DAVID RONALD GRIFFITHS v PETER GAVIN JAMES WOOD by HIS NEXT FRIEND ANGELA MARIE WOOD No. SCGRG 93/1792 Judgment No. 4490 Number of Pages - 16 Negligence (1994) Aust Torts Reports 81-274 (1994) 62 SASR 204

[1994] SASC 4490

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON(1), PRIOR(2) AND OLSSON(3) JJ

CWDS
Negligence - Collision between semi-trailer and bicyclist aged six and half years - standard of care owed by young children - whether test objective - reliance on text books without counsel being informed thereof - whether contributory negligence established. Wiech v Amato (1973) 6 SASR 442; Cavanett v Chambers (1968) SASR 97; McHale v Watson and Ors (1966) 115 CLR
199; Mye v Peters (1967) 68 SR (NSW) 298; Gough v Thorne (1966) All ER 398 and Chan v Fong (1973) 5 SASR 1, applied.

HRNG ADELAIDE, 7 March 1994 #DATE 20:4:1994

Counsel for appellant:     S Walsh QC with him
   Mr J R Doherty

Solicitors for appellant:    Gun and Davey

Counsel for respondent:     Mr T Anderson QC

Solicitors for respondent: Tindall Gask Bentley

ORDER
Appeal dismissed.

JUDGE1 MATHESON J The respondent, Peter Gavin James Wood, was seriously injured in an accident in Gilbert Street, Hamley Bridge on Saturday 3 June, 1989 at about 4.30 p.m. when a bicycle he was riding was struck by a semi-trailer driven by the appellant. His claim against the appellant for damages came on for trial in the District Court of South Australia on the issue of liability only. The learned trial Judge found the appellant was negligent and acquitted the respondent of contributory negligence. Upon appeal to this Court, the appellant abandoned his appeal against the finding that he was negligent, but strenuously argued that his Honour should have found that the respondent was also negligent notwithstanding that he was only approximately six and a half years of age. I have reached the conclusion that the learned Judge should have found some contributory negligence upon a proper understanding of the relevant law which I consider later in these reasons.

2. The learned trial Judge referred to the witnesses thus:
    "Mrs Wood (the respondent's mother) gave brief evidence.
    Police Officer Filmer who was stationed at Hamley Bridge at
    the date of the accident gave evidence of his observations
    of the accident scene and a mechanical engineer, Mr
    McKinlay, gave evidence concerning his opinion of the speed
    of the semi-trailer vehicle bearing in mind the observations
    of Officer Filmer and the topography of the area. The
    defendant called two young boys, Jamie Day and Colin Agius,
    who were playing with the plaintiff on this day in a large
    gravel car park area adjoining Gilbert Street. Peter
    unfortunately rode his bicycle from this car park into the
    path of the oncoming semi-trailer. The defendant, Mr
    Griffiths, also gave evidence and finally Mr Christopher
    Hall, a consulting engineer with a wealth of background
    information road accidents, gave his assessment of the speed
    of the semi-trailer."

3. His Honour described the appellant as "a very experienced truck driver", and as "an impressive and responsible man". The vehicle he was driving had an overall capacity to carry 27.5 tonnes and was in fact carrying a load of 26 tonnes of salt. His school-going son Michael was travelling with him. His Honour continued:
    " "Gilbert Street is what I would call the main street which
    runs through the small town of Hamley Bridge. Mr Griffiths
    entered Gilbert Street from the north. As Gilbert Street
    nears the centre of the town, it bends slightly in a south
    westerly direction and a driver such as Mr Griffiths is
    obliged to negotiate this slight right hand curve and then
    proceed through the town and south towards Adelaide. On
    this bend there is a street which runs off on the
    defendant's left called Light Street. It is a fairly wide
    open junction of roads bounded by Gilbert and Light Streets.
    On the eastern side of Gilbert Street the large car park
    area bounded by Light Street to the north is situated.
    There are a number of small trees and shrubs adjoining the
    dirt or gravel footpath bordering the car park area along
    Gilbert Street. Officer Filmer outlined that the roadway is
    approximately 14 paces in width. The footpath area to the
    east of Gilbert Street adjoining the car park is about 5
    paces in width and then contains a border planter box
    constructed of railway sleepers. Gilbert Street to the
    north of the area where the slight bend occurs is slightly
    wider, approximately 16 paces. The officer described the
    one set of skid marks left by the semi-trailer which were
    two thick black parallel marks about 10 centimetres apart
    and extending for about 29 paces, in effect, curving to the
    west. When he attended the scene the semi-trailer was still
    in its position on the roadway with the skid marks leading
    to the right hand side drive wheels of the prime mover. In
    his view the actual point of impact was difficult to locate
    because there was no evidence on the road. Peter's shoe was
    on the roadway and he felt this may well have been in and
    about the point of impact. The point of impact was placed,
    if one views the various skid marks running roughly north to
    south, a number of paces in from the southern end of the
    skid mark. It appears the impact occurred and the vehicle
    continued on for a few metres until it stopped."

