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High Court of Australia |
RICH v. COMMISSIONER FOR RAILWAYS (N.S.W.) [1959] HCA 37; (1959) 101 CLR 135
Negligence
High Court of Australia
McTiernan(1), Fullagar(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Negligence - Pedestrian - Crossing railway line - Struck by locomotive - Commissioner for Railways - Occupier's liability - General duty of care - Nature of case for plaintiff.
HEARING
Sydney, 1959, March 20-25; August 21. 21:8:1959DECISION
August 21.2. It was contended for the respondent that even if it is to be assumed the appellant was in fact permitted by the respondent to walk across the line there was no case to go to the jury on the question whether the respondent did take due and reasonable care for her safety. I think that it is not satisfactory to consider this contention without knowing all that the appellant desired to prove regarding the user of the crossing by members of the public. However, I think that if the case has to be decided on the hypothesis that the respondent was aware of such user, I do not agree that having regard to the peculiarities of the crossing and the layout of the railway station there is not a question to go to the jury whether the respondent did take due and reasonable care for the appellant's safety. The appellant entered the railway station premises by a wicket gate next the gate in the western fence giving vehicles access to the crossing. The wicket gate apparently was always open; the other gate was closed at the time in question. When the appellant was injured she was walking to the platform on the eastern side of the railway station to catch a train for Wollongong. She had first to cross the up-line. The rails of that line and the down-line were above the level of the ground. The appellant tripped on a rail of the up-line and fell. Before she could get off the metals she heard the engine, which struck her, whistle. It ran through the railway station and went past her before she could get completely out of its way. The train went on for some distance, and was stopped by the driver as soon as possible. The jury could reasonably find that the appellant was too close to the up-line when the engine was approaching to decide whether it was prudent for her to cross the line when she attempted to do so and that she was placed in that dangerous situation because until she came so close to the line her view in the direction from which the engine came was obstructed by the stairway to the footbridge and the stanchions supporting it. Inside the wicket gate the respondent erected a notice board. It contained the words "Safety First" and a statement that the public were prohibited under a penalty of 5 pounds from crossing the railway line except by the footbridge. The appellant said that she never read the notice. The appellant gave evidence that she frequently in the previous year walked across the railway line. The evidence which she desired to give that during that period members of the public in effect made a thoroughfare of the crossing would, if accepted by the jury, have proved that despite the notice the respondent did not really prohibit members of the public entering the railway station by the wicket gate from walking across the railway line to the other side of the station. It would, in my opinion, have been open to the jury to find that because the respondent put up the notice he considered it was dangerous to walk across the railway line and that some precaution in addition to the erection of the notice ought to have been taken to protect pedestrians on the crossing. See Jenner v. South Eastern Railway Co. (1911) 105 LT 131; 27 TLR 445 ; Smith v. Smith and The Railway Executive (1948) WN (E) 276 ; Bilbee v. London, Brighton and South Coast Railway Co. [1865] EngR 456; (1865) 18 CB (NS) 584 (144 ER 571) . Of course, it was within the province of the jury to accept or reject the appellant's evidence that she did not read the notice, and to find whether upon the evidence she was careless of her own safety. (at p141)
3. The appeal should, in my opinion, be allowed with costs, the verdict set aside and a new trial ordered. (at p141)
FULLAGAR J. The facts of this case are sufficiently stated in the judgments of Taylor J. and Windeyer J., which I have had the advantage of reading. (at p141)
2. At the trial of the action the plaintiff's case was presented on the footing that she entered on premises occupied by the commissioner as an invitee, so that the standard of care which the law required of the commissioner would be that which is defined in the oft-quoted words of Willes J. in Indermaur v. Dames (1866) LR 1 CP 274, at p 287 . Counsel for the defendant commissioner maintained that she entered neither as an invitee nor as a licensee, but as a trespasser. He said at an early stage of the trial: - "At this stage I can tell your Honour that the defence is that the plaintiff was a trespasser". In support of this "defence" he put in evidence two by-laws made under the Government Railways Act. One of these does not appear to have much bearing on the case. The other provides: - "No person on foot (excepting a person in charge of a vehicle or live stock) shall cross, or attempt to cross, any line of railway on the level at a station or any other place where an overbridge or subway is provided. Any person guilty of a breach of this by-law shall be liable to a penalty not exceeding Five Pounds." Counsel for the plaintiff, on the other hand, with a view to establishing that she was an invitee, sought to lead evidence that the plaintiff and members of the public generally had, over a long period and to the knowledge of servants of the commissioner, habitually crossed the railway line on foot at the place where the plaintiff was injured. The learned judge rejected this evidence. In directing the jury to return a verdict for the defendant his Honour said: - "I am satisfied that to maintain this action Mrs. Rich . . . can only succeed if she can show that she was using this level crossing as an invitee of the Commissioner for Railways. That is a technical expression; for present purposes it will suffice if I say this, she really has to show that the commissioner invited her to use this crossing, either directly or indirectly. As a matter of law I have come to the conclusion that there is no evidence to support that, . . . and, because the case she makes out cannot be supported, it is my duty to direct you to return a verdict for the defendant." (at p142)
3. In the Full Court the case was still treated as turning on the character in which the plaintiff entered on the commissioner's premises, and on the distinction which the law for certain purposes draws between the invitee, the licensee and the trespasser. Their Honours regarded the fact that the plaintiff's presence at the place of the accident involved a breach of the by-law as conclusively establishing that she was a "trespasser", and they held that, because she was a trespasser, she could not succeed in her action. They said: - "In our opinion his Honour rightly rejected the evidence. The plaintiff was admittedly at the time of the accident in a place where the law forbade her to be. No employee of the defendant could, within the scope of his authority, invite or license the plaintiff to break that law and enter the prohibited area. When she entered it she ceased to be a licensee or invitee and became a trespasser." (1957) SR (NSW), at p 451; 74 WN, at p 232 . They also said: - "In the present case the question is one as to the nature and extent of the duty owed to the plaintiff by the defendant and that in turn depends on the relationship existing between them at the moment of injury. Was the plaintiff an invitee or licensee or was she merely a trespasser? At the time she was injured she was at a place where the law said she had no lawful right to be. She was trespassing on the defendant's land . . ." (1957) SR (NSW), at p 452; 74 WN, at p 232 . (at p142)
