McHale v Watson

[1964] HCA 64

HIGH COURT OF AUSTRALIA

Windeyer J.

McHALE v. WATSON

(1964) 111 CLR 384

22 October 1964

Trespass to the Person—Negligence

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. A child is personally liable for the consequences of his wrongful acts. That is certainly so if he was old enough to know that his conduct was wrongful - that is to say if, in the common phrase, he was old enough to know better. The exception to this general rule in the case of a tort founded on a contract for which an infant cannot be sued is irrelevant to this case. (at p386)

6. A parent is, generally speaking, not legally liable for the wrongdoing of his child. This is the rule of the common law. In other systems a different view is taken and parents are required by law to make good the harm that their children do. In our law that is so if the parent has in some way participated in, directed or ratified the wrongdoing of his child, or if the child were in fact employed as his servant and the wrongful act was done in the course of his employment. A parent may also be liable for the consequence of his child's wrongdoing if his own negligence caused or provided the occasion for it. In that case the parent is not vicariously liable: he is liable because of his own negligence. Such negligence may arise from his failure to exercise a reasonable control of the activities of his child. It may in some cases arise from his arming the child with an instrument which it could reasonably be thought might be used by the child in a manner that would be dangerous to other persons. Whatever acts or omissions of the parent be relied upon, they must amount to a breach of a duty of care created by the reasonably foreseeable risk of an injury arising as a consequence of those acts or omissions. Although I have spoken of the parent as "he", a mother may of course be liable in the same way as a father. In the present case the statement of claim makes allegations of negligence against the adult defendants, the father and mother, jointly. But, although the proper upbringing and control of a child is commonly regarded as the responsibility of both parents when they share his custody, I do not think that one becomes implicated in the acts or omissions amounting to negligence of the other unless he or she in some way participated or concurred in them. They do not, because they are parents, become joint tortfeasors. In saying that I am not referring to the common law liability of a husband for the torts of his wife, where that rule still exists. In the view I take of the facts I need not consider any problem that could arise in the jurisdiction that I am exercising because of differences on that or any other topic between the law of South Australia (where the plaintiff resides), Victoria (where the accident happened) and New South Wales (where the defendants reside). (at p387)

7. One consequence of the joinder in one action of what are in substance three different actions, one against each defendant, is that evidence of any admission by speech or conduct must be carefully regarded as it can be used only against the party said to have made the admission. (at p387)

8. It is not necessary that I say anything more as to the general principles governing the liability in tort of a child and his parents. It is enough to refer to Smith v. Leurs (1945) 70 CLR 256 ; Salmond on Torts, 13th ed. (1961), p. 80; Halsbury, 3rd ed., vol. 21, p. 150; and an article by Mr. P. L. Waller in the Melbourne University Law Review, (1963) vol. 4, p. 17. (at p387)

