Reasonable Care For Children

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 [2007] QSC 228 highlights the issues peculiar to these cases.FactsSean 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...