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High Court of Australia |
COMMISSIONER FOR RAILWAYS (N.S.W.) v. CARDY [1960] HCA 45; (1960) 104 CLR 274
Negligence
High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Menzies(4) and Windeyer(5) JJ .
CATCHWORDS
Negligence - Dangerous premises - Latent danger on land - Absence of warning to persons entering upon land - Injuries to persons entering - Liability of occupier - Licensees - Trespassers - General duty of care - Child playing upon land without permission of occupier.
HEARING
Sydney, 1959, September 11, 14, 15; 1960, July 25. 25:7:1960DECISION
1960, July 25.2. The boy recovered damages for his injuries from the Commissioner in the Supreme Court of New South Wales. An appeal by the defendant Commissioner to the Full Court failed (1959) SR (NSW) 230; 76 WN 166 and he now appeals to this Court. The boy's cause of action has been treated as depending on his showing that he was on the Commissioner's premises with his licence and that the surface presented a deceptive appearance of safety concealing a most unexpected danger of serious injury from which the Commissioner as occupier of the land should have taken due care to protect him. That the surface appeared safe and that it concealed nevertheless a most potent source of injury that no boy would be expected to foresee and guard against is plain enough. But though the jury found that the boy was a licensee, that is anything but plain if the licence be considered as a reality. (at p280)
3. The boy had played on the site years before but he had gone to live in the country and only on the day of the accident was he renewing his acquaintance with the dump which had undergone considerable changes in the interval. The evidence bearing upon the question whether he came with the Commissioner's licence was of the sort that cases here and in England about injuries to children in open or public places have led one to expect. The children come to a place where it is evident to them, if they be old enough, as it is to everyone else, that they ought not to be. Sometimes they are chased away by men employed there or otherwise concerned in the place; sometimes that is not done and generally speaking no adequate measures are taken to keep them away. Then the courts are asked to find that a child who has been injured comes with an implied licence. In case after case the finding has been made and the child has triumphed over the objection that he is a trespasser without any relevant rights with reference to his safety. In the present instance the evidence shows rather that adults and children were apt to come to seek for trophies from the dump and the children also to watch operations and to play, but it is plain that to say that they came in fact with the licence of the Commissioner or any of his servants with authority in the matter is quite unreal. It is rather to impute than to imply a licence and it is a course I am not prepared to take, notwithstanding the jury's verdict, unless the licence be treated rather as a legal or fictional than a factual conclusion. When the distinction between invitees and licensees was taken and the respective measures of responsibility to them for the safety of the premises upon which they came were defined, the duty of an occupier of land who consented to the use of it, or to the passage over it, by others for their own purposes, purposes which involved no material interest of his own, was regarded as the outcome of his consent, which was considered as a voluntary grant to others of a benefit from which he was entitled to exclude them. A person who conferred such a voluntary benefit could by doing so incur no duty of care to safeguard those who sought or accepted it from any danger arising from the nature or condition of the premises, unless the danger lay in a deceptive appearance of safety hiding a potential cause of injury of which the occupier knew but they neither knew nor could be expected to know. It is important to mark what placed the occupier under this very limited duty of care. It was his own voluntary act in consenting to the presence of the visitors to the premises. That is why in Gautret v. Egerton (1867) LR 2 CP at p 375 , Willes J. likens the case to the voluntary gift or loan of a chattel. This appears to me to be far away from the case of a public authority which manifestly does not consent to the presence of strangers but is weak in its active resistance to their intrusion which it may be obliged to suffer but never permits. In the joint reasons given in this case by the late Chief Judge in Equity (Roper J.) and Herron J. in the Supreme Court their Honours say : "In modern times the courts have shown a tendency not to regard persons as trespassers when no real objection to their presence on the land of the occupier exists" (1959) SR (NSW), at p 233 ; 76 WN, at p 168 . This I think is very true. But it appears to me to depart from the foundation of the principle on which a licensor's liability was erected, namely his own voluntary act in giving his consent without exercising due care by warning or otherwise to avert injury to the licensees from concealed danger of which he is aware and they are ignorant where there is a deceptive appearance of safety. The learned judges by way of justifying or illustrating the statement refer to judicial observations and conclusions in a number of well known decided cases. They are cases or statements which countenance the inference of consent or licence in circumstances where it could be but a construction placed by the law upon conduct. It must in truth be a construction placed upon conduct, because if the question were treated as an inquiry into the real will of the one party and the real understanding of the other, then the answer as a hard practical matter of fact would be inevitable, namely that there was no actual consent or licence. Suppose the inquiry be approached with a firm determination to reason from the true place in legal principle of the expression or manifestation of consent or licence to use or traverse the premises and to treat that as creating and measuring the duty of care which is incurred by a volunteer conferring a benefit. Would it then be possible to find, in a constructive or imputed consent or licence of such a kind, any foundation for fixing upon the occupier the duty of care measured according to the standard established? The truth is that the real source of the inference that a duty arose must be sought elsewhere. It is to be found in a combination of factors. There are the dangers which attend the use of the premises, the circumstance that the premises are so used or frequented and that in spite of the knowledge which the occupier has or perhaps ought to have of that fact and of the description of persons who use or frequent the premises he exposes them to the danger and takes no precautions to safeguard them. In other words it is not upon the reality of a consent or licence consisting in the voluntary grant of a gratuitous benefit or advantage that the duty in such a case is founded, the real source is an implication that is made. (at p282)
4. Upon the facts of this case the dumping of hot ashes certain to smoulder under an apparently firm and reliable crust or surface presented an unusual and hidden danger to all who frequented the place. It is impossible to accept the view that it was a characteristic of a dump which all who came upon it should know ; but at the same time it is equally impossible to suppose that by his servants and agents the Commissioner was not fully alive to the characteristic. Adults and children did frequent the place and again, by his servants and agents, of this the Commissioner was aware. One may venture to think that no person who came to the case familiar with general juristic concepts but unindoctrinated with the notion that to be a trespasser is to be caput lupinum would expect to find a system of law which denied altogether the existence in the Commissioner of any duty of any sort in reference to the likelihood of persons coming to the site and suffering grievous injury. He would find that our law has not denied the duty but has placed it upon the supposal of a licence so that there will be no trespass. But is it necessary that we should go on ever constructing the liability out of the materials that can be found for inferring, implying or imputing a licence, fictional though it must inevitably seem? In the much canvassed case of Cooke v. Midland Great Western Railway of Ireland (1909) AC 229 Lord Atkinson explicitly placed his decision upon the inference that the children played upon the turntable with the leave and licence of the railway company. But the inference depended upon the frequency with which children went to it and was drawn in face of evidence that they were chased away, evidence which of course was not necessarily accepted. Only with difficulty can the consent be regarded as more than constructive. Lord Collins regarded the facts as enabling the jury to infer not merely a licence but an invitation (meaning, I imagine, a tacit request) ; yet again, though his Lordship took the turntable to be largely frequented by children without remonstrance, it is not easy to believe an active or conscious consent was given by any officer of the company possessing the requisite authority. Lord Macnaghten's opinion, although it has since been attributed by high authority to the same inference, reads as if his Lordship disregarded altogether the character of the children as trespassers ; but no doubt that explanation of his reasoning is based upon the 1 st sentence of his opinion with which, in reference to the claim that the decision might be disastrous to railway companies, Lord Macnaghten ends : "but it does not seem unreasonable to hold that, if they allow their property to be open to all comers, infants as well as children of maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission and who are unable, in consequence of their tender age, to take care of themselves" (1909) AC, at p 236 . Lord Loreburn L.C. who expressed his concurrence in Lord Macnaghten's opinion, gave reasons which appear to pass by the question of licence. The case shows as one might well think that in circumstances like those of the present case liability would then have been fastened upon the defendant, even though it might be done by an inference that the intruders came by tacit licence. It is only as an example of the two possible sources of duty that I refer to the case, a source consisting in an imputed or constructive licence, far different in character from that voluntary grant of a benefit upon which the restricted duty was originally considered to arise and a source consisting in the real considerations supplied by knowledge on the part of an occupier of a grave danger threatening those whom he knows frequent his premises. Lowery v. Walker [1910] UKHL 1; (1909) 2 KB 433 ; (1910) 1 KB 173 ; (1911) AC 10 ; cf (1910) 101 LT 873 ; (1911) 103 LT 674 forms another example, for notwithstanding that so much turned upon the note of the County Court judge the inference he drew could not have stood without evidence to support it and that evidence disclosed little or no more than knowledge that the public customarily crossed the field into which the defendant placed the savage horse. (at p283)
5. In Latham v. R. Johnson & Nephew Ltd. (1913) 1 KB 398 , the land was used with the consent of the occupier but there was no "trap" and for that matter no negligence ; but in the famous exposition contained in Lord Sumner's judgment he borrowed the language of Lord Robson speaking for the Privy Council in the Grand Trunk Railway of Canada v. Barnett (1911) AC 361, at p 370 and defined the liability of an occupier to a trespasser thus : "The owner of the property is under a duty not to injure the trespasser wilfully, 'not to do a wilful act in reckless disregard of ordinary humanity towards him,' but otherwise a man 'trespasses at his own risk'" (1913) 1 KB, at p 411 . A much wider principle was enunciated by Lord Sumner in a case which involved no trespass to the premises but special danger to the young. "A measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others who know of or ought to anticipate the presence of such persons within the scope and hazard of their own operations" : Glasgow Corporation v. Taylor (1922) 1 AC 44, at p 67 . In Robert Addie & Sons (Collieries) v. Dumbreck (1929) AC 358 there was a return to the rigid classification of those entering the premises of others and a denial of any duty of precaution against harm, unless wilful, which might befall a trespasser. But the case was not one in which licence might fairly be imputed or callous disregard of a serious danger to others inferred. (at p284)
6. Of the case of Excelsior Wire Rope Co. v. Callan (1930) AC 404 it is needless to speak, because the defendant was not considered to be an occupier of the premises where the plaintiff was injured. One may be permitted to think however that it is an example of the recognition that quacunque via a duty exists with reference to the safety of young people likely to come into danger by interfering with things of others and that it is a duty of care whatever be the measure of care exacted. Indeed Viscount Dunedin said that "if the children trespassed, the servants of the defendant acted with reckless disregard of the presence of the trespasser" (1930) AC, at p 411 . Edwards v. Railway Executive (1952) AC 737 did not involve a return to any rigid view of the situation of a child who comes into danger with the foreknowledge of the party creating a danger or exercising control over the premises where it exists. The child, aged nine, was injured while recrossing a double running track of a live electric railway which he had crossed in search of a ball. He was burned by the live rails upon which he fell, and injured by a train. Incredible as it may seem, a jury found that he crossed with the tacit consent of the railway authority, the defendant, and that the driver of the train was negligent in failing to stop the train. Apart from the findings, which obviously could not stand, the plaintiff had no case. Children however had gained access through a fence at the foot of the embankment upon which the rails ran and down which the children enjoyed sliding. This led to some observations on the duty to trespassers which were formulated in the received manner. Lord Goddard said : "Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it" (1952) AC, at p 747 . The latter alternative in Lord Goddard's statement is what I have ventured to call an imputed licence. (at p285)
7. The foregoing decisions of the House of Lords provide a lesson by example in the ways of the law when it evolves principle. The fixed rule that a trespasser comes at his own risk and that only a wilful injury to him is actionable is modified by the assimilation of "reckless disregard of the presence of the trespasser" to wilfulness. It needs no argument to show that reckless disregard of the presence of a man must include not only the case of a man who is there but also of one whose coming is expected or foreseen. But the application of the rule is modified to the point of exclusion by inferring a licence from circumstances notwithstanding the unreality of the supposition that there was any actually consenting mind or will. The process of inference is then transmuted to a different and wider conception, that expressed by Lord Goddard, conduct on the part of the occupier of such a kind that he cannot be heard to say that he did not give a licence. At that point, by precluding the denial of a licence, the law has surely reached the use of fiction, and if now we boldly look at the facts which give rise to the imposition in this manner of the liability it will be but to complete the course of development by a process for which the history of the law furnishes many precedents. It is but to attribute the liability to the constituent elements of the title to the correlative right and to explain why they create it. No doubt there is some conscious acceleration of the process and an open acknowledgment of the course pursued. But it is evident that for want of some rationalization of the kind great confusion, not to say dissatisfaction, as to the state of the law exists. Is there any reason why in Australia the step should not be taken? With respect to licensees and invitees the law has been completely changed in England by the Occupiers' Liability Act 1957 (5 & 6 Eliz. II, c. 31). What indirect effect the change may have on the practice of inferring, implying or imputing a licence from facts where no actual intention to grant a licence existed and none was expressed, it would be hazardous to prophesy. But it is at least clear that in England to impute a licence is now to place upon the occupier a duty of care measured by a much higher standard. Whatever may be the outcome it involves a distinct point of departure from the law obtaining in Australia. Why should we here continue to explain the liability which that law appears to impose in terms which can no longer command an intellectual assent and refuse to refer it directly to basal principle? (at p285)
