Mchale v Watson

[1966] HCA 13

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(Judgment by: McTiernan ACJ)

Mchale
vWatson

Court:

Judges:
McTiernan ACJKitto J
Menzies J
Owne J

Hearing date: 28, 29 September 1965
Judgment date: 7 March 1966

Melbourne

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Judgment by:
McTiernan ACJ

In this case, the plaintiff Susan McHale suffered serious injury to her right eye while in the company of two other girls of about her own age and of Barry Watson, then aged twelve years and two months, a few years older than the others. It was school holidays in January 1957 and Susan and her mother had come from South Australia on a visit to Portland in Victoria and Barry and his mother had come from New South Wales also as visitors to that town. The children had met, being neighbours, in Lighthouse Street, Portland, and late in the afternoon of January 21st played chasings, a children's game also known as tag, in which one player called "it" chases the others until one is touched or tagged and that player in turn becomes "it". A structure made of four corner posts of hardwood, with pickets between them, was "base" for the game. Each post was four feet high and measured 3' x 2': the pickets were short and above them the structure was open. The enclosed area was about four square feet and within it was a young ornamental tree. There was a row of such structures each enclosing a tree in the street. When the game was at an end Susan and Barry were on opposite sides of the tree guard called "base". She was to Barry's left and he was standing facing a corner post: the distance between the two children was little more than the distance between two sides of the guard; both were, of course, outside it. Barry took an object from his pocket and threw it in front of him. It hit Susan in the right eye with sad consequences to her; the sight of the eye was destroyed. The object was a round piece of welding rod, of small circumference, and six inches long. One end had been sharpened by Barry on the rocks at the beach where he had been earlier in the day amusing himself in the company of another young boy by spearing starfish and prizing shell-fish off the rocks with this implement. He had picked it up outside his father's workshop on his way to the beach.

There was a contest at the trial whether Barry had aimed it at Susan. She and one of her young companions said in evidence that he had done so. Windeyer J. did not accept the evidence of either of the girls on that point. Barry said in evidence that he aimed the object at the corner post which he was facing, his idea being to make it stick in the post. The object was made of soft steel; in form it was not finished as a dart although it was described as such in the statement of claim. The learned judge was impressed by Barry's demeanour as a witness and regarded his account of the accident as more probable than that of the others. His Honour analysed the evidence and reasoned from it to his conclusion on the question how Susan came to be hit in the eye by the object. He considered that in all probability the object hit the corner post, which Barry was facing, with force and glanced off it in the direction of Susan. Barry was standing a degree left of the post and threw the object with his left hand. In argument counsel for the plaintiff attacked the finding and contended that the evidence could not support it. In my opinion the evidence would not justify a finding that the object did not strike the post at which Barry aimed it before it struck Susan in the eye.

In the action Susan claimed damages from Barry upon a cause of action framed in trespass and a second cause of action in negligence. The allegations made in the statement of claim are that Barry either threw the object directly at Susan or in her direction. These allegations are traversed in the defence. As regards trespass, Barry also pleaded that the occurrence was an inevitable accident and was not due to negligence or default on his part (see Stanley v. Powell(1)). Windeyer J., in the reasons for his decision, discussed the question of whether the defendant had the onus of proving the special matters alleged in his defence and referred to a number of authorities. His Honour then said: "I accept Doctor Bray's proposition that as Barry Watson threw the thing which hit the plaintiff in the eye he is liable for the consequences, unless I am satisfied, on the balance of the probabilities, that he did not intend it to hit her and that he was not negligent in throwing it as and when he did"(2).

