Practitioners acting for occupiers should note that mere knowledge by an invitee of the physical existence of a dangerous condition does not automatically exonerate the occupier; the occupier must show the invitee had full appreciation of the danger and accepted the risk, and the onus of proving this lies on the occupier.
Later decisions that cite Commissioner for Railways (NSW) v Anderson
Decisions cited by Commissioner for Railways (NSW) v Anderson
COMMISSIONER FOR RAILWAYS (N.S.W.) v. ANDERSON [1961] HCA 38; (1961) 105 CLR 42
Negligence
High Court of Australia
McTiernan(1), Fullagar(2), Kitto(3), Taylor(4) and Menzies(5) JJ.
CATCHWORDS
Negligence - Dangerous premises - Unusual danger - Invitee - Injured by rail fixed horizontally four feet from the ground between two posts at the entrance to a railway station - Liability of invitor for injury - Invitee's knowledge of the existence of the structure - Appreciation of the risk - Onus of proof - Invitor's knowledge of the existence of the structure - Duty of care - Whether injury from the structure reasonably foreseeable.
HEARING
Sydney, 1960, December 9, 12-14; 1961, June 23. 23:6:1961DECISION
1961, June 23.2. At 6.30 a.m. on the abovementioned date - it was then daylight - the respondent entered the premises between the first and second posts on the left and in attempting to stoop under the cross beam between the two posts inside the frontage, bumped the top of his head against it and fell upon his buttocks. As a result of the impact with the cross beam the respondent sustained a severe spinal injury. The respondent was entering the premises for the purpose of travelling by train. He alleged accordingly in the action that he was an invitee when the injury occurred. (at p47)
3. The first count of the declaration pleaded a cause of action founded on the well-known passage in the judgment of Willes J. in Indermaur v. Dames (1866) LR 1 CP 274 in which the principle of the occupier's liability in tort to an invitee is stated: "with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact" (1866) LR 1 CP, at p 288 . The allegation of "unusual danger" was made in respect of the cross beam between the two posts inside the frontage. (at p47)
4. The action was tried before Richardson J. sitting with a jury. The appellant conceded it was the occupier and the respondent an invitee. The contested issues were whether unusual danger arose from the position of the cross beam against which the respondent bumped his head; whether, even if that issue were resolved in the affirmative, the appellant was not at fault because of the respondent's knowledge of the structure of the entrance in which the injury occurred, or should escape liability because of the respondent's contributory negligence. The only other issue in dispute was whether the appellant knew or ought to have known of the alleged unusual danger. (at p48)
5. All these issues were put to the jury in the summing-up. They found a verdict for the respondent and awarded to him damages amounting to 8,200 pounds for the injury. The declaration consisted of two counts, the second of which was withdrawn by Richardson J. from the consideration of the jury. (at p48)
6. The Full Court of the Supreme Court of New South Wales set aside the verdict on the first count: Anderson v. Commissioner for Railways (1960) SR (NSW) 519; 77 WN 541 . Owen and Clancy JJ. were of the opinion that certain evidence objected to at the trial was wrongly admitted and for that reason there should be a new trial limited to the first count. They rejected the appellant's primary submission which was that there was no evidence which could support the verdict on the first count. Else-Mitchell J. was of the opinion that the latter submission should be upheld and that the appellant was as a matter of law entitled to a verdict. A cross-appeal by the respondent against the withdrawal of the second count from the jury was dismissed. (at p48)
7. The appellant did not rest on the order for a new trial. It applied to the High Court for leave to appeal against the order, as it was interlocutory. On the application the Court asked the appellant to undertake as a condition of leave to appeal that it would not take advantage of the order for a new trial, even though some evidence was wrongly admitted, if the High Court should decide that there was other evidence which could support the verdict on the first count. The undertaking was given and leave to appeal was granted. The present appeal was accordingly brought to this Court. A cross-appeal was not entered by the respondent in respect of the second count of the declaration but he nevertheless stated that he desired to maintain it, if the Court should direct a verdict to be entered for the appellant on the first count. (at p48)
8. It is explained in London Graving Dock Co. Ltd. v. Horton (1951) AC 737 that the rule of law in the statement of Willes J. in Indermaur v. Dames (1866) LR 1 CP, at p 288 is expressed by these words: "he (the invitee) using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know"; that the words "where there is evidence of neglect" mean that, where there is danger which may be found by the tribunal of fact to be unusual; and that the subsequent words in this statement mean, that if the tribunal should find that there has been such neglect, the occupier escapes liability for injury from the unusual danger if the tribunal of fact finds that he has taken reasonable care by notice, lighting, guarding or otherwise to prevent damage from it, or that the invitee has been guilty of contributory negligence. When Willes J. spoke, contributory negligence was, as at present in New South Wales, a complete defence to an action for negligence. (at p49)
