Schiller v Mulgrave Shire Council [1972] HCA 60; (1972) 129 CLR 116 (24 November 1972)

HIGH COURT OF AUSTRALIA

SCHILLER v. MULGRAVE SHIRE COUNCIL. [1972] HCA 60; (1972) 129 CLR 116

Negligence - Crown lands - Appeal

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

CATCHWORDS

Negligence - Public authority - Scenic reserve - Injuries to persons entering reserve - Entry as of right - Duty to public - Vested statutory power of control - Extent of occupation.
Crown lands - Reservations for public purposes - Land under control of trustees - Whether trustee occupier - Duty of trustee to public entering as of right - The Land Acts, 1910 to 1962 (Q.), ss. 180 (1), 181.*
Appeal - High Court - Omission of trial judge to make necessary finding of fact - Credibility of witnesses not involved and evidence not seriously in conflict - Finding by High Court.

*The Land Acts, 1910 to 1962 (Q.) provided:
"180 (1). The Governor in Council may, from time to time grant in trust, or permanently, any Crown land which, in the opinion of the Governor in Council, is or may be required for public purposes.
...
181 (1). The Governor in Council may, by Order in Council and without issuing any deed of grant, place any land reserved, either temporarily or permanently, for any public purpose under the control of trustees; and may declare the style or title of such trustees and the trusts of the land.

Such trustees are hereinafter referred to as trustees of reserves.
(2) A Local Authority or other local body constituted by statute may be

appointed trustee of a reserve."

HEARING

Brisbane, 1972, June 7, 8;
Sydney, 1972, November 24. 24:11:1972
APPEAL from the Supreme Court of Queensland.

DECISION

November 24.

The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment

prepared in this appeal by my brother Walsh. The relevant facts and circumstances including the statutory provisions are there recited. I fully agree with the conclusion of my brother Walsh that the respondent Council, by reason of its trusteeship of the reserve in which the appellant was injured and s. 184 (1) of The Land Acts, 1910 to 1962 (Q.) was under a duty of care towards those who lawfully used the reserve. I agree that that duty was not limited in nature and extent to the duty owned by an occupier of land to a person coming or being upon it by his permission. I also agree with my brother's conclusion that, even if that obligation be regarded as not higher in nature and extent that the duty of an occupier towards an invitee, the respondent was in breach of its obligation towards the appellant. (at p120)

2. However, in my opinion, the categories of ascending duty of an occupier of land towards those persons who have no right to be upon it other than such right as may have been created expressly or impliedly by him are not appropriate to express the duty of a person in authority having the care and control of land or premises towards persons coming upon that land or premises in the exercise of a right either held commonly by the public, or held by a class of which he is a member. For my part, the capacity to care for and control the reserve was in this case the source of duty. Whilst it is convenient perhaps to refer to the respondent as the occupier of land, I would prefer to describe it as the trustee having the care, control and management of the reserve. The capacity for care, control and management derived from that trusteeship clearly extended in this case to the whole of the area. Consequently, in my opinion, the source of liability in this case is the statutory power and duty of care, control and management and not merely the occupation of land. (at p120)

3. I agree with my brother Walsh that there is no need in this case to decide what is the nature and extent of the duty owed to a person coming on such land as of common right. Not only is it unnecessary to do so in order to dispose of this appeal but the case was argued before a bench of three Justices. Thus, we should avoid unnecessarily expressing opinions upon so important a point. But, having regard to the terms of my brother's reasons perhaps I ought to say that, as presently advised, the inclination of my mind is to think that the obligation of the person in authority having the care and control of a place to which members of the public resort as of common right is more extensive than the duty owed by an occupier of land to a person satisfying the description of an invitee. (at p120)

4. Otherwise I fully agree with the reasons of my brother Walsh in allowing this appeal. (at p120)

WALSH J. Certain land having an area of about nineteen acres was set apart as a reserve for scenic purposes and placed under the control of the respondent as trustee by an Order in Council made on 12th July 1962. The Order in Council was made pursuant to The Land Acts, 1910 to 1962 (Q.) (the Acts). Section 180 thereof authorized the Governor in Council to reserve from sale or lease, any Crown land required for public purposes. Section 181 empowered the Governor in Council, "by Order in Council and without issuing any deed or grant", to place any land reserved for any public purpose under the control of trustees and it provided that a local authority or other local body constituted by statute might be appointed trustee of a reserve. Section 184 (1) was in the following terms:

"For the purposes of any action or proceeding in any court
it shall be sufficient to describe the trustees of land granted
in trust or the trustees of a reserve by their style or title
without naming any of them; and they may by such style or
title sue and be sued, and shall for the purposes of any action
or proceeding be deemed to be the absolute owners of any
property, real or personal, under their control. No action or
proceeding shall abate by reason of the death, removal, or
retirement of a trustee."

