of the partner of the separated parent who has custody while also lacking in clearly specifying whether the burden of proof of the breach of the duty to supervise lies upon the victim of the damage suffered or the parents of the child tortfeasor. Nevertheless this study underlines that Malta does not regard the parents as simply the insurers of the child but thoroughly examines the duty of supervision imposed upon said parents. The imposition of a minimum age under which a child is not to be held liable for damage caused, removes uncertainties found in the other legislations discussed regarding the capability of such young children to commit tortuous acts. Moreover, with regards to liability in equity, the Maltese Civil Code provisions allow for full compensation to the victim from the child's property.