9. Turning from the legal position of the parents back to that of their son, much was said about the way in which I should approach the case against him, based as it is alternatively upon assault and battery and upon negligence. The distinction between trespass and case, important though it still is for some purposes, and great and perennial as its fascination seems to be for lawyers, has I think little practical consequence for adjudication upon the facts of this case. But because of what was said on the topic by counsel I must refer to it briefly. Negligence would of course be the essence of the action in case. And as I understood the argument it was conceded, and rightly I think, that the plaintiff could not succeed in trespass if what the defendant Barry Watson did was done without intent that the thing he threw should hit her and without negligence on his part. So much must I think now be taken to have been established since Stanley v. Powell (1891) 1 QB 86, despite some vigorous academic criticism of that decision. But the question remains, Is it for the plaintiff to establish that the missile with which she was hit was thrown with intent to hit her or so negligently that it did so - or is it for the defendant who threw it to prove an absence of intent and negligence on his part? I think the latter view is correct. I take the law to be as stated in Blacker v. Waters (1928) 28 SR (NSW) 406; 45 WN 111 and Williams v. Milotin (1957) 97 CLR 465, at p 474; and see National Coal Board v. J. E. Evans &Co. (Cardiff) Ltd. (1951) 2 KB 861 I have not overlooked the learned discussions by Diplock J. in Fowler v. Lanning (1959) 1 QB 426, by Clyne J in Walmsley v Humenick (1954) 2 DLR 232 , and by McGregor J in Beals v. Hayward (1960) NZLR 131 Their judgments support the proposition that in an action for trespass to the person, based upon a battery by a blow or a missile, the plaintiff must aver and prove that the act of the defendant in delivering the blow or missile was either intentional or negligent. I do not think this is so. The law in such cases is still, I think, as stated in the old and constantly quoted words in Weaver v. Ward (8), on which Doctor Bray relied, that "No man shall be excused of a trespass except it be adjudged utterly without his fault". But I should add that this was said in a report of a successful demurrer by the plaintiff to a plea in answer to a count in trespass which plea had alleged that the defendant had accidentally, by misadventure and involuntarily (casualiter et per infortunium et contra voluntatem suam) discharged his musket. It should have stated facts negativing negligence or showing how the act was involuntary. I read contra voluntatem as relating there to volition rather than intent; but there is no need to pursue the refined distinctions of later times. The words "utterly without his fault" mean, as the context and later decisions make clear, not an absence of all ground for blame and censure of any kind but an absence of such negligence as constitutes fault in law. In Bacon's Abridgement, 6th ed. (1807) under the heading "Trespass (D)" it is said: "If one man have received corporal injury from the voluntary act of another, an action of trespass lies, provided there was a neglect or want of due caution in the person who did the injury, although there were no design to injure". (at p389)

10. I have said so much because of the careful and learned arguments addressed to me. But, where the elements on which liability depends are not in dispute and evidence relating to them is given on both sides, it seems to me that adjudication is not likely often to depend upon which side has the onus of proof. I do not think that it does so in this case. The question does not arise as an abstract question raised by demurrer, or on an objection to a pleading such as Diplock J. had before him in Fowler v. Lanning (1959) 1 QB 426, a case of which it was said in the Law Quarterly Review (1959) vol. 75, p. 161 that "perhaps no recent case in the Law Reports is of less practical importance or of greater academic interest". I accept Doctor Bray's proposition that as Barry Watson threw the thing which hit the plaintiff in the eye he is liable for the consequences, unless I am satisfied, on the balance of the probabilities, that he did not intend it to hit her and that he was not negligent in throwing it as and when he did. I approach the facts in that way and I now turn to them. (at p389)

11. The events happened at Portland in Victoria. Susan McHale and her mother were staying during the school holidays with Mrs. McHales's sister, Mrs. Moulton, at her home in Lighthouse Avenue, Portland. Next to the Moultons' house, on the west side of it, was a house occupied by a family named Davies; adjoining their property, on the west, was an open paddock. At that time the harbour at Portland was being constructed. Mr. Davies was a construction engineer employed by the Portland Harbour Trust in connexion with the project. Mr. Moulton was the secretary of the Trust. The Moultons had a daughter, Carol, about two years old than her cousin, the plaintiff. The Davies had a daughter, Delphine, about the same age as Carol. The three little girls were playmates. Mr. H. H. Watson, the father of Barry Watson, is an earth-moving contractor, that business being carried on by him as a director of a company called H. H. Watson Pty. Limited. His company had a contract for carting filling for the breakwater that was being built as part of the harbour works. He spent much of his time at Portland, although his home and place of permanent residence was in New South Wales. In January 1957 his wife, his daughter and his son Barry had come to Portland to be with him during the school holidays. They all stayed at a hotel there. (at p389)