Section 186 empowered trustees to make by-laws for the purposes, inter alia, of the protection of the land under their control from trespass, injury, or misuse and of regulating the use and enjoyment of the land. Before the Order in Council was made the respondent had stated its willingness to assume the trusteeship of the scenic reserve. It had stated that it would not be possible within the scope of available finances to carry out major improvement works on the reserve and suggested that the government tourist bureau should assist with finances for development of the reserve to meet the tourist traffic. (at p121)

2. The Acts were repealed by The Land Act of 1962, in which similar provisions to those to which I have referred were enacted. It has not been argued that this has affected in any way material to this appeal the rights or the duties of the respondent in relation to the reserve. Notwithstanding the repeal of the provisions under which the Order in Council was made, it remained in force: see The Land Act of 1962, s. 4(15) and s. 4(16) and The Acts Interpretation Acts, 1954 to 1962, s. 21 (2). (at p121)

3. On 9th November 1964, the appellant was walking along a track in the reserve. A tree fell suddenly and struck him. He suffered very serious injuries. He brought an action in the Supreme Court of Queensland against the respondent claiming that his injuries were caused by its negligence. The action was heard by Douglas J. who gave judgment for the respondent. This is an appeal against that judgment. (at p121)

4. A creek named Babinda Creek runs through rain forest country in North Queensland. It runs through the reserve, within which there is a naturally formed swimming pool in the creek. Near this pool there was at the time of the accident a fairly large clearing which had been made and extended over a substantial period of time and had been provided with picnic ground facilities, including toilets and a shelter shed. In part, these improvements were made by the voluntary efforts of boy scouts and of the junior chamber of commerce and, in part, by servants of the respondent. Downstream from the main pool there is an area known as the Boulders which was a scenic attraction to which tourists and others resorted in large numbers. The access to that area was provided by a track following the course of the creek and running close to its bank. Downstream from the Boulders is another natural pool. The track, already mentioned, continued beyond the Boulders down to that lower pool for a further distance estimated by one witness to be 150 to 200 yards. According to the same witness, the appellant was injured at a point half way between that lower pool and the Boulders. However, according to other evidence, the accident occurred 164 paces downstream from the Boulders. From the cleared area to the Boulders was over 500 paces and along that part of the track there was a rustic bridge which had been constructed by the respondent. From time to time work was done by the respondent's servants upon the section of the track from the cleared area to the Boulders, but no work was done on the lower part of the track and the respondent's servants did not carry out any inspections of that section of it. (at p122)

5. The track was formed originally by boys who came from farm lands downstream from the site of the reserve to the creek bank and along that bank to various swimming holes. Later a road was made which came within five or six chains of the main swimming pool and thereafter a bush track was formed from the road to the vicinity of the pool and the clearing of the area near the pool began. It appears that thereafter the track along the creek bank ceased to be used much by people coming through the downstream farm lands and the forest to the creek bank. But it was used by people going downstream from the cleared area. This use was mainly between that area and the Boulders. But the learned judge found that "a lesser but still significant number of people" used the track leading beyond the Boulders and where the appellant was injured. A witness, who had been a Pioneer coach driver, gave evidence that tourist parties went to the Boulders, two or three times a week in the winter months, and once a week at other times, and that there were also one-day tours once a week to that area. The tourists went along the track from the clearing to the Boulders. The witness said that from these parties some of the younger people went along the path lower down and that he would see "quite a lot down at the very bottom". (at p122)

6. There was no direct evidence that servants of the respondent saw people using the lower part of the track. But it is clear that these servants knew that the track continued beyond the Boulders and it is readily to be inferred that they knew that the lower part of the track was used. One of them said in evidence that he saw "a track that has lasted through the ages" and he agreed that people must have been going down there at times. The learned judge found, and was in my opinion fully justified in finding, that through its servants and agents the respondent knew or ought to have known that a significant number of people used the lower part of the track. (at p123)

7. Below the Boulders the track became narrower. It ran along the bank of the creek and from it the land rose steeply. It is clear that it was a rough track but it was described in evidence as a well-beaten track and as a reasonably easy track. The tree which fell across the road and struck the appellant had stood about thirty-five feet from the track. Its fall was described by the appellant and by his companion, Mr. Betts, who was walking a few feet ahead of the appellant. They did not see it fall or notice it before it began to fall. They heard what the appellant described as a thundering crash and Betts heard it coming through the timber and breaking branches from other trees. Although the first impression of one witness was that it was a live tree, it is clear from the evidence that it was a dead tree. (at p123)

