Mchale v Watson
[1966] HCA 13(Judgment by: Menzies J)
Mchale
vWatson
Judges:
McTiernan ACJ
Kitto J
Menzies JOwne J
Judgment date: 7 March 1966
Melbourne
Judgment by:
Menzies J
The appellant, by her next friend, sued the respondent, by his guardian ad litem, for damages for assault and trespass. Her action failed because the learned trial judge found as follows:-"... my conclusion on the facts of this case is that the injury to the plaintiff 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. I find that Barry Watson was not negligent in the legal sense. I therefore dismiss the case against him"(1). His Honour so found after casting the onus of disproving negligence upon the defendant in accordance with the decision in Blacker v. Waters(2) and the authorities there cited. This decision upon the onus of proof has already excited comment-see (1965) 39 A.L.J. 97-but in the event his Honour's ultimate conclusions did not rest upon this decision.
It was conceded upon this appeal that there was no intentional assault or trespass and that therefore the respondent was entitled to the judgment in his favour if it was a correct finding that there was no negligence on his part: Stanley v. Powell(3); Fowler v. Lanning(4).
In Degg v. Midland Railway Co.(5) Bramwell B. said:-"There is no absolute or intrinsic negligence; it is always relative to some circumstance of time, place or person ... It seems to us there can be no action except in respect of a duty infringed ..."(6). In Thomas v. Quartermaine(7) Bowen L.J. said:-"... the ideas of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound by law to exercise towards somebody"(1). Accordingly, it was well said in 1903 that: "For as an act of negligence implies a breach of some duty, the nature and extent of that duty must first be ascertained before it can be decided as a fact whether there has been any breach of it; and it would seem to follow that an act of negligence cannot be greater or less than is involved in the breach of the particular duty. Once you have ascertained the nature of the duty imposed, you can determine as a matter of fact whether it has been discharged or neglected. You cannot do so before you have ascertained what that duty is; and it does not assist you in ascertaining it to classify the degree of negligence": Sington-The Law of Negligence.
The first inquiry must therefore be-what duty of care was owed by the respondent, a boy of twelve, to the appellant, a girl of ten, upon the occasion when he threw a three-inch piece of welding rod, which had been brought to a blunt point at one end, into her eye causing her the loss of the sight of that eye?
The finding of the learned trial judge, which I have quoted, was based upon a view that the duty of care which the respondent owed to the appellant was less demanding than would have been the duty owed to the girl by a man in the position of the respondent. This, I think, appears expressly from that part of the judgment in which his Honour said: "It may be that an adult, knowing of the resistant qualities of hardwood and of the uncertainty that a spike, not properly balanced as a dart, will stick into wood when thrown, would foresee that it might fail to do so and perhaps go off at a tangent. A person who knew, or might reasonably be expected to know that might be held to be negligent if he were not more circumspect than was this infant defendant"(2). But whether or not I am right in this construction of what his Honour said, I have no doubt whatever that he would not have absolved the respondent from negligence had the respondent been a man. What the respondent did was to throw with force a piece of metal like a blunt, headless nail in the general direction of the appellant. When he did so, the respondent and the appellant were close to, but on opposite sides of, a tree guard about three feet square and four feet high protecting a small tree. It consisted of four posts joined at the top but otherwise open at the sides except for a height of a couple of feet from the ground. The respondent threw his missile ahead of him to drive it into one of the four posts of the guard. It hit the appellant in the eye. The weight of the oral evidence was that the missile did not hit the post. His Honour's finding was that it probably hit the post and bounced off. Thus, his Honour said:-"I accept the defendant's statement that he threw the missile at the post expecting it to stick in it. It does not put any strain on one's memory of boyhood to see this as a boyish impulse. It either missed the post or hit it and glanced off and hit the plaintiff. The latter seems to me far the more likely. Admittedly the plaintiff was not far away. Nevertheless to hit her when trying to hit the post would mean a very bad aim on the part of the defendant, who was standing close up to the post. But that a metal rod, sharpened at the end but not balanced as a true dart, might not stick into a hardwood post at which it was thrown is by no means improbable. If thrown with any force it might on hitting it be deflected and go off at an angle. I think that most probably that is what happened in this case"(1). His Honour then posed for himself this question: "Did that happening, unintended and unexpected by Barry Watson, occur without any lack of due care on his part?"(1).
If a man had acted as his Honour found the boy acted here, there could have been no question of his negligence whether or not the missile hit the post. The respondent therefore escaped liability because, being but a boy of twelve, it was found that he "was not negligent in the legal sense"(2) in doing what was, of course, a very foolish act.