12. During the afternoon of 21st January the three girls, Susan, the plaintiff, Carol and Delphine, were playing in the paddock beside the Davies' home when they were joined by Barry Watson and another boy. There is some conflict in the evidence as to how the boys came there. I do not think much, if anything, turns on this except for such light as perhaps it throws on the plaintiff's recollection of other events. The plaintiff said they came about four o'clock in a car with Mr. and Mrs. Watson to the Davies' house and that the two boys were met by Delphine Davies and then joined them in the paddock. Her recollection of this is I think mistaken, as it easily could be. She had not previously met any of the Watson family. I accept as facts that the Watson family had been invited to the Davies' home for the evening meal, and that the order of their assembling there was as follows: Mrs. Watson and her daughter arrived at some time about four o'clock in the afternoon. They came by taxi from the hotel where they were staying, which was about a mile away. Mr. Davies and Mr. Watson both arrived at about the same time, about half past six after they had finished their work. Each of them drove his own car. Barry Watson walked and got there probably about the same time as his mother and sister, or not long afterwards. He knew that he was to have dinner there and he came dressed in a school suit. He had with him when he arrived another boy of about his age, whom the plaintiff mistakenly thought was his brother. This boy was in fact a chance acquaintance: he happened to be staying with his people at the same hotel as were the Watsons. He played no significant part in the events that occurred. Indeed the evidence seems to show that he had left before the plaintiff was hurt. Whether or not his testimony could have had any value, no inference can be drawn from his not having been called. No one knows his whereabouts. It seems that no one now remembers his name. To trace him would be difficult, as the hotel where he and the Watsons were staying is no longer in existence. (at p390)

13. The two boys joined the three girls and all the children played together in the paddock. At some stage Barry took from his pocket and showed the girls a piece of metal rod sharpened at one end. This has been called a "dart", and it will be convenient sometimes to call it so. But that is merely as a name for it, not as indicative of its purpose or of the use for which it was intended. It is of some importance to notice that it does not seem to have been spoken of by anyone as a dart until some time after the occurrence on which the action is founded. Indeed, the first use of that name for it seems to have been by the plaintiff's lawyers who in the statement of claim called it "a certain metal dart or instrument". It is common ground that it was a short metal rod about six inches long sharpened to a point at one end. It had no protuberance or flanges such as a dart made to be thrown commonly has. The plaintiff says that Barry Watson took it from his pocket saying "look at this": that he was handling it, "throwing it up in the air" she said, by which apparently she meant, as she later said, moving it from hand to hand: that he said "my father made it for me": that she said "it looks very dangerous, you should put it away": that he put it back in his pocket. She remembered no other conversation about it. No one, she said, asked him what it was for. Her description of its appearance was that "it was a home-made thing; it was not a bought thing": that it was silver in colour, made of steel; and she said it was heavy although she had not felt it. It was, as she remembered it, thicker than an ordinary lead pencil. Her evidence as to its size was supported by her cousin, Carol Moulton. Asked to describe the thing, Carol Moulton said it was "about six inches long, about half an inch wide and had a head in its front, sharp; it reminded me of a small harpoon". But although she referred to it again later as "the harpoon thing" she made it clear in cross-examination that it had no barb on it and that when she said it had a "head" she meant only that its end was tapered to a point. She described it as steel grey in colour, and said "I had the impression that it was homemade". She said that Barry told her that his father had given it to him. In the course of her evidence-in-chief this occurred: "Did you or Susan say anything about the object? - I can't remember actually saying something, but I do remember I thought it was very dangerous - Never mind what you thought. Did anyone say anything about it being dangerous? - I think Susan asked him to put it away. - Did he put it away? Yes he did." She also said that before putting it back in his pocket he had been holding it in his hand for about ten minutes: that no one asked him what it was for or what he did with it. "I did not ask him", she said, "because in my opinion it seemed very useless". She said that the only thing she remembered him saying - and she insisted that she remembered his exact words - was that "his father gave it to him". I do not doubt that, in the light of what happened afterwards, both these witnesses remembered that the thing they were shown looked to them, as small girls, dangerous. Whether this was said at the time, I am not so certain. Carol Moulton was not prepared to say that it was. That Barry was asked to put it away so that they might go on with their game seems entirely likely. If they be mistaken as to the thickness of the "dart" he showed them, as I think they are, that is not surprising. They saw it for only a matter of minutes at the most. They saw it when they were young children; and young children often remember things as larger and seemingly more significant than they really were. Moreover, in the light of what happened, the thing they were shown is no doubt recalled as something formidable and menacing. But whether what was thrown and hit the plaintiff was a thing of the size they describe, or somewhat smaller as Barry Watson says, does not seem to matter. A sharp pointed metal rod whether large or small is not a thing to throw at a person. (at p392)

