Joseph v Swallow & Ariell Pty Ltd [1933] HCA 47; (1933) 49 CLR 578 (11 October 1933)

Joseph Plaintiff, Appellant; and Swallow and Ariell Proprietary Limited Defendant, Respondent.

In my opinion we ought not to disturb the order of the Supreme Court and the appeal should be dismissed.

I think there was evidence to be submitted to the jury on the question whether the defendant had an opportunity of avoiding the accident notwithstanding the contributory negligence which the Judge's charge allowed the jury to impute to the plaintiff. That, as Lord Wright in McLean v. Bell[1] says, is the function of the jury and must not be usurped by the Judges. As the learned Judge refused to direct the jury to consider this question, I think there should be a new trial.

The point on which I have most doubt is one not made at the trial, namely, whether there was any evidence of contributory negligence on the part of the child at all. Was it proved that the child—five and a half years old—was capable of taking ordinary care of himself in the situation in question? That is a matter which we may some day have to consider and I say no more about it. But, on the question of the last opportunity or chance of avoiding the accident, I think there was no evidence fit to go to any reasonable jury or any reasonable man that the defendant had any opportunity of avoiding the consequences of the child's act.

I propose briefly to state my reasons. The plaintiff was injured in a street accident. Upon the primary issue whether the defendant's servant had been guilty of negligence, evidence was given on the part of the plaintiff which was considered by the County Court Judge to be sufficient. Indeed the learned trial Judge, if he had been sitting without a jury, would have found the defendant's driver guilty of negligence. His Honor submitted the issue of negligence to the jury, and also the issue whether the plaintiff was guilty of contributory negligence. At the time of the accident, the plaintiff was a child five years and nine months old. The law relating to contributory negligence on the part of young children is in an unsettled condition. His Honor, in his charge to the jury, adopted the course of reading the following passage from Salmond on Torts, 7th ed. (1928), at p. 39:—"When the plaintiff is a child or other person under some form of personal incapacity, it is sufficient if he shows as much care as a person of that kind may reasonably be expected to show; and he will not lose his remedy merely because a person of full capacity might by using greater care or skill have avoided the accident. This rule is sometimes expressed in the form that the contributory negligence of a child is no defence. But this is much too absolute a statement. The question in each case is simply whether, having regard to the age of the plaintiff, his conduct amounted to culpable negligence or not." It does not appear what precise conduct on the part of the plaintiff his Honor considered might, on the evidence, come within that rule, and it does not appear that his Honor in his charge adverted to the greater degree of care which the presence of children calls upon drivers of motor vehicles and others to exercise. In Beven on Negligence, 4th ed. (1928), vol. i., pp. 182, 183, the matter is stated in these terms:—"The duty of the adult is so to conduct his affairs that he is not negligent. Children of very tender years are not to have negligence imputed to them. If they are injured by negligence, conduct that in an adult would disentitle him to recover, works them no disability. In intercourse with them adults are to use a greater than ordinary care, because of their greater volatility and the infirmity of their judgment. To be free from liability where young children are concerned, adults must show that they have not failed to attain the standard of duty the circumstances demand. If they have so failed, their default in duty is not condoned by conduct conducing to the injury, which would be contributory negligence, but for the fact that the injury is inflicted on a young child, to whom contributory negligence is not imputable." Mr. Beven himself appears to have taken the view that a child under seven years of age was not open to a charge of contributory negligence; that a child so young could not be considered a responsible agent upon whom the ordinary duty of care rested. But, in deference to some Scottish cases, the editors of his work are disposed to abandon so definite a rule and to allow that a child is under a duty to exercise such a degree of care for his own and others' safety as might reasonably be expected from one of his age and capacity. I refer to, in particular, Plantza v. Glasgow Corporation[2], and Cass v. Edinburgh and District Tramways Co.[3], which are two only of a number of Scottish cases on the subject. In Canada, there still seems to be a lack of any authoritative rule on the subject. There are some authorities in the Supreme Courts of the Provinces, which appear to deal with the matter, but, unfortunately, they are not available. But the question does not seem to be settled in the Supreme Court of Canada. I refer to Winnipeg Electric Railway Co. v. Wald[4], and particularly to the judgment of Idington J., at p. 439. If a child of such tender years be capable of contributory negligence, the degree of care must only be that which could reasonably be expected of childhood. It must be difficult to find in so young a child negligence of this order in relation to street traffic. But I assume that his Honor was of opinion that the child, in making up his mind suddenly and without heed or thought and without looking at the traffic to cross the road, was guilty of an act which the jury might consider to be contributory negligence. The condition of the place was that a rockery with a grass plot stood in the middle of a broad highway where children were likely to play. It was opposite the house where the plaintiff lived. On the footpath in front of this house some children were gathered to play. The driver of the defendant's lorry approached that place at about fifteen miles per hour, intending to make a right hand turn. The facts show that, after the accident, the child was found lying seven yards from the footpath line. The evidence does not show with precision at what place the child crossed, where he stood before he was about to cross, and how long before the accident he was plainly visible to the driver. But it was open to the jury to find that he stood for a moment or so on the edge of the kerb in full view of the driver before running across the road, and that this occurred when the motor was twenty or thirty yards away. In my opinion there was no evidence of contributory negligence on the part of the child, at any rate, after he had been guilty of the initial indiscretion, to which children are so liable, of forgetting or disregarding traffic and starting across the road. If there was any evidence of contributory negligence on his part at all, and, for myself, I do not think that there was, his negligence must consist in forming a heedless and sudden decision to run across the street to the rockery. Possibly it may be considered negligence in a child of five and three-quarters to forget all cautions and warnings about crossing streets in traffic and to respond to the undisciplined impulses of his childish nature. I should have thought not, but some such view appears to find support in Scottish decisions. But if it be so, the child committed the act of contributory negligence when he made the initial movement. From that time forward nothing further, which he did or omitted, could in the case of such a child be imputed to him as negligence. For myself, I should have thought that there was no evidence of contributory negligence on the part of the child at all. But, adopting his Honor's view, and conceding that so much of the child's conduct should be put to the jury as evidence of contributory negligence, it appears to me that these circumstances raise definitely a case for the application of the rule that, notwithstanding the plaintiff's negligence, he is entitled to recover if the defendant might by the exercise of reasonable care have averted the consequences, the so-called last chance doctrine. For it is clear from the speed at which the motor truck was travelling, and the relative speeds of the truck and the plaintiff, that had the child been seen at or about the moment when he hesitated upon or stepped off the footpath, it would have been possible for the driver of the truck to give some warning attracting the child's attention and thus either drive him back or at least divert the child's course. Indeed, it was open to the jury to find that, even if its attention was not attracted, the child might have been avoided by the truck if the driver had seen him at that time. These circumstances, therefore, rendered the case one in which the principle of last opportunity was open for application. The learned Judge, however, refused to leave such a question to the jury. In the present case no point was made at the trial that a child of the plaintiff's age could not in law be guilty of contributory negligence. The notice of appeal complains of misdirection in unlimited terms, but in the Full Court the objection does not appear to have been raised by the appellant's counsel. Although I should have been prepared to hold that no issue of contributory negligence should have been left to the jury, inasmuch as that objection was not taken I confine my decision to a ground which adopts the assumption that it might be thought that there was evidence of contributory negligence on the part of the plaintiff.

