THE KILBRANDON REPORT
Parental Liability in Civil Law for the Wrongful Acts of Minors
1. The essential principle of Scots law is that a parent is not liable in respect of damage caused by his child unless he himself has been at fault.
2. It is necessary first to make a distinction between direct and vicarious liability. A defender may be liable for a delict either by doing the act himself (as by negligently driving his own motor car) or by contributing by his own fault to a wrong physically caused by someone else (as by allowing a child of 5 to take the wheel of his motor car). These are both cases of direct liability. On the other hand, a defender may be vicariously liable for the act of another although he himself has not been in fault at all. Thus the employer of a servant who commits a delict in the course of his employment is liable in damages, although he is not personally involved in the delict and has taken all proper care to choose a competent servant.
3. Vicarious liability, defined in this way, is a comparatively modem development, and was adopted in Scots law only in the nineteenth century. There was no such doctrine in Roman law, although the peculiarities of the law of noxal liability have tended to obscure this fact. In Roman law the master of a slave who wrongfully caused damage could not be compelled to pay damages unless he himself had been at fault, either by directly authorising the wrong, or because he had been negligent in his choice of slave (culpa in eligendo). In either of these exceptional cases the master was liable, but he was liable directly and not vicariously. In all other cases, where the master had not been at fault, he could not be compelled to pay damages, but the injured party was entitled to seize the slave who had caused the damage and keep him as his own property (in early law, when civil and criminal liability were not well distinguished, the object of this was to ena~e him to wreak vengeance on him). In such a case the master had the right to buy off the slave by paying the amount of the damage. Re was under no liability to do so; it was his privilege to do so if he thought that the amount due was worth paying in order to continue to have the services of his slave.
4. Originally these rules applied to all persons who were in the potestas of the paterfami/ias-i.e., not only to slaves but also to children. Thus in classical law a free man who was afiliusfami/jas could be seized by a person to whom he had wrongfully caused damage in the same way as a slave, with an option to the father to buy him off if it was worth it. The only difference was that the free filiusfamilias had to be released once he had worked off the amount of the damage. In the later Roman law, when it was quite usual for a filiusfamilias to have money of his own which could be used to pay damages, the pursuer's right to seize the person of a free delinquent disappeared.
5. The Roman law may be summarised by saying that in all cases the actual delinquent was liable to make reparation, either financially in the case of a free person sui juris, or by personal servitude in the case of a person without property, whether he was a slave or, in the older law, a filiusfamilias. This second type of liability could be commuted in the option of the paterfamilias, but he was never under any vicarious liability.
6. The earlier Scots law seems to have taken over the Roman law rule that a defender could be made liable only if he had been himself in fault, either by causing the damage himself, or, if it had been caused physically by someone else, by some contributory fault in choosing or controlling the actual delinquent. There is nothing resembling noxal liability in the common law of Scotland, although there is an interesting example of statutory noxality in the Act of 1503 c. 12 (A.P.S. ii 242). This is in the following terms (spelling has been modernised as far as possible):
Item anent stealers of rabbits or pikes out of stanks, breakers of dovecots or orchards or stealers of beehives and destroyers thereof and also anent them that slay deer or roes or roebucks of lords' proper woods that that be a point of dittay in time to come and that the unlaw 1 thereof be E10 together with amends to the party 2 according to the scathe, and if any children within age commit any of these things foresaid because they may not be punished for not lawful age 3 their fathers or masters shall pay for ilk ane of them ilk time committing any the trespass foresaid 13s. 4d. or else deliver the said child to the judge to be lashed, scourged and dung 4 according to his fault.
7. This, however, is merely an amusing curiosity. The common law on the liability of a master for his servant's wrong continued on Roman lines-i.e., he was liable if he had been in fault, and not otherwise. Lord Kames (Principles of Equity (3rd ed., 1778)) deals with the liability of a defender to make reparation for damage caused by "persons, animals and things under his power". No specific mention is made of children:
"With respect to servants, it is the master's business to make a right choice, and to keep them under proper discipline; and therefore, if they do any mischief that might have been foreseen and prevented, he is liable."
Of the institutional writers only Bankton, whose Institute was published in 1751-53, mentions children specifically as wrongdoers for whom a parent may be liable. At first sight it may seem that he is laying down a rule of strict vicarious liability both for servants and for children (1, x. 47):
"By the present custom, if damage is done by children in family, or servants, in the offices or business in which they are employed, their father or master is liable to repair it."
But it is clear from what follows (1) that there is liability for children only in so far as they can be regarded as servants (i.e., that the words "in the offices or business in which they are employed" refer to children as well as to servants, and (2) that Bankton is not really dealing with vicarious liability, but merely with liability for authorised acts:
"But otherwise, the children or servants are only answerable themselves for damage done, without the parent's or master's authority; and, if with it, the parent or master only, and not the children or servants who were bound to obey."
8. There is, so far as we have been able to trace, no later authority until the two Outer House decisions in the twentieth century, with which we deal below. Accordingly, there can be little doubt that in Scots law a father is liable for his child as such only if there has been a culpable failure to prevent damage which the father ought to have foreseen. The mystery indeed is not why there is no vicarious liability for children, but how the law has succeeded in introducing vicarious liability for servants. A full discussion of this would be out of place here, but it seems to have crept in, early in the nineteenth century, as a measure of policy rather than as the result of any conscious principle. Indeed, even as late as 1877 it was regarded as a departure from principle, and to be justified only on the ground of convenience (sc. to the pursuer who would otherwise fail to recover damages). See the opinion of Lord Shand in Woodhead v. Gartness Mineral Co. ((1877) 4R. 469, 508).
9. The two more recent decisions in the Outer House do not advance the matter at all. They were both concerned with an attempt to make a father liable for damage caused by a son over the age of puberty while driving the father's motor car. But in neither was any attempt made to suggest that the father could be vicariously liable for his son. The basis of the pursuer's case was that the father was liable as a principal for the - authorised act of his agent, and in the earlier of the two cases, McKay v. McLean (1920 1 S.L.T. 34), Lord Anderson brushed aside any suggestion that the relationship by itself could have created liability:
"It is plain, I think, that it is an immaterial circumstance that the driver of the car was the defender's son; the question would have been just the same had the driver been a stranger in blood to the defender."