There is some authority of a persuasive kind in favour of the view that the duty of care towards others which the law imposes upon a child is different from that which it imposes upon an adult. Thus, in the American Law Institute's Restatement of the Law of Torts, vol. 2, par. 283, it is stated: "Unless the actor is a child or an insane person, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances". The exception here stated is further elaborated as follows:-"A child of tender years is not required to conform to the standard of behaviour which it is reasonable to expect of an adult, but his conduct is to be judged by the standard of behaviour to be expected from a child of like age, intelligence and experience. A child may be so young as to be manifestly incapable of exercising any of those qualities of attention, intelligence and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a child who has not yet attained his majority may be as capable as an adult of exercising the qualities necessary to the perception of a risk and the realization of its unreasonable character. Between these two extremes there are children whose capacities are infinitely various. The standard of conduct required by such a child is that which it is reasonable to expect of children of like age, intelligence and experience. In so far as concerns the child's capacity to realize the existence of a risk, the individual qualities of the child are taken into account. If the child is of sufficient age, intelligence and experience to realize the harmful potentialities of a given situation, he is required to exercise such prudence in caring for himself and such consideration for the safety of others as is common to children of like age, intelligence and experience". This is hardly the statement of an objective standard, and perhaps it ought to be read as if the norm is what is to be expected of a reasonably prudent child of like age, intelligence and experience. Even so understood, however, the acceptance of such a standard would require, in each case where there is an allegation that a child's negligence has caused damage to another, a determination of the age, intelligence and experience of the defendant himself as a prerequisite to ascertaining the duty of care to which he is subject by law. Furthermore, if a child's conduct is to be judged by a child's standards, presumably there should also be special standards of care applicable to other classes of persons having less capacity than the ordinary reasonably prudent man-e.g. the mentally defective or the senile. Outside the United States, the only decisions that have been found which give support to the proposition that a child is only liable for acts or omissions causing harm to others if such acts or omissions depart from the standards of the ordinary reasonably prudent child of the same age, intelligence and experience, are the Canadian cases of Walmsley v. Humenick(1) and Hatfield v. Pearson(2). In the former case, Clyne J. said:-"The statement of claim contains an allegation of negligence against the infant defendant to the effect that in discharging the arrow into the right eye of the defendant he was acting without reasonable care. Counsel for the plaintiffs did not press the point very strongly having in mind no doubt the several cases decided recently on the subject of the negligence of infants, but nevertheless the point was left in such a way that I must deal with it"(3). After consideration of the evidence, his Honour continued:-"I think the circumstances coupled with the evidence of the children would be sufficient to justify a finding of negligence in an adult, or at least I am prepared to assume so for sake of argument. The cases clearly demonstrate, however, that what may be lack of reasonable care in an adult cannot be considered to be so in the case of a child having regard to its capacity to understand and appreciate the nature of its actions. Speaking of a boy of four, Davis J. held in Hudson's Bay Co. v. Wyrzykowski(1): 'The child on account of its age was incapable of negligence on its part'. In an earlier negligence case, Acadia Coal Co. v. McNeil(2), Newcombe J. in delivering the unanimous judgment of the Court said: 'Children aged seven and nine years have by the common law the benefit of something in the nature of a presumption that they have not sufficient capacity to know that they are doing wrong'. If such a presumption exists it may of course be rebutted by evidence. An exhaustive review of the authorities dealing with the subject of the negligence of children was recently made by my brother Manson J. in Sheasgreen v. Morgan (3), where he says at pp. 61, 62: 'While mere age is not in itself the test, but rather the capacity of the infant to understand and appreciate, certainly it may, and often is, obvious to the trial judge that by no stretch of the imagination could contributory negligence be imputed to the infant'. In the present case I have no hesitation in finding that the infant defendant had not reached that stage of mental development where it could be said that he should be found legally responsible for his negligent acts. Putting it another way, it might be said that at his age he had not yet acquired that capacity to reason which would place him within the category of the 'reasonable man' as that term is used in the cases defining negligence"(4). It is to be observed that the cases upon which Clyne J. relied were all cases where the question was of a child's contributory negligence. This is a matter to which I will have to return.