8. The learned trial judge held, in my opinion correctly, that the appellant in common with other members of the public had a right to resort to the land. In my opinion that right entitled him to be upon that part of the reserve where he was injured. It is not in dispute that that place was within the boundaries of the reserve. I am of opinion also that for the purpose of the law relating to the duty that an occupier of land has towards persons coming onto the land, the respondent was the occupier of the whole of the reserve. The learned judge decided that the respondent had assumed control of only part of the reserve, which did not include the place where the appellant was injured and that it was only in respect of that part of the land upon which it had exercised control in fact, by performing work on it, that the respondent could be found to be "in the position of an occupier or something akin to it". (1972) Qd R 140 at p 147 . Accordingly, his Honour concluded that there was no relationship between the appellant and the respondent entitling the former to sue the latter for a breach of a duty of care. With respect I am of opinion that in this his Honour was in error. By force of the Order in Council and the provisions of the Acts, the respondent was placed in control of the whole area. It was not merely given authority to take control, if it wished to do so, of the area of of such part of it as it might select. In this respect its position was different from that in which, according to the view of Latham C.J. in Burrum Corporation v. Richardson [1939] HCA 30; (1939) 62 CLR 214, at p 223 , the appellant in that case was placed by the statute and the proclamation, which had authorized it to assume the management and control of the reserve but had not vested in it that control. The control by a statutory body of premises used by the public constitutes, in my opinion, the "occupation" of them by that body. It was said in Commissioner for Railways v. McDermott (1967) 1 AC 169, at p 186 , that an occupier of private land may incur liability towards persons permitted or invited to come onto the land, for the reason that his occupation gives him control over and knowledge of the state of the premises and it is right that he should have some degree of responsibility for the safety of persons entering his premises with his permission. In Burrum Corporation v. Richardson Latham C.J. said (1939) 62 CLR, at p 228 that the liability of an occupier really depends upon his control and management which create duties, varying in degree, to persons coming upon and using the premises. When land to be used for public purposes is placed under the control of a statutory body then, whether the measure of its duty to persons using the land is or is not identical with that of an occupier of private land, the fact that it has control and that it alone has the means of securing the users of the land against injury provides a basis for holding that a duty of care is cast upon it: see Aiken v. Kingborough Corporation [1939] HCA 20; (1939) 62 CLR 179, at pp 203-206 . (at p124)

9. In Burrum Corporation v. Richardson [1939] HCA 30; (1939) 62 CLR 214 , this Court was equally divided in its opinion as to the result of the appeal. The case was concerned with fatal accidents caused by negligence in carrying out work on an electric lighting system at a bathing enclosure. The question whether the appellant Council had the control of the enclosure had been left to the jury as a question of fact and had been answered in the affirmative. In the judgments in this Court it was considered that it was necessary to determine whether that finding could stand, in order to determine whether the Council had any legal liability for the unsafe condition in which the enclosure had been left by workmen who had carried out the work on the electric light system. But the reasons why it was necessary in that case to consider whether the Council had assumed control in fact of the bathing enclosure have no application to the present case. I have referred to the opinion of Latham C.J. that the Council had not been given the control of the reserve but had merely been authorized to take control of it. In addition to that circumstance, the fact was that the structure by which the bathing enclosure was formed was not in existence when the proclamation was made. It was constructed afterwards, not by the Council or by its authority, but by local residents. It appears that neither the Council nor anyone else could have erected the enclosure without first obtaining an approval required by statute. The local residents sought and obtained such approval (1939) 62 CLR, at p 225 and they afterwards erected and maintained the enclosure. In my opinion, the judgments in that case provide no support for the view that in the present case the respondent was not the "occupier" of the part of the reserve where the accident occurred. I am of opinion that it was the occupier of the whole of the reserve and, accordingly, in my opinion, it cannot deny that it owed some duty of care to a member of the public who having come onto the reserve went to the place where the appellant met with his accident. (at p125)

10. In England the rule has been adopted that the duty which a statutory body in control of a public park or playground or similar area has to a member of the public who resorts to it is that which is owed by an occupier of land to a licensee. In Pearson v. Lambeth Borough Council (1950) 2 KB 353 , it was held reluctantly by the Court of Appeal that it was bound by earlier authorities to accept that view. In my opinion, we should not accept it. In Scotland it was rejected by the Court of Session in Plank v. Stirling Magistrates 1956 SC 92 , in which the English cases were reviewed. In my respectful opinion their Lordships were correct in holding, contrary to the view taken in some of the English cases, that the decision in Glasgow Corporation v. Taylor [1921] UKHL 3; (1922) 1 AC 44 , did not require that those who resort to public parks must be held to be licensees. (at p125)

