Law/Judiciary

Minors And Law Of Tort

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A minor is any person who is not an adult. A minor is person
who is under the age of eighteen years, which is the age at which a person
attains adulthood. The word “minor” includes infants, children and young person
who have not attained adulthood. In Nigeria, adulthood to 18 years. Therefore,
a minor is anyone who is under 18 years. As a general rule, minority is not a
defence in tort.

At common law or the general rule of law, a child is under a
general incapacity to exercise all the rights of an adult or perform civic
duties such as voting in an election, or holding public or private office or
perform the duties incidental to them due to infancy. A child also lacks the
legal capacity to give consent and carry out any legally effective act. As a
general rule, the capacity or right to act on behalf of the child, where
necessary is usually vested on the child’s parents or guardian. A parent or
guardian also gives consent for medical care of infants and young persons.

Generally, a minor can only sue for a tort through his next
friend that is, his parents, nearest adult relative or person in loco parentis
who is expected to guide his interest. As a general rule, minority is not a
defence in tort, however, infancy or youthfulness is a defence, where the
presence of a mental element, such as malice is needed to establish a tort.
Minority is also relevant in considering the standard of care to be expected of
a young person. Furthermore, a minor cannot be sued in tort, and it would be an
indirect way of enforcing an invalid contract or a contract that is not for the
necessaries of life of the minor.

Comparatively in criminal law, a young person under ten
years is usually conclusively presumed to be incapable of crime. For those
between the ages of ten to fourteen years this presumption of law may be
rebutted by evidence showing that the child knew that what he was doing was
wrong. Those above fourteen years are presumed to be responsible for their
conducts. However, there are limitations to the type of penalty that may be
imposed on convicted minors.

As a general rule, a minor is liable for his torts, except
in a limited number of instances. For instance, a minor is not liable where the
alleged tort requires a mental element. The age of the minor if he is very
young may show an inability to form the necessary guilty or mental intent. Thus
in cases of negligence a young child cannot be expected to show the same
standard of care as an older person. In other instances, a minor is generally
liable for his wrongful, willful or negligent act. A minor is personally
liable. For this reason, in criminal proceeding, a minor who is found guilty
may be sent to a borstal or welfare home for the necessary education,
counseling, correction and proper formation of character,

As a rule, a parent is not liable for the torts of his minor
merely because he is the parent of
concerned child. As a result, damages will not be chargeable to the
parents for the only reason of being the parent or guardian. However, a parent may
be liable where he has authorised, commissioned abetted, counseled, encouraged
or ordered a tort, in which case the parent could incur vicarious liability.

Thus, the minor may be sued jointly with parent, guardian or
other person in loco parentis for the payment of damages.

The general rule of law is that a minor can sue other
persons and be sued in any areas of law. However, the minor must sue through an
adult as “next friend”. In civil litigation, a minor sues through “a next
friend” that is an adult who is usually liable for the costs if any that may be
awarded against the minor, though they may arrange for the indemnity between
themselves. A minor defends civil (litigation) suits through a guardian  ad litem who is not liable for costs. A
minor’s father or mother if he has any can sue for a tort through his “next
friend, that is his nearest adult relative and also be sued in tort and defend
by the same persons.

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