Contributory negligence of the children If a plaintiff is a child or other persons under some form of personal ability, it is enough if he shows as much care as a person of that kind may reasonably show. He will not lose his remedy simply because a person of full capacity might, by using some care, have avoided the accident.
Thus in Lynch v. Nurdin, the defendant left his cart and horse unattended, negligently in a street. The plaintiff aged 7 years climed into it. Another boy drove the horse. The plaintiff fell down and was injured. It was held that the defendant was liable because no one can expect better care from a child of 7 years. Let us take one more case.
In Williams v. Cardiff Corporation, the defendant Corporation allowed children to play on a waste land used by it for tipping the rubbish. A child was injured due to a trap on the ground. The Corporation was held liable.
Thus, in Glasgow Corporation v. Taylor, a child who entered a Botanical Garden open to public in general kept by the defendant Corporation are some attractive, but poisonous berries in the garden and died. The defendants were held liable. But if the child is a trespasser, he cannot recover damages.
In C. Chimathambi v. State of Tamil Nadu, two students of a school died due to fall of a water tank on them during school hours. Tank was constructed on the school by the Parent-Teacher Association for the use of students and teachers. On the fateful day while these two children were washing their utensils in the recess the said water tank broke and fell down on the innocent children crushing them deald. The Government awarded Rs. 5000/- by way of ex gratia payment to their parents. The parents filed the petition in the High Court saying that the Government had tortuous liability and since the accident took place during the school time the Government was liable to compensate the parents for the life of their children and the compensation of Rs. 5000/- was meagre. They claimed Rs. 1,50,000.
It was held that the school being a Government school it was the duty of school authorities to see that the tank was properly constructed and would not be hazardous to lives of children. Since the school authorities had failed in their duty to maintain the water tank properly, the school authorities were vicariously liable to pay, compensation to the parents of the children. Therefore, considering the age of children, their social background and that they were bona fide students and would have had bright future the Court increased the compensation from Rs. 5,000 to Rs. 1,50,000.
In Nitin Walia v. Union of India, a boy aged 3 years, Nitin Walia, appellant in the present case lost his right arm in an unfortunate incident. It crippled him for life. This boy visited National Zoological Park, Delhi alongwith family members to see various animals kept in zoo. His joy was boundless when he reached the enclosures where the white tigress was being kept. All family members were keenly watching the tigress. The white tigress was kept inside iron bars. There was railing before that. The boy reached near the railing without realising as to what was in store for him. The tigress all of a sudden grabbed his hand through the railing and pulled it in. Tigress had bit the right arm of the boy. He was taken to the hsopital situated in the zoo but the doctors in the zoo expressed their inability to provide any treatment for want to any medicine or facilities for that purpose. He was taken to All India Institute of Medical Sciences where the right arm of the boy had to be amputated to avoid further loss of any of the limbs or child’s life. The appellant has now to spent rest of his life without a vital organ of body. He has been rendered permanently disabled.
It was held that the zoo authorities were negligent and liable to pay compensation Rs. 5 lacs with interest to the appellant. It was bounden duty of the zoo authorities to ensure that wild animals to the zoo are kept and confined in such manner that they are incapable of causing damage or injury to the visitors to the zoo. Zoo authorities were well aware that people of all ages visit zoo. They were well aware about the habits of various animals. In the present case the zoo authorities and their employees were aware of the mischievous propensity of the white tigress kept in zoo. After the incident the respondents have fenced the area by putting wire mesh on iron bars. This itself showed that the type of caution which was required was not taken earlier resulting a child of 3 years of age which could not have thought of engdanger and may have treated the white tigress as a toy to play with, fell prey to the horrible incident.
It was held that it is the absolute liability of the owner of dangerous animals to keep the animals within safe bounds so that it was not able to cause any injury to any visitor. If such injury was caused, the presumption would be that it was the zoo authorities who were negligent. In fact zoo authorities were the occupier of the premises in question and they, therefore, owed duty to care towards visitors to keep it safe.