8. Such a recognition of principle by no means involves the imposition upon occupiers of premises of a liability for want of care for the safety of trespassers. What it does is to confine the duty of licensors to its true province, the case of a voluntary or gratuitous grant of an advantage to another consisting in the use of or entry upon premises and to recognize that it is the grant that forms the source of the limited duty. The rule remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from intentional or wanton harm to him. But it recognizes that nevertheless a duty exists where to the knowledge of the occupier premises are frequented by strangers or are openly used by other people and the occupier actively creates a specific peril seriously menacing their safety or continues it in existence. The duty may be limited to perils of which the persons so using the premises are unaware and which they are unlikely to expect and guard against. The duty is measured by the nature of the danger or peril but it may, according to circumstances, be sufficiently discharged by warning of the danger, by taking steps to exclude the intruder or by removal or reduction of the danger. It may perhaps be useful to remark that upon the facts of United Zinc & Chemical Co. v. Britt (1) the question whether the neglect to safeguard children from the poisoned pond involved liability would depend upon the likelihood of children entering the premises and using the pond so as to encounter a risk of poisoning and upon the knowledge which the occupier had or ought to have had of the danger and of that likelihood. The doctrine of the decision in Britt's Case [1922] USSC 62; (1922) 258 US 268 (66 Law Ed 615) has been considered harsh and the decision itself can hardly be justified except on the footing that there was no sufficient reason to think that the pond would be visited by children or that they would be imperilled by the existence of the poisoned pond unless excluded. (at p286)
9. In principle a duty of care should rest on a man to safeguard others from a grave danger of serious harm if knowingly he has created the danger or is responsible for its continued existence and is aware of the likelihood of others coming into proximity of the danger and has the means of preventing it or of averting the danger or of bringing it to their knowledge. (at p286)
10. Upon the facts of the present case the responsible servants of the defendant Commissioner must have been aware of the great likelihood, not to say certainty, of boys and others coming upon the site of the tip. The apparently safe surface concealed a striking danger of a rather dreadful description. No steps to warn those who came or to exclude them or to reduce or avert the danger were adopted. No care of any kind was shown for the safety from the danger of those who frequented the place or were likely to come there. That appears to bring the case within the principle. (at p287)
11. One difficulty may be suggested. The trial went upon the conventional or traditional theory of liability. Neither judge nor jury dealt with application to the facts of the principle of liability as it is here formulated. It is a difficulty which has caused me to hesitate as to the necessity of a new trial. But after consideration I have concluded that a new trial ought not to be directed. After all a new trial is not granted where justice does not require it and independently of all discretion the facts implicit in the findings which upon the summing up the jury must be considered to have made really cover the ground and, as I see the matter, both upon those findings and upon the evidence, the liability of the defendant Commissioner is satisfactorily made out. (at p287)
12. The appeal should be dismissed. (at p287)
McTIERNAN J. In my opinion this appeal should be dismissed. The appellant is the owner and occupier of an expanse of vacant land in the Sydney suburb of Clyde. The total area is five hundred acres. The respondent, aged fourteen years and four months, was injured on a part of the land called the dump area. He went on to a heap of ashes and rubbish and when he was scrambling down his feet sank into hot ashes and were badly burned. The respondent was not wearing anything on his feet. He brought this action to recover damages from the appellant for the injuries he suffered in the accident. The basis of his claim was that the heap of ashes and rubbish was an allurement to a boy of his age and that the appellant did not take sufficient care to safeguard him from the danger which he encountered. The appellant defended the action on these grounds: that the respondent was a trespasser, that the heap of ashes and rubbish was an obviously dangerous place to go on, and that the respondent was guilty of contributory negligence by going on it barefooted. A verdict for 2,000 pounds was returned by the jury. The question in the appeal is whether there was evidence to go to the jury which would show that the appellant was liable. (at p287)
2. It was necessary for the plaintiff to prove that he entered the land by leave or right. He sought to prove that when he entered the land he became a licensee of the appellant because members of the public habitually went on the land and the appellant acquiesced in their doing so. The evidence proved that members of the public frequented the land: that they used regular means of access on the southern and north-western sides of the land which were never closed: that they passed and repassed over the land between these means of access and walked about the land: and in the case of children that they habitually played on it. It would appear from the evidence that the use of the land by the public was long-established and notorious. (at p288)
3. Evidence was given for the appellant by railway officers who had duties in relation to the control of the land, from which the jury could conclude that these officers were well aware of the facts just mentioned. According to their evidence the appellant, in fact, only permitted persons to go on the land who had official leave to do so and they proved that from time to time they warned persons whom they saw on the land, and who had no such leave, that they had no right to be there; and these officers also gave evidence that they frequently ordered grown-ups and children found on the dump area to leave the land. In all the circumstances it seems to me that it was open to the jury to think that the action which these officers said that they had taken was rather a token of departmental attitude than a genuine prohibition of the entry of members of the public on the land. It was, in my view, within the jury's rights to attach the greater weight to the evidence upon which the respondent relied to prove that he was not a trespasser but, in fact, entered the land with the acquiescence of the appellant. The jury could, after weighing all the evidence on that issue, reasonably find that members of the public had, in fact, tacit permission to go on the land and walk about it and that such permission was not limited only to pathways between the places of entry and exit. I am not prepared to hold that there was no evidence upon which the jury could reasonably find that the permission did not extend to the dump area, which, itself, was part of the whole area. There was evidence that children frequented the dump area and played on and about it when dumping was taking place and at other times. In my opinion, the jury could reasonably infer that the appellant, by its officers, was aware of these facts. When the accident happened dumping had ceased for the week-end. (at p288)
4. The respondent and a brother aged twelve years went through an entrance on the southern boundary, which the jury could find was always open, and proceeded by a road into the land from which a path led in the direction of the dump area. They strayed from this path to the heap of ashes and rubbish and went up its steep side, which was ten feet high. As stated above, when the respondent was scrambling down that side of the heap his feet sank into hot ashes beneath the surface and were badly burned. Only the respondent was injured. Neither the dump area nor the heap itself was fenced, and it was, on the evidence, easily accessible, over vacant ground, from the path. (at p289)
5. The jury could find that there was nothing in the appearance of the heap of ashes and rubbish which the boys climbed to indicate that beneath its surface there were hot ashes. The appellant conceded in argument that it was possible that the ashes which burned the respondent's feet were hot when deposited by its workmen on the heap. If the jury considered that the tacit permission to enter and walk over the land extended to climbing this heap they could find that the appellant did not take the proper measure of care due by an occupier to a licensee to protect the respondent from the danger he encountered. (at p289)
6. But I would not go as far as holding that a grown-up person, even though he could claim that he had tacit permission to walk about the dump area, could also rightly claim that the permission extended to climbing the heap of ashes and rubbish on which the respondent was injured. In my opinion, the verdict can be sustained on the basis that the respondent was not a trespasser on the land and the heap of ashes and rubbish was an allurement to a boy of his age. It is a well-known propensity of boys of the respondent's age to go up a bank, heap or mound which is at a place where they come to play and is accessible to them. This heap was not a natural formation of ground but an artificial construction on the land and it could be an allurement in the legal sense for children. In my opinion, it was clearly open to the jury to find the respondent followed instincts, generally natural to boys of his age, by going up the side of this heap of ashes and rubbish on which he was injured. (at p289)
7. There was evidence that there were pieces of scrap and bits of tin, board and other debris scattered on and about the heap. But this evidence did not make it unreasonable for the jury to find that it would not have appeared to a boy of the respondent's age to be a dangerous place to ascend. (at p289)
8. The jury could find that any risk involved in going on to the heap barefooted would not, having regard to the appearance of the place, be appreciated by a boy of the respondent's age, and that the appellant should not therefore succeed on the defence of contributory negligence. It is common ground that the appellant took no care to safeguard the respondent from the danger which he encountered. In my opinion, there was evidence which showed that the appellant was liable upon the basis on which the respondent claimed damages for his injuries. (at p290)
FULLAGAR J. This is a case in which the plaintiff's injuries were occasioned by what turned out to be a latent danger created by servants of the Commissioner on premises of which he was clearly the occupier. The facts are set out in the judgment of the Chief Justice. The plaintiff has maintained that he entered on the premises as a licensee. The defendant has maintained that the plaintiff was a trespasser. We are therefore involved in the tangled web which has been woven about those two controversial characters. (at p290)
2. The learned trial judge directed the jury to consider first whether the plaintiff was where he was with the leave and licence of the Commissioner. If they found that issue in the negative, the plaintiff, being a trespasser, must, he said, fail. If, on the other hand, they found the affirmative of that issue, then they were to consider whether "the condition of the premises was such that they constituted a concealed trap or hidden danger or peril, and that they were dangerous to the knowledge of the defendant and without the knowledge of the plaintiff". There is, of course, authority for this approach to cases of this type, but in some of the decided cases a person in the position of the present plaintiff has been treated as a licensee when there was, in my opinion, no evidence whatever to support a finding of leave and licence. The present is such a case, and it calls, I think, for an examination of the whole position at law of a person who is injured while trespassing on the land of another. In reading the decided cases with this end in view we must, I think, bear steadily in mind an observation of Lord Atkin in Donoghue v. Stevenson (1932) AC 562, at pp 583, 584 . His Lordship said: "In the branch of the law which deals with civil wrongs, dependent in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of English law be unduly restricted" (1932) AC, at pp 583, 584 . This passage occurs in a judgment which itself made a synthesis of great importance. (at p290)
3. In the Addie Collieries Case (1929) AC 358 the plaintiff's son was, I should have thought, unquestionably a trespasser. It was so held, and it was held that it followed that no duty of care was owed to him by the occupier of the land. But there are several things to be said about this case. In the first place, the greatest difficulty has always been felt in finding a satisfactory basis on which to reconcile the decision in the Addie Collieries Case (1929) AC 358 with Cooke's Case (1909) AC 229 for, if there was evidence to support a finding of leave and licence in the earlier case, there was at least as much evidence to support such a finding in the later cases (1929) AC, at pp 359, 360 . (at p291)
4. What is perhaps more important is that less than a year after the Addie Collieries Case (1929) AC 358 the House of Lords decided the case of Excelsior Wire Rope Co. v. Callan (1930) AC 404 . Here again the plaintiffs were trespassers, but the defendant was held liable for negligence. I am bound to say that, with the greatest respect, I share the difficulty felt by Scrutton L.J. in Mourton v. Poulter (1930) 2 KB 183, at p 190 , in referring the two cases to a common principle. It is true that an obvious difference between the facts of the two cases exists in that in the former the defendant was the owner and occupier of the land on which the accident happened, whereas in the latter case the defendant company was using the land under a licence from the owner. But there are, as it seems to me, two very good reasons why this factual difference cannot be regarded as a relevant difference. In the first place, the basis of the liability of an "occupier" in this class of case lies in the fact that he has control of the land. The defendant company in Callan's Case (1930) AC 404 , although it had only a licence and not a lease or other tenancy, was using the land for the purposes of its business, and was apparently in complete control of it and of the operations carried on upon it. In the second place, it seems to me almost unthinkable that, if the defendant in Callan's Case (1930) AC 404 had had a lease instead of a licence, it would have escaped liability on a finding that the plaintiff was a trespasser. So in Mourton v. Poulter (1930) 2 KB 183 , where the plaintiff was in fact found to be a trespasser, the case surely could not have been different if the negligent felling of the tree had been carried out not by an independent contractor with the occupier but by the occupier himself or his servant, and the occupier had been sued. (at p291)
