Children in Tort Law: Children as Tortfeasors and Victims

The project "Children in Tort Law: Children as Tortfeasors and Victims" provides a comparative survey of the special protection awarded to children under tort law and is based on the legal systems of Germany, Italy, Austria and Spain. Several international treaties are concerned with the protection of children, above all the United Nations Declaration of the Rights of Children of November 20, 1959, which acknowledges in its Preamble that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection". Not only have special constitutional provisions recently been created in several European countries, but this concept has also been incorporated in European legal systems on the basis of other areas of law. Especially in the field of tort law, in the last two decades national legislators have made provisions regarding the legal situation of children which go far beyond traditional topics like tortious liability and responsibility of the parents. Problem areas of topical interest are, eg, the question of children as tortfeasors and claims for compensation that threaten their (future) economic existence, or the question to what extent children as victims are liable for their own behaviour and the behaviour of their parents when it comes to assessing damages. The comparative method is capable of illuminating general principles in this particular area of the law, which so far has not been dealt with in a comprehensive manner. From the European perspective, a set of tools can be developed which not only balances the need of protection of children as tortfeasors and children as victims, but also helps national legislators to adapt the individual legal systems to the progress of modern society. The members of the team, Prof. Comandé (I), Prof. Koziol (A) and Prof. Martn Casals (E) belong to the European Group on Tort Law and have been involved in comparative research on European tort law. Prof. Wagner (D) is also a leading expert in tort law and comparative law. The project will be coordinated by the European Centre of Tort and Insurance Law (Vienna, Austria) and the Research Group of European Private Law (University of Girona, Spain).

Affording special protection to children is required by a number of binding international provisions and the national legislatures have developed this protection in the different areas of law; tort law especially plays an important role. Since the comparative method is capable of illuminating general principles in this particular area of law, which so far have not been dealt with in European legal writing, the project "Children in Tort Law: Children as Tortfeasors and Victims" provides a unique comparative survey of the special protection awarded to children under tort law and provides therefore a broad basis for future discussion and legislation on national as well as European level. This study resulted in two books: "Children in Tort Law: Children as Tortfeasors" and "Children in Tort Law: Children as Victims" and is based on the legal systems of 11 European countries (Austria, Belgium, Czech Republic, England and Wales, France, Italy, The Netherlands, Portugal, Russia, Spain and Sweden). From the tort law perspective, both topics require a specific treatment of children as tortfeasors as well as victims. For the last few decades some legal systems have been trying to find new solutions for a better protection of children, while other legal systems still follow more traditional rules. Together both books analyse both the traditional solutions found in some legal systems and the newer solutions offered by others. The first part of research completed gives detailed answers to the main questions concerning the position of children as tortfeasors as well as the position of their parents and people under a duty of supervision. Are children liable and is there any age limit below which they have no tortious capacity? Can children in spite of their lack of tortious capacity, for reasons of equity be held liable in exceptional conditions? Under which circumstances are parents or other people under the duty of supervision liable for a child`s actions? What is the relationship between liability of children and liability of their parents or guardians? Are these questions answered by special rules of general application in all fields of tort liability or are there specific rules for specific torts? Since children are not as capable as adults to perceive the risks involved in many situations of daily life, they are at a high risk of suffering personal injuries, mainly resulting from home, school and traffic accidents. Therefore the same working team dealt in the second part of this comparative analysis with the problems related to the position of children as victims and devoted specific attention to damage issues, apportionment of damage and insurance problems when the victim is a child. Both Volumes contain a comparative analysis and concluding remarks concerning the discussion on future developments and solutions in this area of law.