David Jones (Canberra) Pty Ltd v Stone [1970] HCA 28; (1970) 123 CLR 185 (21 August 1970)

HIGH COURT OF AUSTRALIA

DAVID JONES (CANBERRA) PTY. LTD. v. STONE [1970] HCA 28; (1970) 123 CLR 185

Negligence

High Court of Australia
Barwick C.J.(1), Owen(2).and Walsh(3) JJ.

CATCHWORDS

Negligence - Dangerous premises - Invitee - Licensee - Area of invitation or permission - Unusual danger - Escalator operating in retail store - Sign displayed requiring children to be accompanied by adult - Young child with mother on escalator - Child not held by mother - Hand caught in escalator - Liability of occupier.

HEARING

Sydney, 1970, March 18, 19; August 21. 21:8:1970
APPEAL from the Supreme Court of the Australian Capital Territory.

DECISION

August 21.
The following written judgments were delivered: -
BARWICK C.J. On a day in June 1966, Mrs. Stone brought her young son aged the shopping area of Civic, Canberra, with the intention of there purchasing for him a pair of shoes: the next day was his birthday. An escalator of a kind with which we have become familiar in retail stores in the cities of Australia connected the first and ground floors of the store. At the head of it a large notice warned that "Children must not ride on this escalator unless accompanied by an adult". Having made her purchase for him on the first floor, Mrs. Stone led her child onto the escalator, holding his hand. She was not conscious, however, of the warning notice to which I have referred. During the transit from the first to the ground floor she became engaged in conversation with some other person on the escalator, during which time she abandoned her handhold of her child and ceased to observe him. Left to his own devices, the child took a step backwards onto the tread of the escalator immediately above that on which his mother was standing and then sat down upon it. While sitting, he appears to have put his finger into the space which separated the moving treads from the fixed balustrade at the side of the escalator. This was a gap said to be about a quarter of an inch in width but in any case to be no more than was necessary for the effective operation of the escalator. On discovery that the child's finger was caught, the escalator was stopped but not before serious damage was done to his hand. (at p187)

2. An action claiming damages was brought on behalf of the child in the Supreme Court of the Australian Capital Territory against the appellant. At the hearing of the case, it was not claimed that there was any negligence on the part of the appellant in the construction, installation or maintenance of the escalator or in not having a guard over the gap between the moving staircase and the fixed balustrade. It was not suggested that any such guard was either usual or practicable. But it was said that the appellant as the occupier was in breach of its duty to the child as an invitee to its store. The breach of this duty was said to be the failure to warn the child or his mother of the existence of an unusual danger, namely, the gap between the moving staircase and the fixed balustrade and the risk of injury to a child whose finger entered that gap. (at p188)

3. The Court gave judgment for the plaintiff. It found that the child was an invitee of the appellant to enter the store and, in the company of his mother, to use the escalator, that the gap to which I have referred constituted an unusual danger to the child and that the appellant knew of that danger. This last finding was based upon the fact that the appellant had been sued in 1966 in the Supreme Court of South Australia for an injury to a child who had caught his finger in the gap between the moving staircase and the side wall or balustrade of an escalator. See David Jones (Adelaide) Ltd. v. Roupas (1966) SASR 17 . The appellant did not contest the fact that it knew of the gap and of its possible consequences to a child. (at p188)

4. The Supreme Court further found that the mother was unaware of the risk of injury to the child, that the notice to which I have referred was not a warning of the existence of that risk, that the mother was not negligent in relation to the care of the child and lastly, that the appellant was not entitled to rely upon the mother to protect the child from any risk of injury constituted by the gap. (at p188)

5. Although, as Fullagar J. reminded us in Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 CLR 42, at p 56 , the rules laid down in Indermaur v. Dames (1866) LR 1 CP 274 are but part of the law of negligence and Willes J.'s formulation of the duty of an invitor to an invitee is not a statutory provision to be treated as a text, where, as here, the only basis put forward for the existence of a duty of care is the occupancy of the premises to which the plaintiff has come, that case is definitive of the extent of the duty of care owed by the occupier. The distinction between the duty of the occupier of premises to a person who comes upon them for a purpose which includes a matter of material concern to the occupier and the duty of an occupier to a person who comes there with the occupier's permission merely for his own purposes remains valid in Australia. This seems to me quite a rational distinction even if it may be difficult in particular circumstances to make it, and however artificial in the minds of some the result of making it may sometimes appear. Further, the formulation of the duty of the occupier to the invitee not only remains valid but is, in my opinion, quite reasonable however much difficulty may be experienced in denoting in particular circumstances the concept of an unusual danger. Both that concept and the notion that a written warning may discharge the duty are difficult of application in the case of a child, particularly one of tender years. However, having regard to the conclusion to which I have come, it is unnecessary for me to pursue or to discuss these difficulties or the artificiality inherent in the idea of a warning of danger to a child who cannot read. (at p189)