9. The explanation in Horton's Case (1951) AC 737 of the concept "unusual danger" shows that the qualification "unusual" is intended merely to exclude usual danger from the rule of law as to the occupier's responsibility to an invitee, and that danger may be "unusual" even though it is not concealed or it is danger known to the sufferer or not unexpected by him or even familiar to him. It is further shown by the decision that the word "unusual" imposes a limitation deriving from practical considerations relating both to the place where the injury occurred and to the class of visitors by invitation to whom the injured invitee belongs. (at p49)
10. The place where the injury occurred in the present case was an entrance from a busy street to the railway premises in question and the relevant persons were the travelling public generally. The construction of the entrance has been described above. A jury could well think that a traveller entering a railway station would be used to minding his step but not so adept at minding his head if he had to bend under a cross beam in going for his train. It is clear from the facts that any person taller than four feet would have to assume a stooping posture or dip his head to emerge from under the cross beam in order to proceed towards the platform. It was reasonably open to the jury to think that in the case of a member of the ordinary travelling public making such a manoeuvre there was danger of collision with the cross beam and that this danger was one which could be properly described as unusual. (at p49)
11. It appears that the purpose of the cross beam was to prevent the riding of bicycles onto the railway premises. The appellant permitted bicycles and perambulators to be taken through the entrance in question: it was the only entrance at The Crescent frontage wide enough for a person so encumbered. We are not concerned with the question whether the cross beam created unusual danger in the case of such classes of persons. The respondent in fact had been in the habit for many years of riding a bicycle from his home towards the station and of parking it in a place outside the premises. He did this on the morning when he was injured. He had never taken his bicycle through the entrance in which the injury occurred. Accordingly, it was open to the jury to find that the respondent was a member of the ordinary concourse of travelling public and not a member of the particular classes of travellers arriving with bicycles or perambulators. The appellant conceded that members of the public generally had leave to use the entrance in which the accident happened. (at p50)
12. The respondent called witnesses who gave evidence of experiences with the cross beam in question but the result was in no case nearly as serious as the injury which the respondent sustained. The purpose of this evidence was to prove that the cross beam was a source of unusual danger and also that the appellant had been made aware that it was. The judges of the Full Court of the Supreme Court of New South Wales were of opinion that most of these witnesses had suffered their accidents under conditions not comparable with those existing when the respondent was injured, and for that reason held that their evidence was wrongly received. The admission of this evidence was the basis of the order for the new trial. In view of the undertaking on which the appellant obtained leave to appeal, I think it is not necessary to determine here the question of admissibility. It seems to me that the facts proved as to the means of ingress and egress on the frontage of the premises at The Crescent and as to the construction of the entrance in which the injury occurred and as to the people who had the appellant's leave to use that entrance were sufficient to justify the finding of the jury for the respondent on the issue of unusual danger. I also think that evidence of similar accidents was not necessary to prove that the appellant knew or ought to have known that the respondent was exposed to unusual danger when entering between the first and second posts at the left on the frontage to The Crescent. It was clearly open to the jury to find that the appellant knew of the position of the cross beam in relation to those two posts. Surely the appellant is not exculpated if he did not know that this situation might be found by a court to be one of "unusual danger". It was sufficient if the appellant knew or ought to have known the structure of the entrance. The jury could not properly find otherwise. (at p50)