11. The proposition that the duty to such persons is no different from that owed to a licensee has been rejected in the Supreme Court of New South Wales, by Herron J. in Vale v. Whiddon (1949) 50 SR (NSW) 90, at p 112 , by a Full Court in James v. Kogarah Municipal Council (1961) SR (NSW) 129 , and by the Court of Appeal Division in Barr v. Manly Municipal Council (1967) 70 SR (NSW) 119 . The rejection of the proposition is supported by the opinions expressed in this Court by Evatt J. in Pettiet v. Sydney Municipal Council (1936) 10 ALJ 198 (n), at p 199 , and by Latham C.J. and Dixon J. in Aiken v. Kingborough Corporation (1939) 62 CLR, at pp 190, 207-209 . (at p126)

12. Having decided that the duty is not limited to that which it owed to a licensee, I proceed to consider how its measure is to be defined. This has not been authoritatively settled. One view that has been taken is that the duty is identical with that owed by an occupier to an invitee. It was so decided in Plank v. Stirling Magistrates 1956 SC 92 by a majority of the Court, who were of the opinion that the decision of the House of Lords in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 , precluded the Court from dealing with such a case otherwise than by assigning the plaintiff to one or other of the three categories of trespassers, licensees and invitees. That view of the effect of Addie's Case [1929] UKHL 3; (1929) AC 358 has been stated also in some of the English cases. On the other hand, Lord Mackintosh held in Plank's Case 1956 SC, at pp 116-119 that the rule laid down in Addie's Case [1929] UKHL 3; (1929) AC 358 as to the exclusive and exhaustive character of the three categories has no application where a person comes into a park of other recreation ground "as of right" as a member of the public. In Australia there has been a body of judicial opinion in favour of the view that such a person ought to be regarded as being in a special class. The judgment of Dixon J. in Aiken's Case (1939) 62 CLR, at pp 207-209 , to which I have already referred, contains detailed reasons for that opinion. In the same case (1939) 62 CLR, at p 190 and in Burrum Corporation v. Richardson (1939) 62 CLR, at p 228 Latham C.J. expressed the view that the ordinary classification of persons in accordance with the three categories was not relevant to a case of persons who come upon premises in the exercise of a public right, but in both cases he left open the question whether the standard of care to be exercised towards such persons was the standard applicable to one of those categories. (at p126)

13. It has been said that the duty of care owed to such a person as the appellant in the present case is not less than that which would be owed to an invitee: see Pettiet v. Sydney Municipal Council (1936) 10 ALJ 198 (n), at p 199 ; James v. Kogarah Municipal Council (1961) 61 SR (NSW) 129 ; and Vale v. Whiddon (1949) 50 SR (NSW) 90, at p 110, 112 . In none of those cases was there a precise formulation of the duty. But in Aiken's Case (1939) 62 CLR, at p 210 , it was formulated by Dixon J. in these terms: "What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care". (at p127)

14. Although his Honour there referred to premises "such as a wharf" and although it is possible that the rights of users of public jetties and wharves are not identical with those of users of recreation reserves (see Aiken's Case (1939) 62 CLR, at p 200 ) it seems clear from a consideration of the reasons of Dixon J. that his quoted statement was meant to apply generally to the users for various public purposes of lands, including parks and playgrounds, to which they come as members of the public. (at p127)

15. In Barr v. Manly Municipal Council (1967) 70 SR (NSW) 119 , I had occasion to examine the meaning and effect of the rule thus formulated by Dixon J. I will not repeat what I wrote then. But in relation the problem now before this Court, I make two observations concerning that formulation of the measure of the duty. My reasons for these observations will become apparent after I have stated later herein my conclusions upon the facts of this case. The first observation is that if the rule stated by Dixon J. makes the obligation of a public authority in control of premises used for public purposes less onerous in one respect than that of an occupier to an invitee, in that the former cannot be, but the latter may be, liable for injury arising from a danger which is "not apparent" (as to which see Barr's Case (1967) 70 SR (NSW), at p 126 ), this difference is not in my opinion of any importance in this case. The second observation is that in my opinion it does not matter upon the facts of this case whether the members of the Court who constituted the majority in Barr's Case (1967) 70 SR (NSW) 119 were right or wrong in their interpretation of the quoted statement of Dixon J. and in their decision that the local authority could not be held liable for an injury arising from a danger unless it knew or ought to have known of that danger. In my opinion we ought not to go further in this case in defining the measure of duty owed by public authorities to persons entering upon land devoted to public purposes than is necessary in order to decide the appeal. If a definition of that duty had to be made, the choice would appear to lie between asserting that it is the same as that owed to an invitee and adopting rules as to the measure of the duty not identical with those applicable in relation to any of the recognized categories of entrants upon land. If it were thought proper to take the latter course, it would be necessary to decide whether to adopt without modification or elaboration the statement of Dixon J. quoted above or to make a new formulation, which would embody such variations from the duty owed by an occupier to an invitee as appeared appropriate to the exercise of a public right and which would seek to remove such doubts and difficulties as were considered, by Lathan C.J. in Burrum Corporation v. Richardson (1939) 62 CLR, at pp 229-230 , and by the Supreme Court of New South Wales in Barr's Case (1967) 70 SR (NSW) 119 , to arise in relation to the statement made by Dixon J. I should be disposed myself to adopt the rule that the measure of the relevant duty is the same as that of the duty owed to an invitee. Whilst it may be (see (1939) 62 CLR, at p 209 ) that the considerations giving rise to the particular measure of duty in each case are somewhat different, I am inclined to the view that it is better not to add further complexity to a branch of the law in which there are already many refinements and distinctions. However, upon my view of the facts of this case, the questions just discussed need not be decided. I think that if it should be held that the relevant duty is not identical with that owed to an invitee, it ought not to be defined as being less onerous in any respect, with the possible exception to which I have already referred and, in the circumstances of this case, it is of no consequence whether that exception is or is not recognized. (at p128)