6. It has been argued and held by the Supreme Court in this case that Mrs. Stone's son was an invitee to the store and in particular to the escalator. For that proposition authority is claimed in the case of Swan and Swan v. Canadian Pacific Railway and Swan (1959) 19 DLR (2d) 51 . There the invitation to premises, a ship and dock, extended expressly or impliedly to an adult was taken in the particular circumstances to have also been extended to a child accompanying that adult and the child itself was regarded as an invitee within the scope of the duty of an occupier as expressed in Indermaur v. Dames(1866) LR 1 CP 274 (at p189)

7. I am unwilling to subscribe to the view that whenever a child, whether or not related to the adult, accompanies an adult to premises in circumstances which justify the conclusion that the adult is an invitee to those premises, the child is itself an invitee of the occupier. No doubt there may be particular circumstances which warrant a finding that some material interest of the occupier is served by the fact that the child accompanies the adult invitee: but those circumstances must, in my opinion, be considered in each case. The intended purchase of the shoes in the instant case may support the conclusion that Mrs. Stone's son was an invitee of the appellant. If I had now to decide whether or not the appellant owed the child the duty of an occupier to an invitee, the inclination of my mind would be in the affirmative: but it does not seem to matter in the present case whether Mrs. Stone's son should be regarded as an invitee or as a mere licensee in respect of his use of the escalator. The breach of the duty of care is said, in this case, to be the failure to warn of the unusual danger constituted by the gap beside the moving treads of the escalator. No failure to take any other step is put forward as a breach of any duty of care. Further, what is said to have been an unusual danger obtained that quality from the fact that it was in reality so far as the child was concerned a concealed danger, a latent rather than a patent risk of injury. If the gap between the moving staircase and the fixed balustrade did constitute an unusual or concealed danger, the appellant, according to what seems to have been a matter of concession on its part, knew of the gap and the possibility that a child's finger could be inserted in that gap causing substantial injury to the child's hand. Thus if there was a concealed danger, as the case was conducted, the appellant must be taken to have been in fact aware of it. I agree with the learned judge of the Supreme Court of the Australian Capital Territory that the warning notice at the head of the escalator was not a warning of the existence of the unusual or concealed danger if in fact the gap did constitute such a danger. Therefore, if there was a concealed danger of which the appellant was aware it would follow that, even if the child were no more than a licensee, the appellant would be liable if at the time of the receipt of his injury he was within the area of his licence to be on the premises. Consequently, I find no need in this case to decide whether or not the child was in the appellant's store as an invitee. I may mention that I would not regard the Canadian decision to which I have referred as supporting an affirmative answer to the question. (at p190)

8. The first question it seems to me is to determine the area of the invitation or of the licence, as the case may be. On the proved facts of the case it is clear that the invitation or the permission, as the case may be, was qualified. In my opinion, the invitation to or permission for the child to enter and use the store was an invitation or permission to enter it and use it in the company of and under the control of the adult: in this case, the mother. It can properly be said, in my opinion, that the user of the premises including the use of the escalator which was within the ambit of the invitation or permission was such a use as a child in the company of and under the control of its mother might reasonably make. Both the area of permitted use and the determination of what was an unusual or concealed danger must be determined in the light of the fact that the child was to be accompanied by and in the control of an adult. Whilst it can properly be said that an occupier in such circumstances as the present cannot look to the adult to secure the safety of the child in its use of the premises to the exclusion of any responsibility of itself as occupier derived from the invitation or the permission to enter the store, neither the ambit of the invitation or the permission nor what constituted an unusual or concealed danger can be determined as if the invitation or permission had been extended to the child alone and unattended. Clearly, in either case it was to the child in the company of the mother that the invitation or permission was extended. The notice at the head of the escalator is emphatic of this situation. Consequently, the invitation or permission was to do those things in the store and upon the escalator which a child accompanied by an adult might reasonably do. To regard the invitation or permission as thus qualified, whilst at the same time denying that all responsibility for the child's safety was cast upon the adult, seems to me to effect a just distribution or responsibility between the occupier and the parent, in the case of a child thus permitted or invited to the premises. (at p191)

