Memorandum
Issue
Whether grandparents/parents can owe a duty of care to a child, if so, under what circumstances
Brief Answer
Yes. Parents and Grandparents can owe a duty of care to their children. Whether a duty exists depends on the foreseeability of the relevant risks, nature of the relationship, and the parent’s control over the child. If it is a child of tender years like 5 years and below, it is believed that such children are under the control of their parents. For example, a child of 2 years will not be expected to have a knife or a box of matches that will injure another. The child is assumed to be under the control of his/her parents.
Facts
The Client is a grandmother responsible for caring for her 2-year old grandson regularly whilst the child’s parents are at work. The client enjoys looking after her grandson voluntarily; however, she is concerned about her legal liability in negligence if her boisterous grandson sustains an injury whilst in her care.
Discussion
THE GRANDMOTHER CAN OWE A DUTY OF CARE IF SHE HAS NOT EXERCISED REASONABLE CARE
The grandmother can owe a duty of care if she has not exercised reasonable care. Hoffman v Boland (2013) NSWCA. The general rule is that the mere existence of a parent/child relationship does not in itself give rise to a duty of care. Still, the circumstances of a particular situation may result in such a duty of care arises. In particular situations and because of nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger. There is no general duty of care in respect imposed by the law upon a parent simply because of the blood relationship. Like strangers, parents may become liable to the child if the child is led into danger by their actions. Hahn v Conley (1971) HCA 56; 126 CLR 276 ; (1972) ALR 247.
In Hoffman v Boland, Mary Boland was a 5-month-old baby who sustained catastrophic injuries when she was being carried downstairs by her grandmother. Reverend Hoffman awoke when she heard the infant crying, picked her up, and took her to her daughter (the baby’s mother) who fed her. It was then agreed that the Reverend would take the baby downstairs to the living area to enable the baby’s mother to get some more sleep. The staircase was constructed of timber and contained two 90 degrees winders instead of a quarter landing. The Reverend gave evidence that whilst the lighting was “poor,” she decided not to turn on the light as she felt there was sufficient light for her to descend safely, she could see the outline of the stairs, and she didn’t want to disturb the rest of the family members. Id. An issue arose as to whether the grandmother owed a duty of care to the granddaughter. Justice Sackville held that the grandmother owed a duty of care to protect the baby from a foreseeable risk of injury while she was in her physical care and control.
In Hahn v Conley when answering whether the grandfather had a duty of care for his 3 and a quarter-year-old grandchild who had an accident while crossing the road to reach him, the Supreme Court held that the grandfather had a duty to exercise reasonable care in her general supervision and control during the time the grandchild was staying with him. The duty fell on his wife too because the child was staying in their house during the weekend, and it was under their control to ensure the safety of a child.
In conclusion, the grandmother can owe a duty of care to her 2-year-old grandchild if there is a foreseeable risk of injury when the grandchild is in her physical care and control. The grandmother is supposed to exercise reasonable care in her general supervision and control. Reasonable care will vary in different circumstances, but children of tender age require more physical care and control than older ones.
THE GRANDMOTHER CAN OWE A DUTY OF CARE TO THE CHILD IF THE CHILD CAUSES INJURY TO A THIRD PARTY
The grandmother can owe a duty of care to the child if the child injures a third party. The general rule is that one man is under no duty to controlling another man to prevent his doing damage to a third party. There are, however, special relations which are a source of duty of such nature. Smith v Leurs (1945) 70 CLR 256, (1945) HCA .
However, it is incumbent upon a parent who maintains control over a young child to take reasonable care to exercise control to avoid conduct in his part, exposing the person or property of others to unreasonable danger. Parental care, where it exists, must be exercised with due care to prevent the child from inflicting damage on others or causing damage by conduct involving unreasonable risk of injury to others. Winfield Torts p.105. The Standard of Care is that of a reasonably prudent man. Whether it has been fulfilled is to be judged according to all circumstances, including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected.
An example can be drawn from Smith v Leurs whereby the applicant sued the defendant and his parents for firing a pellet from a ‘shanghai’ causing injury to the applicant. One of the issues raised during the hearing is whether the defendant’s parents, who were the co-accused, can be held liable for failure to control the child and his behavior. The Supreme Court held that a parent or guardian is not in general liable for a child’s torts. Still, it has been held that the parent will be liable if the child’s tort were due to the parent’s negligent control of the child in respect of the act that caused the injury. In this case, the parents were not held liable because the judges believed the parents had sufficiently warned the child and that boys his age were also using shanghais. Id. But in instances where a 2-year-old baby is playing with another baby using a knife or a box of matches, the parent/grandparent can be held liable.
In conclusion, the grandmother has a duty of care for the boisterous 2-year-old baby’s actions because a child of tender age should be under the control of the guardian or parent.
Conclusion
The grandmother can owe a duty of care to the grandchild to protect him/ her from foreseeable risk and injury. When the grandchild is under the control and physical care of the grandparent, the grandmother should take reasonable steps to ensure the child’s safety. Further, the grandmother can owe a duty of care for the child’s actions to a third party because a two-year-old child is believed to be under the control and care of her parents/grandparents.
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