13. The next question is whether the evidence of the knowledge which the respondent had of the cross beam exonerated the appellant from liability for the injury. There was evidence given by the respondent himself which showed conclusively that he had known of the cross beam in consequence of his going in and out of the premises at The Crescent but it was not open to the jury on his evidence or on any other evidence to find that he had entered the premises between the first and second posts prior to the date of the accident. There is no evidence that he had previously taken any particular interest in the cross beam. There was a telephone box on the frontage immediately adjacent to the first post. On the morning of the accident he walked along the footpath of The Crescent next the premises, passed the telephone box and turned at a right angle to his left between the first and second posts. Finding himself confronted with the cross beam, he stooped to avoid it but failed to do so. When he approached the telephone box, the means of access and ingress between the shorter posts were crowded and it would appear that for that reason he entered between the first and second posts. The cross beam would not be visible until he had passed the telephone box and turned to his left. It was open to the jury to find that he did not see persons ahead of him stooping under the beam and that as he entered between the first and second posts there was nobody between hin and the cross beam. Upon his evidence in chief and in cross-examination, it was open to the jury to find that at the time the respondent entered between the first and second posts, he had forgotten about the cross beam and only became aware of the necessity of bending when confronted with it. (at p51)
14. In order that the appellant should be free of liability, it is necessary that the evidence should show that the respondent went between the first and second posts with full appreciation of the danger of striking his head against the cross beam (Horton's Case (1951) AC, at p 747 ; Smith v. Austin Lifts Ltd. (1959) 1 WLR 100, at p 116 ). It seems to me that the majority in Horton's Case (1951) AC 737 decided that in the case of an invitee it is not necessary that he should be volens in order to exculpate the occupier; it is enough that he was sciens but in such a case this means that the invitee undertook the risk with full appreciation of the danger. (at p51)
15. It was argued for the appellant that the onus was on the respondent to show that he was not sciens, and that upon the respondent's own evidence the conclusion that he failed to discharge this onus is inevitable. I agree with the opinion of Owen J. in which Clancy J. concurred that this contention as to where the onus lies is contrary to a statement in the judgment of Lord Normand in Horton's Case (1951) AC 737 : "So the defendant who has failed to give warning may yet succeed if he proves that the injured person had knowledge of the unusual danger" (1951) AC, at p 755 . It should be observed that in the present case the appellant took no care by warning, notice, lighting, guarding or otherwise to prevent damage from the cross beam. In the absence of any such precaution, I think that the correct principle is that the onus of proving the necessary degree of sciens on the part of the respondent rested upon the appellant. (at p52)
16. The remaining question is whether the respondent was guilty of contributory negligence: the burden of this issue clearly lay upon the appellant. The appellant cross-examined the respondent in an attempt to prove by his own admissions that he ran through the first and second posts and was thus the author of his own misfortune. Having studied the respondent's evidence, I think that it was reasonable for the jury to find that the respondent was not running but turned, not slowly but with no more than a reasonable degree of haste, around the telephone box and in between the first and second posts. It appears from the evidence that the train which the respondent intended to catch was about to arrive at the platform. (at p52)
17. It was open to the jury to find that it was not negligence on his part not to advert to the cross beam. They could find upon the evidence that he had only a passing knowledge, such as any member of the public might have derived from entering the premises from The Crescent. The jury could well think that it was not through carelessness for his own safety that the respondent was not then alive to any danger arising from the cross beam. (at p52)
18. In my view, the cardinal issue in the case is whether upon the facts as to the construction of the entrance in question and the position of the cross beam there was unusual danger. A piece of evidence to which I have not referred is that of a witness who, having visited many of the railway stations in the metropolitan area, said that the entrance with the two posts inside bearing the cross beam was unique. I think that, without this particular evidence, it was open to the jury to find the issue of unusual danger in favour of the respondent. A jury could reasonably think that the average passenger would be used to entrances to railway stations by way of steps, stairs, ramps or escalators but not to an entrance through which he could not pass without bending under a cross beam. (at p52)
