Mchale v Watson
[1966] HCA 13(Decision by: Kitto J)
Mchale
vWatson
Judges:
McTiernan ACJ
Kitto JMenzies J
Owne J
Judgment date: 7 March 1966
Melbourne
Decision by:
Kitto J
The appellant, a girl of nine, was hit in the eye by a piece of steel welding rod, about six inches in length and a quarter of an inch in diameter, which had been sharpened at the end that struck her. According to findings which are not challenged, the spike, as it has been called, was thrown by the respondent, a boy of twelve, with the intention of endeavouring to make it stick into a hardwood post at a point at which he aimed, but it glanced off the post and struck the appellant. The respondent, it has been found, had no intention of either hitting the appellant or frightening her. The question whether he is liable in damages for the injury which the appellant sustained depends upon whether by throwing the spike as he did he committed a breach of a duty of care which he owed her.
The respondent was standing a foot or two from the post, and the appellant was at most four or five feet from him and to his left. He knew that the spike was sharp, and therefore that it might injure anyone whom its sharpened end should strike. If he had been an adult the question to be decided would have been whether an ordinary person in his situation, exercising reasonable foresight, would have realized that if he should throw the spike at the point on the post at which in fact he aimed there was such a likelihood of its glancing off the post and hitting the appellant that in ordinary prudence he ought not to throw it as he did. The learned trial judge did not express a concluded opinion as to the answer he would have given to this question. Saying that he did not think he was required to disregard altogether the fact that the respondent was at the time only twelve years old, his Honour reached the conclusion that the injury to the appellant "was not the result of a lack of foresight and appreciation of the risk that might reasonably have been expected, or of a want of reasonable care in aiming the dart"(1). I take this to mean that the test to be applied in determining whether the appellant's injury resulted from a breach of a duty owed to her by the respondent should be stated not in terms of the reasonable foresight and prudence of an ordinary person, but in terms of the reasonable foresight and prudence of an ordinary boy of twelve; and that the respondent should succeed because an ordinary boy of twelve would not have appreciated that any risk to the appellant was involved in what he did.
The appellant invites us to hold that this was wrong both in law and in fact. The principal argument submitted on her behalf was directed to the question of law. It was that the common law prescribes a minimum standard of care to be observed by everyone for the safety of all who may be injured by non-observance of it, and that that is the standard of care reasonably to be expected of a man of reasonable foresight and prudence in the circumstances. Thus it is contended that in relation to every set of circumstances and every person, child as well as adult, the test of actionable negligence is accurately stated, not only in substance but literally, in Baron Alderson's well-known formulation in Blyth v. Birmingham Waterworks Co.(1): "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do"(2).
It is necessary to go back beyond Baron Alderson's time, for he was stating in concrete terms, for application in the general run of cases, the conception of reasonableness of conduct in reference to which liability for negligence had come to be based; and the question whether his statement is literally applicable in the case of a child (even substituting "person" for "man", in accordance with the tenor of the judgment) is a question as to the true theory of liability in negligence rather than one of verbal interpretation. It has been by many considered, though Diplock J. (as he then was) suggested doubt about it in Fowler v. Lanning(3), that in mediaeval England liability for causing harm to another was absolute, provided only that the case fell within one of the established forms of action. Holdsworth gives an illustration from the Year Books (35 Hy. VI), where counsel was appealed to not to go on with a case against a child because he could not have known what he was doing, "so that there could hardly be said to be an act in this case"; and he adds that it seems to have been admitted that if the child pleaded and was found guilty the judge would have no discretion: History of English Law, vol. iii, p. 376 (n). Bacon, in a passage in his Maxims which is quoted by Holdsworth, op. cit. vol. iii, pp. 376, 377, wrote, "so if an infant within" (meaning, no doubt, under) "years of discretion, or a madman, ... put out a man's eye, or do him like corporal hurt, he shall be punished in trespass." And even as late as the 17th century, it was considered that infancy, dementia, chance, ignorance, civil subjection, compulsion, necessity, fear, did not ordinarily excuse a person from civil liability for damages for injury caused, because, as was said, "such a recompense is not by way of penalty, but a satisfaction for damage done to the party": Hale's Pleas of the Crown, 1800 ed., vol. i, p. 15.
Partly, no doubt, as a development of the idea always recognized that this strict liability should extend only to immediate and not to remote consequences of the act, the law came in time to limit it to acts involving a shortcoming on the part of the defendant: Holdsworth, op. cit. vol. iii, p. 379. Act of God and inevitable necessity thus came to be admitted as excuses; and, those steps having been taken, liability not unnaturally became further restricted so as not to attach to acts which, though causes of harm, were inherently proper and were for that reason to be considered not so proximate as to entail liability: Holdsworth, op. cit. vol. viii, pp. 455 et seq. But propriety, in the relevant sense, has never been a matter of a morally blameless state of mind: see Pollock's excursus on negligence in The Law of Torts, 15th ed. (1951), p. 336, and the observations of Lord Denning as to unsoundness of mind in White v. White(1). In so far as "proper" is an apt word to use in this connexion it connotes nothing but conformity with an objective standard of care, namely the care reasonably to be expected in the like circumstances from the normal person exercising reasonable foresight and consideration for the safety of others. Thus a defendant does not escape liability by proving that he is abnormal in some respect which reduces his capacity for foresight or prudence.