4. Later his Honour said:
    "Mr Griffiths said he was well acquainted with this road as
    he had driven it on many occasions and was particularly
    acquainted with the townscape of Hamley Bridge. As he was
    driving through Hamley Bridge he said Michael was still
    asleep in the bunk and he proceeded through Hamley Bridge,
    and, then the first thing he saw was "a boy on a pushbike
    come out on to the road in front of me" and appeared to be
    coming straight into the path of the semi-trailer. He said
    the boy was pedalling his bike, but he could not estimate
    the speed. He felt the boy came out of the bushes which
    were on the edge of that car park area as distinct from the
    entrance area. He said on seeing the bike, he felt he may
    have been able to go to the rear of the bike by mounting the
    footpath and driving into the car park area, but, then
    noticed two other boys behind the bushes with bikes and then
    felt obliged to go to the right. He said it was then he
    applied his brakes "pretty hard" and kept on going further
    to the right trying to give more room but he was aware that
    Peter was still there in front of the truck. He said how he
    was able to stop, but had lost sight of Peter. He realised
    that he had hit him. He heard a noise, but could not see
    Peter because of the large bonnet of the truck. His driving
    position is some 10 foot above road level. After bringing
    his vehicle to a stop, he immediately got out and found that
    Peter was in front of the front drive wheel and noted his
    sock was underneath a tyre ... Mr Griffiths admitted that
    he was in his seventh forward gear as he approached the
    accident scene. The vehicle in question has nine forward
    gears. He said when he travelled in the 60 zone he normally
    engaged his eighth gear. He was asked the question:
    'Q. Can you say anything about what speed you were
    travelling at before you saw the boy.
    A. It must have been 40s, 50, to be in 7th gear. We had
    stopped at the stop sign; standing start up the hill. And I
    was travelling behind Dennis; his truck is 20 year old, it's
    320 horsepower, it is a lot less horsepower than mine, so -'"

5. His Honour then referred to the evidence of the two engineers, and in the course of finding the appellant's driving to be negligent, made the following findings:
    "I believe that the speed of the defendant's vehicle was in
    the region of 50 kilometres an hour at the time when he
    approached this slight bend, about the maximum speed for
    negotiating the corner, and, then, having done that, was
    then confronted with the young boy entering the roadway.
    The defendant well knew the nature of this small town. With
    such a large vehicle loaded almost to its maximum and being
    driven through a small town calls for a great deal of
    caution. On a Saturday afternoon in a small country town
    one could well anticipate there could be some perhaps
    retired farmer driving his aged, but well maintained,
    utility in Hamley Bridge, or perhaps a pedestrian albeit
    young or aged in the central area of this township. Driving
    such a large vehicle calls, in this type of situation, for a
    very high measure of defensive driving. I regard the
    driving of this long vehicle in the area of speed which I
    have found as too excessive in all of the circumstances.
    Naturally I have a great deal of sympathy for the
    defendant. Clearly he saw the young boy and he had a
    momentary decision as to whether he should steer his large
    vehicle to the left and because of the sighting of the young
    boys he went to the right at all times conscious of the
    young boy being to the front of his vehicle. It is very
    easy to speculate in hindsight, but if he had proceeded to
    the correct side of the road he may well have avoided the
    accident. Driving this loaded vehicle through this township
    at a speed close to the maximum and combined with the
    difficulty of negotiating the bend at that speed, amounts in
    my view to a degree of negligent driving. I would consider,
    bearing in mind the nature of the truck, the township and
    bend in the road, even travelling at a speed of say 45
    kilometres an hour is still too fast. Driving such a large
    loaded semi-trailer in a small township calls for a very
    high obligation on the driver to keep, to me, a better than
    average lookout. This driver would have been aware of this
    car park area which certainly opens up as one is approaching
    the corner. I accept there is the possibility of children
    being screened by the trees, but it would seem to me that if
    he was keeping a very careful lookout, the probability was
    that he could have seen those children at some earlier
    time."