4. If it was essential to the plaintiff's case to prove that she was at the material time an invitee, it would seem that the evidence in question was rightly rejected, and that Manning J. rightly directed the jury to return a verdict for the defendant on the ground that there was no evidence on which she could be found to be an invitee. It is perhaps not surprising that Denning L.J. (as he then was) should, in the light of certain recent English decisions, say that the "classic distinction" between the standard of care required of an occupier in the case of an invitee and the standard required in the case of a licensee had been "reduced to vanishing point": Slater v. Clay Cross Co. Ltd. (1956) 2 QB 264, at p 269 . But it seems still true to say that an invitee is a person who enters at the express or implied invitation of the occupier on a matter in which the two have a common material interest. Here it is clear that the plaintiff was not where she was in pursuance of any such invitation or on any matter in which she and the defendant had a common material interest. (at p143)
5. It is perhaps less clear - still proceeding on the assumption that the character in which the plaintiff was proceeding to cross the railway line was a material consideration in the case - that the evidence in question was not admissible as tending to establish that the plaintiff was a licensee and not a mere trespasser. Sir John Salmond, Torts, 2nd ed. (1910), pp. 365, 366, said: - "The acquiescence of the occupier in habitual trespasses may be evidence of tacit leave and licence, so as to transform the trespasser into a licensee": see also the 12th ed. (1957) (edited by Mr. R. F. V. Heuston), pp. 504, 514, 515. To a prosecution for breach of the by-law such leave and licence would not afford a defence, but in a civil action a plaintiff who established such leave and licence would not, I think, necessarily be precluded from recovering by the mere fact that he or she was acting in breach of the by-law. (at p143)
6. This matter, however, need not be pursued further. Even if it were admissible, I do not think that the evidence tendered would have been sufficient to support a finding that the plaintiff in the present case was a licensee. There was no evidence as to the position of the level crossing in relation to the commissioner or to the public. It may have been part of a public highway. It has, however, been assumed - probably correctly - that it was under the control and management of the commissioner in such a way as to impose upon him the duties and liabilities of an occupier to persons entering upon it, and from this point of view I am prepared to regard the plaintiff, as the Full Court regarded her, as a "trespasser". I think indeed that, even if she were a licensee, there was no evidence of any breach of the special duty which an occupier of land owes to persons who enter on that land as licensees. But, however this may be, it does not seem to me that the classification of the plaintiff as a "trespasser" disposes of her case. (at p144)
7. The authorities of which Indermaur v. Dames (1866) LR 1 CP 274; (1867) LR 2 CP 311 and Gautret v. Egerton (1867) LR 2 CP 371 are leading examples are concerned only with cases where a plaintiff who has entered on premises occupied by a defendant suffers injury through some danger or defect in the premises themselves. In the present case the plaintiff's injuries were caused not by any defect or danger in the premises themselves but by the act of a servant of the defendant who drove an engine along a railway line which the plaintiff was crossing or about to cross. As was pointed out in Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at p 110 the duty which the occupier of premises, as such, owes to invitees or licensees present on the premises is a separate and distinct duty, which arises from the mere fact of the occupation of the premises, and relates only to the condition of the premises. There may co-exist with that special duty a general duty of care, which is not related to the condition of the premises, and which arises not from the fact of occupation but from the general circumstances of the case. (at p144)
8. It is in the light of these considerations that we must understand the many statements to be found in the cases to the effect that a trespasser enters at his own risk or that an occupier owes no duty to a trespasser. It is true that the special duties which attach to the relationship of occupier and invitee or licensee do not attach to the relationship of occupier and trespasser. But it does not follow that in no case is any duty of care owed by an occupier to a trespasser. In Transport Commissioners of New South Wales v. Barton [1933] HCA 9; (1933) 49 CLR 114 Dixon J. said: - "In reference to the person and property of a trespasser, an occupier is under no obligation of care to prevent injury arising from a dangerous condition of his premises. The possession or occupation of premises imposes upon him no duty towards a trespasser to exercise any degree of care to avert harm caused through the state or character of the premises. . . . Even in reference to the condition of the premises an occupier, in the absence of just cause or excuse, must abstain from intentional injury to a trespasser actual or possible. In the performance of acts likely to inflict harm the measure of duty towards persons who are upon the land, although wrongfully, is perhaps greater and certainly can be no less" (1933) 49 CLR, at p 127 . And in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 Kitto J. said: - "The respondent's contention appears to assume that the rule of law which defines the limits of the duty owed by an occupier to a trespasser goes so far as to provide the occupier with an effective answer to any assertion by the trespasser that during the period of the trespass the occupier owed him a duty of care. The assumption is unwarranted, for the rule is concerned only with the incidents which the law attaches to the specific relation of occupier and trespasser" (1953) 87 CLR, at p 642 . (at p145)
