- Dr Jurgen Micallef
The Responsibility of Minors (Part 2)
By Dr Jurgen Micallef - Junior Associate
This article is the second part of a two-part series of articles about the responsibility of minors at law. The first part can be found here.
In the last article, we discussed the principal rule with respect to the civil responsibility of minors. As a general recap, the principal rule embedded within the Maltese Civil Code states that persons having charge of a minor shall be liable for any damage caused by the minor, only if the person in charge fails to exercise the care of a reasonable person in attempting to prevent the act which caused harm.
The law beyond the general principle, however, further states that the following categories of minors shall not be bound to make good the damage caused by them (saving, of course, the general principle that the person in charge shall be responsible in their stead):
(1) Children under 9 years of age; and
(2) Children who have not attained the age of 14 years old, unless it is proved that they have acted with a mischievious discretion
Let us dissect the meaning of the law.
Essentially, it is stating that no direct civil action can be brought against minors who have not attained the age of 14 years. However, if the minor has attained an age between 9 and 13, and has acted with ‘mischievous discretion’, then a civil action can be brought directly against them. Mischievious discretion essentially refers to when the minor had intended the harmful consequences which ensue from his or her intended actions. It must be shown that the minor was aware of his or her acts and the effects of the consequences which result following his or her wrongdoing.
As an illustration, here are the following examples:
(1) If an 8-year old causes harm to a person (the victim), the victim cannot institute civil proceedings claiming compensation directly from the minor. Instead, the victim may bring an action against the person in charge of that minor;
(2) If a 12-year old causes harm, the victim can institute civil proceedings claiming compensation directly from the minor, but the victim must show that the minor acted with mischievious discretion. As in the above case, the proceedings may also be instituted against the person in charge of the minor;
(3) If a 16-year old causes harm, the victim can institute civil proceedings directly against the minor and claim compensation directly from him or her. This is because the law does not specifically address minors who are over the age of 14 years old. The general principles of civil responsibility therefore apply.
Therefore, whilst a civil action cannot be brought directly against minors who are under the age of 9 years old, a civil action can be brought against minors above the age of 9 years old if it can be shown that they have acted with mischievious discretion. With respect to minors who have attained the age of 14 years old (and older), the requirement for mischievious discretion does not apply and instead, the general provisions of civil responsibility apply. It is nevertheless important to note that although there are instances when an action cannot be brought against the minor, the action may still be brought against the person in their charge, as discussed in Part 1.
However, what if the person in charge had indeed exercised the care of a reasonable person in attempting to prevent the act which caused the harm? Does that mean that the minor is exonerated of civil liability scot-free? Or does that mean that the victim will remain uncompensated for the harm caused by the minor?
In instances where the person in charge is not found responsible of the damage caused because they have successfully exercised all due diligence required under the law in attempting to prevent the harmful act, the law still provides a solution to the victim of the wrongdoing. It states that in such instances, the court, having regard to the circumstances of the case, and particularly to the means of the party causing the damage and of the injured party, order the damage to be made good, wholly or in part, out of the property of minor. Although this is a rare occurrence, it is still permissible by law. This means that if a minor caused harm to a particular victim and the person in charge of the minor cannot be found responsible, the court may order that compensation is given to the victim out of the minor’s property.
The Courts have often noted that this provision of the law is based on the principles of equity – meaning that the courts are allowed to use their discretion in finding a solution that is fair for both parties. The primary reason for this is that there may be situations where no one can be found legally responsible, despite that the victim had clearly suffered harm. Because of this, the Courts are allowed to compensate the victim proportionate to the circumstances.
Dr Jurgen Micallef is Junior Associate at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us at firstname.lastname@example.org.