6. Prior to the accident, the respondent had been riding his bicycle in the car park with other boys, his brother Nathaniel aged 4, and Jamie Day then aged about 6, who was being donkeyed on the bicycle of his cousin Colin Agius, then aged 9. They were playing "bike chasey". The respondent rode on to the road from the car park whilst being chased by Agius. His Honour said in relation to the respondent,
    "The child may have been engrossed and focussed in riding
    his bike away from his group. He was simply acting
    impulsively as a normal 6 year old is wont to do".

7. The respondent did not give evidence. On the date of the trial, he was being treated by drugs for his injuries, and it was accepted that he was not in a condition to give evidence.

8. I think his Honour's finding that the appellant was negligent was correct, but I do not agree that his negligence should be categorised "very substantial". He saw the respondent. He took evasive action and he very nearly avoided the accident.

9. The learned trial Judge rightly said "the question of contributory negligence by children of tender years is always a difficult matter". He then referred to a number of authorities including Wiech v Amato (1973) 6 SASR 442, and said:
    "In that case the learned trial Judge mentioned and
    discussed at some length Professor Piaget's work concerning
    aspects of cognitive development in childhood, particularly
    cognitive development in time and space. I have concern
    whether that one area in a child's development process is
    sufficient on which to base a legal argument of contributory
    negligence. There are many other areas in a child's
    development in those early formative years that have to be
    considered. The topic of childhood accidents has been the
    subject of much research since the 1946 work of Professor
    Piaget. See Child Development, 2nd Edition, L E Berk and
    Accidents in Childhood and Adolescence, C J Romer. The last
    mentioned work mentioned the developing field of vision and
    concentration levels of a child in these years. ... As is
    mentioned in many of the cases, it is not an objective
    standard. The plaintiff at 6 is at an age where those areas
    of vision, concentration and perception are developing. As
    Olsson J commented in (Schaefer v Roumeliotis,
    Unrep.Jt.No.2864, 22 May, 1991; available on SCALE): '...
    his realisation and perception of danger, particularly in
    circumstances which were largely foreign to him, was
    minimal.' That comment applies in this case."

10. It would appear that the learned trial Judge was led into error here partly by the references in the judgment of Zelling J in Wiech v Amato to text books on child psychology, including works by Professor Piaget, and partly by a misunderstanding of the standard of care required by the law in claims of negligence involving young children. I am not sure whether Zelling J drew the attention of counsel to Piaget's works, but it is certainly agreed that in the case at bar the learned trial Judge did not do so. In this connection I refer to Cavanett v Chambers (1968) SASR 97. In that case a Magistrate referred in his judgment to medical text books by Glaister and Taylor. At p.101, Bray CJ said:
    "I agree with the views of Travers J in Chambers v Sampson
    Unrep.SCSA 14th March, 1966, that if the Court decides to
    inform itself by reference to medical text books or reports
    not in evidence 'the attention of the contending parties or
    their counsel should be called to it, and they should be
    heard upon the subject'. To do otherwise, it seems to me,
    is to commit an obvious breach of a fundamental rule
    governing the administration of justice. Cf. Patterson v.
Barnes (1965) 39 ALJR 507. I asked counsel to ascertain
    whether any notice had been given to the parties that the
    learned Special Magistrate intended to consult Glaister and
    Taylor, and whether they had any opportunity of being heard
    on the matter. Both counsel have communicated with the
    Court and though the information in the two letters is not
    identical it appears from both that the learned Special
    Magistrate indicated at the conclusion of the argument that
    he intended to refer to further authorities on the question
    of the effect of the analyst's certificate, and that Mr.
    Turner, the appellant's then counsel, disputed his right to
    do so. I gather that counsel were not given any opportunity
    to comment specifically on the passages from Glaister and
    Taylor. I do not think it necessary to explore further the
    precise details of what happened about this. I think that
    it follows from what I have already said that it is common
    ground that the principle laid down by Travers J in
    Chambers v Sampson Unrep.SCSA 14th March, 1966 was not
    observed."

