In considering the question of law thus raised I have found it helpful to consider what would have been required of a trial judge had the case been heard before a jury. If the appellant's submissions are correct it would have been necessary to direct the jury that they should find the boy to have acted negligently if they thought that what he had done would not have been done, in the circumstances, by a reasonable man and that on that issue they must disregard the fact that the defendant was a child. And if the action had been one between an infant plaintiff and an infant defendant in which contributory negligence on the part of the plaintiff was raised, it would have been necessary to direct the jury that in considering the plaintiff's conduct they must take his age into account and compare his actions with those reasonably to be expected of a child of the same age, but that in considering whether the defendant had acted negligently the fact that he was a child was irrelevant and his conduct was to be measured against that reasonably to be expected of an adult. This seems to me to be contrary to common sense which has played a large part in the development of the common law. A jury thus directed would, I should think, form the opinion, with some justification, that the law was an ass and would probably pay little or no attention to the direction that the defendant was to be treated as though he had been an adult. Unaided by authority, I would have thought that the direction relating to negligence would be wrong. It is plain that in dealing with the question of contributory negligence on the part of a child, its age is a relevant fact since the care expected of it is that reasonably to be expected of a child of similar age, intelligence and experience. That has been laid down again and again. McEllistrum's Case [1] is an example. Joseph v. Swallow & Ariell Pty. Ltd. [2] in this Court is another. As Dixon J. (as he then was) said: "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" [3] . Perhaps the best known authority on the point is Lynch v. Nurdin [4] . It is true that in cases of contributory negligence what is alleged is that the plaintiff failed to take reasonable care for his own safety whereas in cases of negligence the duty imposed upon the defendant is a different one, a duty to take reasonable care for the safety of others, but notwithstanding that the duty is different I do not understand why it should be said that the standard of care differs according to whether the issue is one of negligence or of contributory negligence. There appear to be few cases in the reports in which it has been necessary to consider the standard to be applied in cases where a child is alleged to have been guilty of negligence causing harm to another. One such case is Hatfield v. Pearson [5] , where the rule applicable in the case of contributory negligence was applied to a case of negligence on the part of an infant defendant, and a number of cases in the courts of the United States in which the same view appears to have been taken are referred to in Professor Prosser's work on the Law of Torts, 2nd ed. (1955), pp. 127, 128. I have not been able to obtain the reports in which these decisions appear but the learned author, after saying at p. 124 that "The whole theory of negligence presupposes some uniform standard of behavior. Yet the infinite variety of situations which may arise makes it impossible to fix definite rules in advance for all conceivable human conduct. The utmost that can be done is to devise something in the nature of a formula, the application of which in each particular case must be left to the jury, or to the court. The standard of conduct which the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor; and it must be, so far as possible, the same for all persons, since the law can have no favorites. At the same time, it must make proper allowance for the risk apparent to the actor, for his capacity to meet it, and for the circumstances under which he must act." goes on: "As to one very important group of individuals, it has been necessary, as a practical matter, to depart to a considerable extent from the objective standard of capacity. Children, although they are liable for their torts, obviously cannot be held to the same standard as adults, because they cannot in fact meet it. It is possible to apply a special standard to them, because "their normal condition is one of incapacity and the state of their progress toward maturity is reasonably capable of determination". It has also been held that a special standard is to be applied to persons at the other extreme of life, whose mental faculties have been impaired by age. While most of the cases dealing with children have involved contributory negligence, it has been held that there is no difference in principle when the child is a defendant. Since the capacities of children vary greatly, not only with age but also with individuals of the same age, no very definite statement can be made as to the standard to be applied to them. To a great extent it must necessarily be a subjective one. It must be "what it is reasonable to expect of children of like age, intelligence and experience". The capacity of the particular child to appreciate the risk and form a reasonable judgment must be taken into account. More will be required of a child of superior intelligence for his age than of one who is mentally backward. But the standard is still not entirely subjective, and if the conclusion is that the conduct of the child was unreasonable in view of his estimated capacity, he may still be found negligent, even as a matter of law." In dealing with the same subject, the American Restatement of the Law of Torts par. 283 is as follows: "A child of tender years is not required to conform to the standard of behaviour which it is reasonable to expect of an adult, but his conduct is to be judged by the standard of behaviour to be expected from a child of like age, intelligence and experience. A child may be so young as to be manifestly incapable of exercising any of those qualities of attention, intelligence and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a child who has not yet attained his majority may be as capable as an adult of exercising the qualities necessary to the perception of a risk and the realization of its unreasonable character. Between these two extremes there are children whose capacities are infinitely various. The standard of conduct required of such a child is that which it is reasonable to expect of children of like age, intelligence and experience. ". To much the same effect is a statement in Holmes' The Common Law, pp. 