The cases decided in the United States are collected in two decisions reported in the American Law Reports-Annotated. Kuhns v. Brugger(5) and Charbonneau v. MacRury(6). In the former case it was said:-"Even though the standard of care applicable to a minor differs from that applicable to an adult, nevertheless a minor may be guilty of actionable negligence. Both an adult and a minor are under an obligation to exercise reasonable care; however, the 'reasonable care' required of a minor is measured by a different yardstick-it is that measure of care which other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances. In applying that yardstick, we place minors in three categories based on their ages: minors under the age of seven years are conclusively presumed incapable of negligence; minors over the age of fourteen years are presumptively capable of negligence, the burden being placed on such minors to prove their incapacity; minors between the ages of seven and fourteen years are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached"(1). These observations cannot be regarded as a correct statement of the law to be applied by this Court. The annotation to Kuhns v. Brugger(2) deals with the liability of the parents of infants rather than with the liability of infants for damage caused by the infant's use of firearms and it is not surprising that the cases show that where the question was whether or not parents were negligent in allowing their children access to firearms, the age, experience and disposition of the child was regarded as a matter of importance. Charbonneau v. MacRury(3) was an unsuccessful appeal against a judgment in favour of the defendant who had been sued for damages for negligently driving a car when he was seventeen years of age. It was said: "Reasonable care, having regard to the age and stage of development of the individual, is required of minors as well as adults, and no different measure is to be applied to their primary than to their contributory faults"(3) but "a minor charged with actionable negligence is not to be held to the standard of care of an adult without regard to his nonage and want of experience"(3). Elsewhere it was said: "The understanding of this court that the general standard of care governing the conduct of adults, namely, reasonable care under all the circumstances, applies as well to minors as to adults, and that infancy and want of experience of the latter are merely evidential factors to be weighed, with the other circumstances, is made plain"(4) by other cases which the court then proceeded to cite. If, however, the jury are to be told that the standard of care required of a child is that of an ordinary reasonable adult, it could not be otherwise than contradictory and confusing to add that, in determining whether a child defendant's conduct conformed to that standard, the immaturity natural to his age should be taken into account. The court, after stating that a minor is universally considered to be lacking in judgment and subject to failings normally incident to immaturity as well as to "ordinary human failings" said: "It is for these reasons that the law recognizes that indulgence must be shown the minor in appraising the character of his conduct. This is accomplished however through no arbitrary exception to the general rule of reasonable care under all the circumstances. As we have said this is always the test. But what is reasonable when the actor is a minor? Manifestly the adult test of the standard man cannot be applied in disregard of the actor's youth and inexperience. Either a new standard denoting the average person of the minor's age and development must be taken as the yardstick, or else allowance must be made for the minor's stage of development as one of the circumstances incident to the application of the general rule of reasonable care. As a practical matter it is not important which course is pursued. This court, however, is inclined to approve the latter both as supporting the theory that reasonable care under all the circumstances is a universal rule, and in the interest of simplicity of applying the law to the facts. The latter course merely requires the jury to apply the accepted rule of reasonable conduct under the circumstances, of which the stage of development of the minor is one, while the former imposes upon the jury the duty first to set up a standard youth for each particular case from the composite factors of age and experience as disclosed in the evidence, and then to apply that standard to the remaining circumstances in proof"(1). As I see it, the two courses referred to really do not exist and, for reasons already stated, if allowance is to be made for the immaturity of youth, it must be made by adopting what the court described as a different yardstick of duty. That, as has been seen, is the course taken in the Restatement and in Kuhns v. Brugger(2). The statement of law to be found in Charbonneau v. MacRury(3) seems to me, with great respect and despite the disclaimers made therein, to depart altogether from an objective standard by defining the duty of care resting upon any defendant as conditioned by his own characteristics. Thus, the age, the stage of physical development, the intelligence of a child, the physical defects of an adult-though not his mental incapacity short of insanity-are to be taken into account in deciding whether the defendant failed to observe the duty of care imposed upon him by law. This is achieved by stating the duty to be reasonable care under the circumstances of the particular case and then bringing into account the characteristics of the defendants as part of the circumstances.
The judgment reveals that there are opposing authorities among both judges and textbook writers in the United States upon the question of the general duty of care owed by infants to others and it seems that where the view has been taken that a child is only bound to exercise towards others that degree of care which children of the same age would ordinarily exercise in the same circumstances, a good deal of reliance has been placed upon cases in which the question has been whether or not a child plaintiff has been guilty of contributory negligence. This is true of Charbonneau v. MacRury(1) itself and it is the matter to which I now turn.
Where in an action for negligence by a plaintiff child the defendant raises as a defence the contributory negligence of the plaintiff, it is now established that the defence may fail either because in the circumstances there is nothing upon which a finding could be made that the child was capable of taking care for its own safety (Cronan v. Hepburn(2)) or, where the child is capable of taking such care, it is not established that it failed to take that degree of care for its own safety such as that which could reasonably be expected of such a child (Joseph v. Swallow & Ariell Pty. Ltd.(3)). As is said in Beven on Negligence, 4th ed. (1928), p. 196: "The first point to be noticed is that a young child may be incapable of contributory negligence. Then, conduct that in the case of an adult would disentitle to recover, in the case of a child may be no obstacle. Again, conduct that disentitles a child from recovering may vary in proportion to the child's age".