11. Turning to consider further his Honour's view of the standard of care, which in my view was erroneous, it is agreed on all sides that the leading case on negligence of young children is McHale v Watson and Ors (1966) 115 CLR
199. Menzies J dissented, but I do not think there is any real difference in the approach of McTiernan ACJ, Kitto and Owen JJ At p.205, McTiernan ACJ said:
    "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."

12. At p.215, Kitto J said:
    "It seems never to have been doubted in any reported case
from Lynch v Nurdin (1841) l QB 29 (113 ER 1041) 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 (1898) 2 QB 320; Yachuk v Oliver Blais Co. Ltd
(1949) AC 386, at p.395. Baron Parke made an interesting
remark in Lygo v Newbold (1854) 9 Ex 302, at p.305 (156 ER
    129, at p.130), to which Davidson J referred in Cotton v.
    Commissioner for Road Transport (1942) 43 SR (NSW), at p.77.
    He said that the decision in Lynch v Nurdin (supra)
    '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."

13. Owen J said at p.227:
    "It was conceded by counsel for the appellant - and rightly
    so - that where it is alleged against a child that he was
    guilty of contributory negligence, his age is a material
    factor and that his actions are to be judged by what would
    reasonably be expected of a child of like age and
    development."

14. At pp.229-230, his Honour said:
    "It is plain that in dealing with the question of
    contributory negligence on the part of a child, its age is a
    relevant fact since the care expected of it is that
    reasonably to be expected of a child of similar age,
    intelligence and experience. That has been laid down again
    and again."

15. And finally after referring to a number of text books, his Honour said at p.234:
    "There is, then, a considerable body of opinion amongst the
    textbook writers, supported by decisions in Canada and the
    United States, that where an infant defendant is charged
    with negligence, his age is a circumstance to be taken into
    account and the standard by which his conduct is to be
    measured is not that to be expected of a reasonable adult
    but that reasonably to be expected of a child of the same
    age, intelligence and experience."

16. In Mye v Peters (1967) 68 SR (NSW) 298, in the Court of Appeal, Sugerman JA said at p.304 (Holmes JA agreeing):
    "it must be remembered that, as the High Court said in
    McHale's case, the test to be applied is an objective one
    and not one which is dependant upon the degree of
    intelligence of a particular child or the standard of
    indoctrination which it may have received", (see also per
    Herron CJ at p.302).

17. I think the English Court of Appeal in Gough v Thorne (1966) All E.R.398 adopted a similar approach. At p.400, Salmon LJ said:
    "The question as to whether the plaintiff can be said to
    have been guilty of contributory negligence depends on
    whether any ordinary child of 13 could be expected to have
    done any more than this child did. I say, 'any ordinary
    child'. I do not mean a paragon of prudence; nor do I mean
    a scatter-brained child; but the ordinary girl of 13 . I
    think that any ordinary child of 13 , seeing a lorry stop to
    let her cross and the lorry driver, a grown-up person in
    whom she no doubt has some confidence, beckoning her to
    cross the road would naturally go straight on, no one in my
    view could blame her for doing so." (See also per Lord
    Denning MR at p.399).

18. I do not agree with the view that the standard is not an objective one just because it is not precisely the same as that for an adult. The standard of care to be taken by a medical practitioner is that of the ordinary competent medical practitioner, not that of the man on the Clapham omnibus, (see Charlesworth and Percy on Negligence 5th Edn. p.60), but surely that standard is an objective one. Being of the view that the relevant standard is an objective one, I do not consider the degree of indoctrination the respondent had from his mother, or whether the circumstances were foreign to him, or whether he was a country boy or a city boy is relevant.

19. A reference to earlier decided cases involving children of five and six provides limited assistance, but they include Chan v Fong (1973) 5 SASR l, Wiech v Amato (supra) and Charles v Zadow (1981) 28 SASR 492. In all those cases the respective trial judges apportioned 10% of the liability to the child. In the last mentioned case White J, after referring to Mye v Peters and other cases said at p.496:
    "In my view, the plaintiff was at the time, viewed
    subjectively, somewhat like a normal city child of about
    five years of age; but viewed objectively, he is to be
    treated as a normal child of six and a half years and his
    conduct is to be judged by standards applicable to children
    of his age and experience. That was also the test applied
    in McHale v Watson. (supra)"

20. I have reached a firm conclusion that the appellant has demonstrated that the respondent's look-out was defective and that he was guilty of contributory negligence. I would allow the appeal and order that the respondent recover only 90% of his damages.