14. The plaintiff was helpful and straightforward in her answers in both examination-in-chief and cross-examination. Her memory of the details of events outside the essentials of her case is by no means sure. But it is not surprising that the main events have become fixed in her mind. Her cousin, Carol Moulton, seemed to me a truthful witness. It is somewhat striking, however, that both these young women recollect so positively that Barry said his father made the dart (according to the plaintiff) or that his father gave it to him (according to Carol Moulton), yet remember little else being said about it except some reference to it being dangerous. Their memories may perhaps have become somewhat sophisticated at this point. The case against Mr. Watson was based upon an allegation that he had given his son a dangerous thing; and this evidence was apparently thought to support that case. But it does not do so. Whatever Barry Watson said as to how he came by the thing is not evidence against his father. And, as against himself, if he with intent or negligently threw a dart which wounded the plaintiff, it would not matter how he had come by it. (at p392)

15. He did however give his own account of how he came to have it and to show it to the other children, as follows. He and the other boy went down from the hotel to the beach after lunch. He had expected to meet his father at his workshop, and to be shown something of the harbour work in progress and then to go to the Davies' house for dinner. He was dressed accordingly. The workshop was situated on or near the beach. It belonged to the harbour authority, but was used by Mr. Watson in connexion with the maintenance of his earth-moving plant and equipment and was known to Barry as his father's workshop. Mr. Watson did not come there as Barry had expected he would. He and the other boy then went off to play among the rocks near the beach. Before doing so they picked up some discarded pieces, or off-cuts, of welding rod. A welding rod is the electrode used in electric welding. It is of metal described by one witness as soft steel and coated with a composition which acts as a flux or in some way aids the welding process. That dozens of discarded end pieces of welding rod were lying about outside the workshop is beyond doubt. Barry says that he and his companion amused themselves by spearing starfish and prizing shellfish off the rocks with some of those they had picked up. For this purpose they sharpened some of them at one end by rubbing them on the rocks. He says he treated two pieces in this way. One was made much sharper than the other. He produced two pieces of welding rod merely to illustrate his evidence. He said that the one he sharpened to a point was somewhat longer than the shorter piece he produced - apparently it was about four and a half inches long. The effect of rubbing it on the rocks as he did was, he said, to remove the coating as well as to sharpen it. The samples produced are of a rod that with the coating removed is a quarter of an inch in diameter. The coating adds about a sixteenth of an inch. After playing on the rocks for some time the two boys walked up to the Davies' house, Barry taking in his pocket his two pieces of rod, one quite sharp and with the coating removed, the other less sharp. He and the boy with him joined the girls in the paddock in a game of chasings. At some stage one of the other children asked him what he had been doing earlier in the afternoon. He told them about playing on the rocks and showed them the sharpened rod he had made and used there. He then put it back in his pocket. He says he only had it out for a moment or two. He denies saying that his father had given it to him or that his father had made it. In this I believe him. He may of course have said that he got it at his father's workshop. He had in fact picked it up just outside the workshop. (at p393)

16. There is nothing improbable in Barry's story. Whether a piece of welding rod could be sharpened on rock was questioned. But I am satisfied by the evidence of Mr. Davies that it could easily be done. Moreover, Doctor Bray after having obtained an early adjournment because he said he wanted to inquire into this before closing his case in reply, did not thereafter call any evidence on the matter. Although neither the plaintiff nor Carol Moulton remembers Barry telling them of his playing on the rocks it seems most likely that his exhibiting his so-called dart was accompanied by some statement of the purpose for which he had had it. It may have been some unremembered association of it with spearing starfish that led Carol Moulton to describe what she was shown as appearing to her like a small harpoon. Barry Watson gave his evidence in a frank manner. His answers were precise and careful and in essentials I accept him as truthful. It may well be that he is mistaken in thinking that the piece of rod he exhibited to the other children had had its outer covering entirely removed in the process of sharpening it. If he was, Carol Moulton's description of what she saw as silver grey would have been entirely apt. (at p394)