9. While it seems to me to have been hopeless for the plaintiff to succeed on the basis of any special duty resting on the commissioner as an "occupier", I am of opinion that a case fit to go to the jury might have been made on the basis of a general duty to exercise reasonable care for the safety of persons using the crossing. It is no answer to such a case to say merely that a by-law existed which prohibited pedestrians from crossing the line except by the overhead bridge. It is not to be supposed that the commissioner can, by simply making a by-law, either rid himself of, or discharge, his general duty of care: cf. Henwood's Case [1938] HCA 35; (1938) 60 CLR 438 . A person approaching the crossing might or might not know of the existence of the by-law, and might or might not observe the notice exhibited by the commissioner that to cross the line on the level involved liability to a penalty. In truth the provision of the overhead bridge and the notice that pedestrians were required to use it were, of course, matters relevant to the question whether the commissioner had discharged the duty of care resting upon him, and a disregard of the notice by a pedestrian might be relevant to the question of contributory negligence, but neither the prohibition nor the notice was otherwise a relevant matter. (at p145)
10. The standard of care required of the commissioner in special relation to level crossings is very well expounded by Jordan C.J. in Alchin v. Commissioner for Railways (1935) 35 SR (NSW) 498, at pp 502, 503; 52 WN 156 and has recently been considered by this Court in The South Australian Railways Commissioner v. Thomas [1951] HCA 48; (1951) 84 CLR 84, at p 89 and in Commissioner for Railways v. Dowle [1958] HCA 15; (1958) 99 CLR 353, at p 358 . The passages cited elaborate the broad proposition that "the duty of the commissioner is to do everything which in the circumstances is reasonably necessary to secure the safety of persons using the crossing". If at the trial the plaintiff's case had been put on the basis of this general duty, and the evidence in question had been tendered as relevant to the case so put, that evidence must, in my opinion, have been admitted. The fact (if it were a fact) that pedestrians habitually - and, one may perhaps add, very naturally - crossed the railway line on the level was, to my mind, clearly one of the circumstances which the jury was entitled to take into account in considering whether the commissioner ought to have done more than he did for the protection of pedestrians - whether, for example, his duty of care did not require him to instal some device which would give to approaching pedestrians a warning well in advance of the advent of an engine or a train. (at p146)
11. For these reasons, while I think that the learned trial judge was right in regarding the evidence in question as irrelevant on the issue whether the plaintiff was an invitee or not, I am of opinion that that evidence was relevant to the plaintiff's real cause of action. The appeal should, in my opinion, be allowed, and a new trial ordered. Having regard to the conduct of the case at the first trial, I do not think that there ought in any event to be any order as to the costs of that trial. (at p146)
TAYLOR J. On 22nd March 1954 the appellant was a resident of Gwynneville, a
small settlement near North Wollongong. On the morning
of that day she was
desirous of going to Coniston by train and she proceeded towards North
Wollongong for the purpose of boarding
the train at that station. Gwynneville
is some little distance to the west of the railway lines and Coniston is to
the south of North
Wollongong and further from Sydney than the lastmentioned
station. Accordingly, it was necessary for the plaintiff to board the train
at
the "down" platform at North Wollongong which was on the eastern side of the
railway track. The track consisted of two sets of
rails and on either side
there was a raised platform each of which, at its northern end, terminated in
a ramp. It was at this end
that the plaintiff approached the station and she
intended to cross the lines in the vicinity of a vehicular level crossing
which
was situated in close proximity to the northern ends of the two
platforms mentioned. The vehicular crossing was equipped with wide
gates but
in attempting to cross the track the appellant did not pass through the
vehicular gateway. She entered the railway property
through a small side gate
in a picket fence which extended at right-hand angles in a westerly direction
from the southern side of
the vehicular gateway. The side gate was a short
distance back from the entrance to the vehicular crossing and upon passing
through
it it would be necessary for a person desiring to cross the lines at
ground level to turn immediately to the left. Upon doing so
he would be
confronted with a notice in his path forbidding any person so to cross the
lines. This notice was said to be "about 2'
by 18"" and it bore the legend:
"SAFETY FIRSTThe elevated footbridge which was provided connected the northern ends of the platforms and the steps leading to it on either side led from each platform about the top of the ramp. But the plaintiff did not use the footbridge. Instead, she passed the notice referred to and was in the act of crossing the first set of lines beside the vehicular crossing when she tripped and fell. It is suggested that she tripped on one of the lines but although this may seem to be a not unreasonable explanation there is no evidence that this is what happened. However, she fell and whilst she was lying on the track she heard the whistle of a locomotive. It seemed, she said, "far away" but she "could not say for sure how far it was". She then saw the locomotive approaching from the south and, in the course of her evidence, she added, somewhat indefinitely, that "it was approaching the station, down near the booking office - it was somewhere between the two". In her evidence she said that after she heard the whistle she "did her best to get off the line" and added "I found it difficult to get up so I sort of moved myself back off the line". In fact, she "thought she had got off enough" but she was not sure. She was exhausted and "could not get any further". In fact, she had not moved herself completely out of the way and she was struck by the locomotive and sustained personal injury. (at p147)
The Public are Prohibited from Crossing
The Lines Except by FOOTBRIDGE
PENALTY 5 pounds"
2. In these circumstances she brought an action against the commissioner to recover damages. In her declaration it was alleged that she was lawfully on the vehicular crossing and that her injuries had been caused by the negligence of the respondent's servants. At the conclusion of the evidence at the trial the learned trial judge directed the jury to return a verdict for the defendant and a subsequent appeal to the Full Court of the Supreme Court was dismissed: Rich v. Commissioner for Railways (1957) SR (NSW) 449; 74 WN 230 . This appeal is now brought against the order of dismissal. (at p147)
