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Torts - Negligence - Contributory Negligence - Minors

Saumur v. Antoniak (Ont CA, 2016)

In this case the Court of Appeal canvasses the law applicable to a finding of contributory negligence by a minor child:
[23] The parties agree that the test to be applied in determining negligence, including contributory negligence, in the case of children is that articulated by this Court in Nespolon v. Alford, 1998 CarswellOnt 2654 (C.A.), at para 53:
In determining the appropriate standard of care for children, the test is whether a child exercised the care expected from children of like age, intelligence and experience (McErlean v. Sarel (1987), 1987 CanLII 4313 (ON CA), 61 O.R. (2d) 396 (Ont. C.A.), at pp. 411-12 and McEllistrum v. Etches, 1956 CanLII 103 (SCC), [1956] S.C.R. 787 (S.C.C.); Heisler v. Moke (1971), 1971 CanLII 625 (ON SC), [1972] 2 O.R. 446 (Ont. H.C.) at p. 448 (per Addy J.), see also Downing v. Grand Trunk Railway (1921), 49 O.L.R. 36 (Ont. H.C.) at p. 40). This is both an objective and subjective standard, which acknowledges the need for individualized treatment along with the need for consistency in the law.



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