19. Admittedly this entrance was within the area of the invitation implied in favour of all persons who came onto the premises for the purposes of travelling. A jury could reasonably think that all such persons would not have the same knowledge of the crossbar and that even those who were used to passing under it might misjudge the extent of the stoop necessary to avoid it when going through the entrance with the normal urgency of a passenger anxious to catch his train. Since a danger may be unusual which is familiar to the invitee who is the sufferer it seems to me to be illogical to say that it is necessary for him to show, as one element of his case, that he had no knowledge of it. I think that the mere fact that the respondent entered this entrance having some knowledge that the cross beam was part of its structure is not sufficient to establish that he accepted the appellant's invitation to go through the entrance with full appreciation of the danger of bumping his head. The invitee's conduct is not to be judged by the standard of volens, according to the view of the majority in Horton's Case (1951) AC 737 . Lord MacDermott strongly disagreed with this view. In Letang v. Ottawa Electric Railway Co. (1926) AC 725 , the Privy Council said in reference to the defence that the plaintiff knew of the danger of which she was the victim: "there is no evidence whatsoever that the appellant's wife, holding on as best she could to the handrail, had full knowledge of the nature and extent of the danger; or that, knowing this, she freely and voluntarily, with full knowledge of the nature and extent of the risk she ran, encountered the danger. As to this, it is to be noted that she was merely traversing the same steps and under the very same circumstances as many hundreds of tramway passengers. Probably the legal situation is answered by the observation already made, that neither the woman's knowledge nor will was made the subject of cross-examination at all. It rather appears that the judgments, in so far as sustaining this defence, are based solely upon the fact that there was some danger from slipperiness apparent to anybody on the steps. Unless, however, the defendant company, who had invited the woman to use that access and were accordingly bound to keep it reasonably safe, could establish that she fully knew and understood the nature and the extent of the danger and resolved voluntarily to undertake the risk, the defence fails" (1926) AC, at pp 731, 732 . (at p53)
20. If this passage retains its authority notwithstanding Horton's Case (1951) AC 737 , the evidence of the respondent's knowledge of the cross beam upon which the appellant relies in the present case to exonerate itself clearly fails to do so. (at p53)
21. In my opinion the appellant has not made good the submission that a verdict should be entered for it on the first count and the result of its undertaking therefore is that the jury's verdict on the first count should be restored. (at p54)
22. The appeal should be dismissed with costs. (at p54)
FULLAGAR J. The facts of this case are stated fully in other judgments, and I need not state them again. At the trial of the action the jury found a verdict for the plaintiff, and assessed his damages at 8,200 pounds. On appeal to the Full Court a new trial was ordered. This Court gave leave to appeal from that order on the Commissioner's undertaking that, if he failed to obtain an order that judgment be entered in his favour in the action, he would consent to an order dismissing his appeal. (at p54)
2. It was admitted by the plaintiff that he had used the railway station almost daily for a number of years, and that he was well aware of the existence and position of the wooden bar on which he bumped his head, and Mr. Larkins devoted a large part of his forceful argument to maintaining that this knowledge was sufficient to debar the plaintiff from recovering damages in the action. For this proposition he cited a number of authorities, the most important of which is London Graving Dock Co. Ltd. v. Horton (1951) AC 737 . I think it unnecessary to review these authorities. Strictly speaking, I do not think it is necessary for the purposes of this case to decide whether the broad general proposition put forward by Mr. Larkins can be supported. For it certainly cannot be put more broadly than Lord Porter put it in Horton's Case (1951) AC 737 . His Lordship said: - "It is enough to protect the invitor from liability if he proves that the invitee knew and fully appreciated the risk" (1951) AC, at p 748 . In the present case no more can be taken to be established than that the plaintiff knew of the existence and position of the wooden bar. It is not shown that he appreciated that it involved a "risk" or constituted a "danger" in any way. I think myself that, while knowledge of a dangerous state of affairs or appreciation of a risk may be relevant facts from more than one point of view, it is not really correct to say that in every case an invitor owes no duty of care to an invitee who knows that a certain state of affairs exists, and even knows that it is dangerous. An invitee, like anybody else, may suffer from a momentary inattention, or make a slight error of judgment in negotiating the danger, without being guilty himself of negligence. And there may be cases in which it may properly be found that the invitor's duty of care requires him to make allowance for such possible events, so that he cannot either escape that duty or discharge that duty by merely making sure that his invitee knows the bare facts. A trite example is that of an invitee who walks up a garden path in daylight, observes that there is a deep hole in the middle of it, and walks round the hole. He knows from that moment onwards that htere is a dangerous hole in the path. Returning in darkness, he forgets about the hole, falls into it, and is seriously injured. Can it possibly be said that there can be no other result of an action brought by him than a verdict by direction for the defendant? (at p55)
