Hahn v Conley

[1971] HCA 56

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Walsh JJ.

HAHN v. CONLEY

(1971) 126 CLR 276

16 November 1971

Negligence

Negligence—Duty of care—Child of tender years in care of grandparent—Whether duty imposed by blood relationship—Child crossing country road when injured by motor car—Whether breach of duty owed by grandparent.

Decisions

November 16.
The following written judgments were delivered:-
BARWICK C.J. An infant, injured on a road by a moving motor vehicle, by her next friend sued the driver of the vehicle in the Supreme Court of South Australia for damages alleging negligence in the management of the vehicle. She recovered judgment in the action for the sum of $1,388.21 by way of special damages and an amount of general damages to be assessed. (at p275)

2. The driver of the motor vehicle, the defendant in the action and the now respondent, by a third party notice claimed indemnity or alternatively contribution from the applicant in respect of the infant's claim on the ground that negligence on the part of the applicant caused or contributed to the accident out of which the plaintiff's claim arose. The learned trial judge concluded that the applicant was negligent in relation to the infant and that that negligence contributed to her injuries. He held the applicant to be responsible for twenty-five per cent of total damages to be awarded for those injuries and declared accordingly. The general damages to be paid to the infant under the judgment have not been assessed. (at p278)

3. The applicant claims to be entitled to appeal to this Court as of right from the order of the Supreme Court that he should pay to the respondent twenty-five per cent of the total damages payable by the respondent to the infant; alternatively he seeks leave to appeal from that order. The Court has heard a full argument on the substance of the case and is in a position to dispose of it as upon an appeal. (at p278)

4. In my opinion, however, the applicant is not entitled as of right to appeal to the Court from the order for contribution made by the learned trial judge. It is true, as the applicant's counsel points out, that that order not merely decides the applicant's liability to make contribution but finally fixes the extent of that contribution expressed as a percentage of a sum yet to be determined. But the judgment in the action in favour of the infant is still not a final order. It is, in my opinion, an interlocutory order and will not be final until the general damages are assessed and judgment entered up for the total amount of damages payable. The order for contribution is in my opinion in no better case than the judgment for the plaintiff. Consequently, in my opinion, the applicant needs this Court's leave to appeal. However, in my opinion, the applicant has made out a case for such leave which in my opinion should be granted. (at p278)

5. I proceed to consider the matter as an appeal pursuant to this Court's leave against the finding that the negligence of the applicant contributed to the infant's injuries. The infant, a female child of three and a quarter years of age, is the grandchild of the applicant. She had been staying at her grandparents' house over a weekend. Besides the applicant, the child's grandmother, the child's great grandmother and the applicant's daughter were staying there at the time. A daughter-in-law was visiting the house on the day of the occurrence out of which the action arose. On Sunday, after the evening meal, the applicant left the house to walk on his land which surrounded the house. Observing a neighbour in the neighbour's garden on the opposite side of the road to which the applicant's house had a frontage the applicant went across to chat to him. The child was in the house with the womenfolk when the applicant left it. The grandmother however then intended to go out of the house for some period of time. (at p278)

6. The roadway which passed between the applicant's house and that of his neighbour runs from Nuriootpa to Angaston. It is straight for a very considerable distance either side of the area occupied by those houses. They are not directly opposite one another but a little more than 200 yards apart. The roadway was approximately 65 feet in total width of which a bitument strip, centrally placed, occupied some seventeen feet. The land on which the applicant's house is built had a frontage of some 150 feet. A tennis court, of a width of 80 feet, separated the applicant's home from that of his son, which was closer to the neighbour's house than the house of the applicant. Beyond the applicant's son's house there was open ground. (at p279)

7. Whilst the applicant was talking to his neighbour, the hour being approximately 7.30, and twilight, he heard the child cry out. Apparently he saw her sufficiently to conclude that she was at the rear of his son's house at a point about 50 yards from where he was standing. The trial judge was not prepared to accept the applicant's evidence that he did not then think the child was looking for or calling out to him. There is however no evidence of anything actually said by the child. The neighbour who was standing talking with the applicant heard her "crying" or "just making a noise". (at p279)

8. On hearing the child's cry the applicant responded, "naturally" as the neighbour said, saying "I am over here Anne" or "Here I am". Thereafter he continued in conversation with his neighbour. After what must have been a very short interval of time, the applicant saw the child standing on the other side of the roadway, practically opposite where he was standing. She was then about "halfway across from the edge of the bitumen to the fence" i.e. she was on the unsealed part of the roadway. The trial judge concluded that the child had set off in the direction of the applicant when he responded to her cry and that by the time the applicant saw her on the opposite side of the road, the applicant must have realized that she was coming towards him. The applicant said that on thus seeing the child he was "going to go across and pick her up". Meantime two cars had appeared each proceeding in the opposite direction to the other. One car passed. Then the child started to cross the road. She almost succeeded in crossing it before the respondent's vehicle struck her. That vehicle was then moving at between 40-50 m.p.h. Apparently there was no attempt to brake or to deflect the course of the vehicle. The trial judge found that no proper lookout was being kept. The applicant said he did not consider that there was any danger to the child when he saw her opposite him. There was no evidence to suggest that there was frequent traffic on the road at this time though as it happened the two vehicles of which the respondent's was the second did pass along it within a short time of the child coming to the point opposite the applicant. The particular danger seems to have sprung from the undue speed and lack of a proper look-out on the part of the respondent. (at p280)

