Contributory negligence and children’s rights: the (potentially) transformative role of courts in Scotland and South Africa

Abstract Little has been written about the rights of children in delict (a functional equivalent of tort), the legal field concerned with compensating those who have suffered injury or loss due to wrongful actions of others. Yet in many legal systems children can, and do, raise legal proceedings seeking damages for injuries caused by another’s negligence. Negligent wrongdoers (normally adults) often attempt to reduce any damages awarded by arguing that the injured child was contributorily negligent. This paper analyses and compares how Scotland and South Africa approach such claims. Both have mixed, uncodified legal systems and have embedded children’s rights in domestic law. In South Africa the provisions of the UN Convention on the Rights of the Child are incorporated in the Constitution of the Republic of South Africa 1996 and in various statutes, notably the Children’s Act 38 of 2005. The recent UN Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 directly incorporates the child’s Convention rights in Scottish law. We examine how each jurisdiction assesses childhood capacity for contributory fault, exploring what a rights-based approach might involve. Finally, we consider the (potentially) transformative role of courts. Drawing on the South African experience, we propose a way Scottish courts could integrate children’s rights in contributory negligence decisions concerning children.