3. In addition to the passage quoted above there are two other passages (1951) AC, at pp 748, 749 in which Lord Porter states the position. Each tends, more than does the passage I have quoted, to emphasize the necessity of an appreciation of the risk by the invitee. In the one his Lordship uses the expression "provided the full significance of the risk is recognised by the invitee" (1951) AC, at p 748 . In the other (with particular reference to the case before the House) he states what is required as being "a full appreciation of the danger on the part of the invitee and a continuance of his work with that knowledge" (1951) AC, at p 749 . The expression "recognition of the full significance of the risk" is, of course, a very elastic expression indeed. If we give it its widest possible meaning, the "rule" is deprived of all significance as a rule, and we reach, in effect, what I would regard as the true position. That is to say, there is no true rule of law with regard to an invitee's knowledge of danger on premises. All that the law does, or can properly do, is to lay a duty in general terms on an invitor. Whether a particular invitor has committed a breach of that duty, and whether his invitee has been damnified by the breach, are issues of fact, the invitee's knowledge of danger being simply one of an indefinite number of relevant evidentiary facts which require examination and analysis. (at p55)
4. For these reasons I am of opinion that the first argument for the appellant Commissioner fails. I am, however, of opinion that there was in this case no evidence on which the jury could reasonably find that any breach of duty had been committed by the Commissioner. (at p55)
5. In cases of this type juries in this country are, I think, invariably directed in accordance with the exposition of Wiles J. in Indermaur v. Dames (1866) LR 1 CP 274, at p 288 , and it is on a correct understanding of that exposition that the present case, in my opinion, depends. It is a common-place that few of the great leading common law judgments have suffered more at well-meaning hands than has the judgment of Willes J. in that case. It has suffered in particular from a tendency to look only at the first half of the paragraph in which the law is stated. The whole of the paragraph should be quoted, but it is first to be noted that Willes J. at the beginning of his judgment stated the nature of the action as follows: "This was an action to recover damages for hurt sustained by the plaintiff's falling down a shaft at the defendant's place of business, through the actionable negligence, as it was alleged, of the defendant and his servants." (1866) LR 1 CP, at p 284 He then, after characterizing the plaintiff as a member of that class of visitors which has ever since been designated as "invitees", proceeded: "And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought ot know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact" (1866) LR 1 C P, at p 288 . (at p56)
6. 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. (at p56)
7. In applying the statement in Indermaur v. Dames (1866) LR 1 CP 274 to the facts of the present case, we need not, I think, trouble about the expression "unusual danger" - an expression which has been unprofitably made the subject of gloss heaped upon gloss. It may even be assumed, though I would not concede, that the wooden bar should (or at least could by a jury) be regarded as constituting an "unusual danger" merely because the plaintiff did in fact bump his head on it with serious results. But the important words are "which he knows or ought to know". The Commissioner must be taken, of course, to have known of the existence and position of the wooden bar. He put it there. But mere knowledge of the physical facts is, in my opinion, clearly not enough to bring the Commissioner within the language of Willes J. - any more than the plaintiff's mere knowledge of the physical fact is enough to preclude him from recovering. It is impossible to say that a defendant knew or ought to have known of an "unusual danger" unless he not only knew or ought to have known of the existence of a thing but also knew or ought, as a reasonable man, to have known that the thing was dangerous. To hold otherwise would be to attribute an utterly unreasonable view to Willes J., and, to my mind, to treat that great judge as meaning something that he could not possibly have meant. (at p57)