9. The trial judge's finding of negligence on the part of the applicant was founded on his Honour's view that the applicant at the relevant time had assumed the charge and care of the plaintiff. His precise words were -

" . . . In my opinion, the third party" (the applicant) "did on the occasion in question at the relevant time assume the charge and care of the plaintiff and was, therefore, under a duty of care of her in relation to the dangers of the highway." (1971) 1 SASR 73, at p 78 ". . . He left it until too late to take any step to save her from the danger in which she appeared to be (and in fact proved to be)." (2) He "tarried too long in taking up his responsibility (i.e. of protecting a young child coming under his charge) and in a matter (of keeping her out of the path of traffic) in which adult protection might or might not prove to be necessary." (1971) 1 SASR, at p 79 (at p280)

10. The applicant unsuccessfully appealed to the Full Court of the Supreme Court. Bray C.J. concluded that the applicant owed the child a duty to exercise reasonable care in her general supervision and control during the time she was staying with him and his wife for the weekend, as well as a duty to exercise reasonable care in his control of her in any particular situation in which she was present. This duty fell equally upon the grandmother and derived according to the learned Chief Justice from the fact that the applicant and his wife stood for the period during which the child was staying in their house, through their blood relationship, in loco parentis. (at p280)

11. Hogarth J. took the view that, whilst the relationship of the applicant to the child might make such a conslusion easier to draw, any duty of care to the child on the part of the applicant must derive from the fact that the applicant at the relevant time had taken the child under his care. I think he preferred the view, as I read his reasons for judgment, that the applicant in responding to the child's cry intended to call the child to come to him: but if in fact the applicant did not actually have that intention his Honour seems to have thought that, as it was reasonably foreseeable that, the applicant having so responded to her, the child might as a natural consequence try to make her way towards him, the applicant was in the same situation as he would have been had he intended to call the child to him. But, however that may be, what his Honour said was -

"Therefore if he" (the applicant) "had the intention of inviting the child to come across the road to him when he first called; or if he did not have that intention, on his becoming aware of facts which would have disclosed to a reasonable man in his circumstances that the child was making her way towards him across the road following on his calling out to her; then, in either case, I think that the third party" (the applicant) "came under a duty to exercise reasonable care for the safety of the child. He had the opportunity of going across the road to her promptly after the west-bound motor car" (the first of the two cars) "had passed, but he did not do so. A reasonable man in his position would have realized that there was a danger of a young child trying to cross the road in the face of other oncoming traffic to her peril." (1971) 1 SASR, at p 95

. In this passage, there are, as it seems to me, two separate bases on which his Honour rested liability: first, a duty derived by inviting the child to cross the road to him and second, a duty derived from the realization that the child, though not invited, was in fact coming to him and intending to cross the road in order to do so. (at p281)

12. Mitchell J. after reference to the reported decisions touching the question whether or not a parent owes a child of tender years a general duty of care to protect it from danger for breach of which an action will lie at the instance of the child, said:

"It seems to me that the special relationship between the adult and the child must be looked at in order to decide not merely whether there has been an assumption of responsibility, but in order to decide what is the duty of care breach of which will give rise to a claim for damages. In my view, the relationship of grandfather and grandchild in the case where the grandfather was apparently an active, healthy man aged 50, and the granddaughter a child aged three did give rise to a duty to prevent her from wandering upon the roadway when the grandfather knew that the child was in circumstances in which she could so wander if she chose. There would seem to me to be a distinction between the duty of a grandfather and of a stranger in the situation which existed. The mere presence of the child on the road did not, in my view, give rise to a duty of care on the part of the 'neighbours'. It did give rise to such a duty on the part of the appellant." (1971) 1 SASR, at p 102, 103

The reasons for judgment of the learned judge contain the passage:

"Nevertheless there was no specific finding that when the appellant" (the applicant) "said 'Here I am' he accepted responsibility for the care of the plaintiff, and I do not think that such a finding can be inferred from the whole of the reasons of the learned trial judge." (1971) 1 SASR, at p 99

It would therefore seem that the duty of the applicant in the judge's view arose out of a blood relationship in the situation in which the child then was. The basis of liability favoured by those reasons seems to me to be akin to that chosen by the Chief Justice though perhaps more emphasis is placed upon the particular situation in which the child and the grandfather were. (at p282)