5. Of still greater importance is it to remember that a little more than two years after the Addie Collieries Case (1929) AC 358 the House of Lords decided the leading case of Donoghue v. Stevenson (1932) AC 562 . This case (albeit it may be thought to be restorative rather than revolutionary) in a sense reoriented the whole law of negligence, and left perhaps few cases which went to the root of that subject and which were not liable to be re-examined and tested in the light of it. (at p291)
6. These considerations, in my opinion, justify, and indeed in this case necessitate, a consideration of the law relating to the liability of an occupier of land to a trespasser with a view to seeing whether the cases cannot be referred to a principle which will explain them all. If further justification for making the attempt were needed, it is to be found in the candid statement of Lord Goddard, with whom Lord Reid agreed, in Edwards v. Railway Executive (1952) AC 737, at p 750 . Lord Goddard said: "My lords, when a person is injured on land or in a place where he has no business to be, efforts are frequently made, sometimes with success due perhaps largely to sympathy, to establish that the injured person was where he was with the leave and licence of the landowner or occupier, even though by every canon of common sense it is perfectly plain that the latter, had he been asked before the accident, would have said that he objected strongly to the uninvited person coming on his land" (1952) AC, at p 746 . (at p292)
7. It is evident that Lord Goddard and Lord Reid were of opinion that in many cases a trespasser had been held, without sufficient justification, to be a licensee. The tendency which their Lordships criticize has been occasioned largely, I think, by taking as a startingpoint the numerous statements, absolute or qualified in a variety of ways, which are to be found in the reports to the effect that an occupier of land is under no duty in relation to the safety of a trespasser. These statements are not consistent, many of them being doubtless framed with an eye to the particular case in hand. Sometimes it is said that a trespasser enters at his own risk, sometimes that he must take premises as he finds them and look out for himself, sometimes that an occupier owes no duty to a trespasser, sometimes that he is liable only for harm intentionally or maliciously caused to a trespasser. It has even been said that he is liable only for malicious acts or acts so grossly negligent that they are "tantamount to malicious acting" (per Viscount Dunedin in the Addie Collieries Case (1929) AC, at p 377 ). (at p292)
8. The difficulty of these cases has always, I think, been acutely felt, and I think that it has arisen in this way. Courts are faced with cases in which general principle seems to require holding that a trespasser has a cause of action for negligence against an occupier in respect of harm suffered through some danger on the premises, and are faced also with the many statements, to which I have referred, which appear to deny, or very strictly limit, the possibility of such a cause of action. And they have in many cases attempted to solve the problem by treating as a licensee one who by any realistic standard is a trespasser. Dr. J. G. Fleming (The Law of Torts (1957), p. 463) says that this solution amounts to a "technique for raising the standard of protection for trespassers . . . by calling the plaintiff what he clearly is not". I do not regard the word "trespasser" as having any dyslogistic connotation, and I take it to mean simply a person who enters upon land without the permission of the occupier, and permission involves much more than an abstention from taking physical or forensic steps against intruders : see Transport Commissioners of New South Wales v. Barton (1933) 49 CLR 114 (a case of trespassing animals). (at p293)
9. One would, of course, readily agree that permission may be express or implied from conduct. But to say that the plaintiff in such a case as Lowery v. Walker [1910] UKHL 1; (1910) 1 KB 173 ; (1911) AC 10 was a licensee is, in effect, to impute to him a character which he does not in fact possess. In that case the persons who were supposed to have permission to cross the defendant's land had got over a fence in order to enter, the defendant had repeatedly warned off persons entering, and he had complained to the police of their crossing his land. I would not suggest, even if it were open to suggestion, that Lowery v. Walker [1910] UKHL 1; (1910) 1 KB 173 ; (1911) AC 10 was wrongly decided, but the decision cannot be justified on the ground that the plaintiff had a licence from the defendant to enter and cross the land. It was no doubt a consciousness of the unreality involved in calling a person in the position of the plaintiff in Lowery v. Walker [1910] UKHL 1; (1910) 1 KB 173 ; (1911) AC 10 a licensee that led Viscount Dunedin in Callan's Case (1930) AC, at p 411 to make the suggestion that such a person was neither a true licensee nor a true trespasser, but might be called a "permittee". But, with all respect, this would seem to complicate rather than simplify. (at p293)
10. The view deprecated by Lord Goddard and Lord Reid in Edward's Case (1952) AC 737 must have the practical effect, as Lord Goddard proceeded to point out, of placing many occupiers of land in an intolerable position. How is an occupier of vacant land to make sure of avoiding the possibility that persons who cross his land without his consent and against his will may be held to be the holders of an implied licence? The erection of a fence will not be enough, for the people who crossed the land in Lowery v. Walker [1910] UKHL 1; (1910) 1 KB 173 ; (1911) AC 10 got over a fence in order to enter the land. Warning people off the land every now and then will clearly not be enough. Nor will the taking of legal proceedings against a selected few. In such a case as the present, where the land in question is of an area of some hundreds of acres, the difficulties of the Commissioner in guarding against the possibility of a jury's being allowed to find him to be the grantor of a licence are indeed formidable. (at p293)
11. These and other considerations lead one to think that it cannot be right to say that a person in the position of the plaintiff in the present case is, or can be found by a jury to be, a licensee. He had no permission from the Commissioner to be where he was. He was a trespasser, and there is no escape from that conclusion. But this, in my opinion, is by no means necessarily the end of the plaintiff's case. For, while it is not incorrect to state, as a general rule of the common law, that an occupier of land owes no duty of care to a trespasser, this proposition, like so many general rules of law, exists, so to speak, in a context, and, if its meaning and its limits are to be understood, it must be examined in its context. The context in this particular case consists of the two other rules, which deal with liability to invitees and licensees respectively. (at p294)
12. The rules for which we refer primarily to Indermaur v. Dames (1866) LR 1 CP 274; (1867) LR 2 CP 311 are now (rightly, I think) regarded as part of the general law relating to negligence. According to that general law a duty to take reasonable care for the safety of others arises from certain situations. There is, in English law, as Lord Atkin has said, "some general conception of relations giving rise to a duty of care" (1932) AC, at p 580 . That general conception is stated by his Lordship in words now too famous to need quoting : Donoghue v. Stevenson (1932) AC 562, at p 580 . The standard of care required by the common law - the standard, departure from which, where the duty exists, constitutes actionable negligence - is stated in the equally famous words of Alderson B. in Blyth v. Birmingham Waterworks Co. [1856] EngR 223; (1856) 11 Ex 781, at p 784 (156 ER 1047, at p 1049) . The important point for present purposes is that what we call shortly the duty of care arises from a de facto relationship. That relationship (as Lord Atkin pointed out after referring to Heaven v. Pender (1883) 11 QBD 503 and Le Lievre v. Gould (1893) 1 QB 491 may, and very often does, consist of mere physical proximity. But the relationships which give rise to the duty are of infinite variety, their only common characteristic being that which is stated by Lord Atkin in the passage referred to above. (at p294)
13. One such relationship is that which subsists between an occupier of land and visitors who enter upon his land. It is, of course, under normal circumstances, to be expected by an occupier that visitors will enter for various reasons and for various purposes. And in such cases the common law has not been content to leave the situation to the general rule without extension or qualification. It has not been content to say that, when a visitor enters and the relationship comes into existence, the occupier becomes subject to a duty of care for the safety of the visitor, and that the standard of care required of him is that which is laid down by Alderson B., and depends on all the circumstances of the case. In the first place, the common law recognized that harm might befall a visitor not by reason of any act or omission of the occupier after entry but by reason of some dangerous condition of the premises, and that in some cases the occupier ought to be held responsible for the harm suffered. And, in the second place, it did not (as it might have done, and as the Occupiers' Liability Act 1957 in England now, in effect, does) leave the standard of care in relation to the condition of premises to be decided according to the general formula of Alderson B., but defined more specifically the standard of care to be required of the occupier. For this purpose it divided visitors into two classes, which have been called "invitees" and "licensees" respectively, the standard of care required being higher in the former case than in the latter. (at p295)
14. In what I have just said lies, in my opinion, the true significance, which is twofold, of the rules laid down by Willes J. about a century ago. In the present case, we are not concerned with the standard of care, or with the content of the duty owed either to an invitee or to a licensee, for the plaintiff was, in my opinion, clearly neither. But there are one or two observations to be made before proceeding. First, the duty to an invitee and the duty to a licensee are both correctly described as duties of care. It is convenient enough to speak of them as special duties, but they are not special duties lying outside the general law of negligence. The rules are concerned only with laying down the standard of care appropriate to two special classes of case. Secondly, those rules are concerned only with cases where a visitor has suffered harm through some dangerous condition of the premises. Thirdly - and this may be regarded as a corollary - they do not abrogate or supersede the general law of negligence as affecting an occupier in relation to either an invitee or a licensee. A very good illustration of this is to be found in the recent case of Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99 . In that case a visitor entered upon business premises with a view to doing business with the occupier. While he was there, he was struck in the face by a large piece of wood apparently ejected by a power-driven circular saw, which was in motion. It seems clear that the plaintiff was an invitee, and the jury so found. They found also (rightly, one would think) that there had been no breach of the duty of care specially defined in Indermaur v. Dames (1866) LR 1 CP 274; (1867) LR 2 CP 311 as owing by an occupier to an invitee. The whole Court was of opinion, however, that, if there had been any evidence (and one Justice held that there was) of negligence on the part of the defendant's servant who was operating the saw, the plaintiff would have been entitled to recover as for a breach of the general duty of care arising from the circumstances. The Court in the majority judgment said : ". . . the duty which the occupier of premises, as such, owes to invitees present on the premises is a separate and distinct duty from that which is involved when the servant of such an occupier causes injury to some person present on the premises by some casual act of negligence. The first duty is founded on the occupation of premises whilst the latter is not ; . . ." (1956) 96 CLR, at p 110 . See also Rich v. Commissioner for Railways (N.S.W.) (1959) [1959] HCA 37; 101 CLR 135 . The special duty arises out of the relationship of occupier as such and invitee or licensee as such. The general duty arises out of a relationship created by all the circumstances of the particular case. (at p296)
15. The two classes - invitees and licensees - are exhaustive of visitors who enter lawfully on premises. Any person who is neither an invitee nor a licensee is called a trespasser. An occupier is not expected to anticipate the entry of a trespasser, or the passage of a trespasser across his land, and he owes to a trespasser no special duty analogous to that which he owes to an invitee or a licensee, and no duty of care whatever is imposed upon an occupier by the relationship of occupier and trespasser. But, when we have said this, we have, in my opinion, said all that ought to be taken to be meant, or can today be taken to be meant, by such statements as that a trespasser enters at his own risk. There is no special duty, but circumstances over and above the character of the visitor as a trespasser may give rise to a general duty of care, with the result that an occupier is liable to a trespasser for negligence. Sir John Salmond wrote that an occupier would be liable even to a trespasser for any "positive act of negligent misfeasance", and this statement has been repeated in editions published after his death. It recognizes that an occupier may become liable for negligence even to a trespasser, and, so far as it goes, it is, I think, sound, but it does not, in my opinion, go far enough. It accounts satisfactorily for Lowery v. Walker (1910) [1910] UKHL 1; 1 KB 173 ; (1911) AC 10 , but not for what Lord Goddard described as "that hard-worked case" of Cooke v. Midland Great Western Railway Co. of Ireland (1909) AC 229 . The last edition for which Salmond was himself responsible was published before Donoghue v. Stevenson (1932) AC 562 , and, in the light of that case, I think that the law is correctly stated in the 12th Ed. (1957) of Salmond, edited by Mr. Heuston, at p. 516. What is there said is : "The general principle" (sc. that an occupier owes no duty of care to a trespasser) "is concerned only with the incidents which the law attaches to the specific relation of occupier and trespasser and covers only cases in which the breach of duty of which the plaintiff complains arises out of the defendant's occupation or control of property, of 'premises' or a 'structure'. There are, however, cases in which the occupier, in addition to being an occupier, stands in some other relation to a trespasser, so that the latter is not only a trespasser but is also the occupier's neighbour within the familiar principle expounded by Lord Atkin.". (at p297)