17. The plaintiff and Carol Moulton went inside for their evening meal at about half past five. They came out afterwards and they, Delphine Davies and Barry Watson began playing again, this time in front of the houses on the footpath and a strip of grass between it and the roadway. Ornamental trees had been planted at intervals along this strip. They were then quite small and surrounded by portable wooden tree guards. They were three feet square. The corner posts were made of 3" X 2" hardwood about four feet high: these were connected by rails at the bottom and near the top: the guards were enclosed at the bottom by palings or pickets to a height of about two feet; above that they were open. At about seven o'clock, when it was getting on towards dusk, Mrs. McHale went out from the Moultons' house to call the plaintiff and Carol in. They asked could they have ten minutes more to finish their game and she agreed. Not long afterwards the game had finished. That at all events is what Carol Moulton and Barry said. The plaintiff was less definite. She suggests that the game was perhaps still in progress and that she was on one side of a tree guard and Barry on the other, she wondering whether she should run for the fence, which was "home", before she could be caught. But she said "We were sort of resting". Whether or not they had declared the game at an end it seems to have finished. At this stage Carol and Barry were standing on one side of one of the tree guards facing outwards towards the street; Barry was on the right side of Carol opposite the right-hand corner post of the guard as he looked at it. The plaintiff was on the other side facing inwards towards the house. All three were close up to the guard, just standing there. Barry was within a foot or so of the tree guard on his side, the plaintiff close to it on the other. They were thus separated by only about four or five feet at the most. The plaintiff was either about the middle or towards the left side of the tree guard as Barry looked at it - that is to say she was to his left. It was while they were in these positions that he took the dart out of his pocket. He says he took the sharper of the two that he says he had. Without making any remark he threw it to his front. He threw it with his left hand - he is left-handed. It struck the plaintiff and pierced her right eye. (at p394)

18. She was taken to Mount Gambier where she was skilfully treated, and later to Adelaide for further treatment in hospital. She has lost or virtually lost the sight of the eye. At one stage her eyes were divergent. But an operation has corrected that, at least for the present, and her eyes now move together in a normal way. She has glaucoma and suffers pain from the pressure that affects her eye. In the view I take of the facts of the case it is unnecessary and undesirable that I should further describe her misfortune and its consequences. They are serious indeed. But because of some of the evidence that was given and some things said in argument, I feel bound to say that there seems to be no medical justification for the suggestion that she is handicapped in all of the ways that were mentioned, that she cannot knit, sew or type, for example. And although her damaged eye is, on close observation, somewhat different in colour from the other, it is certainly not a disfigurement or something about which she need be constantly and sadly sensitive. She is in fact a markedly good-looking young woman who in the witness box was composed in her demeanour, with a quiet and pleasant manner and by no means lacking in intelligence. It seemed to me most regrettable to suggest, as she and her parents seemed inclined to do, that her prospects of a useful and happy life have been greatly blighted. (at p395)

19. To return to the day of the accident. The plaintiff thinks that Barry threw the dart at her. Carol Moulton said she saw "the throwing motion of his arm". To the question "Was there anything at which it could have been aimed" she said, "Well there was naturally the tree guard structure, but I do not think he was aiming at that". Later she went further and said "He was aiming directly at Susan". Barry Watson's own account is that the game had stopped. The girls had been called to go in to bed. He, to amuse himself, threw the dart at the upright of the tree guard near which he was standing: "I threw it and Susan screamed and held her eye and ran off towards the house". "Did you know what had happened? - Well she said something had hit her in the eye and I thought it must have been the piece of metal." "You say you threw it at an upright of the tree guard. Do you know whether it hit that or not? - No, not positively but I think it did." On all accounts he was standing very close to the post. If he had stretched out his arm he could almost, he said, have touched it. The distance he had to throw the dart to hit the post was probably less than a foot. It was thrown, he said, in the expectation that it would stick in the post. To that end he threw it with some force. (at p395)