13. This brief review of the course of the case below will suffice to indicate that there is no single basis on which the applicant's liability to the child has been placed. Holding as I do the view that the conclusions of fact of a trial judge, untainted by error of law or misconception or disregard of evidence ought not to be disturbed unless the appellate tribunal is convinced of their error, I would first examine the trial judge's expressed reasons to identify what relevant facts were found by him. (at p282)

14. It seems to have been found that the child's cry was one of inquiry as to the whereabouts of the applicant, though I am bound to say that that conclusion on my part is very much a matter of inference from the reasons of the trial judge. He had little on which to base such a finding beyond the fact, and the nature, of the applicant's response to the child's cry. He found that the child having heard the applicant's response moved towards him. He did not find that the applicant responded in a fashion which amounted to an invitation to the child to come to him. In this respect I agree with the passage I have quoted from the reasons for judgment of Mitchell J. Nor did he find that the applicant realized when he responded to the child that she would come towards him. His finding in this respect was limited to the time at which the child was seen by the applicant opposite to him at the edge of the roadway. He found that when the applicant then saw the child he had an opportunity of crossing to her side of the road to prevent her crossing it; and that he failed to avail himself of that opportunity. He concluded that the applicant assumed the charge and care of the child "at the relevant time". After consideration of his Honour's reasons, I remain uncertain as to the time to which reference is thus made. On balance, I think his Honour must have meant at the time the child was seen on the edge of the roadway. This finding of assumption of the care of the child by the applicant owed much, I think, in his Honour's mind to the blood relationship of the applicant to the child and something perhaps to the fact that the child had been staying with the grandparents over the weekend. (at p283)

15. There are at least three quite disparate bases selected by their Honours of the Supreme Court on which to place liability of the applicant towards the child. I emphasise "towards the child" because unless the child had a cause of action against the applicant for damages for her injuries, the respondent's claim to indemnity or contribution must fail. It is as a tortfeasor towards the child, and not as a tortfeasor towards himself, that the respondent claims against the applicant. (at p283)

16. The first of these bases about which I would wish to say something is that adopted by the Chief Justice, namely that the grandparents stood in loco parentis to the child during the weekend and that the child's parents, because of their parenthood would owe the child a legal obligation generally to take reasonable care to prevent her falling into danger. Consequently, for and during that weekend both grandparents owed the child that duty. (at p283)

17. I have examined the case law beginning with Ash v. Ash (1696) Comb 357; Holt KB 701 (90 ER 526 and 1287) , which in my opinion is of no assistance in the present case, and ending with Rogers v. Rawlings (1969) Qd R 262 . I append a list of the decisions considered See p. 287 infra. . One proposition which clearly emerges and which, in my opinion, is correct, is that, if there be a cause of action available to the child, the blood relationship of the defendant to the child will not constitute a bar to the maintenance by the child of the appropriate proceeding to enforce the cause of action. Whilst perhaps there is no clear decision of an appellate court in the United Kingdom, New Zealand or Australia to that effect, I think that the view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. Further I think that the predominant judicial view to be extracted from those cases, and again a view which commends itself to me as correct is that, whilst in particular situations and because of their nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also parents like strangers may become liable to the child if the child is led into danger by their actions. As a matter of principle, I find the view expressed by McCarthy J. in McCallion v. Dodd (1966) NZLR 710, at p 729 acceptable. Though it may not provide a formula for solving all the problems which may arise out of parent-child relationships it does seem to me to afford a sound general approach. In the case of the parent, as in the case of a stranger it seems to me that the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge the duty may well be influenced by the fact of parenthood, though parenthood is not itself the source of the duty. Whether or not the application of the view proposed by McCarthy J. ought to have produced the result at which the court arrived in McCallion v. Dodd (1966) NZLR 710 remains a real question in my mind; but a question there is no need or warrant presently to attempt to resolve. Lastly, the criminal liability which may spring from a duty to preserve human life seems to me not relevant to the question presently on hand. (at p284)