16. The view expressed in the passage which I have quoted from the latest edition of Salmond is, in my opinion, the only view which is capable of putting all the decisions on a satisfactory basis, and which is consonant with the general doctrine of the law of negligence as laid down in Donoghue v. Stevenson (1932) AC 562 . It has really, I think, been accepted in this Court. Barton's Case [1933] HCA 9; (1933) 49 CLR 114 was decided very shortly after Donoghue v. Stevenson (1932) AC 562 . In a joint judgment Gavan Duffy C.J. and Starke J., after referring to that case, said : "So we are driven in the present case to consider whether it falls within the category of cases in which the duty owed to certain persons by owners or occupiers in relation to dangers which exist upon their property has been considered and determined, or within the more general principle of the duty of care already referred to" (1933) 49 CLR, at p 123 . Dixon J. (as he then was) did not refer to Donoghue v. Stevenson (1932) AC 562 , but he clearly recognized that an occupier might be liable to a trespasser for what Sir John Salmond called "positive acts of negligent misfeasance", and his Honour said : "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 all 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 . I would respectfully agree with this, but I think, as I have said, it is necessary to go a little further, because I do not think that either in Cooke's Case (1909) AC 229 or in Callan's Case (1930) AC 404 , or in Mourton v. Poulter (1930) 2 KB 183 , could it fairly be said that there was any positive act of negligent misfeasance. In each of those cases the substance of the defendant's fault lay in an omission to take a reasonable precaution. (at p298)
17. The view which I would adopt is implicit, I think, in Mummery v. Irvings [1956] HCA 45; (1956) 96 CLR 99 , where the two possible sources of duty are clearly stated and distinguished. It was accepted, I think, in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 , and I quote at somewhat greater length a passage in the judgment of Kitto J. in that case, which I quoted in Rich's Case (1959) 101 CLR, at pp 144, 145 . His Honour said (1953) 87 CLR, at pp 642, 643 : "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. It demands, as Lord Uthwatt said in Read v. J. Lyons & Co. Ltd. [1946] UKHL 2; [1946] UKHL 2; (1947) AC 156, at p 185 , a standard of conduct which a reasonably-minded occupier with due regard to his own interests might well agree to be fair and a trespasser might in a civilized community reasonably expect. It would be a misconception of the rule to regard it as precluding the application of the general principle of M'Alister (or Donoghue) v. Stevenson (1932) AC 562 to a case where an occupier, in addition to being an occupier, stands in some other relation to a trespasser so that the latter is not only a trespasser but is also the occupier's neighbour in Lord Atkin's sense of the word : see Transport Commissioners of New South Wales v. Barton (1933) 49 CLR at pp 122, 127 et seq ". I refer also to what I said in Rich's Case (1959) 101 CLR, at pp 144-146 , and to what my brother Windeyer said in the same case (1959) 101 CLR, at pp 158, 159 . (at p298)
18. The circumstances which may justify the conclusion that an occupier has committed, by act or omission, a breach of a general duty of care in relation to an invitee or a licensee or a trespasser are, to use Lord Macmillan's words, "various and manifold". So far as trespassers are concerned, the questions of duty and breach generally arise (and perhaps can only arise) where the occupier or his servants know that a trespasser is on the land, or that trespassers are in the habit of entering upon the land, and in a high proportion of cases the plaintiff trespasser is a child. In such cases it seems hardly possible to classify or enumerate the factors which will be relevant to the question whether by act or omission the defendant has fallen short of the standard of the reasonable man, though a very interesting attempt to classify them is made in the Restatement of the Law, Torts, Vol. 2, Negligence, pp. 901-927 ; see also Prosser, Handbook of the Law of Torts, 2nd Ed. (1955), pp. 432 et seq. The fact that the plaintiff is a trespasser is, of course, always itself a relevant factor, and among the most important of other factors will commonly be the comparative slightness or seriousness of the risk and the comparative simplicity or difficulty of taking effective precautions. In Cooke's Case (1909) AC 229 the very simple precaution of locking the turntable when not in use would have prevented the accident which in fact happened. The standard of care does not vary according to the age of the trespasser, but the fact that he is a young child will often be a relevant matter both because a child is less likely than an adult to realize that he is where he has no business to be, and because a precaution, such as a warning notice, which might be effective in the case of an adult, could not be expected to be effective in the case of a child. (at p299)
19. These things having been said, the particular case in hand can be dealt with very shortly. It is perhaps a border-line case, inviting the cliche about wisdom after the event. But I think that out of all the circumstances a duty of care on the part of the Commissioner and his servants to persons in the position of the plaintiff arose. And I am not prepared to say that it was not open to a jury to find that there had been a breach of that duty. (at p299)
20. The plaintiff was, in my opinion, undoubtedly a trespasser. He was not a very young child - he was aged fourteen years - but he was young enough to be attracted by the dump as a playground, a field of exploration, and a depository for discarded articles for which boys may find a use, and he would see no reason why he should not wander at large over the area. The defendant or his servants knew that children frequently wandered and played about in the area, and it was obviously, as one of the witnesses said, a physical impossibility to keep them out. That having been the position for many years, I do not think it can be said, however unwelcome the children were, that no duty of care was owed to them. It may have amounted to no more than a negative duty not to do anything on the land, or place anything on the land, from which a danger to wandering children would arise. The plaintiff could read, and it may be that in the particular case the duty of reasonable care would have been discharged if a notice had been erected stating that hot ashes or burning coals had been deposited at the place where the plaintiff was injured. But the defendant's servants did place live coals on the land, and these were below the surface and not visible, and no warning notice was erected. (at p300)
21. It may be urged - and I have no doubt that it was strongly urged to the jury - that to say that the defendant's servants, who deposited the ashes, ought to have foreseen the possibility of wandering children being burned by them, is to demand a higher standard of care than that of the reasonable man. There is force in this argument, and there has undoubtedly been of recent years a tendency to take an exaggerated view of what is required by the common law duty of care. But, after full consideration, I think it was a matter for the jury, and I think that it was open to the jury to find that the possibility ought to have been foreseen. (at p300)
22. It might be possible in this case for the plaintiff to succeed even on the narrower view that an occupier is liable to a trespasser only for "positive acts of negligent misfeasance". It might be suggested that the depositing of the ashes in the circumstances amounted to a positive act of that nature. It has seemed to me, however, that the gravamen of the case against the defendant is not that his servants deposited ashes on the land - a thing that he was perfectly entitled to do - but that he failed to give any warning or take any other precaution for the safety of persons likely to wander in the vicinity of the deposit. I do not think that the plaintiff can succeed in this case except on the wider view which, in the light of Donoghue v. Stevenson (1932) AC 562 , I am convinced is the correct view. (at p300)
23. The direction of the learned trial judge to the jury was not in accordance with the position at law as I see it. But I do not think that it follows from this that a new trial is necessary. On his Honour's direction the jury must be taken to have found (1) that the plaintiff was a licensee, and (2) that the defendant created on the land a danger of the nature of a "concealed trap". The first of these findings, as I have said, cannot, in my opinion, be supported, but the second finding is equivalent to a finding of negligence, and that finding is sufficient to support a judgment for the plaintiff. The jury have, in effect, found not less but more than was necessary to support the judgment. I am of opinion, therefore, that this appeal should be dismissed. (at p300)
MENZIES J. This is an appeal from the Full Court of the Supreme Court of New South Wales unanimously dismissing an appeal against a verdict and judgment for 2,000 pounds damages for personal injury in favour of the plaintiff (the present respondent) against the defendant (the present appellant) (1959) SR (NSW) 230 ; 76 WN 166 . The litigation has proceeded, and I think properly proceeded, on the basis that to succeed the respondent had to establish that when he suffered his injuries he was a licensee upon the appellant's land and that the appellant failed to take the care that it is requisite that the occupier of land should take for the safety of a licensee. The jury by its verdict must be taken to have found both that the respondent was a licensee and that the appellant failed to observe the duty of care that it owed him as a licensee. That duty has often been stated and there are many formulations coming to much the same thing. I do not propose to add another and for the purposes of this case I think it is sufficient to make two references. The first is to what Dixon J. (as he then was) said in Lipman v. Clendinnen [1932] HCA 24; (1932) 46 CLR 550, at pp 554-557 relating to the duties of occupiers of land to those who come upon their land in various capacities and his Honour's statement of the occupier's duty to a licensee, i.e. " . . . an obligation of reasonable care to prevent his relying upon a deceptive appearance of safety and thus sustaining harm from a danger of which the occupier is aware and he is not. The metaphor 'concealed trap' has become almost a term of art for describing the danger from which the occupier must take care to protect the licensee" (1932) 46 CLR, at p 556 . The second is to the opinion of the Privy Council in Perkowski v. Wellington Corporation (1959) AC 53 , where Lord Somervell of Harrow, speaking for the Judicial Committee, said: "The authorities on the duty of occupier to licensee were considered by Farwell L.J. and Hamilton L.J. in Latham v. R. Johnson & Nephew Ltd. (1913) 1 KB 398, at p 404; 29 TLR 124 . Farwell L.J. quotes with approval a statement by Williams J. in Hounsell v. Smyth [1860] EngR 420; (1860) 7 CBNS 731 (141 ER 1003) , adopted by Wightman J. in Binks v. South Yorkshire Railway Co. [1862] EngR 1028; (1862) 3 B & S 244, at p 252 [1862] EngR 1028; (122 ER 92, at pp 95, 96) . 'No right is alleged: it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint - that they were not churlish enough to interfere with any person who went there. One who thus uses the waste has no right to complain of an excavation he finds there. He must take the permission with its concomitant conditions, and, it may be, perils'. One recognized exception to this principle is that the occupier must warn the licensee of a danger of which he knows which is in the nature of a trap. 'A trap', said Hamilton L.J. (1913) 1 KB at p 415 , 'involves the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger'" (1959) AC, at p 66 . (at p302)
2. Both in the Full Court and in this Court the appellant's only contention was that the learned trial judge (Hardie J.) should have acceded to an application on behalf of the defendant and directed the jury to return a verdict in its favour. The appellant's case is, firstly, that there was no evidence that the respondent was a licensee when, while upon the defendant's land, he plunged with bare feet into a bed of hot ashes and was badly burned; and, secondly, that even if he was a licensee, there was no evidence warranting the other finding which the jury must have made, viz., that the hot ashes constituted a concealed danger known to the appellant. (at p302)
3. The facts are that the appellant occupied an area of some five hundred acres near the Clyde railway station. This area had for many years been used by the appellant as a dump where all sorts of rubbish, including hot ashes from the boxes of railway locomotives, was deposited. The dump was continually extended by tipping from trucks brought by temporary rails to its edge, from which further stuff was tipped over to build up an advancing face appreciably higher than the natural level of the land. By November 1953, when the accident with which this action is concerned occurred, the dump covered a large area of the land and its western face was some ten feet higher than the natural surface level. Skirting this western face of the dump there was a roughly-formed roadway which led from an entrance from Sheffield Street near the south-western corner, across the land in a northerly direction to a camp which had been established by the appellant a little to the east of the north-western corner for the accommodation of fettlers employed by it and their families. This was also a convenient route between houses to the south of the land and the Clyde railway station (which was a little to the west of the north-western corner of the land), and well-defined tracks ran west from the roadway to the north-western corner of the land. The roadway was only a few feet from the face of the dump and on the other side of the roadway the land fell away gradually to a small watercourse, Duck Creek, which formed the western boundary. On 14th November the appellant, a boy of fourteen and-a-half, with his younger brother, came upon the land through the entrance from Sheffield Street. Their only clothing was swimming togs and shirts and they were barefooted. They followed the roadway for some distance and then, out of curiosity, turned aside and climbed the nearby face of the rubbish dump. They were on top of the dump for a short time and then decided to come down again. The point at which they made their descent was, unbeknown to them, a place where the appellant had previously tipped hot ashes which had been covered with other rubbish. The respondent's bare feet broke through the overlying crust and he was burnt by the underlying hot ash. (at p303)
4. It seems to me, as it seemed to the learned trial judge and to the learned judges of the Full Court, that it was open to the jury to find that the overlaid hot ash was a concealed danger. I have reached this conclusion without resort to the cases which show that where a child licensee is injured, a generous estimate of what constitutes a concealed danger may be taken; for the respondent had reached an age which took him outside the scope of those indulgent authorities. A bed of ashes lying under a yielding but seemingly firm surface could, I think, be regarded as a concealed danger or trap to any person upon a rubbish dump of the kind with which this case is concerned, notwithstanding the other inevitable hazards of such a place. Although there was no sufficient evidence that the appellant knew that there was upon the land a danger in the nature of the covered bed of ashes into which the respondent plunged, it was, I think, open to the jury to find that the appellant's servants and agents did the acts which in the natural course created the danger and the appellant was thereby aware of the physical facts which a reasonable man would appreciate constituted a danger - the danger that in fact existed. In this way, it could properly be found that the appellant was "aware of" the concealed danger: Pearson v. Lambeth Borough Council (1950) 2 KB 353 , Hawkins v. Coulsdon and Purley Urban District Council (1954) 1 QB 319 . (at p303)