9. The limitation or qualification upon the invitation or permission to enter and use the store cannot be satisfied, in my opinion, by the child merely being in the presence of an adult. This is particularly so when he is on the escalator. The expression "is accompanied by" in the context of the use of the store and of the escalator must connote much more than the mere physical presence of an adult in the proximity of the child. In my opinion, it means that the child is under the control of an adult physically present with it. Of course what will satisfy this expression will depend to some extent on the age and condition of the child but I would think that in the case of a child of four the expression as applied to the transit on the escalator involved the retention of the hand of the child or some physical contact with the child equally effective to control it and its movements. Whilst an unaccompanied child might very well sit on the treads of a moving staircase, such conduct can hardly be expected of a child in the control of an adult. It seems to me it is certainly not a reasonable use of the moving staircase for an accompanied child to sit on its treads. In this case it was the fact that the child was allowed to sit on the treads which enabled the child's fingers to become involved in the gap between the moving staircase and the fixed balustrade. (at p191)

10. In Swan and Swan v. Canadian Pacific Railway and Swan (1959) 19 DLR (2d) 51 a steamship company issued two passenger tickets to the father and mother of two children, each of whom was under the age of five years, for a journey from Ontario to British Columbia. No fare was charged in respect of the journey by the children. The passenger tickets for which payment was made contained a statement: "Children under 5 years of age will be carried free when accompanied by an adult." Whilst disembarking from the steamer at the steamship company's dock, the younger child, temporarily parted from his mother, fell through the railing of a ramp leading from the shipside to an elevated walk, with consequential injury. This railing was so constructed as to leave triangular openings through which it could have been foreseen that a child might fall. A jury found that the railing constituted an unusual danger to the child: they thought that the ramp ought to have had solid sides. (at p192)

11. The Court of Appeal of British Columbia upheld the verdict. It concluded that the railing of the ramp was an unusual danger for small children and obviously so. The Court further held that the requirement of the passenger ticket that the child under five be accompanied by an adult did not import a condition that effective care and control be exercised by the accompanying adult or that the steamship company were entitled simply to rely upon the parent to look to the safety of the child. (at p192)

12. Both parties in this case conceded that the relationship of invitor and invitee existed at relevant times between the steamship company and the child. For my part, this is not self-evident, though it may well have been so. It might be said that the inclusion of the child on the ticket was an inducement to the parents to travel with the steamship company and thus in the material interests of that company. On the facts of the case it may well have made no difference if the child had been treated as no more than a licensee for the risk of the child falling through the railing appeared to be so obvious that so far as the steamship company was concerned it may have constituted a known danger of which there was no warning. (at p192)

13. However, the expression "when accompanied by an adult" in the passenger ticket had, in my opinion, quite a different significance to that which the expression "unless accompanied by an adult" has in the sign at the top of the escalator. The first, in my opinion, in reality says no more than that young children travelling on the steamer with an adult will be carried without charge. No limitation upon what the child may do or where the child may go on the steamer during the voyage is imported by the expression nor is there any limitation imposed thereby upon any liability the steamship might otherwise have towards the child. But in the latter use of the expression, it must connote, as I have said, that the child throughout will be under the control of the adult. (at p192)

14. In my opinion, the child in the present case when released from the control of his mother was outside the area of the invitation or the permission of the appellant. (at p192)

15. But the matter may be approached in another way. As I have said, the question whether there was an unusual or concealed danger present in the gap between the moving staircase and the fixed balustrade must be judged in relation to an infant using the staircase in a reasonable manner under the control of an adult. The gap did not constitute any danger to the child so far under the control of an adult as to be kept upon his feet during transit on the escalator. (at p193)

16. In my opinion, the proper conclusion on the facts of this case, which are not really in dispute, is that the child was not within the invitation or permission to use the escalator when the mother relinquished physical control of it whilst using the escalator. The use made of the escalator, namely, by sitting on the tread whilst it was in motion, was not a reasonable use of the escalator nor within the invitation nor permission of the occupier for a child in the control of the accompanying adult. Further, the gap between the moving staircase and the fixed balustrade did not in any case constitute an unusual danger or concealed trap to any person, including a child under the control of an adult, using the escalator in a reasonable manner. There was nothing unusual in the presence of the gap and there was no risk of injury from it to persons riding on the escalator by standing on the treads, either holding the handrail or the hand of an adult. (at p193)

17. Before parting with the matter I ought to point out that the existence of a duty founded upon occupancy of premises does not preclude the co-existence of a wider duty founded upon other circumstances. Thus in what I have written I do not exclude the possibility that in other circumstances there may be other and wider duties towards a child than those which I have described as arising out of the facts in this case. For example, if there were within the store some feature well calculated to cause a child to break from its mother's care and control with the possibility of some injury to the child which might have been foreseen there may be a separate distinct duty on the part of the appellant to take due care of the safety of the child. Such a case does not arise here. The duty in this case depends solely upon the appellant's occupancy of the premises and in particular of the escalator. (at p193)

