EDITORIAL - Vicarious parental liability
Many readers will be familiar with the concept if not the finer details of the doctrine of vicarious liability. This traditionally operates to hold one party liable for the wrongful acts of another. Our law has historically restricted this form of liability mainly to the relationship of employer and employee and, less frequently, that of principal and agent. In recent times, perhaps suitably outraged by the misconduct of some of the nation’s children, some people have proposed that this form of liability should also attach itself to the relationship of parent and child.
Earlier this year, the Honourable Attorney General, Mr Adriel Brathwaite stated that he has been championing the reform of our juvenile legislation “to make not just the juvenile accountable, but also the parents accountable…” And in a lunchtime address last weekend, former school principal, Mr Jeff Broomes, urged that in the same way parents are legally accountable for sending their children to school and providing shelter and clothing, they should also share a measure of accountability for the deviant and violent behaviour of their minor children, although he conceded that it need not be a custodial penalty.
We agree that the analogy of the vicarious liability of a parent for the wrongful acts of its child with that of an employer for those of its employee is an attractive one. Indeed, at one level, it is even more compelling. While the employer has nominal control only over the acts of the employee in the course of employment, the parent is ordinarily responsible for the attitudes of the child towards the property and physical integrity of others and thus even more culpable if the child should invade any of these interests of another.
However, the notion of vicarious parental responsibility will require, as the AG suggests, legislative change since it is not a feature of the common law. The idea appears to have gained ground in the United States. According to an article in the New York Times, there has been the enactment of condign legislation in some of the states in the US – an Idaho law authorises courts to require parents to pay detention costs for a juvenile; in West Virginia the parents of a child that has defaced a public building may be held liable for up to $3 000 in fines; and in Louisiana, parents can be found guilty of improper supervision of a minor and both fined and confined if their child associates with a convicted felon, drug dealer or members of a street gang. Clearly this last one is not a true vicarious liability; the parents are themselves in default of their personal duty properly to supervise the child.
Barbados has itself already legislated similarly. According to section 64B of the Education Act, Cap. 41–
(1) “A pupil who wilfully damages or destroys school property or the property of any person lawfully on the school premises is guilty of an offence and liable on summary conviction to fine of $500, if he is under the age of 16 years, or, if he is 16 years of age or older, to such fine or to imprisonment for 3 months or both.
(2) The Court before which a pupil referred to in subsection (1) is tried may, in accordance with section 120 of the Magistrates Jurisdiction and Procedure Act, order the parent of that pupil to pay compensation for the destruction or damage caused.”
We are not entirely persuaded however that the imposition of liability on parents for all the wrongful acts of their children will necessarily achieve the desired outcome of improving juvenile conduct. Where the wrongful act causes harm, loss or injury to the victim, it should suffice to have the parent pay any compensation necessary to redress the wrong.