5. To deal with what seems to me the more difficult question - whether the finding that the appellant was a licensee was one open to the jury - it is necessary to make a closer examination of the evidence that was given, but to do this judiciously requires, in the first place, a statement of how, for the purposes of the law of negligence, a person who has no express licence to come upon another's land may nevertheless be regarded as a licensee. A licence may, of course, be implied, but there is something incongruous about treating as an implied licensee one whose presence on the land was against the will of the occupier in the sense that, had the occupier been asked, he would almost certainly have refused permission to come upon his land. The law has, however, adopted a more objective test so that it can now be said that if an occupier of land tolerates strangers coming upon his land, it may be inferred that they do so as licensees. An occupier who is aware that strangers come upon his land despite his professed disapproval and does nothing more to prevent or discourage them from doing so may be said to tolerate that which he may nevertheless dislike. Thus, a warning to keep out that is openly disregarded will not necessarily negative leave or licence, nor will the existence of a fence or a hedge through which intruders habitually pass. On the other hand, it cannot be inferred that an occupier permits strangers to come upon his land merely because he has not done all that is in his power to keep them out. It is not the duty of an occupier of land to prevent trespassing upon his land, but, if his conduct towards intruders affords ground for inferring that he is prepared to put up with their disregard of his rights, he may find that an inferred acquiescence in their intrusion has turned those who were trespassers into licensees. (at p304)
6. The question in this case is, therefore, whether there was evidence that the appellant tolerated, in the sense indicated, members of the public coming not only upon the land but upon the dump of rubbish as well. (at p304)
7. In finding as it did that the respondent was a licensee when and where the accident occurred, the jury may well have disregarded some of the evidence called by the appellant to show that he was a trespasser, and, upon appeal, the finding must stand unless it is not supported by the evidence as a whole taken in its aspect most favourable to the respondent. What the respondent relies upon is as follows. There were no notices warning people to keep off the land and the dump and, indeed, at the turnstile across Duck Creek near the Clyde railway station there was a notice to the effect that bicycles were not permitted. There was no gate at Sheffield Street across the entrance through which the plaintiff came upon the land. There was a substantial use made by members of the public of the roadway running from Sheffield Street to the fettlers' camp and the tracks to the Clyde railway station, and this must have been known to the appellant. Although one watchman was continuously on duty who from time to time warned people off the land, as did a detective from time to time, it is apparent that members of the public were often on the land and sometimes on the dump itself without being warned off. In particular, in addition to those who used the road and the tracks to cross the land, there had been fossickers who collected firewood, coal and other materials from the dump and to whom, it seems, those tipping rubbish sometimes threw down boxes and the like as the tipping was in progress. Although, according to the evidence of a local resident, this collecting of firewood and coal was more a thing of the past - particularly the depression years - than of 1953, the evidence could, I think, be regarded as justifying the conclusion that fossicking was still going on in 1953, albeit to a smaller degree. On several occasions, boys had been burnt in circumstances not unlike those in which the plaintiff himself was burnt, but there was no evidence that what had happened had been brought to the knowledge of the appellant. The respondent himself, although going on to the land for the first time for some six or seven years, had, when he used to live in the neighbourhood previously, been accustomed to go upon the land, including the dump, and play there, and he had done so then on many occasions without let or hindrance. (at p305)
8. Although I think this evidence would probably have been sufficient to have supported a finding that members of the public used the roadway and perhaps other tracks on the land with the tacit permission of the appellant, I have reached the conclusion that it afforded no basis for the finding that the respondent was upon the dump itself as a licensee. At most, the evidence shows that such steps as the appellant took to keep intruders off the dump were not effective. The respondent, as plaintiff, must start with the disadvantage that not only did he have no express permission to climb upon the dump but the probabilities are that there was no implied permission for him to do so. To prove that he became a licensee - and the onus of proof lay upon him - he had to show that he belonged to a class of intruders whose habitual trespassing the appellant had tolerated and this, of course, implies that the occupier knew that there was such trespassing: see Jenkins v. Great Western Railway (1912) 1 KB 525 and Matheson v. Attorney-General (1956) NZLR 849 . As Lord Justice Clerk Aitchison put it in Breslin v. London and North Eastern Railway Co. (1936) SC 816 . "A practice of frequenting a particular place will not set up a right or a permission to go there unless it extends over such a period of time as will warrant the inference that it was known to the owner or his servants and acquiesced in by them. Apart from express permission, it is habitual resort to or use of a place which confers upon the person resorting to or making use of the place the character of licensee" (1936) SC, at p 823 . The evidence, as I see it, fell far short of this in a number of ways, so far as the dump itself was concerned. There was evidence of trespassing upon the dump, but hardly of what could be described as habitual use, at any rate after 1945. Although it was known to the appellant that there was some trespassing, it could not have been found that the appellant countenanced it, notwithstanding that the steps it took were not effective to prevent trespassing upon the dump. Edwards v. Railway Executive (1) shows that neither knowledge that intrusions are taking place nor the omission to do all that could be done to prevent such intrusions are of themselves sufficient to justify the inference that an intruder is a licensee and not a trespasser. It can fairly be said that in this case the appellant did much less than take every possible step to prevent trespassing upon the dump and it may even be that such steps as it did take can be belittled by being described as halfhearted; but it would, I think, be going beyond the evidence to infer that the respondent went upon the dump with its assent or even with its acquiescence. The decision of the House of Lords in Edwards v. Railway Executive (1952) AC 737 - like the earlier decisions of the Court of Appeal in Latham v. R. Johnson & Nephew Ltd. (1913) 1 KB 398 and of the House of Lords in Robert Addie & Sons (Collieries) v. Dumbreck (1929) AC 358 - emphasized that a court (and it was a jury finding with which the House was dealing) is not justified in lightly inferring assent to a user amounting to a licence and that such assent cannot be inferred merely from inadequate precautions to stop trespassing. This latter point appears as plainly from Lord Porter's statement (1952) AC, at p 745 of the circumstances of the case of Robert Addie & Sons (Collieries) v. Dumbreck (1929) AC 358 as from their Lordships' statements of the law. (at p306)
9. It was naturally enough argued that if it was open to the jury to find that the appellant assented to the respondent coming upon the land at all, it was also open to it to find that the assent extended to the whole of the land and not merely to the road and tracks. It seems to me, however, that the onus was on the respondent to show that he was a licensee at the place where the accident occurred, and that could not be discharged by showing that the appellant assented to the public using the roads and tracks upon the land. If a landowner allows members of the public to use a path across his land, it would not follow from that that he also asseted to their exploring a quarry or climbing trees or playing in a pond. As long ago as 1859, Pollock C.B. in Hardcastle v. South Yorkshire Railway and River Dun Company [1859] EngR 220; (1859) 4 H & N 67 (157 ER 761) said: "When a man dedicates a way to the public, there does not seem any just ground, in reason and good sense, that he should restrict himself in the use of his land adjoining, to any extent, further than that he should not make the use of the way dangerous to the persons who are upon it and using it; to do so would be derogating from his grant: but he gives no liberty or licence to the persons using the way to trespass upon his adjoining land, and if they in so doing come to misfortune, we think they must bear it, and the owner of the land is not responsible" (1859) 4 H & N, at p 75 (157 ER, at p 764) . These words were used in relation to the dedication of a right of way, but they apply equally to assent to other persons using a road or path upon an owner's land. Jenkins v. Great Western Railway (1912) 1 KB 525 is one case that recognizes that assent to entry upon land is not assent to entry upon the whole of the land. Pettiet v. Municipal Council of Sydney (1936) 36 SR (NSW) 125; 53 WN 52 , upon which Mr. Meares relied, is a case that depended upon its own facts and is in no way in conflict with what I have said. The following cases illustrate how an invitee or a licensee can become a trespasser either by the unauthorized use of premises or by not keeping to authorized limits - Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. (1936) AC 65 ; The Carlgarth (1927) P 93 ; Perry v. Thomas Wrigley Ltd. (1955) 1 WLR 1164 ; Clyne v. Podolsky (1942) 1 DLR 577 . (at p307)
10. I have not considered the defendant's duty to the plaintiff if he were a trespasser and not a licensee. It seems to me the only issue of negligence committed to the jury by the pleadings and the direction was whether the defendant failed in its duty to the plaintiff if he were a licensee and that was the only issue decided by the verdict. I do not regard it as possible for an appeal court to sustain that verdict and the judgment based upon it by deciding for itself that the defendant failed in its duty to the plaintiff as a trespasser upon its land. If the plaintiff had sued as a trespasser, the defendant would have been entitled to a new trial if the judge had directed that the standard of care applicable was the higher standard appropriate to a licensee. Here, the defect was even more fundamental, for if the plaintiff was a trespasser, as I hold he was, the verdict decided nothing as to the defendant's liability to him. (at p307)
11. I consider this appeal should be allowed and the verdict and judgment at the trial set aside. Because, in a new action brought by the plaintiff as a trespasser, he could meet with difficulties if, in this action, judgment were to be entered for the defendant, I consider that it would be better to direct a new trial upon pleadings amended to raise such a case. (at p307)
WINDEYER J. This case is a further example of "the ever recurring conflict between on the one hand the refusal of the law to allow to a trespasser any right against the occupier in respect of dangers connected with the nature or condition of the premises and on the other hand the imposition by the law of a general duty to conduct one's affairs with care for the safety of others, a duty of care measured in safeguarding children in accordance with their known disabilities, propensities, habits and customs": per Dixon C.J. and Williams J. in Thompson v. Bankstown Corporation (1953) 87 CLR, at p 627 . We heard again all the cries of that conflict - "trespasser" and "licensee", "implied invitation", "allurement", "knowledge of danger", "concealed trap", "reckless act". No complaint is made of the summing up of the learned trial judge. It was very clear and, having regard to authorities and the pleadings, correct. But it is said that he ought not to have left the case to the jury, but should have directed a verdict for the defendant. The fundamental question is therefore was there any evidence to support the jury's verdict. The learned judges who dealt with the matter in the Full Court agreed that there was. Because of this I would, if the issue of fact were a simple one, hesitate to examine the whole matter afresh. But on this appeal the issues of fact became involved with debatable matters of law elaborately argued. It is important to see what the evidence actually disclosed. (at p308)
2. The New South Wales Commissioner for Railways is the owner and occupier of an area of about five hundred acres at Clyde, a populous industrial suburb of Sydney. In its natural state this land sloped generally from the east to the west. There it is flat and low lying, with Duck Creek, a sluggish watercourse running northwards to the Parramatta River, as its western boundary. The northern boundary is the Main Western railway line. At the northwestern corner of the land a footbridge, erected apparently by the Railways, crosses Duck Creek giving access from the land to Clyde railway station nearby. On the eastern side of the land there are railway workshops covering an extensive area. But a great part of the land has no buildings on it. Adjacent to the workshops, but somewhat to the south and running inwards some distance, are some railway lines called the interlocking yard. There from time to time obsolete rolling stock was brought to be dismantled by railway workmen. The land is bounded on the south by the back fences of houses fronting Sheffield Street which ends at Duck Creek. Before these houses were all built the land could be entered from various parts of Sheffield Street. But at the time of the accident the only opening from Sheffield Street that remained was at the end of the street near Duck Creek. There at the end of the line of houses there is a small electric power installation; and between that and the bank of Duck Creek is an open space or gateway giving access to the land. There was apparently no gate there at the date of the accident, or if there was it stood open. Before about 1947 a large part of the land was in a more or less natural state, covered in part with scrub; and with a pool of water in one place. During this period foot tracks were formed by people going to and fro across the land, mainly to Clyde railway station. The footbridge there was freely available to pedestrians. Indeed this was emphasized by a notice there prohibiting its use by cyclists. At this period, that is speaking generally before about 1947, children were in the habit, especially at week-ends, of playing on the land, roaming over it, paddling or bathing in the water hole, and often playing among the old rolling stock in the interlocking yard. Part of the land towards the north-east was used by the Railways for a rubbish tip. And from about 1947 onwards the depositing of rubbish increased, the rubbish being used as filling for building up the lower portions of the land and generally levelling it. This filling was brought in railway trucks drawn by locomotives along rails laid upon the top of the dump. These were at first moved and extended as the tip grew. Later, instead of moving the rails, a bulldozer was used to spread the contents of the trucks from where their loads were tipped. This tipping of rubbish was a large undertaking. A witness called for the Railway Commissioner gave evidence that some fifteen to twenty truck loads came in each day. A gang of five men was regularly employed emptying the trucks, with the aid of a mechanical unloader, and spreading their contents. An important component of the miscellaneous material thus deposited on the land was ashes, the rakings apparently of fire boxes and furnaces. The rest was general debris, including tins and empty wooden cases, brought from railway premises throughout the metropolitan area. The wood could be used as fire wood and some of it was collected for this purpose by adults and children. There was some evidence that at one time children were accustomed to collect wood from the tip while railway employees were working there, they assisting by throwing it out to them from the trucks. But the evidence of this seems to relate to events long before the period with which we are concerned. The children who in more recent times visited the area of the rubbish tip seem to have either done so outside working hours or gone to parts where work was not going on. They were naturally attracted to fossick round the tip, for there could be found discarded articles such as children love to appropriate, old wheels suitable for billy carts and similar treasure. (at p309)