16. It is convenient to recapitulate in summary form the opinions I have expressed above. The respondent was at the relevant time the occupier of the reserve, including that part of it in which the appellant sustained his injuries. The appellant had a right to be on the reserve at the place where he was injured. A duty of care in relation to the state or condition of the land as affecting the safety of persons coming upon it was owed by the respondent. That duty was not identical as to its measure with, but was greater than, the duty which an occupier of land owes to a licensee. The measure of the duty was either identical with that owed by an occupier to an invitee or alternatively it was a duty not requiring in any way which is here relevant a lower standard of care than that owed to an invitee. (at p128)

17. It is convenient now to examine the facts and to consider whether there was a breach of the respondent's duty to the appellant. The Court has the benefit of certain findings of fact made by the learned trial judge. But upon some relevant matters he did not make any findings. If this Court is of opinion that the ground upon which his Honour rested his decision was erroneous, and if it does not appear that in any event, having regard to the evidence, the claim of the appellant could not be sustained, the question must arise whether we are in a position to give a final decision in the action, or must order a retrial of it. It has not been submitted by either party that we should take the latter course. No attack has been made in argument upon the credibility of any of the witnesses and it has not been suggested that there are serious conflicts as to the primary facts. In all the circumstances, I am of opinion that we should consider for ourselves what inferences should be drawn and what ultimate conclusions of fact may be reached upon the evidence and, if possible, we should dispose finally of the action. (at p129)

18. In considering whether the appellant suffered injuries as a result of a breach of the duty that would be owed by an occupier to an invitee, the first question is whether the injury arose from an unusual danger on the land. No doubt there was nothing unusual in the presence of a dead tree in a rain forest. But the relevant danger was, in my opinion, that the tree which stood sufficiently close to a track used by a significant number of people might fall suddenly even in calm weather conditions. The learned judge accepted the evidence of the witness Mr. Volck as to the instability of forest timber once it dies and as to the fact that dead trees in that type of country are a danger to people in their vicinity. He found that the respondent, through its servants or agents, knew or ought to have known of those facts. The witness Volck explained why a dead tree in that area was likely to fall. In the wet season the invasion of the tree by fungi is most active. Then in the dry season the wood dries out and becomes ready to absorb moisture when the wet season comes again. By repetition of these cycles the wood may become spongy and the roots may rot right back to the base of the tree. Such a tree will fall over simply because it cannot support its own weight. The evidence did not explore very fully the question of the degree to which, in respect of a tendency to die and to fall suddenly, trees in a rain forest differ from trees in other places with a much lower average rainfall. But I think that the evidence of Mr. Volck was sufficient to show that in the former case the processes of decay in the trees and their tendency to fall without the impact of wind are markedly different from what may be regarded as the more usual characteristics of trees, with which most tourists would be familiar. For the class of persons of whom the appellant was one, that is, tourists from places beyond the northern rain forest areas of very high rainfall with which Mr. Volck was familiar, I think that the presence of a dead tree in the vicinity of the track constituted an unusual danger. (at p130)

19. In my opinion the danger was one that was known or ought to have been known, through its servants, to the respondent. It was found by the trial judge that the respondent knew or ought to have known that in that type of country dead trees were a danger to people who might be in their vicinity. In my opinion that finding should be accepted. The respondent must be taken to have had knowledge through its servants of the characteristics of trees in that area. The two servants who carried out work in and around the cleared space and who gave evidence had lived all their lives in that locality. But it is necessary to consider also whether the respondent, through its servants, knew or ought to have known, prior to the accident, that in the vicinity of the track below the Boulders there was or were one or more dead or dying trees. There is no direct evidence that any servant had knowledge of that fact. Nevertheless I think that it may properly be found upon the evidence that if one of the respondent's servants had walked along the track below the Boulders to look for any dead or dying trees standing close enough to the track to fall across it, he would have been able to see the tree that did fall and injure the plaintiff and he would have been able, without leaving the track, to see that it was a dead tree and he would not have needed to go close to it to look for the fungus or the rotten patches around its base, which were described by Volck as signs by which a tree which still has green leaves upon it may be recognized as a dying tree. The respondent sought to establish that from the track the tree would have been so obscured by the forest growth that it would not have been possible to see that it was dead and it was suggested that, even upon an inspection from a place closer to the tree, it would not have been observed that it was dead. But having considered all the evidence, including the photographs of the tree and of the growth in its vicinity, I reach the conclusion that it would have been visible and would have been seen to be bare. Mr. Leumann, a foreman employed by the respondent, said that if you walked along the track and looked for dead trees you could probably see "a real dead tree" within thirty or forty feet of the track. I think that other evidence shows, notwithstanding the contrary impression first formed by the witness Schlobohm, that the tree that fell on the appellant was "a real dead tree". (at p130)