3. The negligence upon which the appellant based her claim to damages was alleged in her declaration in very general terms. It included negligence in the design construction and maintenance of the level crossing, negligence in the control management and supervision of the crossing, negligence in failing to give sufficient warning of the approach of the locomotive and negligence in and about the control and management of the locomotive itself. But particulars which were given by the appellant before trial made it quite clear that she did not intend to pursue any claim based upon any alleged breach of duty by the respondent as the occupier of the railway property; the claim was limited to negligence on the part of the respondent's servants in the control of traffic on the line and, particularly, in relation to the protection of individuals using the crossing. Yet, for some reason or other, counsel for the appellant appears to have sought during the trial to impose liability upon the respondent for a breach or breaches of his duty as the occupier of the railway property. For this purpose he attempted to show that the appellant was an invitee at the relevant time but, in attempting this, he was met by the provisions of a by-law, made pursuant to the Government Railways Act, which makes it an offence for any person on foot to cross, or attempt to cross, any line of railway on the level at a station or any other place where an overbridge or subway is provided. Nevertheless, he tendered evidence to show that it was customary for members of the public to walk across the track in the vicinity of the vehicular crossing and that this practice was known to and permitted by the respondent's servants. The evidence was rejected on the ground that the respondent's servants could neither extend an invitation to the appeallant, nor lawfully permit her to cross the track in this manner in breach of a by-law which had the force of law. At the close of the evidence the learned trial judge heard argument and the case went off on the ground that the evidence was not capable of establishing that at the time when the appellant's injuries were received she was present upon the railway property as the invitee or licensee of the respondent. (at p148)
4. In these circumstances the first thing that may be said about the case is that it went off on a false issue. In spite of the width of the declaration the appellant's claim was not based upon the respondent's liability as an occupier or upon any allegation relating to the existence of any unusual danger upon the railway property; it was, in effect, based upon the allegation that the respondent's servants had been negligent in relation to the control and management of railway traffic and the protection of members of the public who sought to walk across the track in the vicinity of the vehicular crossing and, in the substantiation of that cause of action, the question whether she was present upon the railway property as an invitee or licensee was of no consequence: Commissioner for Railways (N.S.W.) v. Hooper [1954] HCA 7; (1954) 89 CLR 486, at pp 495, 504 and Perkowski v. Wellington Corporation (1959) AC 53, at p 67 . (at p149)
5. But it is not only said that the appellant was not an invitee. Additionally it is said that, in seeking to cross the railway track on foot in the vicinity of the vehicular crossing, she was upon the property of the respondent in contravention of the by-law referred to and, therefore, unlawfully. In these circumstances, it is claimed, she has no right to recover. The authorities already referred to, however, show that the duty of an occupier in relation to unusual dangers upon his premises does not exclude liability for negligence which is in no way related to the state of his premises and Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438 and Crotty v. Woolworths Ltd. (1942) 43 SR (NSW) 133; 59 WN 164 show that a plaintiff who suffers injury as the result of the negligence of another person is not necessarily debarred from recovering damages merely because his injuries are occasioned whilst he is engaged in doing something which is prohibited by law. As Jordan C.J. said in the latter case the principle to be extracted from the Henwood's Case (1938) 60 CLR 438 is "that no penal provision in a statute should receive an operation which deprives a person offending against it of a private right of action which in the absence of such a statutory provision would accrue to him, unless there is something in the statute imposing the penalty which indicates that this is the intention of the legislature" (1942) 43 SR (NSW), at p 139; 59 WN, at p 168 . This view of the law is in conflict with the opinion of the members of the Full Court of the Supreme Court who considered that Henwood's Case [1938] HCA 35; (1938) 60 CLR 438 went no further than to decide that breach of the railway by-law mentioned in that case was not conclusive on the issue of contributory negligence. But, with respect to the Full Court, the decision went further. The question, whether the fact that the deceased was engaged in an unlawful act at the time when he sustained the injuries which resulted in his death was a complete answer to the appellant's claim was directly raised in argument and the effect of the decision on this point was correctly stated by Jordan C.J. in the above quoted passage. The Full Court seems to have accepted as correct the decision of the Supreme Court of Canada in Herdman v. Maritime Coal Co. (1919) 49 DLR 90 - a case in which that court by a majority of three to two held in circumstances not dissimilar to the present that a railway company owed no duty to the deceased except not to run him down knowingly or recklessly. Two of the majority adopted the standard of care enunciated in The Grand Trunk Railways Co. v. Anderson (1898) 28 Can SCR 541 and the remaining one, Mignault J., founded his decision on Grand Trunk Railway Co. of Canada v. Barnett (1911) AC 361 . But when those cases are examined it will be seen that each was concerned with the standard of care owed to a person who, in somewhat exceptional circumstances, was on the property of the railway company without its permission and without the knowledge of any relevant servant of the company. It remains to be mentioned that I see nothing in the terms of the by-law in question in this case which evidences an intention to deprive a person in the position of the appellant of any cause of action which might otherwise accrue to him. Indeed, I should think it very much open to question whether the statutory provision pursuant to which the by-laws were made - Government Railways Act s. 64 - would authorize a provision having that effect. The respondent, however, carries the matter a little further and says that, having provided an elevated footbridge and having displayed a notice prohibiting the crossing of the track by any other means, he has discharged his duty to pedestrians wishing to cross from one side of the track to the other. But this is no answer to the appellant's contention that if the practice had grown up of permitting members of the public to walk across the track in the vicinity of the vehicular crossing the respondent was under a duty to take reasonable care for their safety. (at p150)
6. Upon these views it is apparent that the trial miscarried and it is, I think, equally clear that the evidence which was tendered and which might have assisted in establishing that such a practice did in fact obtain was wrongly rejected. The fact, if it were proved, that members of the public were customarily permitted to cross the track in that fashion was, in my view, a material matter for consideration in determining whether the respondent was under a duty to exercise care in relation to such persons and the extent to which this practice prevailed was of importance in determining the standard of care which the circumstances required. (at p150)