JUDGE2 PRIOR J I agree that this appeal should be dismissed. The finding that this young child "was simply acting impulsively as a normal six year old is want to do" was well made out on the evidence and justified the finding that contributory negligence was not made out.

2. The trial Judge spoke of having, "to endeavour to judge children, of course, by standards applicable to children of that age". He also said that "it is not an objective standard". That statement is correct if understood in a manner consistent with the judgments in McHale v Watson (1966) 115 CLR 199. In that case, McTiernan ACJ said, at 205:-
    "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."

3. Kitto J said, at 215:-
    "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 ... the standard of care
    is objective; it is the standard to be expected of a child,
    meaning any ordinary child, of comparable age - ... 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."

4. Equally, Owen J said at 234:-
    "the standard by which his conduct is to be measured is not
    that to be expected of a reasonable adult but that
    reasonably to be expected of a child of the same age,
    intelligence and experience."

5. Earlier in his judgment, Owen J quotes at length from text books before stating the matter as quoted. They include a view expressed in the Second Edition of Prosser's Law Of Torts. It appears in McHale v Watson at 231:-
    "Since the capacities of children vary greatly, not only
    with age but also with individuals of the same age, no very
    definite statement can be made as to the standard to be
    applied to them. To a great extent it must necessarily be a
    subjective one. It must be 'what it is reasonable to expect
    of children of like age, intelligence and experience'. The
    capacity of the particular child to appreciate the risk and
    form a reasonable judgment must be taken into account. More
    will be required of a child of superior intelligence for his
    age than of one who is mentally backward. But the standard
    is still 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."

6. I am not persuaded that Owen J has adopted that particular view in his final remarks. This Court must apply the objective test as explained by the Justices in McHale's case. So, in this case, the child is to be judged by reference to the same capacity for taking care as any normal boy of his age. Perhaps the approach of Salmon LJ in Gough v Thorn (1966) 1 WLR 1387 at 1391, is both adequate and sufficient for the facts of this case:-
    "The question as to whether the plaintiff can be said to
    have been guilty of contributory negligence depends on
    whether any ordinary child of (the plaintiff's age) could be
    expected to have done any more than this child did. I say,
    'ordinary child'. I do not mean a paragon of prudence; nor
    do I mean a scatterbrained child; but the ordinary (child of
    6 years old)."

7. Faced with the rapid approach of the semitrailer this young boy could not be expected to have done any more than he did. The finding of no contributory negligence should stand.

JUDGE3 OLSSON J This is an appeal against a judgment entered by a District Court Judge against a defendant for damages to be assessed. The action had come on for trial only as to the issue of liability.

2. In the action the plaintiff, an infant suing by his next friend, claimed damages against the defendant in respect of serious personal injuries sustained by him as a consequence of a running down accident which occurred in the main street of Hamley Bridge at about 4.30 pm on Saturday, 3 June 1989. The plaintiff was then a young boy aged about 6 years.

3. Just prior to the accident the plaintiff and two other young friends had been riding their BMX bicycles in or near a car park adjacent to the eastern side of the main street near the centre of the township. This is at a point immediately after the main street bends to the right, from the perspective of a vehicle travelling along that street in a southerly direction. The car park was more or less opposite a Caltex Service Station on the western side of the main street and the plaintiff's mother had given him permission to play in a BMX track in the grounds of the Service Station. She had not given him permission to cross the main street to the car park in question, on the opposite side.

4. In the course of playing a game of so-called "bike chasey" the plaintiff rode his BMX out of the car park entrance onto and across the main street from east to west. At the time the defendant was driving his heavily laden semi-trailer along the main street through Hamley Bridge to the south. His vehicle struck the plaintiff and occasioned serious injuries to him.

5. After a detailed analysis of the evidence the learned trial judge concluded that the defendant had been negligent by virtue of his speed and failure to maintain an effective lookout and found him guilty of negligence. He also concluded that, having regard to his tender age and the circumstances generally, the plaintiff had not been guilty of contributory negligence.