20. The foregoing conclusions give rise to the ultimate and critical question of fact, which is whether or not the failure of the respondent to take any step to eliminate or reduce the risk of injury from a falling tree to a person using the track was a breach of a duty owed to the appellant. There is no need to consider whether it would have been reasonable to require the respondent to take any step for the protection of any person who wandered away from the track into the more remote parts of the reserve. It is not to be expected, of course, that a rain forest will be as free from dangers as an ordered garden or a metropolitan park and there may be many risks against which no one would think of protecting those who venture into such a forest. It is to be expected, too, that tracks through the forests will be rough and uneven and that rocks, tree roots and vines may be on them and beside them. But risks associated with such obstructions are not, I think, of the same kind as a risk of a sudden fall of a tree. The question is whether, knowing that the lower part of the track was used fairly often, the respondent was required, in order to fulfil its duty of taking reasonable care, to cause periodical inspections to be made of that part of the track and of the forest in proximity to it, by a servant who would look around for dead trees close enough to the track to fall upon it and whether, if any such trees had been observed, the respondent ought to have taken some action to reduce the risk of some person being injured by the fall of such a tree. (at p131)

21. In this problem a factor, to which the respondent is entitled to ask that considerable weight be attached, is that the chances of a tree falling at the exact time when a person traversing the track reached the very place where its fall would injure him must have been small. Unfortunately, no evidence was directed to the question whether such an accident had occurred before, in this or in any other rain forest in the area. Perhaps it may be inferred from Mr. Volck's evidence that the present case has "high-lighted" the point that as more people used such walking tracks the Forestry Department will probably have to spend more money getting rid of dead trees, that he was not aware of earlier cases in which trees had fallen and caused injury. But, in my opinion, the relatively small degree of likelihood of such an accident cannot be decisive in favour of the respondent, although it is a matter to be taken into account. (at p131)

22. The only evidence as to practices adopted before the accident by other bodies having control of rain forests was given by Mr. Volck. He said that when permanent forestry camps were made, a large area was cleared so that no tree would fall near the camp and that when road camps were set up in the bush from time to time these were placed at a safe distance from dead trees. He said that the employees of the Forestry Department did not regularly patrol walking tracks to look for risks, but they had instructions to remove any trees which were seen in the course of maintenance patrols and which were "handy" to the track, that is, at a distance of six feet or so. Because of the cost that would be involved, they did not make a practice of removing all dead trees. (at p132)

23. Some evidence was given as to difficulties that could arise in cutting down and removing dead trees and as to the time that would be required to do this and to make inspections for the purpose of discovering dead or dying trees. No doubt this is a matter to be weighed, in conjunction with the degree of the risk of a falling tree striking a passer-by, in determining what the exercise of reasonable care required. It was suggested, also, that the penetration of the forest to get equipment into position and the carrying out of the work of cutting down and removing dead trees would cause harmful disturbance of the forest growth tending to destroy or damage it. In evaluating the two factors to which I have just referred I think it is important to keep several matters in mind. We are concerned only with a strip of forest adjacent to the track and not with the whole area of the reserve and not, of course, with the forest outside the reserve. There is no reason to suppose that it would have been necessary to remove a dead tree from the area. The danger from it would be eliminated by cutting down or by lopping the tree. The evidence did not indicate that this would be difficult or would cost a great amount of time or money. The respondent did not bring forward evidence concerning any other forest areas which may have been under its control or evidence to show that the cost involved in protecting the tracks from the danger of falling trees would be so onerous that it could not be reasonably expected to incur it. It was shown by the evidence that the respondent's servants did pull down a number of dead trees in the cleared area and that they were aware of the risk of leaving those trees standing. Although the chance of a person on the lower part of the track being struck by a tree was small the injury which would be caused if that did happen was likely to be a serious injury as, unfortunately, was proved by the event when the appellant was injured. (at p132)

24. Upon consideration of all the circumstances, I think it is proper to find that the respondent did fail to exercise reasonable care to prevent damage from the danger that existed on the land under its control, by neglecting to make any inspection in the relevant part of the reserve and by taking no step to discover or to deal with any dead tree standing near the lower part of the track. (at p132)