For these reasons, I think a new trial should be ordered, and, under the County Court Act 1928, before a Judge of the County Court other than the Judge who heard the trial.

Dealing first with the Full Court's main reason for dismissing the appeal, that upon the evidence the plaintiff could not have recovered even if a full direction as to the "last opportunity" doctrine had been given to the jury, the general rule is that the question whether, notwithstanding the plaintiff's negligence, a defendant could yet, by the exercise of reasonable care, avoid injury to the plaintiff, is pre-eminently a question for the jury. This is pointed out by Lord Wright in McLean v. Bell[5], where he utters a warning against usurping the functions of the jury on such a question. This case is no exception to the general rule, and therefore the question whether there was sufficient time or distance available so as to enable a reasonable driver to avoid the accident, was itself a matter which his Honor ought to have left to the jury with an appropriate direction.

I read the direction of the learned trial Judge in this case as amounting to a ruling that the plaintiff could only succeed if the defendant was the "whole and sole" cause of the collision. This direction was too favourable to the defendant. For one thing, it denies the possibility of the plaintiff's succeeding though his negligence was merely a causa sine qua non or an inducing cause of the accident. I am not aware of any case in which a direction has been given in such terms. Even in Swadling v. Cooper[6], where the "last chance" doctrine seems to have been excluded by the facts, the presiding Judge used words which were much less unfavourable to the plaintiff.

Upon the further question whether the plaintiff, a little child of five, could be held to be guilty of negligence, I find great difficulty in seeing how negligence could reasonably be attributed to him in the absence of something much more than is to be found in the evidence in this case. It may well be that it is impossible to attribute negligence to a child of such tender years. But that question may arise in the new trial and I say no more about it at present.

I agree that there should be a new trial. In view of the course which the trial took on the question whether a child can be guilty of contributory negligence, I say nothing on this question. I think it is sufficient to say that, upon the evidence, it was, in my opinion, a case for the application of the doctrine of the last chance.

Judgment of the Supreme Court and of the County Court set aside and a new trial ordered.

[1] (1932) 147 L.T. 262, at p. 264.

[2] (1910) S.C. 786.

[3] (1909) S.C. 1068.

[4] (1909) 41 Can. S.C.R. 431.

[5] (1932) 147 L.T. 262; 48 T.L.R. 467.

[6] (1931) A.C. 1.

High Court of Australia

Joseph v Swallow & Ariell Pty Ltd [1933] HCA 47; (1933) 49 CLR 578 (11 October 1933)

HIGH COURT OF AUSTRALIA