18. In my opinion, the verdict should be set aside upon the ground that upon the facts of the case the appellant was not in breach of any duty to the child. (at p193)

OWEN J. The plaintiff, a small boy almost four years of age, was injured when the fingers of his right hand were caught in a gap between one end of a moving step and the fixed skirting at the side of the steps of an escalator installed in the defendant's departmental store in Canberra. He brought an action for damages against the defendant and recovered a verdict. (at p194)

2. It appears that on the day of the accident the plaintiff had been taken to the store by his mother who wished to buy him a pair of shoes. In the course of their shopping expedition they stepped onto the escalator on the first floor in order to go down to the ground floor, the plaintiff's hand then being held by his mother, While they were travelling down, the plaintiff moved back onto the step behind the one on which his mother was standing. She released his hand for a short time while she talked to someone standing in front of her. She then turned to take the boy's hand again and found him sitting on the step with his fingers caught between the skirting and the end of the moving step on which he was sitting. The escalator was stopped and his fingers were released. (at p194)

3. His Honour found - and the fact was not disputed - that on each side of the moving stairway there was a gap between the end of the treads of the steps and the skirting, that the existence of these gaps was necessary for the working of the escalator and that they could not have been narrowed "consistently with its reasonable functioning". (at p194)

4. It was admitted by the defendant that some time prior to the occurrence it had learned that a small child in an Adelaide store had had his hand injured by being caught in a gap between the end of the tread of a step and the fixed skirting of an escalator similar to the one in the defendant's store. He had brought an action for damages against the owner of the store but had failed (see David Jones (Adelaide) Ltd. v. Roupas (1966) SASR 17) (at p194)

5. In the present case counsel for the plaintiff said, in opening his case, that it ws not proposed to conduct it on the basis that ". . . evidence would be adduced to prove that there was an undue tolerance in the gap between tread and wall, or that the escalator was not constructed in accordance with the manufacturer's specifications" and in fact no such evidence was called. (at p194)

6. Escalators such as the one in question are, of course, commonly in use in premises such as those of the defendant and no evidence was called to show that it was practicable to provide a device which would prevent a child from putting its fingers in the gap at the end of the treads nor was it suggested that there was anything in the nature of an "allurement" which might attract a child to do what this child did. It appears that at the top and bottom of the escalator there was a sign which read "Children must not ride on this escalator unless they are accompanied by an adult" and the suggestion of negligence put forward in argument was that some notice, either verbal or written, should have been given to all those who went up or down on the escalator that there was a gap between steps and skirting which might cause injury should some part of the body be introduced into the gap. (at p195)

7. The plaintiff's case was fought upon the basis that the relationship between the plaintiff and the defendant was that of invitee and invitor. What was contended was that the existence of the gap constituted an unusual danger to the plaintiff and to others who might use the escalator and that the defendant, by failing to give warning of a risk of injury arising from the existence of the gap, had failed to exercise reasonable care. (at p195)

8. In considering the duty of care owed to an invitee we were, of course, referred to the well-known paragraph in the judgment of Willes J. in Indermaur v. Dames (1866) LR 1 CP, at p 288 , but what was said about that passage by Fullagar J. (with whose statement of the law Kitto J. agreed and with which I, with respect, also agree) in Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 CLR 42 is, I think, worthy of repetition. His Honour said (1961) 105 CLR, at p 56:

"It has many times been observed, but it is still important
to observe, that this statement is not to be treated as if it
were a provision in a statute creating a duty and designed to
define the duty in precise terms. The concept of negligence,
as a breach of a duty to use reasonable care, was long since
well known in the common law. Willes J. was saying that,
with respect to dangers existing on premises, such a duty of
care arose from the relation of occupier and invitee, explaining
what that duty would normally involve, and giving examples
of the steps which would normally amount to a performance
of that duty. The statement does not lay down a special rule
outside and apart from the general law of negligence. Nor
does it, within the general law of negligence, prescribe a special
standard of care. The duty is a duty to take reasonable care.
The standard is the standard of the reasonable man. The
gravamen of the whole passage lies in its statement of what may
fairly be regarded as reasonable care in cases where a visitor
enters on premises as an invitee of the occupier. It ought
not to be read as requiring of the occupier something more
than reasonable care."