25. It may be added that if the respondent had put up near the Boulders some warning notice this might or might not have been effective to deter the appellant and other persons from going along the lower track or to cause him or them to look for any tree that appeared to be dead and to keep a watch upon any such tree whilst traversing the track. It is impossible to know whether or not such a warning would have prevented the accident from occurring. But the fact that the respondent did nothing at all is, I think, of some relevance in deciding whether or not the considerations of difficulty and cost, upon which it has sought to place some reliance, made it reasonable for the respondent not to take any steps to remove the source of danger. (at p133)

26. I have said earlier that, in my opinion, the same decision should be reached in this case, whether the duty owed to the appellant was the same as that owed to an invitee, or was a duty which was to be measured by a standard differing to some extent from that which is applicable to an invitee of an occupier of land. I have stated now my reasons for concluding that there was a breach of the duty of care which would be owed to an invitee. I have found that the respondent through its servants knew or ought to have known of the danger by reason of which the appellant suffered injury. Therefore it does not matter in this case whether or not the formulation of the duty by Dixon J., in Aiken's Case (1939) 62 CLR, at p 210 , in the passage quoted above, if accepted as a correct statement of the duty which the respondent had towards the appellant, should be understood as imposing liability, even if it does not appear that a defendant knew or ought to have known of the danger. Again, if by his reference to dangers "which are not apparent" (1939) 62 CLR, at p 210 , Dixon J. meant to include in his statement of the relevant duty an element which is not a part of the definition of the duty owed to a invitee, that is not a material distinction in this case. For the reasons already indicated, I am of opinion that the danger in this case was not apparent, either to the appellant personally, or to the class of tourists to which he belonged. (at p133)

27. I am of opinion, therefore, that the appeal should be allowed and that there should be judgment for the appellant in the action. As the learned judge made an assessment of the damages which has not been challenged, the judgment should be for the amount which his Honour assessed. (at p133)

GIBBS J. In this case I have had the advantage of reading the reasons prepared by my brother Walsh, and the additional reasons prepared by the Chief Justice. (at p133)

2. I am in complete agreement with the conclusions that the track along which the appellant was walking when he was sadly injured by the unexpected fall of a scrub tree was within the boundaries of a recreation reserve of which the respondent Council was the occupier and had the control and management, that the reserve was open to the public, and that in these circumstances the Council owed to the appellant, who was using the land as of right, a duty of care which, notwithstanding the English authorities, was higher than that which is owed by an occupier of land to a licensee. I agree too that it is unnecessary in the present case to define the measure of the duty, and, as the Chief Justice has said, it is therefore undesirable to do so. (at p134)

3. The crucial question, upon which I have experienced some difficulty, is whether the Council was negligent in failing to have the trees standing near to the track regularly inspected, and to cause any trees found to be dead to be removed. (at p134)

4. The evidence shows that in the rain forests of North Queensland a dead tree, if standing, is always a risk. Such a tree is very likely to be invaded by fungi which spread through the wood and cause it to rot, so that eventually the roots are destroyed and the tree will fall under its own weight. The learned trial judge found that the Council ought to have known of these facts and the evidence supports this finding. There is no evidence to show how often persons walking along a track through a rain forest have been injured by the sudden fall of a dead tree. Common knowledge suggests that people are not frequently injured in that way. On the other hand, if such an injury does occur it is likely to be grave. (at p134)

5. In Caminer v. Northern & London Investment Trust Ltd. (1951) AC 88, at p 111 , Lord Radcliffe raised some questions as to the liability of a tree-owner which he did not finally answer. In the course of his discussion he said:

"It would be conceded, I believe, that there is somehow a
difference between the legal responsibilities of the owner of a
mature forest tree, in a built-up area, immediately adjacent to
a busy street, and the responsibilities of the owner of a stand
of timber bordering a country lane. But is the difference only
this, that the latter is entitled to take more chances at the
expense of his neighbours than the former? I am not certain
of the logic, for a tree or its branch only falls once; and it
must be poor consolation to an injured passer-by in the country
lane to be assured that the chances were all against his being
at the place of the accident at the moment when it occurred."

