Parental Advisory: Can Parents Be Held Liable for Their Children’s Acts or Conduct?

Though outdated at this day and age, a typical Asian’s checklist for life is this:-

1. get outstanding (if not, good) grades in school;
2. get a job (if it is a government work, all the better);
3. get a house;
4. get married;
5. get kids; and
6. get grandchildren.

If you have done the above, generally, you are considered as a successful Asian (in the eyes of the strict, and judgmental Asian parents). 

Having done the above grants you the power of invincibility against social attacks (i.e. inappropriate queries) from relentless aunties or uncles (but mostly, aunties).

The Kryptonite

But there is one kryptonite to every parent – their children. 

Though unfair at times, the truth is, a child’s predicament is always traced back to his or her parents, regardless of which society that child is in. 

This is more so when the child is in an Asian community, where children are the representation of their parents’ parenting skills. 

The attitude and aptitude of children are regarded as representing their parents’ integrity and credibility as human beings. 

It is so much so that there seems to be one common retort in our community to when a child (seemingly or otherwise) makes a mistake – “mak bapak kau tak ajar ke?” (“Your parents don’t teach you to behave?”).

Can you blame the child’s predicament on the parents’ fault, either in supervising their child, if the parents have done the best that they could under the circumstances they are in?

Cases in a Nutshell

This issue was discussed in Lim Jeh Haur v Nicholas Thomas Philip & Mathew Thomas Philip [2019] 1 LNS 1351 [HC] (“the Nicholas case”). The Nicholas case concerns an appeal by a resident to the High Court against the decisions of the Sessions Court Judge in allowing a child’s claims against the said resident and dismissing the said resident’s claims against child’s parent’s for contribution and indemnity, the facts of which are as follows:-

1. The parties to the Nicholas case, at all material times, resided at a gated housing estate.
2. On 17.9.2010 (collectively, “the Incident”):-
3. as the 1st Respondent, who was a minor at the time of the Incident, cycled in the gated housing estate, the Appellant’s car suddenly collided with the rear of the 1st Respondent’s bicycle; 
4. The 1st Respondent, who was 10 at the time of the Incident, suffered severe injuries as a result thereof.
5. At the time of the Incident, the 2nd Respondent, who was the 1st Respondent’s father, was not at home and was instead, on his way to his office.
6. The 1st Respondent claimed against the Appellant, via a suit at the Sessions Court, for negligence. The Appellant, in response thereto, filed, amongst others, a third party proceedings against the 2nd Respondent, to claim for indemnity or contribution on the part of the 2nd Respondent. In this regard:- 
7. the Appellant’s basis for the third party proceedings was, inter alia, that the 2nd Respondent (as the 1st Respondent’s father) was negligent or contributorily negligent in failing to supervise the 1st Respondent in cycling in the gated housing estate. 
8. In addition to holding that the Appellant was 100% negligent in the Incident, and therefore, allowed the 1st Respondent’s claim against the Appellant, the Sessions Court also dismissed the Appellant’s claim against the 2nd Respondent vide the third party proceedings.

In affirming the decision of the Learned Sessions Court Judge (particularly on the issue of whether the 2nd Respondent can be made liable for the Incident), the High Court held that the 2nd Respondent does not owe any duty of care to the Appellant to ensure that the 1st Respondent rides a bicycle on a road in a gated residential community under supervision for, inter alia, the following reasons:-

1. It is not reasonably foreseeable that the Appellant would drive negligently on a road in a gated residential community and cause loss and damage to a minor riding bicycle on the same road;

2. There is no physical proximity between the Appellant and the 2nd Respondent to justify the imposition of a duty of care on the 2nd Respondent, since the 2nd Respondent was not at home and was travelling to his office at the time of the Incident;

3. Based on the circumstances or cause of the Incident, there is no proximity between the Appellant and the 2nd Respondent to justify the imposition of a duty of care on the 2nd Respondent, as follows:-

• the 1st Respondent was ten years old at the time of the Incident; and
• the 1st Respondent had sufficient experience and skill to ride a bicycle on a road in a gated residential community without any supervision.

4. Further, it is too onerous to impose a duty of care on:-

• single parents who have to work full-time to support their families and yet, they have to supervise their children at all times; and
• parents who do not have financial means to have insurance coverage for their children and if their children suffer personal injuries in accidents caused by the defendants (such as in this case), the parents have to contribute to or indemnify the defendants (by way of third party proceedings) for the defendants’ liability regarding their children’s injuries. 

The above is in consonance with the test laid down by the Singapore Court of Appeal in Spandeck Engineering (S) Pte Ltd v. Defence Science & Technology Agency [2007] 4 SLR 100 (“the Spandeck test”), as referred to by the Federal Court in Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor [2015] 4 MLJ 734, as follows:-

“[56]  The two-stage test in Spandeck: 

1. sufficient legal proximity 

The first stage of proximity required ‘sufficient legal proximity’ between the claimant and defendant for a duty of care to arise. The focus is on the closeness of the relationship between the parties, including physical, circumstantial and causal proximity, supported by the twin criteria of voluntary assumption of responsibility and reliance; 

2. policy considerations 

If a positive answer to the threshold question of factual foreseeability and the first stage of proximity was assumed, a prima facie duty of care arises. Policy considerations, such as the presence of a contractual matrix which clearly defined the rights and liabilities of the parties and their relative bargaining positions then arise and they are applied to the factual matrix to determine whether or not to negate this prima facie duty; and 

3. incremental approach 

The two-stage test is not exclusive since it must be advocated by the incremental approach the two-stage test is to be applied incrementally with reference to the facts of decided cases. However, the absence of a factual precedent in analogous situations of proximity and/or policy considerations should not preclude the court from extending liability where it is just and fair to do so, taking into account the relevant policy consideration against indeterminate liability against a tortfeasor.

…

P.S In view of the position taken in Spandeck, it becomes questionable how the so called threshold question of “factual perspective” is to be satisfied in a negligence claim in the absence of any legal principle including that of the reasonable man test. Hence even if one were to look at the concept of reasonable foreseeability from a factual perspective, it should not by its very nature be out of place in a legal test. That being the case, it might have been preferable if the test in Spandeck had simply been formulated as a three-stage test of foreseeability, proximity and policy considerations.”

Please note the following:-
1. the Spandeck test was only referred to by the Malaysian Federal Court in the Lok Kok Beng case. Nevertheless, the Federal Court did not regard the Spandeck test as test to determine the existence of a duty of care in Malaysia; and
2. as at the date of this Article. the Appellant in the Nicholas case has appealed against the decisions of the High Court, and such appeal is pending at the Court of Appeal.

Conclusion

It is humanly impossible to impose a duty on parents to be accountable for every predicament their child is in (whether or not the child is, personally, legally or otherwise, at fault). To hold that such duty exist would open a floodgate of claims and injustices which would later on lead to a state of chaos. 

There are, however, instances where it may be unfair to not hold the parents equally (if not more) accountable for the predicament to which their child is in. This includes when the child is of the tender age of, for example, 2, and is incapable of taking care of himself or herself. In this regard, the degree of accountability the parents have on the child (given that the child is incapable of taking care of himself or herself) may be sufficient enough to hold them liable for negligence.