20. Having observed him carefully as he gave his evidence and considered all the probabilities, I have firmly reached the following conclusions. First that Barry Watson did not throw the so-called dart with intent that it hit Susan McHale. I say this not only because I accept what he says, but also because I can see no reason why a boy of his age, obviously old enough to be well aware of the danger of such an act, obviously intelligent, and it seems well brought up, would suddenly and wantonly and without any remark throw a sharpened rod at another child with whom he had no quarrel and with whom he had been happily playing until a few minutes before. (at p396)

21. I have considered whether he might have done so for the purpose of scaring her, so that she would run from her side of the tree guard and he could catch her. But it seems most unlikely that to do so he would do anything so likely to hurt: the thing was thrown hard. Moreover this possibility was not seriously urged as an explanation. (at p396)

22. I accept the defendant's statement that he threw the missile at the post expecting it to stick in it. It does not put any strain on one's memory of boyhood to see this as a boyish impulse. It either missed the post or hit it and glanced off and hit the plaintiff. The latter seems to me far the more likely. Admittedly the plaintiff was not far away. Nevertheless to hit her when trying to hit the post would mean a very bad aim on the part of the defendant, who was standing close up to the post. But that a metal rod, sharpened at the end but not balanced as a true dart, might not stick into a hardwood post at which it was thrown is by no means improbable. If thrown with any force it might on hitting it be deflected and go off at an angle. I think that most probably that is what happened in this case. The question that I must decide is therefore: Did that happening, unintended and unexpected by Barry Watson, occur without any lack of due care on his part? (at p396)

23. It has been strongly urged for the plaintiff that, in considering whether Barry was negligent, I must judge what he did by the standard expected of a reasonable man, and that that standard is not graduated according to age. In one sense, of course, that is so; for the question whether conduct was negligent, in a legal sense, always depends on an objective standard. This has been generally recognized ever since Tindal C.J. said in Vaughan v. Menlove (1837) 3 Bing (NC) 468 (132 ER 490): "Instead of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe" (1837) 3 Bing (NC), at p 475 (132 ER, at p 493) In Glasgow Corporation v. Muir (1943) AC 448, Lord Macmillan said: "The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. . . . The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen (1943) AC, at p 457 ". That is the question I have to determine. It is a question of fact, a jury question, not a question of law. I have not to determine it by regarding the facts of other cases, but by regarding all the circumstances of this case. I do not think that I am required to disregard altogether the fact that the defendant Barry Watson was at the time only twelve years old. In remembering that I am not considering "the idiosyncrasies of the particular person". Childhood is not an idiosyncrasy. It may be that an adult, knowing of the resistant qualities of hardwood and of the uncertainty that a spike, not properly balanced as a dart, will stick into wood when thrown, would foresee that it might fail to do so and perhaps go off at a tangent. A person who knew, or might reasonably be expected to know that might be held to be negligent if he were not more circumspect than was this infant defendant. But whatever the position would be if the facts were different, my conclusion on the facts of this case is that the injury to the plaintiff was not the result of a lack of foresight and appreciation of the risk that might reasonably have been expected, or of a want of reasonable care in aiming the dart. I find that Barry Watson was not negligent in the legal sense. I therefore dismiss the case against him. But before turning to the cases against his parents, I should add that I have not overlooked some particular matters that were put forward as being against him. (at p397)

24. The first is that it was proved without objection that, shortly after the accident, his father punished him for what he had done by chastising him. But whatever were the father's motives, it seems to me that the fact that he did this provides no evidence at all on which I could find his son liable to the plaintiff in damages. The evidence was I think strictly not admissible. (at p398)

25. Then a comment was made that Delphine Davies was not called as a witness. I do not think that any inference adverse to any of the defendants can be drawn from her absence. I say that for two reasons. One, I do not remember that it was shown that she was available as a witness. The other, because it does not appear that she could have given any evidence for either side on any matter of critical importance. (at p398)