The principle is of course applicable to a child. The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard. In regard to the things which pertain to foresight and prudence-experience, understanding of causes and effects, balance of judgment, thoughtfulness-it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults; the very concept of normality is a concept of rising levels until "years of discretion" are attained. The law does not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances. But up to that stage the normal capacity to exercise those two qualities necessarily means the capacity which is normal for a child of the relevant age; and it seems to me that it would be contrary to the fundamental principle that a person is liable for harm that he causes by falling short of an objective criterion of "propriety" in his conduct-propriety, that is to say, as determined by a comparison with the standard of care reasonably to be expected in the circumstances from the normal person-to hold that where a child's liability is in question the normal person to be considered is someone other than a child of corresponding age.
Assistance on the subject is not to be found in the shape of specific decision in England or in this country, and judicial opinions in the United States and Canada have varied both in result and in reasoning. It seems to me, however, that strong support for the view I have indicated is provided by decisions on the cognate subject of contributory negligence. It is true that contributory negligence is not a breach of legal duty; it is only a failure to take reasonable care for one's own safety. But I must respectfully disagree with those who think that the deficiencies of foresight and prudence that are normal during childhood are irrelevant in determining what care it is reasonable for a child to take for the safety of others though relevant in determining what care it is reasonable for a child to take for himself. The standard is objective in contributory negligence no less than in negligence, in the sense that an ordinary capacity for care is postulated, and is notionally applied to the circumstances of the case in order to determine what a reasonable person would have done or refrained from doing, regardless of the actual capacity for foresight or prudence possessed by the individual plaintiff or defendant. The competition as to efficiency of causation is between "a breach of duty by the defendant and the omission on the part of the plaintiff to use the ordinary care for the protection of himself or his property that is used by the ordinary reasonable man in those circumstances": per Lord Atkin in Caswell v. Powell Duffryn Associated Collieries Ltd.(1). See also the quotations which Lord Wright repeated with approval in the same case (2). (It would seem that Jordan C.J. took a somewhat different view in Cotton v. Commissioner for Road Transport and Tramways(3), for he expressed himself in terms of the capacity of the individual to take care. In so far as his Honour's observations suggest a subjective standard for contributory negligence they ought not, I think, to be accepted.)
It seems never to have been doubted in any reported case from Lynch v. Nurdin (1) onwards, that contributory negligence on the part of a child consists in a failure to exercise the care reasonably to be expected of an ordinary child of the same age. See also Harrold v. Watney(2); Yachuk v. Oliver Blais Co. Ltd.(3). Baron Parke made an interesting remark in Lygo v. Newbold(4), to which Davidson J. referred in Cotton v. Commissioner for Road Transport(5). He said that the decision in Lynch v. Nurdin(1) "proceeded wholly upon the ground that the plaintiff had taken as much care as could be expected from a child of tender years"-in short, that the plaintiff was blameless, and consequently that the act of the plaintiff did not affect the question. In these words, as it seems to me, the whole matter is summed up: the standard of care is objective; it is the standard to be expected of a child, meaning any ordinary child, of comparable age-the child there was sufficiently described as of tender years-not that which is to be expected of an adult; and the child's blamelessness, by the standard so determined, is treated as saving his conduct from being regarded as such a cause of his injury as to affect the question of the defendant's liability.
I am therefore of opinion that the learned trial judge did not misdirect himself on the question of law. There remains the question of fact: did the respondent, in throwing the spike as he did though aware of the proximity of the appellant, do anything which a reasonable boy of his age would not have done in the circumstances-a boy, that is to say, who possessed and exercised such degree of foresight and prudence as is ordinarily to be expected of a boy of twelve, holding in his hand a sharpened spike and seeing the post of a tree-guard before him? On the findings which must be accepted, what the respondent did was the unpremeditated, impulsive act of a boy not yet of an age to have an adult's realization of the danger of edged tools or an adult's wariness in the handling of them. It is, I think, a matter for judicial notice that the ordinary boy of twelve suffers from a feeling that a piece of wood and a sharp instrument have a special affinity. To expect a boy of that age to consider before throwing the spike whether the timber was hard or soft, to weigh the chances of being able to make the spike stick in the post, and to foresee that it might glance off and hit the girl, would be, I think, to expect a degree of sense and circumspection which nature ordinarily withholds till life has become less rosy.
Sympathy with the injured girl is inevitable. One might almost wish that mediaeval thinking had led to a modern rule of absolute liability for harm caused. But it has not; and, in the absence of relevant statutory provision, children, like everyone else, must accept as they go about in society the risks from which ordinary care on the part of others will not suffice to save them. One such risk is that boys of twelve may behave as boys of twelve; and that, sometimes, is a risk indeed.
In my opinion the appeal should be dismissed.