3. In 1949 a camp for migrant workmen employed by the Railways and their families was established on the northern side of the land near the main line. It was occupied for two or three years or more. To enable tradesmen's carts and other vehicles to get to it a road was made across the land from the bottom end of Sheffield Street. This deliberately formed road was wider than the existing foot tracks. When first made it was at some distance to the west of the edge of the rubbish tip; but as the rubbish-covered area spread southwards and westwards it came closer to this road, and also, of course, covered the eastern parts of some of the foot tracks. And, according to a railway engineer who gave evidence, the road itself was re-aligned and remade as the rubbish tip extended. By November 1953 the tip had been extended a considerable distance to the west and south and was then in some places within ten to twenty yards of the then line of the formed road. Because of the westward fall of the land and the levelling of the top of the dump, the surface of the covered area was then much above the level of the road, which thus ran in one part for some distance alongside an embankment about ten feet high. (at p310)
4. Some of the ashes from time to time tipped over this embankment were hot or contained burning coals. Such material may remain red hot below after the surface has cooled. This obviously is the more likely if it be deposited on top of loose combustible material, such as pieces of wood. In the result parts of the embankment, or forward edge of the tip, were alight. In places this might be made apparent by smoke. But elsewhere mounds of ash only banked a fire burning below, so that what appeared to be solid ground was but a crust above a hot-bed. That this is likely to occur must, I would think, be known to any one concerned with furnaces, smelting and industrial ash dumps and to many other people. A description of conditions resembling those of the present case may be found in the judgment of the Supreme Court of the United States in Union Pacific Railway Co. v. McDonald [1894] USSC 92; (1894) 152 US 262 (38 Law Ed 434) , to which the Chief Justice referred during the argument. In this case, as in that, there was nothing to indicate that what appeared to be dead ashes concealed and covered burnign coals. But, although this may be a not unusual phenomenon, it and the danger it creates are not necessarily something that every schoolboy would know or ought to know. (at p310)
5. Evidence was given for the plaintiff directed to showing that, right up to the time of the accident, the Railway authorities had suffered people to come upon the land, and that to their knowledge children were accustomed to play and to roam there at will. That children did frequent the land, especially at week-ends is beyond doubt. That the road and tracks were for many people a thoroughfare between Clyde railway station and Sheffield Street was also firmly established. The defendant, however, contended that no one except railway employees had any authority to enter the land ; that all others were trespassers ; that their presence on the land was resented and that the resentment had been effectively made known. The evidence on this aspect may be summarized : (at p311)
6. Permits were at one period issued to tradesmen using the road to the migrant fettlers' camp. The form of these permits was not proved, but they apparently did not give authority to go on to the land but rather to go within the precincts of the camp. They were described in the evidence as permits "to trade within the camp" or "to enter the camp". And no one it seems was ever prevented for want of such a permit from going over the land to a destination other than the camp. (at p311)
7. One witness, a foreman in the construction branch of the Railways, gave evidence that he had seen adults and children crossing the area, the children sometimes riding bicycles on the roadway, swimming in Duck Creek and "scrounging" at the bottom of the rubbish tip. He was aware of this scrounging as a common practice. He said that when he saw persons whom he did not know to be railway employees or connected with the fettlers' camp he would tell them to get off the land. Whether he meant that he systematically warned people off the whole area is not clear. But, whatever action he took, his intervention could only have been spasmodic, for he was stationed at Chullora seven miles away and he visited Clyde only once or twice a week. He had to supervise construction work going on, not only at Clyde, but also at Chullora and at Enfield and Yennora, all of them large areas. Doubtless he was concerned if unauthorized persons lingered near places where work was going on ; but it does not appear that he was much concerned with the rest of the land. The ganger in charge of the unloading gave evidence that he kept people off the actual tipping area during working hours. Another witness was one of three men who, working in shifts, acted as watchman one at a time. He gave evidence that he used to warn people off the land. But he admitted he did not interfere with any of those - and they were numerous - who every morning and afternoon went across the land to or from the railway station. Clearly one man could not have patrolled these five hundred acres so as effectually to prevent anyone crossing or to drive off all children playing there. And it seems obvious from the nature of the watchman's duties that he was not expected to do so. During ordinary working hours he had to be near the workshops. If he then saw anyone on the tip he said he went down to tell them to get off. When work for the day finished he had to close and secure the shops. There were more than twenty-three buildings in the area, for the security of which he was responsible. His interest in the tipping area after work ceased was, as he put it, simply to see that nobody was "poking around down there ; there is valuable machinery down there". He was alluding to the bulldozer and the mechanical unloader. His main concern was, clearly enough, the railway buildings and equipment, rather than the exclusion of the public from the vacant land. He knew that children did play on the tip. "Kiddies," he said, "take a short cut over the top of the tip or play on the tip". There was ample evidence of this. (at p312)
8. Another witness was a railway detective inspector. He visited Clyde from time to time. At one period, because of some trouble in the migrant camp, he went there about three times a week. On other occasions he was there to investigate reports of thefts, and sometimes apparently on mere routine visits. But his office was in Sydney, his territory covered all railway workshop premises throughout the metropolitan area ; and he was a detective not a sentinel. When he did go to Clyde he said he saw people within the dump area and he ordered them to leave but took no other action against them. He said he had seen children half-way up the side of the dump and also at the bottom, "scrounging and picking over among the debris or rubbish". He said he told them to get out of the property and "warned them of the danger of being there". This was a significant statement in so far as it showed knowledge of a danger. But it can hardly be supposed that, if the Railway Commissioner had any duty to warn children of the danger of being there or otherwise to protect them, that duty was discharged by a detective inspector speaking to such children as he chanced to meet on his casual and intermittent visits. (at p312)
9. This then was the scene when the plaintiff on 14th November 1953 entered the land. He was then fourteen years and some months old. He had lived with his parents in the neighbourhood for some years before 1947, and had played on the land with other children. The family then went to live for a time in the country. On the afternoon of the day they returned, which was a Saturday, the plaintiff with his younger brother, aged eleven, set out to explore his old haunts. Both boys were clad in bathing trunks and shirts and were barefooted. They went through the open space at the end of Sheffield Street and on to the land. It was of course much changed. The pool that he remembered and much land that had earlier been in a more or less natural state was now buried under the tip. They went along the roadway to the camp for a short distance, and then turned right to the embankment. To see what was above they clambered up what they described as a bank with a surface like grey earth. Actually it was ashes. They got to the top without mishap and walked along the railway there. A little later the plaintiff went to descend at a place some distance from where they had gone up. When he put his weight upon what seemed to him to be a solid bank his feet slipped through the crust on to fire below. With the help of his brother he got out. His feet and ankles were very badly burnt. He was for a long time in hospital and has been permanently injured. (at p313)
10. Another boy, it was proved, had been hurt in the same way a little earlier. But this was not known to the plaintiff, nor so far as the evidence shows, to the defendant. The plaintiff had no warning of the danger of climbing the embankment. He was an intelligent boy who could have understood a warning notice had there been one, and who might have been expected to appreciate the significance of a fence had the tip area been thus separated from the rest of the land. Some evidence was given for the Railway Commissioner of a gate having been placed across the entrance from Sheffield Street in April, 1953, and that notices forbidding trespassing - not warning of danger - had then been erected there. These notices, it was said, were pulled down and the gate was wrenched off and people continued to cross the land. The date when these events occurred was, however, not firmly established. The learned trial judge suggested they may have happened in 1954 - that is after the accident - not in 1953. The plaintiff and his brother said definitely there was no gate at the date of the accident, and there was other evidence supporting this. Counsel for the Railway Commissioner conceded, on this appeal, that the jury could find that when the plaintiff entered the land there was no gate or notice at the place where he entered. The Railway Commissioner's case was that, gate or no gate, the plaintiff was a trespasser and that that was an end of the matter. (at p313)
11. The question here is not strictly whether the facts I have related could support an action by the plaintiff for damages, but whether they provided any evidence on which the jury could find for the plaintiff on the issues of fact which emerged from the pleadings. For in trials at nisi prius in New South Wales it is the issues joined between the parties that the jury is sworn to try. And the system of pleading based on the Common Law Procedure Acts in force there does, if properly administered, define those issues precisely. I turn therefore to the pleadings : The declaration contains two counts. (at p314)
12. The first states that "the defendant was possessed of and had the care control and management of certain railway yards near to certain railway lines and permanent way, and the plaintiff lawfully entered into the said railway yards, yet the defendant his servants or agents wrongfully negligently and improperly allowed a certain heap of hot ashes to be on the said railway yards without providing proper fencing or other warning that the said ashes were hot, thereby rendering the said ashes unsafe alluring and of hidden danger to children, whereby the plaintiff having no knowledge that the said ashes were hot and whilst lawfully in the said railway yards as aforesaid came into contact with the said heap of ashes". This may be inartistic ; for one would hardly envisage the so-called railway yards as an area of about five hundred acres, nor think that the place where the accident happened was a considerable distance from the permanent way, or that the heap of hot ashes was, in fact, the forward slope of a great tip covering many acres, or that the plaintiff was not on the land for any purpose connected with the railway but was a curious schoolboy out exploring on a holiday. But the basis of the claim is clear enough and it depends inter alia on the averment that the plaintiff was lawfully on the land. (at p314)
13. The second count describes the premises as in the first count. It then alleges that the plaintiff "lawfully entered on the said railway yards yet the defendant his servant or agents wrongfully suffered a certain heap of hot ashes to remain in the said railway yards without any means to prevent persons from falling against walking on or sinking into the same or any warning that the said ashes were hot whereby the plaintiff whilst lawfully in the said railway yards came into contact with the said heap of ashes . . .". Apart from what may be extracted from the word "wrongfully", this count seems to me scarcely to allege facts from which a duty either to remove the ashes "suffered to remain" or to fence or warn would clearly arise. It does not allege that to the defendant's knowledge the ashes were likely to prove dangerous nor that persons were to the defendant's knowledge or with the defendant's leave and licence accustomed to go where the ashes were : cf. Cornman v. Eastern Counties Railway Co. [1859] EngR 757; (1859) 4 H & N 781 (157 ER 1050) . A count modelled on that suggested by Willes J. in Corby v. Hill [1858] EngR 718; (1858) 4 CB (NS) 556, at p 567 [1858] EngR 718; (140 ER 1209, at p 1213) , as amplified by Brett M.R. in Heaven v. Pender (1883) 11 QBD, at p 512 , might have more appropriately stated the plaintiff's case. However, the defendant pleaded over ; and, in addition to a plea of not guilty by statute, expressly traversed most of the allegations in both counts, including the allegations that the plaintiff lawfully entered the railway yards and was lawfully there. The plaintiff joined issue ; so that the case went to trial on the issue, among others, whether at the time he was injured the plaintiff was lawfully on the land. At the outset of the trial counsel for the plaintiff sought leave to amend the declaration by adding a third count. Counsel for the defendant objected to this. We do not know what form this proposed count took, except that it did not allege that the plaintiff's presence on the land was lawful. The learned judge deferred his decision on whether to allow the amendment until the plaintiff had closed his case. He then, after hearing argument, refused it. His reasons for doing so are not in the material before us. At the end of the evidence the defendant's counsel asked for a verdict by direction. His Honour refused this, and the matter therefore went to the jury under his Honour's direction on two issues as affecting liability. First, was the plaintiff lawfully on the land? His Honour put this to the jury as meaning, had he the implied or tacit permission of the defendant to be there. Secondly, was there a concealed trap or hidden danger as a result of which the plaintiff suffered injury? The jury found a verdict for the plaintiff. (at p315)
