10-year-olds can be held liable for negligence

The Court of Appeal has ruled that there is no general principle that a 10-year-old child cannot be found liable for negligence. This is seen as a landmark decision, as in Jamaica, the age of criminal responsibility starts at 12 years old.

The decision was made in an appeal filed in a case that has been before the courts since May 2009, which involved a then 10-year-old child who pulled a chair from an 11-year-old schoolmate, causing her to fall and sustain injuries. Both the appellant and the respondent are now adults.

The Court of Appeal upheld a Supreme Court decision that the then 10-year-old child could be held liable for negligence and could have foreseen that her actions could have caused injury to the respondent, who was also a child at the time of the incident.

Justice Andrea Pettigrew-Collins handed down her decision in February 2021, in which she found Yanique Smith, now a medical doctor, liable for negligence. Smith appealed the decision.

“The main issue in this case is the legal test to be applied in determining whether a child is liable for negligence when his or her action has caused injury or loss,” the Court of Appeal ruled last week.

MOVED THE CHAIR

Smith, the appellant, was 10 years old at the time of the incident on January 18, 2008. She and the respondent, Alexandria Ferguson, who was 11 years old at the time, were both students at Quest Preparatory School in St Andrew when Smith moved a chair on which Ferguson was about to sit, causing her to fall to the floor. Ferguson sustained injuries, causing her to suffer pain in her neck and back.

Ferguson filed a suit in May 2009 against Smith and the school, and in July 2016, when she was an adult, amended the claim outlining additional particulars of negligence.

Smith’s defence was that Ferguson had got up from the chair to allow her to pass to the other side of the corridor. She said that when Ferguson attempted to “sit back down”, she missed the chair and fell.

Pettigrew-Collins found Smith and the school liable, but the school did not appeal the decision. Pettigrew-Collins had ordered the defendants to pay general damages in the sum of $3.2 million for pain and suffering and loss of amenities.

Interest at three per cent was awarded on the amount from June 10, 2009, to the date of judgment. Special damages of $38,000 with interest were also awarded, along with costs in favour of the claimant. The claim was first filed by Ferguson’s mother, but when the claim was amended in 2016, she was then an adult.

“There is the question of whether the (appellant), in an act of mischief or horseplay, pulled the chair. I have already indicated that I reject the (appellant’s) account that she was about to pass to the other side of the corridor. On the (respondent’s) account, which is accepted, there was no discernible reason for the pulling of the chair, and such conduct must be viewed in the circumstances as mischievous behaviour,” the court quoted from the judgment of the Supreme Court.

The appellate court, comprising Justice Jennifer Straw, Justice Nicole Foster Pusey, and Justice Vivienne Harris, said that while counsel for the appellant was critical of the outcome of the judge’s analysis and findings of fact, the findings were open to the judge based on the evidence as a whole.

BRIGHT AND INTELLIGENT STUDENT

Pettigrew-Collins had stated that she rejected the submission that because of her tender age at the time, she could not have foreseen that injury would have been caused to the respondent by pulling a chair from under her.

The judge found that from all indications, Smith was a bright and intelligent student, an inference supported by her current status as a student in the Faculty of Medicine at The University of the West Indies.

“In continuing to assess the appellant’s grounds of appeal challenging the learned trial judge’s finding of fact, it can be seen that the learned trial judge explained why she saw the appellant’s actions as mischievous and deliberate … this finding was open to her based on the evidence,” the court ruled.

“The learned trial judge did not find that the appellant wished to cause harm to the respondent. This was not inconsistent with her finding that the appellant ought to have foreseen that injury could have resulted from her action,” the court stated.

In its conclusion, the court found that the judge did not err in law in the standard against which she measured the appellant’s actions, as she measured them against what would be expected of an ordinary 10-year-old in the appellant’s situation.

“The question as to whether the appellant could have foreseen that her action of pulling away a chair from beneath the respondent when she was about to sit would or could have caused injury to the respondent was one involving the application of law to findings of fact. The learned trial judge applied the correct principle of law to findings of fact that were open to her in light of the evidence as a whole,” the court ruled.

In dismissing the appeal, the court awarded costs in favour of the respondent Ferguson.

Attorneys-at-law Jacqueline Cummings and Dianca Watson, instructed by Archer Cummings and Co., represented the appellant Smith. Ferguson was represented by attorneys-at-law Kaysian Kennedy-Sheldon, Simone Gooden, and Allodine Groves, instructed by Townsend Whyte and Porter.

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