No doubt the care to be expected of a reasonable occupier of premises to avoid injury to persons entering his premises would vary according to the capacity in which they entered but in every case the final test is, in my opinion, whether the occupier has, in all the circumstances of the case, acted as a reasonable man would be expected to act. (at p196)

9. In my opinion the learned trial judge rightly ruled that the plaintiff, accompanied as he was by his mother, was an invitee to the defendant's premises but in considering whether the latter had acted with reasonable care to protect from injury those of its customers who used the escalator it is, in my opinion, material to ask whether the person who claims to have been injured was using the escalator in the way in which such a facility is ordinarily used. See Norman v. Great Western Railway (1914) 2 KB 153, at p 163, per Bray J a passage approved on appeal (1915) 1 KB 584 by Buckley L.J. (1915) 1 KB, at p 594 and by Pickford LJ (1915) 1 KB, at pp 598-599; Hillen and Pettigrew v ICI (Alkali) Ltd (1936) AC 65, at p 69 per Lord Atkin. As Scrutton L.J. said in The "Carlgarth" (1927) P 93, at p 110:

"When you invite a person into your house to use the
staircase, you do not invite him to slide down the banisters,
you invite him to use the staircase in the ordinary way in
which it is used."

Accordingly, in considering whether the defendant failed to exercise reasonable care towards the plaintiff, I think it is relevant to have regard to the fact that the invitation to use the escalator was, in the case of children, limited to its use only if accompanied by an adult in the sense of being under adult control ; that the plaintiff freed himself from his mother's control, sat down on the step and either by accident or design put his fingers into the gap. This cannot, in my opinion, be regarded as an ordinary or usual way in which a child under the control of its mother would be expected to use an escalator and I am of opinion that it would not be reasonable in all the circumstances to regard the defendant as having failed to fulfil any duty of care owed by it to the boy. I would therefore allow the appeal. (at p196)

WALSH J. In an action tried in the Supreme Court of the Australian Capital Territory the respondent recovered a verdict and judgment for damages for injuries sustained by him when his fingers were caught between the moving parts and the side wall of an escalator in the appellant's store in Canberra at a time when the respondent was just under four years of age. In this appeal against that decision it has been contended that the learned trial judge was wrong in finding that there had been a breach by the appellant of a duty of care owed by it to the respondent. (at p196)

2. The primary facts of the case as found by his Honour are not in dispute. The child's mother had taken him to the shoe department of the store to buy him a pair of shoes. Afterwards they proceeded to descend by means of the escalator from the first floor to the ground floor. When they went onto the escalator and, for some time afterwards, she held him by the hand as they stood side by side on the same step. Then the boy stepped up to the next step above. The mother became engaged in conversation with some people ahead of her and released her hold on the boy's hand. It was just after this that his hand was caught and at that time, according to the mother's evidence, he was sitting on the step to which he had moved. The escalator was stopped but not before it had moved some distance. The respondent suffered serious injuries to two fingers of his hand. (at p197)

3. At the top of the escalator there was a sign on which were printed the words "Warning - Children must not ride on this escalator unless they are accompanied by an adult". The mother had not read the sign. The gap between the treads of the escalator and the side wall was about one-quarter inch. A finding by the trial judge that the gap could not have been narrowed consistently with the reasonable functioning of the escalator is not in dispute. It was not suggested that any guard should or could have been provided to cover the gap. His Honour stated that there was no evidence or admission of previous occurrences of injuries on the appellant's escalators due to a hand being caught in the gap between skirting and treads. But there was an admission that prior to the injury to the respondent the appellant "knew of the facts referred to in the judgments in David Jones (Adelaide) Ltd. v. Roupas (1966) SASR 17 ". From this the learned judge concluded that the defendant knew that children of tender years, such as the respondent, could get their fingers caught in the aperture and could suffer serious injury. (at p197)

4. In his reasons for judgment his Honour stated the following findings and opinions. The respondent was an invitee of the appellant in coming on the premises and, being accompanied by an adult, he was an invitee when using the escalator. There was an unusual danger to the child created by the gap in which the child's fingers could be caught. The defendant knew of that danger. The child was in the care and control of his mother. She did not know of the risk of injury to the child created by the existence of the gap in which his hand might be caught. The warning notice did not warn of the risk of injury from being caught in the aperture and no warning was given of that risk. The mother could not have been expected to discover and assess that risk and the appellant was not entitled to rely upon her to protect the child from it. The appellant was responsible for the respondent's injury. (at p198)

5. On behalf of the appellant it was submitted that the child was not an invitee, that the finding was not open that there was an unusual danger, and that the finding that the warning notice was not adequate was erroneous. (at p198)