14. The argument on this appeal was, however, not strictly confined to the issues raised by the pleadings, but dealt with the matter more broadly. And we may I think first approach the question as if the declaration were amended to allege in substance the facts given in evidence. That was the course adopted in Indemaur v. Dames (1866) LR 1 CP 274 where the matter arose on a motion for a non-suit pursuant to leave reserved (1866) LR 1 CP, at p 289 : cf. Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99 . It is appropriate here because fundamentally the plaintiff's cause of action was in negligence. The special rules concerning the duties that occupiers owe to persons who in different characters - as trespassers, licensees or invitees - come within the range of dangers on their lands are part of the law of negligence (Glasgow Corporation v. Muir [1943] UKHL 2; (1943) AC 448, at p 461 ; Transport Commissioners of New South Wales v. Barton [1933] HCA 9; (1933) 49 CLR 114, at p 123 ; Salmond on Torts 12th ed. (1957), p. 478). That this is so has not always been generally recognized, because strict formulae prescribing differing standards of care seem out of harmony with the more flexible general principles that to-day govern the law of negligence and determine the scope of the correlative concept of a duty of care. Yet statements of an occupier's duty to lawful visitors to his premises - invitees and licensees - were in reality among the first fruits of the nineteenth century development of the law of negligence in actions on the case. The landowner's right to do as he liked upon his own land and to use it as he wished was then modified by a duty to consider the safety of those who might lawfully come there - a duty measured by a standard of care appropriate to the character or capacity in which the visitor came. This duty was independent of contract. It was asserted, not in assumpsit, and not in trespass, but in case. This is brought out in the well-known passage in the speech of Lord Uthwatt in Read v. J. Lyons & Co. Limited [1946] UKHL 2; (1947) AC 156 , in the course of which he said : "The background is the original freedom of the landowner, keeping within his own bounds, to do what he liked with and on his own, the King's law, save in felonies and trespass actions, stopping at his boundary. With the development of the law and the appearance of the conception of negligence as a general ground of liability, that freedom of action without liability for resulting harm has been curtailed, and to the rights of a landowner, now represented by the occupier, there have been attached the duties of a host" (1947) AC, at pp 184, 185 . (at p316)
15. This nineteenth century invasion of the landowner's preserves by actions on the case for negligence occurred, however, before such actions were all ascribed to one general principle of liability. Indemaur v. Dames (1866) LR 1 CP 274 was decided seventeen years before Lord Esher, then Brett M.R., said in Heaven v. Pender (1883) 11 QBD 503 , that "whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger" (1883) 11 QBD, at p 509 . Lord Esher's colleagues on the Court, Cotton L.J. and Bowen L.J., expressly declined to concur in this. So that not until the famous pronouncements in the House of Lords in Donoghue v. Stevenson (1932) AC 562 and Bourhill v. Young [1942] UKHL 5; (1943) AC 92 could the law of negligence be stated confidently in terms of a general principle. In the meantime decisions concerning the liability of an occupier to those who come upon his land seemed to have reduced this branch of the law to a formulary. The duty of the occupier is, however, rooted at bottom in his duty to his neighbour in Lord Atkin's sense. For, as Dixon J., as he then was, said in Lipman v. Clendinnen [1932] HCA 24; (1932) 46 CLR 550 , "The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises". (1932) 46 CLR, at p 554 The formulary rules really do no more than state what the law has determined a reasonable man must do to discharge a duty of care arising in particular circumstances. And they are decisive only in cases where the plaintiff's case is founded upon the duty of the defendant as occupier for the safety of his premises. A plaintiff who can rely on a duty of care arising in particular circumstances is not to be defeated merely because the defendant is the occupier of the land on which he came to harm. His presence upon the land and the circumstances in which he came there may be merely elements in a total situation from which a duty of care arises, and not the foundation of the defendant's duty of care. As Taylor J. expressed it in Commissioner for Railways (N.S.W.) v. Hooper [1954] HCA 7; (1954) 89 CLR 486 , "circumstances may arise, unrelated to questions of the safety of the occupied premises, in which the obligations of the occupier for both negligent acts of commission and omission fall to be determined in accordance with the general principles of liability for negligence" (1954) 89 CLR, at p 504 . Furthermore merely putting a plaintiff who sues an occupier into his proper order in the tripartite hierachy of invitee, licensee or trespasser may not be conclusive of the standard of duty an occupier owes to him. For, as will appear, sometimes plaintiffs who strictly were trespassers have, for reasons of humanity, been classified as licensees. And sometimes true licensees may, by the terms of their licence, be allowed upon the premises only at their own risk, and thus, if injured, be in no better position than a mere trespasser would be. This may be the result of express stipulation, as for example in Ashdown v. Samuel Williams & Sons Ltd. (1957) 1 QB 409 ; or a similar condition might, I consider, be by implication annexed to a licence, at all events in Australia. For example, a station-owner, holding an area of say fifty thousand acres, might well have no objection to anyone walking or riding through his paddocks, provided he shut the gates and did not disturb the stock. But would he therefore be obliged to warn everyone who might avail himself of this licence of every hidden danger, natural or created by man, that the land might hold for him his horse or his dog - of quicksand in the creek, of the bridge become rotten, of the coils of barbed wire hidden by long grass near the sliprails, of dingo traps set? Surely not. Even the obligation to warn of poisoned baits, whether arising by statute or at common law, seems, ordinarily and in the absence of malice, to exist only when they are laid on public land or near a road or a boundary (N.S.W. Act No. 19 of 1902; Townsend v. Wathen (1808) 9 East 277 (103 ER 579) ; Hutchins v. Maughan (1947) VLR 131 ). (at p318)
16. Nevertheless, although the classification of the plaintiff as invitee, licensee or trespasser may not be decisive of his rights, putting him into his proper class may be important. It took a statute, the Occupiers' Liability Act 1957, to free the law of negligence in England from the consequences of the distinction between invitees and licensees. There is no such statute in New South Wales. Even if there were, it would not affect this case; for it leaves the trespasser just where he was at common law. And to his position I now turn. (at p318)
17. The curtailment by the law of negligence of the freedom from responsibility for the condition of his premises, which a landowner or occupier originally enjoyed, was made in the interests of persons who came upon his land lawfully, either to do some business with him or for him, or by his invitation or permission. Trespassers were not included. And naturally; for why should a man be under any obligation to someone who came to harm only because he was where he had no business to be? The trespasser in his relation to the occupier thus really stands outside the law of negligence, for to him, considered simply as an entrant upon the land, the occupier has no duty of care. Such a duty may, however, arise from some circumstances beyond the mere fact of entry, as for example from the occupier's knowledge of the trespasser's presence and of his proximity to dangerous operations. It arises then not as a duty to him as a trespasser, but to him as an individual whose relation to the occupier has become that of a "neighbour". While the relationship remains simply that of trespasser and occupier of land trespassed upon, then, to quote once again an oft-quoted passage from Lord Hailsham's speech in Robert Addie & Sons (Collieries) v. Dumbreck (1929) AC 358 on which the appellant here relied: "Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser" (1929) AC, at p 365 . (at p318)
18. The rock-like principle thus stated has not, in appearance, been eroded. But the tide of a developing law is slipping past it in several channels to be noticed later. (at p319)
19. A trespasser is not necessarily a bad man. A burglar is a trespasser; but so too is a law-abiding citizen who unhindered strolls across an open field. The statement that a trespasser comes upon land at his own risk has been treated as applying to all who trespass, to those who come for nefarious purposes and those who merely bruise the grass, to those who know their presence is resented and those who have no reason to think so. All are alike, so it is said, debarred in law from complaining of the condition of the place where they trespass; but some, children especially, have in fact been allowed more readily than others to shed their disability. The trespasser's disability is a consequence of the landowner's or occupier's rights in his land. It is not the penalty of wrongdoing. A trespasser is not deprived of rights because he trespasses; but by trespassing he gets no rights against the occupier of the land where he trespasses. That is all. "A trespasser", said Maule J. in delivering the judgment of the Common Pleas in Barnes v. Ward [1850] EngR 340; (1850) 9 CB 392, at p 420 [1850] EngR 340; (137 ER 945, at p 956) "is liable to an action for the injury which he does: but he does not forfeit his right of action for an injury sustained" (and see Henwood v. Municipal Tramways Trust (S.A.) (1938) 60 CLR 438 ). Thus, it is only a defendant who is an occupier who can answer a plaintiff by saying, you were a trespasser. It is no answer to an action for negligence against A that at the time of the injury the plaintiff was trespassing on the land of B. This hardly needs authority; but it has been decided (Buckland v. Guildford Gas Light & Coke Co. (1949) 1 KB 410 ; Farrugia v. Great Western Railway (1947) 2 All ER 565 ). In actions against persons other than the occupier, the fact that the plaintiff was a trespasser may be relevant to the question whether his presence in the area of danger was so reasonably foreseeable as to make him a "neighbour". And, on the other hand, the occupier's immunity from actions by trespassers may be qualified if he knows that they are, or very probably may be, present. But the immunity itself is not the consequence of an assumption that people will not trespass, although it has sometimes been thus explained. For example, in United Zinc & Chemical Co. v. Britt [1922] USSC 62; (1922) 258 US 268 (66 Law Ed 615) , a case often referred to by English lawyers since Sir Frederick Pollock brought it to notice by a footnote in the law reports (1929) AC, at pp 380, 381 , Holmes J., in giving the opinion of the Court, pointed out that there was no evidence of children being in the habit of going near the poisoned pool. Speaking of trespassers, he said "the owner of the land would have owed no duty to remove even hidden danger; it would have been entitled to assume that they would obey the law and not trespass" (1922) 258 US, at p 275 (66 Law Ed, at p 617) . With all respect, this seems to rationalize the rule rather than explain its origin. That, as I have said, lies rather in the rights of a landowner in his land. Dallas J. stated it plainly in 1817 in Deane v. Clayton [1817] EngR 470; (1817) 7 Taunt 489 (129 ER 196) : ". . . I may, with any view, and for any purpose, place logs on my own land, and a party having no right to be there, and sustaining damage by his own trespass, cannot bring an action for the damage so sustained" (1817) 7 Taunt, at p 522 (129 ER, at p 209) . That is as applicable to heaps of ashes as to logs. But it is not the end of the matter; for the developing common law of negligence in this industrial age has been able to ameliorate the lot of the trespasser who is injured, yet leave apparently unaltered the fundamental rule that a person who goes unlawfully on the land of another does so at his own risk. In three ways plaintiffs have been enabled to avoid foundering on the rock that they were trespassers. (at p320)
20. First, courts have been ready to treat as "reckless" or "malicious", and thus matters of which even a trespasser can complain, any acts done by the occupier that are fraught with danger to anyone, whether lawfully on the land or not, whom the occupier knows is, or very probably may be, within the area of danger. That is how Viscount Dunedin in Robert Addie & Sons' Case (1929) AC at pp 375, 376 explained the decision of the Court of Session in Haughton v. North British Railway Co. (1892) 20 R (Ct of Sess) 113 . That was not a decision on the facts, but a judgment on a reclaiming in respect of a plea to relevancy. The critical averment was that the defender's servants knew that children were on the line when they began shunting. "In other words", said Viscount Dunedin, "that was malicious injury to a trespasser" (1929) AC, at p 376 . And in Excelsior Wire Rope Co. v. Callan (1930) AC 404 he again spoke of "acting so reckless as to amount to malicious acting" (1930) AC, at p 411 . In cases of this kind the injury occurs not because of the condition of the premises, but as a consequence of something done by the occupier while the plaintiff was upon the land. Mourton v. Poulter (1930) 2 KB 183 is a familiar example. The "reckless" conduct, however, may sometimes seem to be little more than a want of reasonable care - measured by all the circumstances - for the safety of a person who, as the occupier knows, may be harmed by what the occupier is doing: see Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. (1936) AC 65 per Lord Atkin (1936) AC, at p 70 ; Transport Commissioners of New South Wales v. Barton [1933] HCA 9; (1933) 49 CLR 114 per Dixon J. (1933) 49 CLR, at pp 130-132 ; Rich v. Commissioner for Railways (N.S.W.) [1959] HCA 37; (1959) 101 CLR 135 , cf. Harrison v. North Eastern Railway Co. (1874) 29 LT 844 , where people habitually crossed the railway line, but not at any particular place, and there was no negligence. But none of this, it seems, would have availed the plaintiff in the present case if he were a trespasser; for he was not injured by any activity of the appellant while he was on the land. He was, however, injured because he had no warning of dangers created by the appellant in the conduct of its enterprise; and that brings up for consideration the second course by which a plaintiff can avoid the trespasser rock. (at p321)
21. Secondly, are the cases in which, although the plaintiff is a trespasser and the defendant an occupier, the facts attract some category of the law of torts and some concept of duty transcending the special rules concerning the duties of occupiers to entrants: e.g. Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 . Lynch v. Nurdin [1841] EngR 52; (1841) 1 QB 29 (113 ER 1041) was really a case of that kind. So also are cases in which the negligence alleged lies, not in a failure to care for a person who comes into a place of danger, but in a failure to take reasonable means to warn him of the risk of doing so. No man has a duty to make his land safe for trespassers. But, if he has made it dangerous and the danger he has created is not apparent, he may have a duty to warn people who might come there of the danger of doing so. Whether there be such a duty in a particular case must depend upon the circumstances, including the likelihood of people coming there. But if they would be likely to come, the duty does not, in my view, disappear because in coming they would be trespassing. It is a duty owed to likely comers, to those who would be intruders as well as to those who would be welcome. That there may be such a duty is implicit in the early decisions about spring-guns and dogspikes. Whether a trespasser who was injured could recover or not depended at common law upon whether notice had been given him of the presence of those dangers on the defendant's land (Bird v. Holbrook [1828] EngR 580; (1828) 4 Bing 628 (130 ER 911) ). Scott L.J. in his dissenting judgment in Adams v. Naylor (1944) 1 KB 750, at p 758 showed the relevance of this to the present question. There two boys in 1942 went upon a mine-field that the military authorities had laid upon sand dunes on the coast of England. They had been playing near the mine-field and entered it to recover their ball. They were able to do so because in one place a short length of the fence - apparently of triple concertina barbed wire, six feet high and six feet thick - had become almost wholly buried under a sand drift. A warning notice board at that point had also become in part obscured. But, apart from this space of some fifteen yards, the fence was clearly visible, for the most part to its full height. There were red notice boards at intervals along it, and warning had been given in the schools in the neighbourhood. Morton J., as he then was, said that he had no doubt that the boys knew perfectly well that they were going upon forbidden ground. Scott L.J. took a rather different view of the facts. The appeal to the House of Lords turned upon the effect of the Personal Injuries (Emergency Provisions) Act 1939, and not on the question of common law duty. Lord Morton's statements that it was not the duty of the military authorities to make it impossible for children to enter and that there is no fourth class of persons coming between licensees and trespassers who must be effectively prevented from becoming trespassers must, I would most respectfully say, surely be right - just as was Lord M'Laren's statement in Haughton's Case (1892) 20 R (Ct of Sess) 113 : "I cannot see how the circumstance that people trespass on a line imposes on the company the obligation of paying a man to keep them off." (1892) 20 R (Ct of Sess), at pp 117, 118 . (at p322)