7. Accordingly if there were no other countervailing feature in the case there should be a new trial. But the manner in which the appellant's injuries were caused was fully investigated and, in my view, there is no evidence capable of supporting the conclusion that the plaintiff's injuries resulted from any lack of care whatever on the part of the respondent's servants. There can be no doubt upon the evidence that at, and for some little time before, the plaintiff received her injuries the gates of the vehicular crossing were closed to road traffic. Prima facie, at least, this was some indication that the road was closed to traffic because of the approach of railway traffic. There was, however, no evidence to show whether it was the practice to close the gates immediately before and open them after the passage of trains but it was for the appellant to prove negligence on the part of the respondent's servants and the fact that the gates were closed is, at the least, not consistent with any failure to exercise due care in relation to the control of the gates at the crossing; indeed, it was, prima facie, some indication that railway traffic was approaching. Yet in spite of the fact that the vehicular crossing was closed to road traffic the appellant proceeded to walk across the track. Apparently she would have crossed the lines in safety had she not fallen and it was while she was lying on the ground that she heard the whistle of the oncoming locomotive which was at that time some distance away. This signal would, in normal circumstances, have given her ample warning of the approach of the locomotive for, notwithstanding the fact that she fell, she seems to have had sufficient time to remove herself from the line. She thought she had got clear and was struck only because she had not moved far enough. In my view, the evidence fails to show any lack of care on the part of the respondent or his servants and, on the contrary, tends to establish that the accident happened only because the plaintiff fell and was thereafter prone on the track for some short but appreciable period of time and then failed, or was unable to move clear of the train. In these circumstances, it would not, I think, be proper to direct a new trial. Accordingly the appeal should, in my opinion, be dismissed. (at p151)
MENZIES J. Upon the hearing of this action in which the plaintiff, who was struck by a railway engine, sought damages for negligence in running the engine across a level crossing just to the north of the North Wollongong Station, evidence was rejected that persons in addition to the plaintiff were accustomed to cross the railway line at the level crossing where the accident happened (notwithstanding that this was in breach of a by-law), and that this practice was known to servants of the commissioner. The relevant by-law was as follows: - "No person on foot (excepting a person in charge of a vehicle or live stock) shall cross, or attempt to cross, any line of railway on the level at a station or any other place where an overbridge or subway is provided. Any person guilty of a breach of this By-law shall be liable to a penalty not exceeding Five Pounds." At the level crossing the railway crossed a roadway across which there were large gates. There was also a small gate on each side, north of the large gate, which gave access, though presumably not the only access, to the platforms of the North Wollongong Station, the nearer directly by means of a ramp, the further by way of an overhead bridge. Anyone entering the lines through the small gate on the west side could therefore pass up the ramp to the west platform, cross the bridge to the east platform or cross to the east directly by walking across the lines which were higher than ground level. This last was forbidden by by-law, and a large sign giving notice of this and warning against crossing had been erected. Nevertheless the plaintiff on the morning in question attempted to cross the lines from the west (never having observed the notice) and while doing so was struck by an engine travelling in a northerly direction on the westerly of the two through lines. Further to the west of this line there was a siding line. The big gates must have been shut but the small gates were open or could be opened. There was evidence that the latter was always the case. (at p152)
2. The learned trial judge, at the conclusion of the evidence, directed a verdict for the defendant and in doing so said: "I am satisfied that to maintain this action Mrs. Rich . . . can only succeed if she can show that she was using this level crossing as an invitee of the Commissioner for Railways . . . As a matter of law I have come to the conclusion that there is no evidence to support that . . .". (at p152)
3. The Full Court upheld the verdict and refused a new trial on the ground that the evidence tendered could not prove that the plaintiff was either invited or permitted by the commissioner to cross the line at the place where she was hurt: Rich v. Commissioner for Railways (1957) SR (NSW) 449 ; 74 WN 230 . (at p152)
4. I am disposed to think that largely by reason of the way in which the plaintiff's case was put, both the trial and the appeal below proceeded upon the wrong basis and the sound ground for admitting the evidence was put for the first time upon the hearing of this appeal. Furthermore, I am satisfied that the direction of the learned trial judge cannot be supported on the grounds given, namely, that to succeed the plaintiff "really has to show that the commissioner invited her to use this crossing". (at p152)
5. The evidence which was rejected would go to prove that persons were accustomed to break the law and cross the railway line where the plaintiff was crossing on the morning of the accident and that this was known to the servants of the commissioner. Accordingly, I think the evidence was admissible in order that the question of negligence might be determined having regard to the circumstance that it was known that when a train was about to pass there might be people crossing the line who were within the scope of the defendant's duty of care; for what was said in Henwood's Case [1938] HCA 35; (1938) 60 CLR 438 and in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 is mutatis mutandis applicable here. This aspect of the case was not considered at the trial or on appeal below, and if there were no more this failure would necessitate the granting of a new trial. (at p153)
6. Assuming that the plaintiff was within the scope of the defendant's duty of care, I am, however, satisfied that there was no evidence of negligence fit to go to the jury, and that a new trial should be refused on this ground. Twelve feet before the plaintiff reached the nearest up-line, i.e. the western line, she had an unrestricted view to the south of the lines beyond North Wollongong to Wollongong on which the engine that struck her must have travelled in a northerly direction; there was no evidence that the engine was travelling fast at or near the level crossing; the evidence was clear that a whistle was sounded by the engine so as to be clearly audible to a person on the crossing when the train was certainly sufficiently far back to enable an uninjured person on the line to get out of the way; and the evidence satisfies me that the plaintiff was struck by the engine because first she fell down on the railway line and hurt herself and then, lying on the ground and hearing the whistle, she made an attempt to wriggle off the railway line, but becoming exhausted, stopped struggling when she mistakenly thought that she was clear of the path of the train and then lost consciousness before the engine hit her. The interval of time between her falling and hearing the whistle is not stated but I assume it was only a matter of seconds. (at p153)