Windeyer J. said in his reasons for judgment: "It has been strongly urged for the plaintiff that, in considering whether Barry was negligent, I must judge what he did by the standard expected of a reasonable man, and that that standard is not graduated according to age. In one sense, of course, that is so; for the question whether conduct was negligent, in a legal sense, always depends on an objective standard. This has been generally recognized ever since Tindal C.J. said in Vaughan v. Menlove(3): 'Instead 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'(4). In Glasgow Corporation v. Muir(5) Lord Macmillan said: 'The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question... The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what accordingly the party sought to be made liable ought to have foreseen'(6). That is the question I have to determine. It is a question of fact, a jury question, not a question of law. I have not to determine it by regarding the facts of other cases, but by regarding all the circumstances of this case. I do not think that I am required to disregard altogether the fact that the defendant Barry Watson was at the time only twelve years old. In remembering that I am not considering 'the idiosyncrasies of the particular person'. Childhood is not an idiosyncrasy. 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. But whatever the position would be if the facts were different, 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"(1).

The appeal was argued on two main grounds: first that his Honour was in error in holding that the liability or degree of responsibility of the defendant Barry Watson or the standard of care to be exercised by him in any way differed from the liability degree of responsibility or standard of care which would have been proper had he been over the age of twenty-one years; and secondly that his Honour should have made a finding of negligence whether he applied the standard of the ordinary reasonable man or the standard (whatever it might be) appropriate to a twelve-year-old boy.

I do not agree with either of those grounds. In my opinion the passage which I have quoted from his Honour's judgment does not contain any misdirection in law and I see no reason for interfering with his conclusion. The crucial question is whether his Honour erred in saying that he could not disregard the fact that the defendant Barry Watson was twelve years old at the time of the accident and in order to answer that question it is necessary to determine by what standard of care the infant defendant should be judged. It is a well-established principle that an infant may be held liable for torts which are not ex contractu, but there is a paucity of judicial authority on the standard of care applicable to young children. Perhaps this lack of authority is due to the fact that young children are rarely worth suing and plaintiffs usually rely on making parents and guardians liable for the wrongful acts of their children and charges as was attempted in another case heard with the present and which Windeyer J. dismissed.

There is ample authority for the proposition that in cases dealing with alleged contributory negligence on the part of young children they are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience. No Australian or English decision was cited relating to the standard to be applied where a young child is sued in negligence. The subject, however, is discussed in several textbooks and there seems to be a consensus that the age and experience of an infant should be taken into account when considering the reasonableness of his conduct. The learned author of Salmond on Torts, 13th ed. (1961), at pp. 77, 78 said: "it would seem that in order to make a child liable for negligence, it must be proved that he failed to show the amount of care reasonably to be expected from a child of that age. It is not enough that an adult would have been guilty of negligence had he acted in the same way in the same circumstances. This, indeed, seems never to have been decided, but it would seem implied in the decisions on the contributory negligence of children. In general the principle appears to be that a minor who is incapable of forming a culpable intention or of realizing the probable consequences of his conduct is relieved from liability in those cases in which fault is essential to liability, but that wherever a liability is imposed irrespective of fault he is fully liable as a normal adult". In Clerk & Lindsell on Torts, 12th ed. (1961), par. 157 it is stated: "by analogy with the cases concerning contributory negligence of young children it seems probable that the age of an infant defendant is relevant in torts involving negligence or malice. If the defendant is of tender years it will be a question of fact whether he is of such age that he ought to have foreseen the consequences of his act, and that malice or want of due care could reasonably be ascribed to him". Fleming, The Law of Torts, 3rd ed. (1965), pp. 117, 118 is to the same effect: "there is no doubt that a child, whether as plaintiff or defendant, is only expected to conform to the standard appropriate for children of the same age, intelligence and experience. If unable to understand the nature and likely consequences of his actions, negligence is not attributed to him at all; but given perception of the risk, he must display the judgment and behaviour proper for a child with like attributes. Some safeguard to the public is afforded by the obligation of parents and school authorities to observe reasonable care in the supervision of children under their control. Moreover, a minor who engages in dangerous adult activities, such as driving a car or handling industrial equipment, must conform to the standard of the reasonably prudent adult; his position being analogous to that of beginners who, as we have seen, are held to the objective standard".