6. The defendant initially appealed against both findings. However, on the hearing of the appeal, he abandoned his challenge against the finding of negligence against him.

7. The evidence at trial primarily focused on the dual aspects of what had been the speed of the defendant's vehicle and whether he had in fact maintained a proper lookout, although the probable speed of the vehicle was the major initial area of concern, particularly because it bore upon the ability of the defendant to maintain his semi-trailer on its correct side of the road as it rounded the right hand bend. As is annotated on the plan tendered in evidence, the point of impact was assessed to be close to the centre of the western carriageway of the road, i.e. on the incorrect side of the road as far as the defendant was concerned. There were heavy skid marks leading up to and past that point.

8. In the course of his reasons for decision, the learned trial judge reviewed the expert, technical evidence in some detail, in the context of evidence given by the defendant and other eyewitnesses.

9. A substantial dispute arose as to the probable speed of the semi-trailer immediately prior to the defendant taking action to avoid an impact with the plaintiff. This was a matter of considerable importance because the expert evidence indicated that it would have been extremely difficult - if not impossible - for the defendant to negotiate the road bend prior to impact on its correct side of the road a speed at or in excess of just over 50 kph.

10. Various calculations were made by the expert witnesses on the basis of the objective evidence available, and, in particular, the heavy skid marks made by the semi-trailer. However, as the learned trial judge pointed out, these involved various assumptions which may or may not have been correct, compounded by the need to consider various variables.

11. After examining this material and in light of the whole of the evidence - some of which related to the observations and reactions of the defendant which were not known to or taken into account by the experts - the learned trial judge concluded that the defendant probably rounded the bend immediately prior to the accident at a speed of the order of 50 kph.

12. In my opinion such a conclusion was fairly open to the learned trial judge and the challenge to it is, as I have said, not now pursued.

13. Having made that finding and, in light of the evidence generally, the learned trial judge had this to say (at pp12-14):-
    "I believe that the speed of the defendant's vehicle was in
    the region of 50 kilometres an hour at the time when he
    approached this slight bend, about the maximum speed for
    negotiating the corner, and, then, having done that, was
    then confronted with the young boy entering the roadway.
    The defendant well knew the nature of this small town. With
    such a large vehicle loaded almost to its maximum and being
    driven through a small town calls for a great deal of
    caution. On a Saturday afternoon in a small country town
    one could well anticipate there could be some perhaps
    retired farmer driving his aged, but well maintained,
    utility in Hamley Bridge, or perhaps a pedestrian albeit
    young or aged in the central area of this township. Driving
    such a large vehicle calls, in this type of situation, for a
    very high measure of defensive driving. I regard the
    driving of this long vehicle in the area of speed which I
    have found as too excessive in all of the circumstances.
    Naturally I have a great deal of sympathy for the
    defendant. Clearly he saw the young boy and he had a
    momentary decision as to whether he should steer his large
    vehicle to the left and because of the sighting of the young
    boys he went to the right at all times conscious of the
    young boy being to the front of his vehicle. It is very
    easy to speculate in hindsight, but if he had proceeded to
    the correct side of the road he may well have avoided the
    accident. Driving this loaded vehicle through this township
    at a speed close to the maximum and combined with the
    difficulty of negotiating the bend at that speed, amounts in
    my view to a degree of negligent driving. I would consider,
    bearing in mind the nature of the truck, the township and
    bend in the road, even travelling at a speed of say 45
    kilometres an hour is still too fast. Driving such a large
    loaded semi-trailer in a small township calls for a very
    high obligation on the driver to keep, to me, a better than
    average lookout. This driver would have been aware of this
    car park area which certainly opens up as one is approaching
    the corner. I accept there is the possibility of children
    being screened by the trees, but it would seem to me that if
    he was keeping a very careful lookout, the probability was
    that he could have seen those children at some earlier
    time. The driver was of the view that Peter emerged from
    behind one of the shrubs, but in fact he emerged from the
    gravel entrance to the car park. For these reasons I find
    that the defendant's driving on this afternoon was
    negligent."