22. But that does not really touch the present question. I do not see how, speaking generally, there can be a duty either to prevent people trespassing or to make the premises safe for those who do. But the duty that I think can, in appropriate circumstances, exist is a duty to warn persons coming upon premises of hidden dangers they may encounter there, when those dangers are not natural features of the land but arise from conditions created by the occupier. Such a duty is not necessarily discharged by posting notices such as "trespassers will be prosecuted"; for the warning required is not that trespassing is not tolerated but that entry may be dangerous. One test whether such a duty exists at common law may lie in determining whether or not an occupier seeing a man or a child about to run into some hidden danger that he has created on his land may fold his arms and close his mouth and let him go unwittingly to harm just because he is a trespasser. I do not overlook the fact that there are some statements that would suggest that such passive indifference does not give rise to any legal liability. But there are also grounds for a more humane view that accords I believe with the true principles of the common law. For example, Bayley J. in Ilott v. Wilkes (1820) 3 B & Ald 304 (106 ER 674) said: "if, indeed, the defendant had been present, and had seen a trespasser enter, and had the means of preventing the injury, and had not done all in his power to prevent it, unquestionably it might have been considered as proceeding from his own act." (1820) 3 B & Ald, at p 316 (106 ER, at p 679) . In Kimber v. Gas Light & Coke Co. (1918) 1 KB 439 , the plaintiff was lawfully on the premises, as each of the judgments mentions; but Bankes L.J. said that the obligation to give a warning arose quite independently of the occupation of premises and did not arise out of any invitation or licence. In A. C. Billings & Sons v. Riden [1957] UKHL 1; (1957) 1 QB 46; (1958) AC 240 the general duty of contractors doing work to exercise reasonable care not to expose people to danger was stated by Lord Reid, in whose opinion Viscount Simonds concurred, as a duty to all persons who might be expected lawfully to visit the premises. Others of their Lordships did not refer to this aspect. And in the Court of Appeal Denning L.J., as he then was, had, referring to authorities, stated the matter more broadly "as a duty which rests on anyone who does work on the land, including the occupier himself. If the occupier does work on his own land he is under the same duty as a contractor. The reason is because the duty arises, not out of the fact of occupation, but out of the fact that he is doing work which he knows or ought to know may bring danger to others; and that gives rise to a duty of care . . ." (1957) 1 QB, at p 56 and: "The defendants are liable, not because they are occupiers, but because they created a dangerous state of things and they are under a duty to use reasonable care to prevent damage from it . . ." (1957) 1 QB, at pp 57, 58 This accords with the reasoning in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 . For example: "A man or child may be infringing upon another's possession of land or goods at the time he is injured and it will be no bar to his recovery, if otherwise he can make out the constituent elements of a cause of action" (per Dixon C.J. and Williams J. (1953) 87 CLR, at p 628 ); and, "It cannot avail the respondent to point to the comparatively narrow duty which an occupier owes to a trespasser where there is no source of obligation but the relation which the trespass itself creates" (per Kitto J. (1953) 87 CLR, at p 645 ). The present respondent, therefore, might have - and possibly if an amendment to his declaration had been allowed would have - sought to avoid foundering on the rock that he was a trespasser and to get past it by basing his case on the absence of any warning of the danger of the hidden fires. (at p323)
23. But he chose the third course around that rock. He said he was a licensee. He relied upon what Professor Fleming James, in a learned and comprehensive survey of the development in America of this branch of the law, has called the "re-classification of trespassers" ((1953) 63 Yale Law Journal 144, at p 180) - "Often this re-classification has involved a continued formal acceptance of the old categories, but with the transfer of a class of trespassers to a more favoured group" (p. 181). Another American writer has said that "in the majority of cases in which an owner's duty to a 'licensee' has been judicially discussed, the so called 'licensee' has been a mere tolerated trespasser" (Professor Bohlen, Studies in the Law of Torts, p. 176). It may be that in England and in this country this has not been so in the majority of cases. But it has been so in very many. Since Lowery v. Walker [1910] UKHL 1; (1910) 1 KB 173; (1911) A C 10 , occupiers who acquiesced in persons habitually trespassing have often been treated as impliedly permitting this, and the trespassers have thus been raised in status to licensees. Sometimes, even when trespassing was not acquiesced in but was resented, the trespassers have nevertheless been classified as licensees on the ground that the resentment was not made sufficiently manifest and the trespassing was not combated with sufficient vigour. The Law Reform Committee in its Third Report (1954, Cmd. 9305) refers to the "cases in which under the law as it stands, trespassers are held to have been converted into licensees through permission inferred from acquiescence on the part of the occupier" and remarks upon "the dubious character of the inference of tacit consent in some instances" - a description that is, I think, so mild that it is hardly accurate. Many of the cases do not really depend upon the implication in any proper sense of a licence, because there could be no true implication that consent was given when the facts show positively that consent, if asked for, would have been withheld. These cases really depend, as counsel for the Railway Commissioner put it here, not on implied permission, but on permission imputed to the occupier because he has known that people were accustomed to enter his land and has taken no measures, or no strong measures, to deter them. The difficulties of this doctrine of a tacit licence are greatest in the region where it has been most readily applied - the young child trespasser. The decision of the House of Lords in Edwards v. Railway Executive (1952) AC 737 , has now set some limits to it. That case, however, really bears no resemblance to the present case. The facts there, as stated by Lord Porter, were that the boy who was killed by the train knew that the railway fence he got through was there to keep him and other children out. He knew that it was wrong to go on the railway embankment and that he had no right to do so. He knew that it was dangerous to cross the railway lines. He was not allured into danger. He went to get his ball. It is obviously impossible, it seems to me, if words be used with anything like their proper meaning, to describe a person whether adult or child, as being by leave and licence in a place where in fact he had no permission to go and knew that he ought not to go. That was so in Edwards v. Railway Executive (1952) AC 737 , and it was so too in Hardy v. Central London Railway Co. (1920) 3 KB 459 , where the children were shown to have been well aware that they were forbidden to play on the escalator. But here the facts are different. There is no positive reason here against finding that the plaintiff was a licensee "in the sense of the decided cases", as Viscount Dunedin expressed it in Excelsior Wire Rope Co. v. Callan (1930) AC, at p 411 . The time has come to discard this fictional sense; for in cases like the present the liability of the defendant does not in true principle depend upon determining as the first and critical question whether or not the plaintiff was a trespasser. The true question is rather, has he been adopted by the defendant as a "neighbour". Yet, as the authorities stand, the case for the plaintiff might be put, as it was put, on the conventional basis that he should be considered a licensee. (at p325)
24. I turn, therefore, to see whether, on that basis, there was evidence to support the jury's verdict, although strictly I think the plaintiff was a trespasser. The evidence would clearly justify a finding that there was a general licence to the public to use the road across this railway land as a way to and from the railway station. The open access to the land; the notices forbidding cyclists, and thus impliedly permitting pedestrians; the use of the way every morning and afternoon by numbers of people without interference - all these not only justify such a conclusion, they make any other conclusion unjustifiable. "In a frequented neighbourhood and where the owner or occupier may be supposed to know that others regularly enter it and he does not object, an open field may be enough to prove that persons, who would otherwise have been trespassers, in fact enter it by his tacit permission and are licensees" (per Lord Sumner, then Hamilton L.J., in Latham v. R. Johnson & Nephew Ltd. (1913) 1 KB, at p 410 ). But the more difficult question is whether there was any licence to use the land except as a way, any licence, that is, for the plaintiff to leave the road and go upon the area of the dump. The evidence, I think, justifies a conventional finding that there was, for the following reasons: The land as a whole was used by children as a playground; and use as a playground is essentially different from use as a way; and that children were accustomed to go upon the dump and to fossick around it was well known to the servants of the Railway Commissioner. In Gough v. National Coal Board (1954) 1 QB 191 Singleton L.J. said "There is evidence that on some occasions children were chased away. Whether that was sufficient in the circumstances is a question of fact" (1954) 1 QB, at p 201 . And so too here. The plaintiff had never been chased away. There was no fence, nothing to suggest to him that he was confined to the land below the bank. When he went up the bank he merely indulged the natural curiosity and venturesomeness that, fortunately for the nation, boys have. If there be a general licence to go upon land some reason must be shown for excluding a particular part of it (Gough v. National Coal Board (1954) 1 QB 191 ). If the plaintiff came lawfully upon the land as one of a class permitted to play there, he did not become a trespasser when he went upon that part of it likely to prove most attractive to him, there being, when work was not in progress, nothing to indicate that it was barred to him. The only question on this aspect of the case was whether an invitation to the plaintiff to come there to play could be imputed to the defendant. That was a question of fact for the jury. (at p326)
25. Much was said in argument about "allurements". A rubbish tip it was urged could not be an allurement. That contention, however, seems to me to ignore both the nature of boys and the sense in which the word "allurement" has come to be used in this connexion. This is not a case of a young child allured to meddle with a dangerous thing. The plaintiff was an intelligent boy of fourteen. But an allurement, as Lord Goddard pointed out in Edwards v. Railway Executive (1952) AC 737 , "only means a form of invitation" (1952) AC, at p 747 . The word was, as far as I have noticed, first used in this connexion, when Cockburn C.J. in Corby v. Hill [1858] EngR 718; (1858) 4 CB (NS) 556 (140 ER 1209) , in 1858 spoke of a road as "an allurement whereby the plaintiff was induced to come upon the place in question" (1858) 4 CB (NS), at p 563 (140 ER, at p 1212) . Cases on "allurements" seem, unfortunately, to be multiplying and the word is becoming a term of art adding an unnecessary technicality to the law of negligence. A building in course of demolition is an allurement - so it is said (Davis v. St. Mary's Demolition & Excavation Co. Ltd. (1954) 1 WLR 592 ); but a trench in a road under repair is not (Perry v. Thomas Wrigley Ltd. (1955) 1 WLR 1164 ). The statement in the judgment in the last case that an allurement is something both attractive and dangerous - "something insidious" (1955) 1 WLR, at p 1167 has, I respectfully think, nothing to support it. An allurement is the invitation that creates the fictional licence. It does not also have to create the danger by which the licensee is injured. Decisions that this or that thing can or cannot be an allurement are really of no value, because decisions on questions of fact in negligence actions ought not to be exalted into propositions of law. The House of Lords has very recently protested against this (Qualcast (Wolverhampton) Ltd. v. Haynes (1959) AC 743 ). (at p327)
26. The plaintiff, if a constructive licensee, was entitled to be warned of or protected against concealed dangers or traps. Were the jury entitled to find that the hidden fire into which he fell was such a trap? I have no doubt they were. It was a question of fact for them: cf. Pettiet v. Municipal Council of Sydney (1936) 36 SR (NSW) 125; 53 WN 52 . And, so far as decisions on questions of fact are aided by decisions on the facts of other cases, Williams v. Cardiff Corporation (1950) 1 KB 514 , is much in point. I do not think any purpose would be served by going through all the other cases to which we were referred. (at p327)
27. Finally, it was strenuously argued that the plaintiff ought not to succeed because he went upon the land barefooted and took the chance of cutting his foot on tins or broken glass. But how could his taking upon himself a risk of which he was aware excuse the defendant entrapping him in a danger of which he was not aware? His lack of footwear might have some relevance as contributory negligence; that is all; and it was so put to the jury. Had he been wearing shoes he might perhaps have been less badly burnt. But why should he take precautions against a danger that was concealed from him? In summer many children go barefooted on holidays, and the jury were not required to forget the ways of boys. (at p327)
28. I would therefore dismiss the appeal on the ground that there was evidence to support the jury's verdict on the issues as left to them. I think too that, without resorting to the conventional misnomer of trespassers as licensees, the circumstances could give rise to a duty in the defendant to take reasonable measures to warn persons coming upon the land of the danger there existing. (at p327)
ORDER
Appeal dismissed with costs.
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