The decision of the Supreme Court of Canada in Walmsley v. Humenick(1) is frequently cited in this connexion. In that case the infant defendant, who was a child not quite five years of age shot an arrow which struck another child and resulted in the loss of that child's right eye. The plaintiff sued the infant defendant and his parents, although the plaintiff's counsel did not rely heavily on the allegation of negligence against the infant defendant. In the course of his reasons for judgment Clyne J. stated: "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 the 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(2): 'The child on account of its age was incapable of negligence on its part.' In an earlier negligence case, Acadia Coal Co. v. McNeil(3), 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.' ... In the present case I have no hesitation in finding that the infant defendant had not reached that state 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. Because of the defendant child's lack of capacity, the plaintiff's cause of action against him based on negligence must fail"(4).

His Honour accepted the view taken by Manson J. in Sheasgreen v. Morgan(5) that "mere age is not in itself the test but rather the capacity of the infant to understand"(6). It would appear, however, that his Honour decided the case on the incapacity of a child of this age to commit a tort rather than on the basis that the child exercised the degree of care one would expect of a child of his age. If this is so then the case is of little use in deciding the instant case.

In Joseph v. Swallow & Ariell Pty. Ltd.(1) Dixon J. (as he then was) commented on the passages to be found in Beven on Negligence, 4th ed. (1928), vol. 1, pp. 182, 183. His Honour said: "Mr. Beven himself appears to have taken the view that a child under seven years of age was not open to a charge of contributory negligence; that a child so young could not be considered a responsible agent upon whom the ordinary duty of care rested. But, in deference to some Scottish cases, the editors of his work are disposed to abandon so definite a rule and to allow that a child is under a duty to exercise such a degree of care for his own and others' safety as might reasonably be expected from one of his age and capacity"(2).

There is ample American authority in favour of applying a lower standard of care in cases involving the primary negligence of young children. The American Restatement of the Law of Tort, par. 283, divides infants into three categories for the purpose of discussing the standard of care applicable. The categories and the standards of care required are as follows:-

(a)

Children who are so young as to be manifestly incapable of exercising any of the qualities necessary to the perception of risk. This group would comprise babies and children of very tender years and instead of formulating a standard of care for them it suffices to say that they are incapable of negligence.

(b)

Infants who, although they have not yet attained majority, are capable as adults of foreseeing the probable consequences of their actions. In view of the capabilities of this class the standard of care required of them is the same as that required of adults.

(c)

Children who come between the extremes indicated in the above categories and whose capacities are infinitely various. The standard of care required of these children is that which it is reasonable to expect of children of like age, intelligence and experience.

In 27 Am. Jur., p. 814, the position is summarized as follows: "in cases of torts arising from negligence, although there is some authority to the contrary, there is authority to the effect that the age and capacity of the infant charged with the tortious negligence may become matters of importance. There is authority to the effect that 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. Reasonable care, having regard to the age and state 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. It has been stated that a child's care must be measured by its intelligence. It has also been stated that a child is required to exercise only that degree of care which the great mass of children of the same age ordinarily exercise under the same circumstances, taking into account the experience, capacity, and understanding of the child. A minor whose negligence is in question is, in the absence of evidence to the contrary, universally considered to be lacking in judgment". Prosser on Torts, 2nd ed. (1955), p. 128 contains a similar statement. The author considers that the standard of care applicable to children must necessarily be a subjective one although it is not entirely subjective and "if the conclusion is that the conduct of the child was unreasonable in view of his estimated capacity, he may still be found negligent, even as a matter of law".

The learned authors of Harper and James, The Law of Torts, refer to the problem in vol. 2 at pp. 926, 927. They point out that the commentators and Courts are divided on the question. They conclude, however: "courts should and probably will (for the most part) hold the child defendant who is engaging in dangerous adult activities (such as driving a car) to the standard of the reasonably prudent adult. It is less important and more doubtful what rule will emerge as to injuries caused by children at play".

