1966, March 7.
The following written judgments were delivered:-
McTIERNAN A.C.J. In this case, the plaintiff Susan McHale suffered serious injury to her right eye while in the company of two other girls of about her own age and of Barry Watson, then aged twelve years and two months, a few years older than the others. It was school holidays in January 1957 and Susan and her mother had come from South Australia on a visit to Portland in Victoria and Barry and his mother had come from New South Wales also as visitors to that town. The children had met, being neighbours, in Lighthouse Street, Portland, and late in the afternoon of January 21st played chasings, a children's game also known as tag, in which one player called "it" chases the others until one is touched or tagged and that player in turn becomes "it". A structure made of four corner posts of hardwood, with pickets between them, was "base" for the game. Each post was four feet high and measured 3" X 2": the pickets were short and above them the structure was open. The enclosed area was about four square feet and within it was a young ornamental tree. There was a row of such structures each enclosing a tree in the street. When the game was at an end Susan and Barry were on opposite sides of the tree guard called "base". She was to Barry's left and he was standing facing a corner post: the distance between the two children was little more than the distance between two sides of the guard; both were, of course, outside it. Barry took an object from his pocket and threw it in front of him. It hit Susan in the right eye with sad consequences to her; the sight of the eye was destroyed. The object was a round piece of welding rod, of small circumference, and six inches long. One end had been sharpened by Barry on the rocks at the beach where he had been earlier in the day amusing himself in the company of another young boy by spearing starfish and prizing shell-fish off the rocks with this implement. He had picked it up outside his father's workshop on his way to the beach. (at p202)

2. There was a contest at the trial whether Barry had aimed it at Susan. She and one of her young companions said in evidence that he had done so. Windeyer J. did not accept the evidence of either of the girls on that point. Barry said in evidence that he aimed the object at the corner post which he was facing, his idea being to make it stick in the post. The object was made of soft steel; in form it was not finished as a dart although it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McHale v Watson

Details

AGLC: McHale v Watson [1966] HCA 13
Case: [1966] HCA 13
Decision Date: 7 March 1966

CaseChat Overview and Summary

McHale v Watson concerned an appeal to the High Court of Australia following a judgment of the Supreme Court of Victoria. The appellant, a young boy, had suffered serious eye injuries when he was struck by a dart thrown by the respondent, a boy aged 12. The appellant's father, acting as his next friend, brought proceedings against the respondent, alleging negligence. The respondent's defence included a plea that he was too young to be held liable for negligence.

The central legal issue before the High Court was whether a child of 12 years of age could be held liable for negligence. This required the court to consider the standard of care expected of a child defendant and how that standard differed from that expected of an adult. The court also had to determine whether the respondent's actions, in throwing the dart, fell below the standard of care expected of a reasonable child of his age.

The High Court held that a child defendant is not expected to meet the same standard of care as an adult. Instead, the standard of care applicable to a child is that of a reasonable child of the same age, intelligence, and experience. In this instance, the court found that the respondent, a 12-year-old boy, had not been negligent. The court reasoned that the respondent's actions in throwing the dart, while perhaps careless in hindsight, were not so careless as to be considered negligent when judged by the standard of a reasonable 12-year-old boy. The appeal was therefore dismissed.

Orders