18. It follows from what I have so far said that I am unable to accept the view expressed by the Chief Justice of South Australia. I turn then to consider whether a duty fell upon the grandfather because of the particular circumstances. In my opinion the grandfather owed no legal duty to the child to prevent her leaving the house at the time she apparently did so, even though the grandparents had assumed the place of her parents for the time being. Of course, they or one of them may have owed a duty to strangers likely to be caused injury by the wandering child. Carmarthenshire County Council v. Lewis (1955) AC 549 . But if so in particular circumstances, the child would not in my opinion necessarily have a cause of action against them or either of them. Did a situation arise in which an obligation to take care to protect the child against danger was imposed on the appellant? It is important to examine the developing events from the time the child cried out whilst near the rear of her uncle's house; the grandfather in my opinion then had no relevant legal duty towards her. However had he called her to come to him, he would have come under a duty to take reasonable care for her safety in relation to any danger to her which the crossing of the road would involve. That duty would spring in my opinion out of the fact that he beckoned her to him: or did something which he ought to have known would bring her to him. A stranger who did so could in my opinion in the same circumstances come under the same duty, if the child was likely to respond positively to his call. In the case of the applicant, this qualification is not necessary, in my opinion, because he was her grandfather. Whether or not there was then any relevant danger does not appear. There is no information as to the then state of traffic, if any, using the road in that vicinity. But, in any case, it is not clear on the evidence, and I doubt if there is really any evidence that the appellant did call the child to him. I think the predominant conclusion from the evidence is that the appellant's response to the child's cry was no more than a reassurance to her that she was not alone. The neighbour's description of the response as "natural in the circumstances" and the fact the appellant continued conversation with the neighbour - there being no suggestion of wantonness in the appellant's conduct - tend in that direction. There was therefore in my opinion no legal obligation imposed on the appellant by the situation which existed at the time of the child's cry or of the appellant's response: nor was there any relevant change in the situation until the child was seen by the appellant on the other side of the road opposite to where he then was. Accepting the trial judge's finding and the known presence of traffic then on the roadway, the appellant ought at that time to have realized the possibility of danger to the child should she attempt to cross the road. On his own statement he then contemplated crossing the road to her, no doubt as a means of protecting her. As the judge found, he had the opportunity to cross the road and to stop the child making any attempt to cross it. But did these facts impose a legal obligation upon him to go to her aid, so that upon his failure to do so with consequential damage to her, the child could have successfully sued him in tort? I think not. Whatever moral duty he may have had, and however imperative in good conscience, there was in my opinion no legal duty towards the child on which to base an action of negligence. (at p285)

19. It is said that the grandfather then assumed the charge and control of the child. How did he do so any more than did the neighbour who also saw the child and the traffic? I can see no basis for saying that he had. His blood relationship to her did not involve the conclusion that he had done so, though if there had been an ambiguous situation and material on which it could be held that the grandfather had then received the child into his care and control that blood relationship might have removed the ambiguity. (at p285)

20. It may be of course that when the grandfather saw the child opposite to him he ought to have realized that the child was intending to come towards him and that her crossing the road would have brought her into danger: and it may be that although he had not beckoned her to come to him at an earlier time and did not do so then, he might have been expected in good conscience to have gone to her, if as the trial judge found, there was opportunity for him to do so in order to prevent her entering what might prove to be a field of danger. I leave on one side whether or not the road at that time ought to have been foreseen as dangerous to the child. But, in my opinion, neither the realization that she was intending to come to him nor that if she did so she might come to harm imposed a legal duty on the grandfather to go to her for breach of which the child could successfully sue the grandfather in tort for the whole of her injuries. To express this conclusion in the language chosen by the trial judge, by observing her on the opposite side of the road, and, if it be the fact, realizing both that she was intending to come to him and that that would bring her into danger the appellant had not taken her into his "care and control". Indeed it seems to me that the basis of the view that the appellant because of this situation was negligent is that his tort consisted in his not taking her into his care and control. In any case, in my opinion, where it is sought to make parents or blood relations liable to their children or relatives because of particular situations those who have to try the facts ought not to indulge in undue subtlety in order to create liability even in these days when the consequence of so many breaches of duty have been passed on by insurance to be borne by others. (at p286)

21. For all these reasons, I am unable to accept either the view of Hogarth J. or that of Mitchell J. Further, I am of opinion that the primary judge was in error in concluding that the applicant was in breach of any legal duty he owed the child to take reasonable care to protect her against danger. In my opinion, unless it could properly in this case be held that in substance the applicant called the child to come to him - and this was not held, nor in my opinion could it be - the applicant was not under any legal obligation to go to the assistance of the child or to take any positive steps to protect her from any danger that might be involved in crossing the road. The question whether, had he come under such a duty, he ought to have been found to be in breach of it need not be discussed. (at p286)

22. The order of the primary judge should be set aside and judgment entered for the third party.
APPENDIX.

Young v. Rankin 1934 S.C. 499. ; Carmarthenshire County Council v. Lewis (1955) AC 549 ; Smith v. Leurs (1945) 70 CLR 256 ; Gorely v. Codd (1967) 1 WLR 19 ; Dolbel v. Dolbel (1963) SR (NSW) 758 ; Bassdni v. Mudge (1964) SASR 56 ; Ash v. Ash (1696) Comb 357; Holt KB 701 (90 ER 526 and 1287) ; Williams v. Eady (1893) 10 TLR 41 ; Rawsthorne v. Ottley (1937) 3 All ER 902 ; Phipps v. Rochester Corporation (1955) 1 QB 450 ; Beckerson v. Dougherty (1953) 2 DLR 498 ; Collett v. Hutchins (1964) Qd R 495 ; McCallion v. Dodd (1966) NZLR 710 ; Rogers v. Rawlings (1969) Qd R 262 ; R. v. Russell (1932) 39 ALR 76 ; Cameron v. Commissioner for Railways (1964) Qd R 480 . (at p287)