8. In the present case, even if we assume that the wooden bar was an "unusual danger" because the plaintiff's accident proved it to be so, there is no evidence that the Commissioner or any of his servants knew, or supposed for a moment, that it possessed that character. Nor, in my opinion, was it open to the jury to find that a reasonable man in the position of the Commissioner or any of his servants would have known, or supposed for a moment, that the wooden bar was a dangerous thing or in the least degree likely to cause injury to anybody. The accident here was a most extraordinary one: one would suppose that the odds against the occurrence of such a mishap with serious consequences were enormous. The fact that an odd passenger or two had over the years bumped his or her head on the bar I would regard as of no significance whatever. There is probably no one who has not many times bumped his or her head more or less severely on some apparently harmless object. Who has not stooped to pick up something from the floor, and, in rising, knocked his head on a table ? There was nothing whatever in the construction or position of the wooden bar in this case which made it specially likely - or likely at all - that someone would bump his head on it - still less that someone would bump his head on it with serious consequences. The ultimate test must be forseeability, and a jury could not, in my opinion, reasonably find that a reasonable man in the position of the Commissioner would have foreseen and guarded against the occurrence of some such accident as did in fact happen. (at p58)
9. I make one observation in conclusion. The word "negligence" has tended of recent years to lose all meaning. It is interesting to recall that Sir Frederick Pollock foresaw that this very result might follow as an indirect and unjustified consequence of the decision of the House of Lords in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 . That very learned lawyer, immediately after the publication of the decision in that case, wrote a note upon it for the Law Quarterly Review (1933) 49 LQR 22 . That note has been reprinted in the last two editions of Pollock on Torts. Towards the end of it the writer issued a warning against "untenable exaggeration" of the rule laid down in the case, and added: "We still have to take notice that there are such things as inevitable accidents which are nobody's fault." (at p58)
10. This appeal should, in my opinion, be allowed, and there should be judgment for the defendant in the action. (at p58)
KITTO J. I have had the privilege of reading the judgment of my brother Fullagar. Unhappily, I reach the opposite conclusion because of the view that I take as to the ultimate question of fact in the case; but so far as the relevant principles of law are concerned I desire to say only that I respectfully concur in the exposition of the law which his Honour's judgment contains. (at p58)
2. In my opinion, on the whole of the evidence it was for the jury to decide whether the bar on which the plaintiff hit his head was an unusual danger, and whether the defendant knew or ought to have known that the bar was a danger to an invitee in the situation of the plaintiff. In my view, it was open to them to regard as reasonably foreseeable that of a crowd of people hurrying onto the station to catch a train many might enter the recess in a closely packed procession and be met by the bar, four feet or so from the ground, each being presented with a sudden need, of a kind more usually encountered by a competitor in an obstacle race, to stoop low enough, and remain stooped long enough, to avoid hitting his head on the bar. Of course not all who might fail in the exercise would hurt themselves severely, but the degree of hurt that might be expected is not the immediate point. A reasonable jury might well consider, I think, that it was by no means beyond the limits of reasonable foresight that from time to time a person, while acting reasonably in acceptance of the defendant's invitation to enter the station, might sustain an injury, great or small, by contact of his head with the bar; for errors resulting in mishaps of this kind are among the commonest of failures, even among reasonable people. It seems to me that it was open to the jury to attribute the plaintiff's injury to a breach by the defendant of the duty of care which in all the circumstances he owed on the occasion in question to the class of persons of whom the plaintiff was one. (at p59)
3. In my opinion the appeal in substance fails, but the rule of the Supreme Court must be varied so as to give effect to the undertaking upon which the appellant obtained leave to appeal. (at p59)
TAYLOR J. The question which we are called upon to consider in this appeal is whether upon the trial of an action in which the respondent sued the appellant for damages for personal injury there was evidence capable of supporting the allegation that the respondent's injuries resulted from negligence on the part of the appellant. The learned trial judge thought that there was and the jury returned a verdict for the respondent for the sum of 8,200 pounds. In a subsequent appeal to the Full Court the appellant succeeded in having the verdict set aside on the ground that evidence had been wrongly admitted but was unsuccessful in his main contention that the evidence properly before the jury was incapable of supporting the allegation that the respondent's injuries had been caused by negligence. In the result the Full Court refused to enter judgment for the appellant but it ordered a new trial. This appeal is now brought from the order of the Full Court in an attempt to set aside that order and, in lieu thereof, to secure judgment for the defendant. (at p59)
