When children cause damage

12. Juni 2024

«Children must not be excessively restricted in their freedom of movement», writes the Federal Supreme Court in a much-cited decision (BGE 95 II 255). However, if children are given the space and freedom necessary for a healthy development, they may cause damage: A broken object due to children playing with a ball, a child is pushed during a fight and injures himself, a sling shot hits a person or a window, etc. The question immediately arises as to who is liable for this damage.

To answer this, the child’s capacity of judgement must be examined: Was the child able to recognise and assess the situation correctly? Was he or she able to assess that his or her behaviour would result in possible damage? Was it possible for them to act accordingly?

The more complex the situation and the younger the child, the more likely it is that these questions will be answered in the negative. However, if can be affirmed, the child is presumably capable of judgement and can be held liable under Art. 41 CO. In this case, however, the amount of damages is often reduced due to the child’s age (Art. 43 para. 1 CO).

Does this mean that the injured party is denied full coverage of their damage? Not necessarily. In addition to the child, the head of the family can also be held liable. The head of the family is liable for the underage members of the household unless he or she can prove they fulfilled the duty of care in supervising them (Art. 333 ZGB). The head of the family can be any person who lives in the same household as the child. This also includes institutions such as boarding schools, teaching establishments (if the underage person stays there overnight) or relatives who regularly look after the child overnight.

Even children who are incapable of judgement can be obliged to pay compensation at discretion of the judge by means of equitable liability (Art. 54 CO). Financial considerations often play a role when weighing up whether such equitable liability is appropriate. For example, if the victim is in a difficult financial situation due to the damage and the child who caused the damage is covered by liability insurance, it would be unwarranted if the injured person had to bear the full consequences of the accident themselves (see BK-Brehm, N 28 on Art. 54 CO).

It should be noted that the equitable liability of a child who is incapable of judgement under Art. 54 CO can generally only be applied if the head of the family is not liable for the damage (see BK-Brehm, N 38 to Art. 54 CO). On the other hand, the liability of the minor capable of judgement under Art. 41 CO and the liability of the head of the family can be asserted in parallel in the sense of concurrence of claims (Art. 51 CO, BGE 130 lll 591 E.5.5.1).

Attn Anna Schneider