McTIERNAN J. The facts of this case are stated by the Chief Justice in his judgment on this appeal. (at p287)

2. In my opinion it is not reasonable to draw the conclusion that the damage caused by the accident to the plaintiff was attributable in any part to a breach by the third party of a duty of care owed to the plaintiff. As de facto custodian of the child in his home there would be circumstances which would raise a duty of care on his part towards her. While talking to the neighbour the third party was not under such a duty. But, it is said that, having heard the child's voice on the opposite side of the road and turned his attention towards her, he was obliged at law to take reasonable care for her safety. In my opinion however the fact that, having heard the child's voice, he did not at once go and take charge of her is not sufficient evidence of a breach of that duty. The facts in my opinion do not afford any grounds for imputing to him indifference as to the safety of the child. Any deficiencies or failures on the part of the third party fell short of negligent conduct. The whole of the blame for the accident should rest on the defendant. (at p287)

3. I would therefore allow the appeal. (at p287)

MENZIES J. The facts of this case have been stated in detail by other members of the Court. On the basis of their statements I propose to express my conclusions upon those facts, for the appeal, as I see it, is concerned solely with questions of fact. (at p287)

2. The critical time to which attention must be directed is, I think, the time when the child, Anne, was, to the knowledge of her grandfather, the appellant, standing with the road between her and him. By then he knew that she had reached that point on her way to him and he ought to have appreciated that she was likely to continue on her way across the road to join him. Indeed, it appears that he did appreciate this and that her crossing the road would involve danger because he said that he had in mind going across the road to the child before the approach of the car which struck her made it dangerous for him to do so. The fact that he did not do so was a mistake on his part; the question, as I see it, is whether it was also negligent. (at p288)

3. In resolving this question it does seem to me, as it seemed to the Justices of the Supreme Court of South Australia, necessary to pay attention to whether or not the appellant owed a duty of care to the child. If, for instance, it had been a nurse, employed to look after the child, to whom the child was making her way, I would have thought that her failure to cross the road to the child when she could do so with safety, would clearly enough have amounted to a breach of her duty to take care of the child, i.e. negligence. It seems to me, however, in the circumstances, that the grandfather, until the time when he was aware that the child was likely to cross the road to him, was under no duty to take care of her. She was not in his charge. Had he then called the child to cross the road to him, that would have been negligent because, by so doing, he would both have exercised control over her and exposed her to danger. His calling would both found a duty of care and constitute a breach of that duty. Here there was no call to cross the road. The appellant's early call to the child has not that character; it was not found by the learned trial judge to amount to a call to her to come to him and I cannot attribute greater significance to it than this; that without it, it may have been that the child would not have come to him as she was doing when she was injured by being struck by a motor vehicle upon a wide, well-made bitumen road. (at p288)

4. The situation, as I see it, at the critical time, was simply that the appellant knew that the child, not being in his care, had come to a point opposite him across the road and he should have appreciated - as I think he did - that if he did not cross the road to her she would cross the road to him and that it would be dangerous for her to do so. In this statement of the situation the important words are "not being in his care" and, as I have indicated before, had the child been in his care, his not looking after her would, no doubt, have been negligence in law. He would have omitted to do something which a reasonable man in his situation would have done. (at p288)

5. The more difficult problem here, however, is whether, in the actual circumstances, his not crossing the road to the child amounted to carelessness and breach of duty to a small child whom he knew was likely to run into danger coming to him. The fact that he was the child's grandfather had, of course, some significance, namely that it was that relationship that made it likely that the child would come to him across the road and so run into danger. (at p289)

6. Upon the whole I have come to the conclusion that the appellant's awareness of the likelihood of the child crossing the road to him did require him to do something for her protection. The learned trial judge found that the appellant did not appreciate that the child was in danger until he saw the vehicle which struck her approaching and that it was then too late for him to cross to her with safety. In my judgment, as in the judgment of the learned trial judge and the members of the Full Court, this tardy appreciation of danger was itself less than reasonable and it was the appellant's failure to act reasonably to protect the child, who, by coming to him, was putting herself in danger, that constituted negligence. (at p289)

7. The appellant failed to take the opportunity which he had, and which he knew that he had, of protecting the child from a danger of which he knew, or ought to have known, would occur by reason of her doing something in relation to him, namely crossing the road to join him. It was his presence across the road that brought the child upon the road, and he was aware of the likelihood of this very thing. She - as was to be expected - ran onto the road because of him. The situation, in my estimation, was not essentially different from his calling her to him. (at p289)

