Trespass to the Person—Battery by a blow or missile—Onus of proof of wrongful intent or negligence. Negligence—Standard of care—Child—Relevance of age—Liability of parent for allowing child to have instrument &hich caused injury—Liability in tort of a child and his parents.
Decision
October 22. WINDEYER J. delivered the following written judgment:- The plaintiff in this action, Susan McHale, is an infant. By her next friend her father she sues Barry Watson, his father, Herbert Hamilton Watson and his mother, Alice May Watson. The three defendants are sued in one action to recover damages for personal injuries suffered by the plaintiff, and the case was tried as one. But in reality the plaintiff sues each defendant in respect of a separate tort, not as joint tortfeasors. To this aspect I shall advert later. (at p385)
2. The action is within the original jurisdiction of this Court because the plaintiff is, and at all relevant times was, a resident of South Australia; and the defendants are, and at all relevant times were, residents of New South Wales. The action arises out of an event which occurred on 21st January 1957 when a sharpened piece of metal, described as a dart, thrown by Barry Watson struck the plaintiff in the right eye with serious consequences for her. The plaintiff and Barry Watson were both young children at the time. She was aged nine years and ten months, having been born on 20th March 1947. He was aged twelve years and two months, having been born on 27th November 1944. The action was not commenced until 22nd March 1963, more than six years after the event. But as the plaintiff is still an infant the delay is of course no bar to her action. It is material only as affecting the recollection that witnesses now retain of the events, and because I must envisage the young woman and young man who gave evidence before me as young children at play seven and a half years ago, and remember the lapse of time when observing their present demeanour and their manner in the witness box. (at p386)
3. The claim against Barry Watson is framed both in trespass to the person and in negligence. It is alleged that he threw the article, however it be described, at the plaintiff intending that it should hit her; alternatively it is said that he was negligent in throwing it as he did. It is alleged against the parents that they were negligent in permitting their child to have the article, or alternatively in failing to supervise and control him in the use of it. (at p386)
4. Before proceeding to consider the facts I shall state briefly what I take to be the law that is applicable. I do not think that I need go at length into all the matters on which counsel addressed me. (at p386)
5.…
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.
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AGLC
McHale v Watson [1964] HCA 64
Case
[1964] HCA 64
Decision Date
CaseChat Overview and Summary
McHale v Watson concerned an action brought by the plaintiff, a young boy, against the defendant, another young boy, for injuries sustained when the plaintiff was struck in the eye by a dart thrown by the defendant. The incident occurred at a picnic attended by the families of both boys. The plaintiff alleged negligence on the part of the defendant. The case was heard in the High Court of Australia.
The central legal issue before the High Court was whether the standard of care expected of a child defendant in a negligence action should be that of a reasonable adult or a reasonable child of similar age, intelligence, and experience. The plaintiff argued that the defendant, despite his age, should be held to the standard of a reasonable adult.
Windeyer J, delivering the judgment, held that the standard of care applicable to a child in a negligence action is that of a reasonable child of the same age, intelligence, and experience. His Honour reasoned that it would be unjust to expect a child to conform to the standard of care of an adult, as children are not expected to possess the same foresight or judgment. The court found that the defendant, being a child, was not negligent in throwing the dart, as he had acted in a manner that a reasonable boy of his age, intelligence, and experience would have acted in the circumstances.
The appeal was dismissed, and the judgment in favour of the defendant was affirmed.