
Delictual liability of minors involved in motor vehicle accidents
30 August 2021 | L VILJOEN
To be successful with a personal injury claim, you have to prove (establish) that another party’s negligence resulted in (caused) personal harm or injury.
When a minor gets involved in a road accident, the minor will either be a pedestrian hit by a motor vehicle or the minor will be an innocent passenger in the motor vehicle involved in the accident.
An innocent passenger in a motor vehicle accident only needs to prove the proverbial 1% negligence on the part of the insured driver or either of the insured drivers to be successful with their claim for damages against the Road Accident Fund (hereinafter referred to as “the RAF”) to recover their full proven damages.
In the event of a minor being involved in a road accident as a pedestrian, the issues of delictual liability and contributory negligence come to mind.
Before the minor’s contributory negligence (if any) can be determined, the accountability should be established.
Accountability and delictual liability:
Children under the age of 7 years:
In terms of the common law, children under the age of 7 years are unequivocally held to be doli incapax (from Latin, meaning “incapable of criminal intent”) and cannot be held accountable for their actions.
Children between the ages of 7 and 14 years:
In terms of the common law, there is a rebuttable presumption that children between the ages of 7 and 14 are held to be doli incapax.
Children between the ages of 7 and 14 years will not be held accountable for their actions unless it can be proved that they had sufficient insight and intelligence to understand the nature and consequences of their actions and that they were able to control impulsive and irrational acts or behaviour.
The defendant bears the onus to rebut the beforementioned presumption.
Children older than 14 years:
Children older than 14 years will be regarded as doli or culpae capax (from Latin, meaning “accountable”) and will be treated as adults when determining contributory negligence.
Contributory negligence and apportionment of damages:
Section 1(1)(a) of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as “the Act”) provides that where any person suffers damage which is caused partly by his own fault and partly by the fault of any other person, the damages recoverable in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the damage.
Children under the age of 7 years:
The Act will not be applicable to minors under the age of 7 years.
To be successful with a claim against the RAF in toto, a minor will still need to prove the proverbial 1% negligence on the part of the insured driver or either of the insured drivers in order to recover his / her full proven damages.
The minor will thus be able to recover 100% of his / her proven damages if negligence can be proved on the part of the insured driver.
Children between the ages of 7 and 14 years:
The Act will only be applicable if the presumption that children between the ages of 7 and 14 are held to be doli incapax was rebutted and the minors were found to be culpae capax.
The minor’s proven damages will be reduced by the degree of his / her own negligence (if any).
If the minor is held to be 20% negligent, he / she will only be able to recover 80% of his / her proven damages.
Children older than 14 years:
The Act will be applicable to minors older than 14 years and the minors’ proven damages will also be reduced by the degree of their own negligence (if any).
Should a court find that the minor was not at fault and there was no question of contributory negligence on the part of the minor, the minor will be able to recover 100% of his / her proven damages.
Example:
A 15-year-old was hit by a motor vehicle driven by the insured driver. The minor’s proven damages were R500 000 and the court found that the minor was 25% to blame for the accident. The minor will only be able to recover R375 000 of the damages suffered as a result of the accident.