7. It was contended on the hearing of this appeal that it would be open to the jury to find negligence against the commissioner because the crossing was so arranged that a person could enter upon the railway line when a train was approaching and could do so without any warning of the approach of the train beyond such warning as might be given by the whistle. In so far as this submission is that the commissioner was negligent in and about "the design, construction and maintenance of the . . . level crossing", it is not open to the appellant because in correspondence prior to the trial, it was stated that that allegation would not be pursued and, furthermore, the allegation that the commissioner was negligent in and about "the care, control, management and supervision of the . . . level crossing" was confined by the plaintiff to this: "that the defendant failed properly to supervise the passage of intending passengers across the railway crossing". Notwithstanding these limitations, I have no doubt that if there were evidence that on a particular occasion when a person was injured no proper warning was given of the approach of a train, that would be sufficient to support a finding of negligence, but in this case there was, as I have already said, no evidence that a proper warning was not given by whistle. The plaintiff's evidence, which was the only evidence about the engine whistling, was that while lying on the line after falling she heard a whistle, looked up and saw the engine and "it seemed far away"; when pressed for an estimate of distance, she said it was "approaching the station down near the booking office - it was somewhere between the two". No further evidence of this estimate of distance was given but it is clear that there was a substantial interval of time between when the whistle sounded and when the train hit the plaintiff. There is no evidence to support a finding that there was negligence in not giving adequate warning of the approach of the engine to the crossing. The accident happened, not because of any negligence for which the defendant is responsible, but because the plaintiff fell down on the line and was incapable of getting clear of the train after she heard the sound of the whistle. (at p154)
8. The suggestion made on behalf of the plaintiff that there was some breach of duty on the part of the defendant, either in not assisting the plaintiff to break the law by escorting her across safely or in not preventing her from breaking the law by posting an officer there, is not one that commends itself to me. (at p154)
9. I am for dismissing this appeal with costs. (at p154)
WINDEYER J. This is an appeal from a judgment of the Supreme Court of New South Wales refusing a new trial of an action in which the jury under the direction of the learned trial judge returned a verdict for the defendant, the Railway Commissioner (1957) SR (NSW) 449 ; 74 WN 230 . The plaintiff tripped and fell while crossing the railway line on foot in daylight at a level crossing at the North Wollongong railway platform. Before she was able to get up she was struck by a railway locomotive. The engine whistled immediately before it hit her, but she had no time in which to get clear of the railway line. She knew that crossing the line was fraught with some danger. If she had not fallen she would have got across safely. If those were all the essential facts it would seem that whether there was any negligence on the part of the defendant's servants, whether their negligence, if there was any, caused the accident and whether there was contributory negligence on the part of the plaintiff, would all be questions of fact to be determined by the jury in the light of all the proved circumstances. But those were, by no means, all of the relevant facts. At the northern end of the railway platform there was at the time of the accident, and had long been, a level vehicular crossing with gates where a public road crossed the line. Whether or not the gates were in practice often used for vehicular traffic was not proved. It may be that they were generally kept shut. But alongside the vehicular gates there were small wicket gates by which pedestrians could get through the railway fence, go up the ramp of the platform on to the platform and then by using the overhead bridge cross to the platform on the far side of the main lines. On the morning of the accident the plaintiff entered the railway premises by the pedestrian gate on the western side of the main lines, with the intention of catching a train from the platform on the eastern side. The safe way for her to have crossed the lines was, therefore, to have gone up the ramp on to the western platform and thence up the steps of the overhead bridge, across the bridge, and down the steps to the platform on the eastern side. She did not take this course. She started to do what she was daily accustomed to do, namely, to cross the lines at or beside the level vehicular crossing, intending when she got across to go on to the far platform by walking up the ramp at the end of it. She would thus have avoided having to go along the western platform and up and down the steps of the overhead bridge. While she was on her way across the rails the mishap occurred. She said she had looked before she began to cross. It is not quite clear from the evidence how far along the line she could see and to what extent her vision was obstructed. The engine which hit her was a single engine without a train. She says she did not see it coming and that the first thing she knew of it was after she fell when she heard the whistle immediately before she was hit. (at p155)
2. Near the place where the plaintiff crossed there was a sign board reading "Safety First. The Public are Prohibited from Crossing the Lines Except by Footbridge. Penalty 5 pounds". The plaintiff in her evidence said that she had not noticed this sign before the accident; but it was not disputed that it had been there and that it was clearly legible, although somewhat dilapidated. There is a railway by-law which states: "No person on foot (excepting a person in charge of a vehicle or live stock) shall cross, or attempt to cross, any line of railway on the level at a station or any other place where an overbridge or subway is provided. Any person guilty of a breach of this By-law shall be liable to a penalty not exceeding Five Pounds". Therefore, it was argued, the bridge had become the only lawful way across the line for railway passengers as well as for pedestrians using the public road. The level crossing could only be lawfully used for vehicles and to get animals across. (at p156)