6. When a very young child complains of injury alleged to have been caused by the breach of duty of care owed by an occupier of premises, special problems may be encountered in seeking to apply to such a claim the principles which have been established for determining what is the relevant duty of care owed by the occupier and what may be required of him in the fulfilment of that duty. Nevertheless, I am of opinion that in general, and leaving aside situations in which there may be "another relevant relationship" in the sense in which that expression was used in Commissioner for Railways v. McDermott (1967) 1 AC 169, at p 187 , the liability of an occupier of premises to a person who has entered upon them and has been injured must depend, whether that person be an adult or a child, upon a breach of a duty of care arising out of the defendant's occupation of the premises and the presence on them of that person. The principles according to which a plaintiff seeking to establish a breach of such a duty of care must first be assigned to his proper place in the "fixed classification of the capacities or characters in which persons enter upon premises occupied by others", the case then being governed "by the standard of duty prescribed for that class" (Lipman v. Clendinnen (1932) 46 CLR 550, at p 555 ), are to be applied when the plaintiff is a young child, but in the application of them it is necessary to take into account the propensities of children and their inability to perceive and to avoid potential sources of danger to them. The course has not been taken by the courts, when confronted in such cases with the difficulties of applying those principles, of holding them to be inapplicable and resorting to a different approach to the questions whether the occupier was or was not under a duty of care and what was the standard of care required if the duty existed. The courts have sought to apply the established rules concerning the duties of occupiers, when dealing with children who in different characters come upon the lands of the occupiers. But for the purpose of determining in which class a child plaintiff should be placed and in what manner the rules for measuring the occupier's duty should be applied, it has been found necessary to formulate some special concepts, such as those of "allurement", of an implied licence to enter and of a conditional licence to enter. (at p199)

7. Although the special rules governing the liabilities of occupiers may be said to be part of the general law of negligence (Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274, at p 315 per Windeyer J. and Commissioner for Railways (N.S.W.) v. Anderson (1961) 105 CLR, at p 56 per Fullagar J.) it is, nevertheless, of importance to determine whether those special rules are to be applied to the facts of the present case or whether it should be considered by reference to the general law of negligence. On the latter view, it might be said that some risk of the occurrence of damage of the kind which the respondent suffered was foreseeable by the appellant and that that was enough to attract liability, subject only to the questions whether or not in all the circumstances it was a risk which the appellant might properly disregard (see Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. [1966] UKPC 1; (1967) 1 AC 617, at pp 641-644 ) or was one in respect of which the obligation to take reasonable care did not require the appellant to do any more than it had done by exhibiting the notice described above. But on the former view, which is in my opinion the correct view, it will be necessary to determine, if the respondent be found to have been an invitee, whether there was any unusual danger calling for the exercise of reasonable care to prevent damage from it. That question is not answered merely by saying that there was a foreseeable risk of injury to a child. The respondent is required to establish not merely that there was some risk of which the appellant knew or ought to have known but also that there was an unusual danger. (at p199)

8. In my opinion the respondent should be found to have been an invitee. Although the purchase of goods which was the object of the visit of the respondent and his mother to the store would be made by the mother and not by the respondent, his presence in the store was concerned directly with the material interests of the appellant and of the respondent himself. (at p199)

9. An invitation may sometimes be confined to some part or parts of an occupier's premises. But in this case the respondent was still within the area of the invitation when he was on the escalator. He was invited to use it upon the condition that he was accompanied by an adult and this condition was fulfilled. The trial judge found that he was in the care and control of his mother at the relevant time and also that his mother did not by negligence on her part cause his injury or contribute to it. Accepting those two findings, I do not think on the facts of this case that the invitation was subject to an implied condition that the respondent would be in the effective physical control of his mother. It ought not to be held that as soon as he ceased to be under actual physical restraint by her he was no longer an invitee but a trespasser : see Swan and Swan v. Canadian Pacific Railway and Swan (1959) 19 DLR (2d), at pp 52-53 and O'Connor v. British Transport Commission (1958) 1 WLR 346, at p 355 . Therefore I am of opinion that the case must be examined on the basis that the respondent was an invitee. But in examining it, it is important to have regard to the fact that the respondent was accompanied by an adult and the appellant was entitled to assume that she was under a responsibility to take reasonable care for his safety and would do so. (at p200)

10. I turn to the question whether or not it is proper to conclude that there was an unusual danger, in respect of which the appellant was obliged to take reasonable care to prevent harm from it to the respondent. In London Graving Dock Co. Ltd. v. Horton (1951) AC 737, at p 745 Lord Porter stated that the word "unusual" is used in an objective sense and means "such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand". He went on to indicate a view that the question to be considered is whether or not the danger is unusual for members of a type or class of persons, of which the plaintiff is a member. Lord Oaksey said(1951) AC, at p 758:

"Premises inevitably contain a great variety of dangers,
some great, some slight, some usual, some unusual, and it is,
in my opinion, a question of fact whether the danger is so
slight or so usual that no warning is needed or so great or so
unusual that the invitee with the actual knowledge of the
premises which he is known by the invitor to possess ought,
in the opinion of an ordinarily careful invitor, to be warned
of it."