26. The third matter requires somewhat more consideration because for the plaintiff much attention was given to it. (at p398)

27. Very soon after the accident Mr. Davies, his daughter - not I think Delphine but her elder sister, who had been inside the house during the afternoon - and Barry Watson, and perhaps others, looked in the vicinity of the tree guard for the thing that had hit the plaintiff. The Davies thought they were looking for a piece of wire. That was how Barry had described the thing he had thrown, at all events it is what his mother had understood him to say. It would not be an altogether inapt description of the appearance of a piece of welding rod. It is noteworthy that in a record made by Doctor Slade, who attended the plaintiff in Adelaide, this appears: "Injury 21/1/57, query piece of wire thrown by boy and hit right eye". This note forms part of an entry in Doctor Slade's handwriting which, he being abroad, was tendered by Doctor Bray pursuant to the provisions of s. 340 of the Evidence Act of South Australia. This sentence is perhaps not admissible. It seems to be a record of hearsay. But it forms part of the entry tendered and is consistent with Mr. Davies' statement that the thing thrown had been first described as a piece of wire. Those searching did not find anything. Daylight was fading and the search could not be very thorough in the light only of the street lamps. It is perhaps surprising that if it was still there the dart was not found. The grass near the tree guard was short. But the adjacent roadway was surfaced with crushed bluestone, and Davies said he would not be surprised that a short piece of rod, if there, was not seen. He did not look again next day. Carol Moulton says that almost immediately after the plaintiff was hurt she had asked Barry what had become of the dart and that he said he had thrown it over the cliff. There is a cliff on the far side of the road, and, because of the vegetation and rock below, it would have been useless to look for anything thrown there. Barry was asked in the witness box about this. He says that he did in fact throw over the cliff the second piece of rod that he had. He says that some of the other children saw him do this. He says he did tell someone, he forgets whom, that he had done so. He denies that Carol asked him what he had done with the dart that hit the plaintiff or that he told her he had thrown it away. Asked in cross-examination why he threw away the one that he said he did he answered: "Seeing what the other one had done to Susan's eye, I wanted to get rid of it". The events occurred at a time of much confusion and concern. Barry was no doubt much troubled by what had happened. I think that it is possible that he picked up and threw away the thing that struck the plaintiff, and perhaps because he did not admit doing so at the time to those who were searching for it, he has come more or less to believe what he now asserts. I do not think he is deliberately untruthful. Indeed what he says may be quite true, although, if so, it is surprising that the thing that hit the plaintiff was never found. It does not seem to me to be a matter of critical importance either way. It was argued that if Barry threw it away an adverse inference should be drawn. It was said, as I understood the proposition, that I must treat him as having suppressed evidence against himself. I was referred to the observations in The Ophelia (1916) 2 AC 206, at p 229, concerning spoliation of documents and to the cases referred to in Halsbury 3rd ed., vol. 18, p. 379. But it is I think a misinterpretation of the facts to suppose that Barry threw away the thing he did, whether it was the thing that hit the plaintiff or something else of a like kind, in order to suppress evidence. It seems to me to have been the natural reaction of a child, an instinct to get rid of the thing that has done harm. It is not only children who feel this urge. It had, as is well known, an influence in early law. Barry may have acted as he did from a feeling of guilt. But that is very far from saying that he hoped to hide or deny what he had done. And let it be assumed that what he threw away was the thing that had hit the plaintiff, what exactly is the inference to be drawn from its absence? It is said that I should infer that it was not a piece of welding rod such as Barry described but a larger instrument as the plaintiff and Carol Moulton said it was. Certainly I am deprived by its absence of corroboration or denial of Barry's description of it. But the size of the thing is not in any sense critical in the case. The thing that hit the plaintiff pierced her eye. A heavier instrument would not have called for greater caution. (at p399)

28. I turn now to the case against the adult defendants, Barry's father and mother. That against Mrs. Watson may be disposed of at once by saying that no evidence at all was given of any wrongdoing on her part. As I said at the end of the hearing, I cannot understand why she was made a party. (at p400)