8. I agree with the result arrived at in the Supreme Court, and would therefore dismiss the appeal. (at p289)

WINDEYER J. On 12th November 1967 Anne Lorraine Kuchel, a little girl then three years and three months old, was struck by a motor vehicle driven by the respondent when she was crossing the road outside her grandparents' home. She was badly hurt. Suing by her next friend, her father, she brought an action against the respondent, whom I shall refer to as the defendant. The accident occurred at about half past seven o'clock in the evening. Dusk was coming on, but there was still enough light for persons and objects to be clearly visible at a distance of more than fifty yards. The headlights of the defendant's vehicle were alight and on full beam. Yet he did not see the plaintiff before his vehicle hit her. The learned trial judge found that he was driving without keeping a proper watch on the road. He is clearly liable to the plaintiff as a tortfeasor for the damage she has suffered by his negligence. But he had given a third-party notice to the plaintiff's grandfather, the appellant, claiming to be indemnified by him against his liability, or alternatively to contribution in respect of it. This claim as formulated was based upon allegations that the plaintiff was residing in her grandfather's house and was "at all times under his control, supervision and care"; that he had failed to prevent the child from wandering on to the road; had permitted her to do so unattended and unaccompanied; and had not taken reasonable and proper precautions for her safety. (at p290)

2. The basis for this claim is s. 25 (c) of the Wrongs Act, 1936-1959 (S.A.) which, so far as relevant, is as follows:

"Where damage is suffered by any person as a result of a tort (whether a crime or not)- (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would at any time have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise. . . "

This enactment aids the "loss distribution", as it is described, that some writers see as the main social purpose that the law of torts serves today: see the discussion in Professor Fleming's work, The Law of Torts, 4th ed. (1971), pp. 9-14. Statutory provisions for apportionment of responsibility in cases of contributory negligence and provisions such as s. 25 (c) above mentioned enabling contribution between tortfeasors when coupled with the prevalence of insurance, especially compulsory third party insurance by motor vehicle owners, have no doubt led to the spreading of losses resulting from accidents. Sometimes the result is a distribution of losses among insurance companies, sometimes the partial relief of an insurance company at the expense of an individual. But the criterion of liability is still fault. All that s. 25 (c) has done is to abrogate the old rule of the common law that a wrong-doer could not obtain from another wrongdoer any contribution towards his liability to the person wronged. The enactment has no application unless the person from whom a tortfeasor seeks contribution was himself a tortfeasor directly liable to the person harmed by his tort for the damage suffered. In the present case that means that the grandfather is only liable to contribute to the damages the defendant must pay if as between himself and his granddaughter he was liable in law for the whole amount. (at p290)

3. The essential facts of the case are as follows. The plaintiff had been left by her parents to stay for a few days with her maternal grandparents in their home. The members of the household were the grandfather and his wife, his mother and an unmarried daughter. The accident occurred on a Sunday night. After the evening meal the appellant went outside the house to a paddock where he had planted some trees. When he left the house the child was with the womenfolk of the family. The scene of the accident was a country road between two towns. It was not the main road connecting them; but it was a well-made wide road with a bitumen surface used by motor traffic. The appellant's property fronted upon it on its south side. His paddock there was not fenced. There were three or four houses in the immediate vicinity. One of them was on the northern side of the road, that is the other side from the appellant's land. When the appellant was in his paddock he saw his neighbour of this house across the road in his garden. He walked across to speak to him. While they were in conversation he heard his granddaughter, the plaintiff, calling from the other side of the road. She had it seems left the house unnoticed after her grandmother had gone to a Sunday School meeting. She was standing unaccompanied in the appellant's paddock some fifty yards or more from where he was talking with his neighbour on the other side of the road from her. It appears from the findings of the trial judge that, although she was spoken of as "crying", she was not weeping or in distress, only calling out in some way. On hearing and seeing where she was, the appellant called to her: "Here I am Anne" or "I am over here Anne". This he said, and understandably so, was a "natural thing" for him to do. (at p291)

4. There was some discussion in the Supreme Court and before us of the purpose of the appellant in thus calling to his granddaughter and of the purport of his words. Were they an "invitation", as it was said, to her to come to him, in the sense of either summoning her or attracting her to come, or were they meant simply to reassure or comfort her by making her aware that she was not lost or alone? It seems to me to be a mistake to treat the appellant's intention in calling as he did as a critical consideration. His words are not significant because of the meaning that he intended them to convey, but for what might be the reaction of his three-year-old granddaughter when she heard them. In fact she began then, or very soon afterwards, to go to where he was. Was it to be foreseen that she would do so? Opinions as to that may differ. In fact they have differed. In the Full Court Bray C.J. said:

"I cannot construe those words as an invitation to the plaintiff to cross the road, nor am I prepared to hold that the appellant was negligent in not foreseeing that the plaintiff, from the position in which she was at that time, would attempt to join him." (1971) 1 SASR, at p 88

Hogarth J. said:

"I can see nothing in the evidence to have led the third party to call out 'Here I am', unless it was the intention of bringing the child to him. If he did not personally have that intention, his action was such that I think that it was reasonably foreseeable that the child, unless she were under the direct control of some other adult, might have been expected to try to make her way towards him." (1971) 1 SASR, at p 95

But whether or not he ought to have foreseen that she would come to join him is not the critical question. Rather it is whether it was reasonably foreseeable that if she did so, she would run into danger. Was that a risk that he ought then and there to have taken precautions to prevent? (at p292)

5. What actually happened was that while the appellant was still talking with his neighbour he became aware that the child was standing opposite them on the far side of the road from them. She was then a little way from the edge of the bitumen part of the road. She waited there for a motor car travelling west to pass in front of her. Then she began to run, or "trot" it was said, across the road. She had got almost to the other side of the bitumen when she was struck by the left side of the defendant's vehicle which was travelling in an easterly direction at a speed of forty to fifty miles an hour. There was nothing to prevent the driver, if he had been watching the road, from seeing her and avoiding her. It was a straight and level stretch of road. The bitumen part was of ample width to have enabled the driver to avoid her had he seen her. (at p292)

6. When the appellant saw the child standing beside the road he could, if he had then gone to her, have reached her after the first car had passed and before the second car came upon the scene. The trial judge so found. The appellant said that he did have in mind going to the child, but not, it seems, because he thought she was in immediate danger. His Honour expressly found that:

" . . . the third party did not appreciated that a danger had arisen, nor did he form any intention to cross the road, until the defendant's utility was bearing down upon the plaintiff, or nearly so, by which time he believed (and probably correctly) that he could not safely cross in front of the defendant's utility." (1971) 1 SASR, at p 76

His Honour also said:

"The third party did not think of danger to the plaintiff until he saw the defendant's utility approaching - the passing of the first car did not alert him to the possibility of danger. He said he first appreciated the possibility of danger when he saw the second car." (1971) 1 SASR, at p 76

That was when the child had started running across the road. His Honour held that the appellant was a wrongdoer liable in damages because:

" . . . he tarried too long in taking up his responsibility (i.e. of protecting a young child coming under his charge) and in a matter (of keeping her out of the path of traffic) in which adult protection might or might not prove to be necessary." (1971) 1 SASR, at p 79

On this ground his Honour held the appellant, the third party, was liable to contribute a quarter of the total amount of the damages for which the defendant is liable to the plaintiff. What according to this decision is the amount in money for which the appellant has been held liable has not been determined, as the plaintiff's damages have not been finally assessed. (at p293)

7. An appeal by the third party to the Full Court of the Supreme Court was dismissed, their Honours there giving somewhat divergent reasons for this decision (1971) 1 SASR 73, at p 81 et seq . The appellant now appeals to this Court. He seeks leave to appeal if it should be held that an appeal does not lie as of right. The plaintiff was badly hurt and on final assessment the damages to which she will be entitled must be large. We heard the case fully argued on the basis that the appeal to this Court was competent, if need be on the basis of leave having been given. (at p293)

8. The determination that the appellant contribute to the extent of a quarter of the total damages was based upon s.26 of the Wrongs Act, being the proportion that his Honour held to be "just and equitable having regard to (his) responsibility for the damage". I find difficulty in seeing the logical basis for this apportionment of responsibility. However, its validity is not in question: and in the view I take it could not arise; for I am unable to accept the proposition that the appellant was liable to his granddaughter as a tortfeasor. The question is, was he a "tort-feasor liable in respect of the same damage"? That means "responsible in law": see Stott v. West Yorkshire Car Co. (1971) 2 QB 651 . It is not enough to say that if he had acted differently from the way that he did the child might not have been hurt. The question is: was he negligent? (at p293)

9. In the Supreme Court, at the trial and in the Full Court, much attention appears to have been concentrated on whether the appellant had a duty of care. Before us too, this aspect was at first put in the forefront of the argument. I have elsewhere - in Hargrave v. Goldman (1963) 110 CLR 40, at pp 62-66 - discussed the theory of a duty of care. My conclusion was endorsed by the Chief Justice in Ramsay v. Pigram (1968) 118 CLR 271, at p 277 . And in Smith v. Jenkins (1970) 119 CLR 397, at p 417 I reiterated my view and said that "a duty of care is, without doubt, a starting point for an action of negligence". That is simply because a man cannot be said to have been careless unless he ought to have been careful. But whether in this case an action for negligence would lie is not to be decided by looking at law books, or by seeking analogies in other cases, or by relying on judicial observations on the particular facts of other cases. It is not, I think, a proper approach to this case to consider what is the general nature and extent of a parent's duty to safeguard a child, and then to ask whether a grandfather is under a similar duty, or turning hopefully to Latin, to ask whether the appellant was in loco parentis because his granddaughter was staying in his home. (at p294)

