Children have always been accepted by the Courts as justifying different considerations of 'duty of care', both in the duty owed to them and their own contributory negligence. The recent Queensland Supreme Court decision of Fitzgerald v Hill & Ors  QSC 228 highlights the issues peculiar to these cases.
Sean Fitzgerald was eight years old when he was struck by a motor vehicle as he crossed a road in Townsville. At the time of the accident, he was involved in an evening Tae Kwon Do class with a group of other children and instructors. Their training took them on a warm up run to a nearby park which was reached by crossing a moderately busy suburban road.
The class instructor led the group which spread out to a certain extent as the run progressed. The instructor and a small number of children reached and crossed the busy road first. A further group of children, which included Fitzgerald, then waited for traffic to clear before they too crossed the road. They were all wearing the distinctive white Tae Kwon Do outfits and there was a certain amount of 'milling around' and excitement amongst the children and at least some of them had their backs to the road and oncoming traffic.
The driver, Mr Glen Hill spotted the group from 100 metres away but saw no particular hazard as he thought the children were waiting for a break in the traffic. Nevertheless, Hill slowed his vehicle slightly from the speed limit of 60 kph and moved closer to the centre line. As he passed the group, Fitzgerald darted out across the road travelling a distance of about one metre, or slightly more, before impacting approximately half way along the side of Hill's vehicle.
Fitzgerald was badly injured with damages being assessed at just under $1million.
The Court considered:
- the liability of Hill
- the liability of the operator of the Tae Kwon Do academy
- the contributory negligence of Fitzgerald.
Liability Of Hill
The Court stated that the duty of care to children is founded on a recognition of their propensity to move suddenly onto the road and this is something which a reasonable motorist ought to have in mind and take appropriate precautions to guard against.
Whilst Hill slowed his vehicle slightly and gave the group a wider berth, the Court held this was not sufficient. In coming to this decision the Court noted that the case was very different to the High Court decision of Derrick v Cheung  HCA 48 where an infant walked from between parked cars onto a busy city street and the driver had no reasonable means of knowing she was there. Here the presence of children by the road was obvious. In the circumstances, the Court held that Hill ought to have slowed his vehicle significantly, kept the group under observation and sounded his horn to warn of his approach. If he had done all these things, the Court held that he could have avoided the collision.
Liability Of Tae Kwon Do Academy
The Court also found the operator of the Tae Kwon Do academy liable. Its position was analogous to that of a school authority which owes a non-delegable duty to a student to ensure that reasonable care is taken of the student. The instructor leading the run was deceased at the time of trial and could not be proved to be an employee of the academy operator. However, it was not necessary to establish vicarious liability for the instructor as an employee.
The Court held that a special relationship of care existed between the academy and Fitzgerald. The judge referred to the immaturity and inexperience of children and their propensity for mischief which made the need for care and supervision so essential that it was a necessary inference of the acceptance of the child by the academy that it would ensure reasonable care was taken in conducting the class.
Contributory Negligence Of Fitzgerald
As always, contributory negligence assessments involve a comparison and weighing up of the carelessness of all those at fault. Hill, in charge of a vehicle capable of inflicting great harm, and the academy with its special duty of care to children in its care, were negligent on a different level to Fitzgerald. The Court stated that Fitzgerald was to be assessed against standards of a reasonable eight year old, whose impulsiveness risked injury only to himself.
The Court reduced damages by 20% for contributory negligence and otherwise found Hill and the academy equally liable for the balance.
The finding against the academy is unsurprising, in light of the High Court authority of The Commonwealth of Australia v Introvine (1982) 150 CLR 258. Those in charge of children entrusted to them by their parents must take on great responsibilities for their safety.
The finding against Hill is a little more difficult to reconcile with community standards. It is easy with hindsight to find ways in which a particular accident might have been avoided. Noting that Fitzgerald ran into the side of the vehicle as it passed, it is difficult to see how slowing the vehicle would have made a difference. Sounding the horn near a group of children might have the potential to be counter-productive by alarming the children or if adopted by all drivers at all times, become common place and ineffective.
Derrick v Cheung alluded to drivers driving at slow speeds when faced with no particular risk, as being inappropriate and disruptive. It is true in this case that the presence of a group of children on the road's edge was an observable risk, but reducing this in a reasonably practicable way posed a difficult challenge for the stream of drivers along the road in question. Should traffic nearly grind to a horn-blaring halt or does that create a new set of problems that ought to be avoided?
It is against the backdrop of this very high standard of care that a significant discount for contributory negligence of a tragically injured eight year old is understandable. Perhaps the academy can consider itself lucky not to have borne a greater share of the claim.
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