Lord Reid said(1951) AC, at p 775 that in considering whether a danger is usual or unusual one must have regard to the nature of the place where it is and to the apparent experience of the invitee. He added "A danger may be usual for a stevedore but quite unusual for an ordinary tradesman". (at p200)

11. In my opinion it is necessary, when seeking to apply the foregoing explanations of what is meant by an unusual danger to the case of an invitee who is a very young child, to endeavour to adapt and mould them to the circumstances of such a case, in a manner which will produce a result less artificial and unreal than that to which a direct and literal application of them would lead. If a young child is to be regarded as a member of a class of persons consisting of all children of tender years, it may be said that any danger is an unusual one and that an occupier of premises to which such a child comes as an invitee must take reasonable care to save him from all dangers which may imperil him because of the inability of that class of persons to recognize and avoid them. But, in my opinion, an occupier is not always to be held liable for the presence on his premises of something which is capable of causing harm to a child. In Phipps v. Rochester Corporation (1955) 1 QB 450, at p 458 et seq Devlin J. discussed, in relation to the duty of a licensor, the special problem presented by children who have not reached the age of reason and understanding. He referred (1955) 1 QB, at p 459 to the "different ways of escape" which have been chosen by judges unwilling to accept the conclusion that licensors must make their premises safe for little children. He reviewed many earlier cases which dealt with these problems. Most of these cases do not bear directly on the present case. Many of them are concerned with the relationship of licensor and licensee and not with that of invitor and invitee. Questions are raised in them as to the duty owed to a child not accompanied by an adult and as to the principles by which a child who would otherwise be a trespasser may be considered, by reason of allurement or of continued user by children of the land, as entering upon it with the licence of the occupier. The further question has been raised whether or not such a licence, if found to have been given, is sometimes to be regarded as conditional upon the child being accompanied by a competent guardian. The notion of a conditional licence did not find favour with Devlin J. (see (1955) 1 QB, at pp 469-473 ). But it had been accepted, although on the particular facts it was held to have no application, by the Court of Appeal in Bates v. Stone Parish Council (1954) 1 WLR 1249 , which apparently had not been brought to the notice of Devlin J. in the case of Phipps v. Rochester Corporation (1955) 1 QB 450 (at p201)

12. As I have indicated, the last-mentioned case and the cases there discussed are not directly relevant to the present case and there is a dearth of English authority relating to the duty owed by an invitor to an invitee who is a very young child. But Devlin J. stated some opinions which appear to me to be valid and to be of assistance in deciding the present case. He said (1955) 1 QB, at p 468 that a general principle ought not to be adopted that "adults and children are to be treated alike". He stated the view (1955) 1 QB, at p 471 that it would not be justifiable to say "that although the licensor may in determining the extent of his duty have regard to the fact that it is the habit, and also the duty, of prudent people to look after themselves, he may not in that determination have a similar regard to the fact that it is the habit, and also the duty, of prudent people to look after their little children". I think that when considering the duty of an invitor this approach may properly be taken. It does not warrant a conclusion that the duty which a parent or guardian is expected to perform excludes any duty in the occupier. But it is a circumstance which is relevant and important in considering what is required of the occupier in a given situation and in deciding whether or not a particular state of affairs constitutes in relation to the child an unusual danger. Devlin J. said also (1955) 1 QB, at p 472 that "the responsibility for the safety of little children must rest primarily upon the parents". I agree with that statement but this does not mean that an occupier is necessarily relieved of all responsibility. He may still be responsible for injury caused to the child by an unusual danger. But when it is claimed that an injury was so caused and that the occupier should have taken steps to prevent it, the protection which the child may be expected to receive from his parent or guardian must be taken into account. (at p202)

13. What I have just stated appears to be in conformity with the manner in which the Court dealt with a case somewhat similar to the present one in Swan and Swan v. Canadian Pacific Railway and Swan (1959) 19 DLR (2d) 51 . An infant child fell through the railing of a ramp, when disembarking in the company of his mother from the defendant's ship on which they and other members of the family had been passengers. It was a condition of their carriage that a child should be accompanied by an adult. A judgment recovered by the plaintiff, based upon findings of a jury that the railing constituted an unusual danger to the plaintiff on the defendant's premises and that it was in breach of its duty to the infant plaintiff as an invitee, was confirmed by the Court of Appeal of British Columbia, which regarded those findings as being open on the evidence. The Court rejected an argument that the condition had been broken because at the time of the accident the plaintiff was not in the effective control of his mother and that, therefore, he had ceased to be an invitee. It rejected also an argument that the defendant was entitled to assume that an adult would protect and care for the child by keeping him under effective control and was, therefore, under no obligation to protect the child against unusual or concealed dangers that could only arise in the absence of effective physical control. It was held that there was evidence upon which the jury could find that the railing constituted an unusual danger for a child "in the light of the degree of parental control the defendant was entitled to expect". (at p203)

