Mackie v Farrell (BY Her Next Friend John Farrell)

The case of *Mackie v Farrell (by her next friend John Farrell)* [1995] NSWCA 265 concerned an appeal to the New South Wales Court of Appeal. The dispute arose from a motor vehicle accident in which the infant plaintiff, represented by her father as next friend, suffered injuries. The defendant, the driver of the other vehicle, sought to rely on a defence of contributory negligence.

The primary legal issue before the Court of Appeal was whether the infant plaintiff, by reason of her age, was capable of being found contributorily negligent. The court was required to consider the principles governing the attribution of contributory negligence to children and the standard of care expected of a child in the circumstances.

The Court of Appeal held that an infant plaintiff could be found contributorily negligent, but the standard of care to be applied was that of a reasonable child of similar age, intelligence, and experience. Applying this principle, the court found that the infant plaintiff, aged seven years and ten months at the time of the accident, was not capable of being contributorily negligent. The court reasoned that a child of that age could not be expected to appreciate the risks involved in the situation and therefore could not be held to have failed to take reasonable care for her own safety.

Consequently, the appeal was dismissed, and the finding of contributory negligence against the infant plaintiff was set aside.