3. At an early stage of the plaintiff's evidence she was asked by her counsel whether during the period she was accustomed to cross, as she said she was, she had noticed that other persons crossed the line at the same place. The question was objected to and counsel for the defendant railway commissioner said: "At this stage I can tell your Honour that the defence is that the plaintiff was a trespasser". He went on to contend that any pedestrian who crossed the lines in contravention of the by-law was a trespasser, and further that the railway servants could not license persons to break the by-law. The learned trial judge then suggested that the plaintiff's counsel would probably contend that the plaintiff was an invitee. The plaintiff's counsel accepted this suggestion. Later, the plaintiff's counsel called evidence that the wicket gate for pedestrians was never locked, that no railway servant supervised the use of it by pedestrians or sought to control them as to the route they took after they there entered the railway premises. He sought to adduce evidence that it was common practice for people to cross the line at that point without going over the footbridge. The people who commonly did so were, it would seem, some of them railway passengers seeking to get to the far platform, some of them persons having no business with the railway but merely desirous of crossing the line from the public road on one side to its continuation on the other. The practice of going through the pedestrian gates and on the level seems to have gone on since a time before the overhead bridge was erected. But none of this was proved, because the learned judge rejected questions directed to what people, other than the plaintiff, were accustomed to do. He held this to be irrelevant to the question whether the plaintiff was a trespasser or an invitee; and this the parties had apparently accepted as a vital issue. The trial thus proceeded in light of, or perhaps more correctly in a shadow cast by, Indermaur v. Dames (1866) LR 1 CP 274; (1867) LR 2 CP 311 . No evidence was called for the defendant as to how the accident happened. The defendant's counsel asked the trial judge to direct a verdict for the defendant. His Honour did so after saying to the jury: "I am satisfied that to maintain this action Mrs. Rich . . . can only succeed if she can show that she was using this level crossing as an invitee of the Commissioner for Railways. That is a technical expression; for present purposes it will suffice if I say this, she really has to show that the commissioner invited her to use this crossing either directly or indirectly". The learned judge had been led to approach the question in this manner by the plaintiff's counsel's acceptance of the proposition that to succeed the plaintiff would have to establish that she was an invitee. But this was not so. The existence of the by-law would not entitle those in charge of the running of railway engines to ignore the presence of persons - call them trespassers or what you will - actually on the line; neither in my view would it entitle them to ignore a known probability that pedestrians, whether trespassers or not, might be upon the line at the level crossing. Yet evidence of such a probability was rejected. (at p157)
4. In the Full Court the matter was dealt with in much the same way as it had been by the trial judge. Their Honours said that the rejected evidence was "designed to show that, to the knowledge of the railway station staff, it had long been the practice for members of the public who wished to go from one side of the lines to the other to cross the lines as the plaintiff was crossing them and not to use the overhead bridge" (1957) SR (NSW), at p 451; 74 WN, at p 231 . Such evidence was held to have been rightly rejected because their Honours said "the plaintiff was admittedly at the time of the accident in a place where the law forbade her to be. No employee of the defendant could, within the scope of his authority, invite or license the plaintiff to break that law and enter the prohibited area. When she entered it she ceased to be a licensee or invitee and became a trespasser" (1957) SR (NSW), at p 451; 74 WN, at p 232 . But, with great respect to their Honours, I think this was not the right approach to the question. I attach no importance to the technical circumstances that the plaintiff's declaration had alleged she was struck "whilst lawfully passing across the level crossing". This, being a matter of inducement, was strictly not traversed by the general issue, although perhaps it was by the plea of general issue by statute. But, however that may be, it was accepted at the trial that the defendant could raise the question of the lawfulness of the plaintiff's presence on the line; so that the case does not turn in any way on the form of the pleading. (at p157)
5. The categories of trespasser, licensee and invitee continue to be important for the law of torts, although the distinction between invitee and licensee has become blurred and some would say obliterated (see Slater v. Clay Cross Co. Ltd. (1956) 2 QB 264 ), and in England has now been abolished by the Occupiers' Liability Act 1957. The famous classification of persons coming upon premises was originally directed to assessing the obligations of an occupier arising from what one may call the static physical condition of his premises, rather than his obligations arising out fo dangers created by active operations carried on upon the premises. Nevertheless these distinctions have - at least in the case of trespassers - been applied more widely. The rule that a trespasser enters upon premises at his own risk has been applied not only in relation to the risks arising from the static character or structural defects of premises, but to all dangers arising from activities lawfully carried on upon the premises. The rule applies, for example, to trespassers upon railway premises, including passengers and intending passengers who become trespassers by going beyond the places where they are authorized to be to places where they are forbidden to be: Grand Trunk Railway Co. of Canada v. Barnett (1911) AC 361 ; Williams v. Melbourne and Hobson's Bay United Railway Co. (1872) 3 VR (L) 91 ; and see Rodgerson v. J. B. Zander Pty. Ltd. (1921) VLR 103 . But the bare statement that a trespasser takes the risks of trespassing can be misleading. The risks of what? He is not without remedy if he be injured wilfully by the conduct of the occupier of the premises upon which he is trespassing or by the reckless conduct of anyone who knows of his presence: Lipman v. Clendinnen [1932] HCA 24; (1932) 46 CLR 550, at p 555 ; Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. (1936) AC 65, at p 70 . (at p158)