14. In David Jones (Adelaide) Ltd. v. Roupas (1966) SASR 17 , a claim was made by a child whose finger was caught in the aperture between the moving stairway of an escalator and a fixed skirting at its side. By a majority the Full Court held that the claim failed. The case as presented for the plaintiff differed from that which is here put forward. The only suggestion of negligence was that the gap was unreasonably and dangerously wide. The Court concluded that this had not been established by the evidence. In the present case it has been found and is not disputed that the gap was not unreasonably wide. But it was contended for the respondent that the appellant was negligent in not giving any sufficient warning of the danger and the respondent relied in support of his claim on the appellant's knowledge of the accident in Adelaide to which the case just cited related. (at p203)

15. I do not think it would be useful to discuss other cases which I have examined. I have not found in them any clear guide to the decision which ought to be given in this appeal. I proceed to state the conclusions which I have reached after consideration of the facts and of the principles which appear to me to be applicable to them. The respondent was an invitee of the appellant. The question of liability ought to be determined by reference to the duty created by that relationship and not otherwise. The duty was to take reasonable care for the safety of the respondent in respect of any unusual danger to him which was present on the premises and of which the appellant knew or ought to have known. It was not a duty to ensure his safety. Nor was it a duty to protect him against all risks of injury which he might encounter on the premises and which were or should have been within the knowledge of the appellant. It must be determined whether or not a danger was present which could properly be described as being in the relevant sense an "unusual danger" to the child, taking into account the fact that he was in the company of an adult, assumed to be a responsible person and to be able and willing to take reasonable care for the safety of the child. This is ultimately a question of fact. But in this case it does not depend upon disputed findings as to the primary facts. It is a question upon which this Court is entitled and required to give effect to its own view, if it decides that the only proper conclusion by way of inference from the primary facts is that there was not an unusual danger. A conclusion that no unusual danger existed is not compelled merely by the circumstance that the child was accompanied by an adult, but that circumstance is of importance in deciding the question. There may be cases in which the facts would warrant a finding that there existed some unusual danger for a child although accompanied by an adult and although there would be no danger to an adult. For example, a small hole in a floor through which a child's foot, but not an adult's foot, could pass might constitute an unusual danger. Another example is provided by Swan's Case (1959) 19 DLR (2d) 51 . But it is not always enough, in order to support a finding that there is an unusual danger against which the occupier must take care to protect a child, to show that there is something on the premises which is capable, in some circumstances, of causing injury to him and that the adult accompanying him is unaware of the risk of its doing so and fails without negligence on the adult's part to recognize that risk. In a store, as in most other places, there are many ways in which a very young child may sustain injury, notwithstanding that reasonable care is taken by an adult who has charge of him. Things which are commonly found as part of the structure of the premises or of the equipment or of the stock in a store can cause injury to a child heedless of danger and may be in his eyes unusual. But the occupier is not bound to identify each of these and to give specific warnings in respect of each of them. From many of these dangers the child would ordinarily be protected by an adult who will need no warning to assist him in protecting the child. There will be some cases in which the occupier will be under a duty to take reasonable measures for the protection of the child and will not be entitled to rely entirely on the adult's care for the child. No doubt this situation will occur most frequently when there is some defect or abnormality in the condition of the premises or of things contained in them. But it may occur also, I think, if there is something which, although not defective, is from an adult's point of view, a thing not usually found in such a place. (at p204)

16. In the present case there was no defect. There was nothing which is not usually found in such a store. The escalator was not different from escalators in other stores. Such danger as it had for a child was a common feature of such escalators. It was not a danger to which any child riding on the escalator was necessarily subjected. It existed only if the child did not stand in the normal way on the stairway of the escalator as a child in the company of an adult would ordinarily be expected to stand. In my opinion, it is not possible to find that it was an unusual danger for a child so accompanied. It was not converted into an unusual danger by the fact that the mother did not know that the fingers of a child could be caught in the aperture or by the fact that the appellant had knowledge of a somewhat similar occurrence in Adelaide. With respect I am of opinion that the finding that it was an unusual danger should not be allowed to stand. In the circumstances, there was no obligation on the appellant to give verbally or to exhibit in writing a warning of the existence of the aperture. Therefore, the question of the sufficiency of the notice which was exhibited does not arise. (at p205)

17. In my opinion the appeal should be allowed. (at p205)

ORDER

Appeal allowed with costs. Judgment for the plaintiff set aside and judgment entered for the defendant.