Where the question concerns the plaintiff's contributory negligence, the law permits a subjective test, and this is so not only in the case of children. Any person under a disability is only required to take such reasonable care for his own safety as his capabilities permit. A one-legged man crossing a road is not expected, in the face of danger, to display the agility of a two-legged man. Thus, in Cotton v. Commissioner for Road Transport and Tramways(4) Jordan C.J. said: "It is conceived that contributory negligence in the sense in which it is now being considered occurs only when a person fails to take all such reasonable care as he is in fact capable of. I am not aware of any case in which a person has been held to be guilty of contributory negligence through the application of some arbitrary general standard, notwithstanding that he had been as careful as he could. ... In every case in which the injured child is not so young as to be obviously incapable of taking care, if there is evidence that carelessness on the child's part contributed to its injury, the questions whether it was capable of taking care, and if so whether it took such care as it was reasonably capable of, having regard to its age and intelligence, are questions of fact which the jury must determine"(1).
There is, however, no justification for deciding whether a defendant has been negligent by the test which the law adopts for ascertaining whether a plaintiff has been guilty of contributory negligence in the sense that he has failed to take reasonable care for his own safety. This can readily be demonstrated by attempting to adapt the first citation just made from the judgment of Jordan C.J. to a different purpose. It could not be said that in the case of a defendant actionable negligence only occurs when a person fails to take all such reasonable care as he is in fact capable of. To adopt such a proposition would be to substitute a subjective test for the well-established objective test of negligence stated by Tindal C.J. in Vaughan v. Menlove(2). "Instead therefore of saying that the liability for negligence should be coextensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe"(3).
Moreover, there is no inconsistency between the adoption of an objective test when the question is whether the defendant has been negligent, and the adoption of a subjective test when the question is whether the plaintiff has been guilty of contributory negligence in the sense of lack of care for himself. The objective test to be applied to determine liability follows inevitably from the statement of the duty of care which the law imposes upon one man in his relationship with others; no such duty is necessarily in question when the question is merely whether the plaintiff has been guilty of contributory negligence. See Nance v. British Columbia Electric Railway Company Ltd.(4), where Viscount Simon said: "The statement that, when negligence is alleged as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care, is, of course, indubitably correct. But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury"(1). The problem discussed by Sholl J. in Noall v. Middleton(2) need not be considered here.
In my opinion, therefore, the reliance which has been placed upon the contributory negligence decisions in cases where the issue was actionable negligence has been misplaced.
I have found no English or Australian authority to support the statements in the United States and Canadian authorities to which I have referred and, in my opinion, what is there stated to be the law conflicts with the fundamental principle of the law of negligence, viz. that the standard of care fixed by the law to determine actionable negligence is an objective standard-that is, the care to be expected of an ordinary reasonable man. This, except in special categories, is the standard to be applied to any person capable of negligence in the absence of some consensual modification-express, implied or, perhaps, imputed: see, for instance, the statements of Dixon J. in The Insurance Commissioner v. Joyce(3), and Webb J. in Roggenkamp v. Bennett(4). See, too, Walker v. Turton-Sainsbury(5) and Jones v. Manchester Corporation (6).
It may, of course, be objected that the adoption of a hard-and-fast rule to be applied to all cases will sometimes produce what appears to be some hardship but, if so, it should also be recalled that hard cases make bad law. It is, moreover, necessary to observe that the law of negligence is primarily concerned with the circumstances under which a person who suffers damage may recover compensation, and there is no necessary connexion between legal liability to make compensation and moral culpability. Another objection to a standard rule is that it may appear ridiculous in determining liability to judge immaturity by maturity or, as it was put in argument, to put an old head upon young shoulders. Again the answer to such a criticism is that it was not without good reason that the law has adopted a general standard to determine liability for negligence and the application of a general standard to anyone who is himself either above or below the standard may produce a result that is open to criticism as ridiculous when judged by an irrelevant philosophy. Were the law to require from every person the exercise of all the skill of which he is capable to avoid harm to others, it would be a different law from the established law of negligence and it would be based upon a philosophy different from that underlying the present law. Whether or not it would be a better law is outside any question here relevant, but an attempt to use the results which would follow from the application of such a law, to test the reasonableness of what I understand the present law to require, appears to me to be misconceived.
My conclusion is, therefore, that as the duty of care which the respondent owed to the appellant was to take such care as an ordinary reasonable man would have taken in the circumstances, the appeal should succeed.
I would add that if, contrary to my opinion, the conduct of the respondent ought to be judged by the standard of a reasonable boy of the world rather than a reasonable man of the world, I would still conclude that the respondent had been negligent. It appears to me that no boy of twelve could reasonably think that he could hurl a nail into a post, and I have no doubt that the capacity of the respondent's missile to penetrate a piece of wood was less than that of an ordinary three-inch nail; it was blunt and lacked the weight of a head. Furthermore, in the face of the evidence I would not infer, as did his Honour, that the missile hit the post and was deflected. Upon the facts, I would conclude that a reasonable boy would not throw a three-inch piece of metal, head high, in the direction of another person.
I consider, therefore, that this appeal should be allowed and the action retried.