108, 109, to which my brother Kitto has drawn my attention: "The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason. In the first place, the impossibility of nicely measuring a man's powers and limitations is far clearer than that of ascertaining his knowledge of law, which has been thought to account for what is called the presumption that every man knows the law. But a more satisfactory explanation is, that, when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare. If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbours, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbours than if they sprang from guilty neglect. His neighbours accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account. The rule that the law does, in general, determine liability by blameworthiness, is subject to the limitation that minute differences of character are not allowed for. The law considers, in other words, what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that. If we fall below the level in those gifts, it is our misfortune; so much as that we must have at our peril, for the reasons just given. But he who is intelligent and prudent does not act at his peril, in theory of law. On the contrary, it is only when he fails to exercise the foresight of which he is capable, or exercises it with evil intent, that he is answerable for the consequences. There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid harm to his neighbours, which illustrate the rule, and also the moral basis of liability in general. When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them. A blind man is not required to see at his peril; and although he is, no doubt, bound to consider his infirmity in regulating his actions, yet if he properly finds himself in a certain situation, the neglect of precautions requiring eyesight would not prevent his recovering for an injury to himself, and, it may be presumed, would not make him liable for injuring another. So it is held that, in cases where he is the plaintiff, an infant of very tender years is only bound to take the precautions of which an infant is capable; the same principle may be cautiously applied where he is defendant." In Halsbury , 2nd ed., vol. 23, p. 571, it was said that the standard of care required "is the same for every one of full age who is in possession of all his faculties and is of sound mind" and, at p. 701 of the same volume, that "the defendant's infancy may be relevant to the question whether the act or omission complained of was or was not negligent". In vol. 28 of the 3rd edition, p. 10, the first of these passages is replaced by one which reads: "It is the same for everyone, and it does not vary with the individual on whom rests the particular duty to take care". The second passage from the 2nd edition quoted above is omitted in the 3rd edition but a footnote appears at p. 10 of vol. 28 of that edition that: "It is possible that the care required of a child is not that of a reasonable man but only such as is reasonably to be expected of those of his age" and reference is made to Walmsley v. Humenick [1] . That was an action in trespass and negligence brought against a child and, in the course of his judgment, Clyne J. said: "The cases clearly demonstrate, however, that what may be lack of reasonable care in an adult cannot be considered to be so in the case of a child having regard to its capacity to understand the nature of its actions" [2] . The real issue was, however, whether the defendant was so young as to be incapable of committing a tort and the learned judge's remarks were, I think, directed to the question whether the child was so young as to be incapable of being held to be blameworthy. In Salmond on Torts, 12th ed. (1957), p. 71, it is said that the youth of a defendant may afford evidence tending to disprove the existence of malice or some other mental state which is an essential element in the plaintiff's cause of action. The learned author goes on: "Similarly, it would seem that in order to make a child liable for negligence, it must be proved that he failed to show the amount of care reasonably to be expected from a child of that age. It is not enough that an adult would have been guilty of negligence had he acted in the same way in the same circumstances. This, indeed, seems never to have been decided, but it would seem implied in the decision on the contributory negligence of children." In Fleming's Law of Torts, 2nd ed. (1961), p. 123, it is stated that "In the case of children, the law has made considerable concession to the subjective standard. Most of the decisions have been concerned with contributory negligence, where there is a general tendency to take an indulgent view and give added weight to exculpatory considerations; but there is no doubt that a child, whether as plaintiff or defendant, is only expected to conform to the standard which ordinary children of his age, intelligence and experience would exercise under similar circumstances. If the child lacks capacity to understand and appreciate the nature of his actions, negligence is not attributed to him at all; but, given perception of the risk, he must exercise the judgment of the standard child of his age". The learned author, however, excepts cases in which a "minor engages in dangerous adult activities, such as driving a car or handling industrial equipment". In such cases, he says, he must conform to the standard expected of a reasonable man. Professor Street, in his Law of Torts, 2nd ed. (1959), refers to Lord Macmillan's statement in Glasgow Corporation v. Muir [1] , that "The standard of foresight of the reasonable man eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question" [2] . And goes on, at p. 124: "Yet it is inadequate, not to say question-begging, to say that the standard then is an objective one. The definition of the reasonable man is not complete unless the words "in the circumstances" are embodied. Plainly, these words may prevent the test from being wholly objective, for the boundary between the external facts and the qualities of the actor is illdefined. How far, then, is the standard of the "reasonable man" an objective one? Infants must, it seems, be treated as a category apart. In many cases infants have been held not guilty of contributory negligence where adults would, on similar facts, have been deemed to be contributorily negligent - the test is: what degree of care for his own safety can an infant of the particular age reasonably be expected to take? No English cases laying down the standard required of an infant who is a defendant, have been traced. Perhaps the rule for contributory negligence applies here."