29. The case against the father was based upon evidence of occurrences after the accident. Mr. McHale, the plaintiff's father, was in Adelaide when she was hurt. He drove throught the night to Mount Gambier and next day he and his wife went to Portland, to the Moulton's home. In the afternoon of that day, Mr. and Mrs. Watson called to inquire how Susan, the plaintiff, was and to say how sorry they were for what had happened. They, the Watsons and the McHales, had not previously met. Their meeting did not last more than ten minutes or so. All were naturally distressed. As the Watsons were leaving Watson spoke to McHale - not within the hearing of their wives, who were both in tears and who had preceded them to the door. According to McHale, Watson's words amounted to an inquiry was he all right for money: and that he replied "Yes I am all right for money, thank you": that then Watson said, "I wish I had never made the damn thing for him and then this would never have happened". Watson says that he did ask McHale whether he was in need of money. They agree as to the substance of this part of the conversation, although not as to the words. Watson was offering to help and McHale then declined his offer. Watson denies that he said he wished he had not made the thing. He says that he did not have anything to do with Barry having it. (at p400)

30. Within a day or two afterwards McHale got in touch with Watson and made known to him that he would appreciate help with the expenses to which he would be put. What he said made Watson think that he was suggesting that he, Watson, was legally liable. At all events Watson thought it prudent to make his offer of assistance through his solicitors and with a denial of liability. In fact he has paid a considerable part of the medical and hospital expenses - and it was agreed by counsel that the particulars of special damage as delivered would have to be amended accordingly. A comparison of the two lists seems to indicate that Watson paid for medical and hospital expenses a sum of 385 pounds. He perhaps paid some other incidental sums as well - something for a motor tyre was mentioned. But these matters were arranged through the solicitors, and were expressly said to be without admissions on either side. Except for one letter the correspondence is not before me. It is enough to say that, even if there had been no express agreement that the payments by Watson were not to be taken as an admission of legal liability, I would not so construe his offer to help nor the help he in fact gave. To suppose that a parent who offers assistance to meet heavy expenses caused by a harm done by his child thereby necessarily admits a legal liability for damages would be utterly wrong. Watson was offering to assist the McHales, not to discharge a liability. (at p401)

31. The case against Watson senior thus depends upon the evidence of McHale that he admitted giving Barry "the damn thing". I am satisfied, however, that McHale is in some way mistaken as to this remark. It may be that, as Watson suggests, he perhaps said something to the effect that he wished he had never brought Barry to Portland for a holiday and then the damn thing would not have happened. But he does not remember any particular remark. However, let it be assumed that I am wrong in the view I take of the facts and that, contrary to what I believe to be the truth, Watson did for some purpose give Barry a sharpened metal rod of some kind - What then? It is not negligent merely to allow a boy of twelve to have such a thing. Suppose he were allowed to have a pocket knife, a wooden sword, or even a toy bow and arrow. A parent does not incur responsibility for a misuse, not reasonably foreseeable, that a child makes of a thing that he could reasonably be expected to use safely. The case here is quite different from allowing a child, not old enough to be trusted with a firearm or not properly taught how to handle firearms, to have a gun. A gun is a thing that in its normal use must be handled with skill. (at p401)

32. I conclude therefore, that, on no version of the facts, could Watson senior be held guilty of negligence. Perhaps I should add that evidence was given by Mrs. McHale that, when Susan was being taken to Mount Gambier by motor car, she said several times that Barry had thrown something at her: and that Watson, who was in the car, made no comment. The evidence was not admissible; and, had it been objected to, it would have been rejected. But in any event no inference could possibly be drawn from Mr. Watson's silence in the presence of a sobbing and sadly hurt little girl, whose statement moreover in no way implicated him. It would be heartless indeed to expect any comment from him. (at p401)

33. I feel great sympathy for the plaintiff. I find for the defendants. I give judgment accordingly. The action is dismissed with costs. (at p401)

Orders

Judgment for the defendants with costs.