6. That a person is a trespasser determines the nature and extent of the duty which the occupier owes him. It does not mean that no duty is owed to him. In Transport Commissioners of New South Wales v. Barton [1933] HCA 9; (1933) 49 CLR 114 this Court considered the position of trespassers on railway lines. Dixon J., as he then was, after pointing out that the measure of duty to trespassers has been diversely stated, went on to say: "with reference to positive acts likely to cause harm to others, I think the occupier's duty depends upon knowledge of the presence of the trespasser on his property, and is measured by the care which a reasonable man would take in the circumstances, including the gravity and likelihood of the probable injury, the character of the intrusion, the nature of the activities causing the danger and the consequences to the occupier of attempting to avoid all injury" (1933) 49 CLR, at p 132 . This statement I respectfully adopt. In its context I do not take his Honour's reference to knowledge of the presence of the trespasser to mean that without such positive knowledge there could never be a breach of duty if in fact a trespasser were injured. Evatt J. in the same case said: "As a general rule the plaintiff must show that the occupier knew of the actual, or, at least, the very probable, presence of the trespasser upon his land at the very time when some activity fraught with danger to the trespasser was being continued" (1933) 49 CLR, at p 135 . Assuming for the present that pedestrians crossing the line at the North Wollongong level crossing were at the relevant time properly called trespassers - nevertheless the duty of the Railway Commissioner and his servants is to be measured by all the circumstances, including any knowledge they had that persons habitually trespassed there and that it was probable that someone might be on the line at the level crossing. As I have said, I assume here that in a technical sense the prohibition of crossing the line except by the footbridge did mean that persons disobeying it were trespassers, notwithstanding any tacit acquiescence by the railway staff in the breaches of the by-law. Such acquiescence would, however, be a matter of importance in considering what Dixon J., in the passage I have quoted called "the character of the intrusion" (1933) 49 CLR, at p 132 . Where a plaintiff complains of negligence in the conduct of an enterprise, especially one involving active operations like a railway, the question whether there was a breach of duty by those responsible is obscured if the classification of the plaintiff as trespasser, invitee or licensee be made in the abstract and unmindful of all the circumstances which give a particular content to abstract concepts of duty. The rules concerning the duties of occupiers are part of the law of negligence. The duty to a trespasser is a duty to a person who may also be a neighbour in the sense in which Lord Atkin used the word in discussing the extent of the duty of care in Donoghue v. Stevenson (1932) AC 562 . Without repeating it, I would respectfully adopt what my brother Kitto said on this matter in his judgment in Thompson v. Bankstown Corporation (1953) 87 CLR, at pp 642, 643 . (at p159)
7. The by-law, and more significantly the notice, are of course important circumstances in this case. But they do not determine the case as a matter of law. The by-law makes it an offence to cross the railway line except by the footbridge. It is a by-law directed to securing the safety of persons crossing the line. It does not absolve the commissioner from all responsibility to them. Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438 . A contravention of the by-law might show that the plaintiff was negligent; it does not establish that the defendant was not. (at p159)
8. I do not find it necessary to decide whether or not the plaintiff was properly called a trespasser. She was crossing the line at a place where, as we were told, a public road crosses the line. She was not taking advantage of the bridge put there for her safety and she was committing an offence. But does this make her a trespasser? To determine whether in using what seems to have been a public way in the manner she did she was a trespasser would depend upon proof of various matters referred to in the Government Railways Act, s. 15A, and on their effect. These were not proved nor was the matter argued before us; and I, therefore, say no more about it than that I have, for the purposes of this judgment, accepted the description of the plaintiff as a trespasser; but I am not satisfied that, in the circumstances, it is correct. (at p160)
9. The evidence which the plaintiff wished to call was apparently to the effect that the prohibition of crossing the lines was commonly disregarded and that no steps were taken to enforce observance of it. There is a not uncommon belief by persons in authority that they gain some immunity by the mere promulgation of a regulation or order, that they can thereafter overlook any disregard of it yet invoke it as a protection against liability if an untoward event happens. This is not so. A failure to take any steps to prevent trespassers intruding may in itself be evidence against an occupier - although it does not, of course, convert a trespasser into a licensee (see Edwards v. Railway Executive (1952) AC 737 per Lord Porter (1952) AC, at p 744 and Robert Addie & Sons (Collieries) v. Dumbreck (1929) AC 358 , per Lord Dunedin (1929) AC, at pp 372, 373 ). In the present case, a jury might think that if the wicket gate was always open and unattended so as to give access to the station platform and to the footbridge, some re-arrangement of the fence to deny access to the railroad might have been proper - or in the alternative that some active steps should have been taken to enforce the by-law. In the absence of any such precautions, then, if the evidence established that the by-law was habitually disobeyed to the knowledge of the commissioner's servants, a standard of care appropriate to the situation would seem to be called for. This would affect the speed at which engines approached the crossing, timely warning of their approach and an efficient look out by engine drivers for people on the line at the crossing. I did not understand the plaintiff's counsel to suggest that measures should have been taken to enable the by-law to be broken in safety. Rather I thought they contended that if people were allowed to cross the line with impunity and unchecked, the degree of care to be taken in running trains should be measured correspondingly. This seems to me a correct proposition. (at p160)
10. It was contended that, even if the rejected evidence had been admitted, there would have been no evidence of negligence on the part of the defendant and that the case was thus properly withdrawn from the jury. I think it unwise to speculate on what might have been the course of the trial if the rejected evidence had been admitted. But, in any event, the vigorous discussion of the facts by counsel, and by the Court, on the hearing of the appeal before us only served to confirm me in a view that the question was fundamentally one of fact. I am far from suggesting that a jury ought on the facts I have stated to find for the plaintiff. The case, I think, was one for the jury for, in my view, there was some evidence of both negligence and contributory negligence. I would grant a new trial. (at p161)
ORDER
Appeal allowed with costs.Order of the Full Court of the Supreme Court of New South Wales discharged and in lieu thereof order that there be a new trial of the action, and that the defendant respondent pay the costs of the appeal to the Full Court of the Supreme Court. No order as to costs of the first trial.
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