14. In my view such conclusions were fairly open to the learned trial judge on the evidence and I see no basis for questioning them. It is always to be remembered that this Court has consistently accepted the concept of defensive driving espoused by Wells J in the well known case of Stoeckel v Harpas (1971) 1 SASR 172. (See, for example, the discussion in Apsy v Judd (1984) 116 LSJS
101 at 113-4.) This is, of course, applicable to all motor vehicle situations, but it has a particular significance to the driving of heavy, laden vehicles which, by their very nature, are difficult to stop and manoeuvre rapidly and are capable of causing great damage in the event of an accident. In the case of such vehicles the need for the constant alert defensiveness adverted to by White J in Apsy v Judd is of great importance, specifically when a vehicle of this type is being driven through a built up area or in a situation in which speed is a critical factor in being able, readily, to maintain the vehicle on its correct side of the road at all times and to stop or rapidly alter direction. Moreover, it is a matter of plain common sense that, where such vehicles are being driven, factors of speed and maintenance of an acute forward lookout are critical. What was said by King CJ in Evers v Bennett
(1982) 31 SASR 228 as to the general duty of the driver of a motor vehicle applies with even greater force to the driver of a heavily laden, articulated truck. In this regard I refer to comments made by Murphy J in Cocks v Sheppard (1979) 25 ALR 325 at 334 and by myself in Watherston v Valencik
(1992) 16 MVR 267.

15. Whilst the Court must always guard against the adoption of undue counsels of perfection and unwarranted wisdom based on the advantage of hindsight, nevertheless it seems to me that, in the instant case, there was evidence which justified a finding of significant negligence on the part of the defendant. The plain fact of the matter is that he was driving a heavily laden vehicle around the relevant bend at or close to the maximum safe speed, through a built up area at a time when there might well have been other persons using the road. He necessarily deprived himself of the capacity for prompt action in the event of an occurrence demanding it; and the fact that he momentarily vacillated and then attempted the evasive action which he did - proceeding on to the incorrect side of the road - speaks for itself. Had he been travelling at a slower speed and been maintaining a more acute look out - given that he was travelling around a bend in a built up area - it is reasonable to assess that he may well have been able to stop or otherwise avoid the collision which in fact occurred and also the need to veer across on the incorrect side of the road. The so-called "agony of the moment" decision which the defendant made would simply not have been necessary (as to which see the discussion of Antonov v Leane (1989) 53 SASR 60 in Tsakonakos v Hill
(1989) 10 MVR 247).

16. I have dwelt upon those aspects in some detail because it is against and in the context of such a background of very substantial negligence on the part of the defendant that the issue of contributory negligence, so far as the plaintiff was concerned, arose for consideration by way of contrast. After addressing the relevant authorities, the learned trial judge concluded that there was no basis, on the evidence, for a finding of contributory negligence - the plaintiff was simply acting impulsively "as a normal 6 year old is wont to do".

17. In this regard the relevant legal principles are well established. What is involved is, I consider, at least partly a subjective, and not wholly an objective, test, in that it has reference to characteristics peculiar to the child in question.

18. As to this I adhere to what I said in my unreported decision in Schaefer v Roumeliotis (Olsson J, 22 May 1991, unreported - available on SCALE) referred to by the learned trial judge.

19. In this regard the logical commencement point for consideration is McHale v Watson and Ors (1966) 115 CLR 199.

20. In that case the learned judges of the High Court expressed themselves in varying ways.

21. For example, Kitto J was of the view 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, viewed objectively. As to the case there under consideration, he was of the view that what the child had done was the unpremeditated, impulsive act of a boy (aged 12) not yet of an age to have an adult's realization of the danger of what he was doing.

22. By way of contrast Owen J was of the opinion that the standard by which the conduct of a young child is to be measured is not that to be expected of a reasonable adult, but that reasonably to be expected of a child of the same age, intelligence and experience, the last two factors being subjective aspects personal to the child.

23. It is fair to say that the test proper to be applied has not authoritatively been determined within this Court. The issue was left open by the Full Court in Andrews v Armitt (No 2) (1972) 2 SASR 273, but the test espoused by Owen J was applied in Charles v Zadow (1981) 28 SASR 492 and Beasley v Marshall (1977) 17 SASR 456. In a number of other decided cases either an objective test has been applied, or it is not entirely clear as to how, if at all, the specific characteristics of the individual child were taken into account.

24. For myself, with respect, I find the approach of Owen J compelling, for the reasons expressed by him and on the basis of the authorities and texts adverted to in his reasons of decision. I would adopt it.