I shall refer to two American cases. In the case of Charbonneau v. MacRury (1) the administrator of a minor's estate commenced an action to recover damages for injuries resulting in death which were allegedly caused by the negligence of the defendant who was also a minor. The defendant was licensed to drive a motor vehicle under a statute which provided for the issue of a licence after proof that the applicant was a proper person to receive it and forbade the issue of a licence to any person under sixteen years of age. It was argued on behalf of the plaintiff that this fact conclusively established that the defendant's capacity to exercise care was the same as that of an adult. This argument was rejected and judgment entered for the minor defendant. The plaintiff conceded that the infancy of a person is of material importance in determining whether he has been guilty of contributory negligence but contended that a minor charged with actionable negligence is to be held to the standard of care of an adult without regard to his nonage and want of experience. Snow J. who delivered the judgment of the Court stated that, in the case where a minor's contributory negligence had been in issue, the conclusion of the Court that his infancy was a factor to be considered had been expressed in terms which applied to his primary as well as to his contributory fault. His Honour concluded: "There is nothing in the language of these cases which suggests any distinction between the care required of an infant in his own protection and that exacted of him in his conduct towards others. On the contrary, it tends to refute such a distinction"(1). The Court held 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"(2).

In Hoyt v. Rosenberg(3) a boy of twelve years was playing a game of "kick the can" and the plaintiff was one of the participants. In the course of the game the boy kicked the can so that it struck the girl in the face and resulted in her losing the use of an eye. Barnard P.J., who delivered the judgment of the Court, stated: "There is no dispute as to the general rules of law here applicable. While a minor, like an adult, is required to exercise ordinary care he is only required to exercise that degree or amount of care that is ordinarily exercised by one of like age, experience and development"(4). The Court referred to the "established rule that a minor is expected to use, not the quantum of care expected of an adult, but only that degree or amount of care which is ordinarily used by children of the same age under similar circumstances. In deciding whether, in such a case, there has been a failure to use ordinary care to avoid injury to other children, the test is, and must be, not what an adult would have there done or what the results indicate should have been done, but what an ordinary child in that situation would have done"(1).

In the present case we are concerned with a boy of the age of twelve years and two months. He was not, of course, a child of tender years. On the other hand, he was not grown up and, according to the evidence, he played as a child. I think it was right for the learned trial judge to refer to him in common with Susan and the other playmates as young children. It cannot be laid down as an absolute proposition that a boy of twelve years of age can never be liable in negligence; nor that he would always be liable in the same manner as an adult in the case of that tort. The defendant's conduct in relation to this object which he threw, a useless piece of scrap metal, is symbolic of the tastes and simplicity of boyhood. He kept the object in his pocket after using it earlier in the day to scrape marine life off the rocks at the beach; after that he carried it around with him for the rest of the day until the accident happened. It was the type of thing that a wise parent would take from a boy if he thought the boy would play with it as a dart in the company of other children. The defendant on his way from the beach took the object from his pocket to show Susan and her companions, whom he met playing in a paddock, what he was doing at the beach-apparently he was proud of how he had transformed the piece of scrap metal by rubbing it on the rocks. The game of chasings having ended, the wooden corner post was an allurement or temptation to him to play with the object as a dart. If it had stuck into the post at the first throw, doubtless, he would not have been content with one throw. The evidence does not suggest that the defendant was other than a normal twelve-year-old-boy. His Honour considered that the defendant, being a boy of twelve years, did not have enough maturity of mind to foresee that the dart might glance off the post in the direction of Susan if he did not make it hit the post squarely, and that there was a possibility that he might not succeed in doing so. It seems to me that the present case comes down to a fine point, namely whether it was right for the trial judge to take into account Barry's age in considering whether he did foresee or ought to have foreseen that the so-called dart might not stick in the post but be deflected from it towards Susan who was in the area of danger in the event of such an occurrence. I think that there is no ground for disagreeing with the conclusion of Windeyer J. on this question. The correctness of this decision depends upon the special circumstances of the case and it does not lay down any general principle that a young boy who cannot be classified as a grown-up person cannot be guilty of negligence in any circumstances.

I would dismiss the appeal.