10. In the emphasis upon the element of duty it seemed to have been assumed that, if a duty of care existed, a breach of it was apparent. His Honour's finding that the appellant was negligent because he delayed "in taking up his responsibility" of "protecting" the child by "keeping her out of the path of traffic" seems to reflect propositions by counsel, based on dicta in judgments in other cases on different facts, that a person having a young child in his care has always an absolute obligation to prevent the child being on a highway unless accompanied by an adult. There is no such rule. A duty of care for a child is an obligation to take reasonable care in the existing circumstances. It is not an obligation to ensure the child's safety in any particular circumstances. In the present case a need, or duty, of care on the part of the appellant arose not from blood relationship or from his position in the household but from the particular situation. It was the relationship of "proximity", the facts of the occasion, which made the appellant's little granddaughter his "neighbour". Prominent among those facts was that he was not merely an onlooker, as for example was the man with whom he was conversing. He was known to the plaintiff as her grandfather and as the man who had called to her. He was aware of her presence and he knew she was aware of his. (at p294)

11. But this case is not one in which the concept of a duty of care needs to be considered as a separate element in an action of negligence. Negligence is not established by shewing that a duty of care existed, but by shewing a culpable carelessness in breach of that duty. Can it be said that the appellant was blameworthy for the accident? Did he fail to take precautions which he should have taken against a danger that he had foreseen or ought to have foreseen? His Honour found that he was not aware that the child was in danger until he saw her running towards him as the vehicle was approaching. The accident then happened because a vehicle was being negligently driven. There is no evidence that motor traffic on the road was so frequent that any crossing must have been hazardous. If the appellant had gone to the child when he first saw her, she would not have been hurt. When he decided to do so it was too late. But he is not to be said to be a tortfeasor simply because he did not prevent the accident. A passage in the judgment of Lord Thankerton in Glasgow Corporation v. Muir (1943) AC 448, at pp 454-455 is appropriate:

"The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect, and not to give undue weight to the fact that a distressing accident has happened or that witnesses in the witness box are prone to express regret, ex post facto, that they did not take some step, which it is now realized would definitely have prevented the accident."

His Lordship there warned of the fallacy of "regarding the event as demonstrating the risk". (at p295)

12. The evaluation of conduct by measuring it against that supposed of a reasonable man is a normative decision: but the norm is not a fixed and objectively determinable fact. I do not think that a judge who sits on an appeal should readily substitute his own evaluation of conduct, by reference to that of the hypothetical reasonable man, for the evaluation of the trial judge. I have explained elsewhere my reasons for saying that. But it presupposes that the trial judge posed the right question to himself; that he was not led away from it; that his findings of primary facts were directed to it. In this case the question was whether the appellant was proved to be a wrongdoer who, by blameworthy conduct, became liable in law to his granddaughter for the harm that she suffered. I do not think that the facts that his Honour found could support that conclusion. I would allow the appeal. (at p295)

WALSH J. In an action for damages for personal injury brought in the Supreme Court of South Australia by an infant plaintiff against the driver of a car which struck the plaintiff as she was crossing a road, the defendant joined as a third party the plaintiff's grandfather and claimed contribution from him in respect of the defendant's liability to the plaintiff. The learned trial judge entered a declaratory judgment (see the Supreme Court Act, 1935, as amended, of South Australia, s. 30 (b)). in favour of the plaintiff for the recovery of damages to be assessed and in favour of the defendant against the third party for the recovery of twenty-five per cent of those damages as assessed. An appeal to the Full Court of the Supreme Court was dismissed. (at p296)

2. The third party filed a notice of an appeal to this Court as of right. He gave notice also of an application for special leave to appeal. There is no evidence which indicates that it is likely that the sum which the third party will become liable to pay under the judgment given against him will exceed $3,000. I am of opinion, having regard to the decision of this Court in Electricity Commission (N.S.W.) v. Lapthorne (1971) 124 CLR 177 , that, within the meaning of s. 35 of the Judiciary Act, a "judgment" was given by the Supreme Court against the third party and this was an interlocutory not a final judgment. Accordingly, leave to appeal was required. In my opinion it should be granted. (at p296)

3. The Court heard full argument as upon an appeal. Upon the substance of the case I am in agreement with the judgment of Menzies J. and do not wish to add anything to his reasons. (at p296)

4. In my opinion leave to appeal should be granted and the appeal should be dismissed. (at p296)

Orders

Special leave to appeal granted. Appeal allowed with costs. Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be allowed with costs and order that the order for contribution by the appellant be set aside and in lieu thereof order that the claim of the defendant for indemnity or contribution from the third party be dismissed with costs.