25. In the instant case there was relatively little evidence touching on the standard of intelligence and the experience of the plaintiff. He lived in or near the township of Hamley Bridge and had been told by his mother that he should never go over Gilbert Street, because it was the main road and was dangerous. She said that she had never known the plaintiff to play in the car park on the eastern side of the main road, although it is clear that he had done so.

26. The plaintiff had been given some instruction in the basic concepts of road rules and road safety. He was occasionally permitted to ride his bicycle to school with other boys, but would usually go with his grandmother. He quite often walked to school.

27. On the defendant's pleadings there was a positive assertion that, at the time of the accident, the plaintiff had deliberately ridden his bicycle across in front of the defendant's truck as part of a game of desperado being played with his two young companions. The evidence did not support that contention and the learned trial judge very properly rejected it.

28. It seems to me that the plain inference which arose on the facts as found (which was accepted by the learned trial judge) was that, in the course of the game being played, the plaintiff simply rode across the road without thinking of the danger involved, whilst pre-occupied by the game itself.

29. There is nothing which suggested that he appreciated the imminent approach of the defendant's vehicle until it was too late and the accident was well nigh inevitable.

30. Much was made of some evidence of one of the plaintiff's young companions to the effect that he called out a warning in relation to the approach of the semi-trailer; and that the plaintiff responded not once, but three times "I can make it".

31. Several comments must be made concerning this evidence. First, the witness in question was still a young child at trial and was not subjected to the sanction of an oath.

32. Secondly, he was not asked to recall the events of 3 June 1989 until a few days prior to trial. At first he denied having discussed the situation with the other young lad who had been involved in the game, but later conceded that they had discussed the detail of what had happened on the morning on which he actually gave evidence.

33. Thirdly, when cross examined, he conceded both that he only remembered a little of the accident and could not hear clearly what the plaintiff was saying - "It just sounded like it". Bearing in mind that the first alleged reply from the plaintiff was when he was actually crossing the gutter and the third was virtually on impact - at times when the truck brakes had locked its wheels into a heavy skid and was making a good deal of noise - there is a strong basis for suspecting the accuracy of this evidence, which was not corroborated by the other young lad present, who also called out a last minute warning to the plaintiff, having himself seen the approach of the semi-trailer when the plaintiff plainly had not.

34. It is small wonder that the learned trial judge did not attach any real significance or weight to this material.

35. In any event, as Mr Anderson QC pointed out, such evidence was largely irrelevant, because, at the point of time in question, the impact which in fact occurred, was virtually inevitable - the more so as a natural inference from the speed of the semi-trailer, the evidence of the observations and reactions of the defendant, and the location of the probable point of impact (all considered in light of the expert evidence) strongly suggests that the semi-trailer may well have been across the centre line as it rounded the bend and came towards the plaintiff.

36. At the end of the day and bearing in mind the whole of the circumstances emerging from the evidence, it seems to me that the learned trial judge was well justified in concluding that this very young and inexperienced lad was, indeed, "simply acting impulsively as a normal 6 year old is wont to do" and was so engrossed in the game being played - as such children often are - that he rode out into and across Gilbert Street with no real appreciation of the danger involved, or the approach of the semi-trailer until it was too late.

37. On the evidence in this case I am not persuaded that the plaintiff departed from the standard of behaviour normally to be expected of a child of his years and experience, even taking him to have been of average intelligence. His age was such that it was unrealistic to attribute to him those qualities of attention, concentration, intelligence and judgment necessary to enable him to perceive the relevant risk and to realize the foolish and unreasonable nature of what he in fact did at the time. The truth of the matter is that, with the benefit of hindsight, the plaintiff should never have been allowed to go off and play as he did, given his state of maturity and experience. What actually transpired was no more than the manifestation of seemingly irresponsible conduct of a 6 year old which actually occurred.

38. In my opinion the conclusion of the learned trial judge was correct. I would dismiss the appeal.

39. Before parting with this matter it should be recorded that, in the course of the appeal, criticism was levelled at the apparent resort by the learned trial judge to certain text books to which he referred in his reasons. These had not been discussed by or with counsel during the trial. I am constrained to comment that this was an inappropriate use of the materials in question (Cavanett v Chambers (1968) SASR 97). However, I do not consider that this error on his part vitiates the approach which I have above outlined.