The question whether a person who owns or controls land in the country upon which trees are growing can be said to be negligent in failing to take steps to eliminate the risk of injury from the fall of a dead tree must in my opinion be answered by applying the principle which is now stated in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. [1966] UKPC 1; (1967) 1 AC 617, at pp 642-643 . In that case Lord Reid, after referring to the decision in Bolton v. Stone [1951] UKHL 2; (1951) AC 850 , said:

"But it does not follow that, no matter what the circumstances
may be, it is justifiable to neglect a risk of such a small
magnitude. A reasonable man would only neglect such a risk
if he had some valid reason for doing so, e.g., that it would
involve considerable expense to eliminate the risk. He would
weigh the risk against the difficulty of eliminating it ...
In their Lordships' judgment Bolton v. Stone [1951] UKHL 2; (1951) AC 850 did not alter
the general principle that a person must be regarded as negligent
if he does not take steps to eliminate a risk which he knows or
ought to know is a real risk and not a mere possibility which
would never influence the mind of a reasonable man. What
that decision did was to recognize and give effect to the
qualification that it is justifiable not to take steps to eliminate
a real risk if it is small and if the circumstances are such that
a reasonable man, careful of the safety of his neighbour, would
think it right to neglect it." (at p135)

6. In the present case, the evidence does not show that the elimination of the risk would have been beyond the capacity of the Council or would have put it to undue expense. The tree that fell had no leaves and this could have been seen by an employee of the Council if he had been sent to walk along the track and had kept his eyes open. Since it was a scrub tree, the fact that it had no leaves would at the least have been an indication that it should be more closely inspected to see if it had fungus or rot around the base or other signs of death or decay. Once the tree was found to be dead it would be necessary for the Council to remove it, unless of course the Council was able to prevent people from walking along the track, as by closing it. It would, in my opinion, have served no good purpose merely to warn persons using the track; if the tree fell it might, as the event showed, come down so suddenly that a person on the track could not escape it, and the fact that he was warned of the possibility of danger would not help him. However, the evidence does not suggest that the removal of such a tree would be a very difficult or expensive operation. (at p135)

7. Various estimates were given of the length of the track but its whole length from the cleared picnic ground to the Devil's Pool does not seem to have been more than half a mile at the very most. The part of the track that led to the Boulders was more extensively used than the part which led beyond the Boulders to the Devil's Pool but the evidence supported the finding made by the learned trial judge that a significant number of people used the latter part of the track, on which the accident occurred. Indeed, both the Devil's Pool and the Boulders were places which tourists were likely to wish to see. There is no evidence as to whether in this or any other recreation reserve for which the Council might be responsible there were other tracks which it would have been equally necessary to keep free from the risk of falling trees and there is thus no evidence to show what the total cost to the Council would be likely to have been of inspecting all comparable tracks and removing dead trees standing near to them. However, these were matters within the peculiar knowledge of the Council and since it did not choose to give evidence about them it ought not to be inferred that the total burden on the Council would have been very great. (at p136)

8. The reserve was, of course, designed to maintain the rain forest, so far as possible, in its natural state and it was suggested at the trial that the natural appearance of the area might have been impaired by the removal of dead trees. As to this suggestion it is enough to say that in an area to which it is known tourists are accustomed to resort in significant numbers "the safety of the public must take precedence over the preservation of the amenities" (Quinn v. Scott (1965) 1 WLR 1004, at p 1012; (1965) 2 All ER 588, at p 593 ). (at p136)

9. In my opinion, in all the circumstances of the case, it was not justifiable for the Council to neglect the risk that persons using this track might be injured by falling trees. Its failure to cause dead trees standing near to the track to be removed amounted to a failure to take reasonable care to prevent injury to persons using the track. This of course is not to say that every person responsible for an area of rain forest must take steps to remove every dead tree, or even every dead tree growing near to a track. The nature of the area, the extent to which the public resort to it and the practicability of eliminating the risk, having regard to the expense, the funds available and the difficulty of the operation, have all to be considered. (at p136)

10. If the duty of the Council was the same as that owed by an occupier to an invitee, it was bound to take reasonable care to prevent damage from unusual danger which it knew or ought to have known. It follows from what I have said that the danger was one of which the Council ought to have known. Further, in my opinion, it would be right to describe the danger as an unusual danger. Many of the persons who would be likely to visit the reserve would, like the appellant, be tourists from other parts of Australia and to such persons the danger of a tree falling suddenly on a windless day and without the influence of any external agency might, I think, properly be described as unusual. If the duty was that described by Dixon J. (as he then was) in Aiken v. Kingborough Corporation [1939] HCA 20; (1939) 62 CLR 179, at p 210 , namely to take reasonable care to prevent injury "through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care", in my opinion the danger was of that description. If the proposition stated by Dixon J. in Aiken's Case (1939) 62 CLR 179, at p 210 , is not accepted, the duty of the Council must in my opinion have been the same as, or greater than, that owed by an occupier of property to an invitee. On any possible view, the Council was in breach of its duty to the appellant. The appeal should therefore be allowed and there should be judgment for the appellant in the action for the amount of damages assessed by the learned trial judge. (at p137)

ORDER

Appeal allowed with costs. Order of the Supreme Court of Queensland set aside and in lieu thereof order that judgment be entered for the plaintiff against the defendant for $84,076.99 plus costs.