2. The respondent's injuries were sustained when he was about to enter Fairfield railway station where it was his habit to board a train on his way to work. From the evidence in the case it appears that the entrance which the respondent was using had somewhat unusual features. It is but one of the entrances to the station and it is a wide opening from which a path leads a little distance to the nearer platform. But across all but some four feet of the entrance there stood a number of upright posts so arranged, or staggered, that, although they permitted the passage of pedestrians, they constituted an impediment to the entrance of vehicles. It was, we are told, quite common for many intending passengers to come to the railway station by bicycle and they were permitted to leave their machines at the station in a place provided for the purpose inside the entrance referred to. Indeed, it had been the respondent's practice to ride his bicycle to the station but he did not leave it on the railway premises; it was his practice to leave his machine at a garage near the station. From there he would proceed on foot to the entrance already mentioned. It was not usual, it appears, for bicycles to be taken through that part of the entrance in which the posts already mentioned were erected; they were taken through the four feet space adjacent to it. In view of the manner in which the respondent's injuries were caused it is necessary that this portion of the entrance should be described with some particularity. At each side of the four feet space was a substantial post erected in a vertical position. To the rear of each of these posts was another post so that the bases of each of the four posts marked a corner of an area about four feet square. Then, at a height of somewhere between four feet and four feet six inches, a wooden rail connected each pair of posts on the side and also the two rear posts so that approaching this part of the entrance from the outside there appeared a recess about four feet square and then a rail across the back of the recess at the height already mentioned. It was through this part of the entrance that bicycles were commonly taken on to the railway property and the rear rail was there, so it seems, to compel cyclists to dismount before entering. There is no dispute that the railway station served a populous district and at peak hours large numbers of people entered and left the station. As Owen J. said in the Supreme Court the rear rail served "the purpose of preventing cyclists riding through the entrance on their cycles and thus perhaps running into persons on foot entering or leaving the station." (1960) SR (NSW), at p 521; (1959) 77 WN, at p 543 But this part of the entrance was also commonly, or, at least, sometimes, used by intending passengers unaccompanied by bicycles and it was, of course, necessary for them to stoop, or duck as the evidence calls this manoeuvre, in order to pass under the rail. It was in the process of doing this that the respondent was injured. He says that on the occasion in question he left his bicycle at the adjacent garage and then hurried to the entrance. There were, he says, hundreds of people there and he followed the crowd through this part of the entrance. He was hurrying and was right on the rail - he was about to run into it - and then "ducked his head" to save himself and "hit himself on the top" of the head. His complaint now is that the rail constituted an unusual danger and that his injury was the result of the appellant's failure to exercise reasonable care to protect him from the risks which its presence created. (at p60)
3. The plaintiff was an able bodied man of forty-seven years and he had used the entrance to the station practically daily for more than three and a half years. It does not appear whether he had ever entered through this particular part of the entrance but he had on many occasions "seen plenty of others" bringing their bicycles into and out of the yard provided. In cross-examination he admitted that he had seen them "hauling them under the beam" which he had described. He had also seen lots of people with perambulators using it. At a later stage of his evidence he professed some doubt whether he had seen this occurring before or only after the date of his injury but it is not open to doubt that he had known of the presence of the rail for a long time. Indeed he agreed that he had known of it for some years and at no time did he attempt to resile from this admission. The accident, it should be said, occurred in "broad daylight". That was the respondent's own expression and he accounts for his injury by the fact that on the occasion in question he did not have the rail in mind as he hurried in behind other intending passengers who, no doubt, in preceding him would have been compelled to stoop in order to pass through. (at p61)
4. It was contended by the appellant that the decision in London Graving Dock Co. Ltd. v. Horton (1951) AC 737 makes it clear that a finding of fact in favour of the appellant on this last point would have been fatal to the respondent's claim. But it is one thing to speak in general terms of full knowledge and appreciation in relation to an unusual danger, and another, to determine in any particular case what is sufficient notice or warning of such a danger to discharge the obligation of the occupier to exercise reasonable care to safeguard an invitee coming on to the premises. What is required must, of course, depend upon the nature and character of the particular danger itself. And in spite of the width of the observations in Horton's Case (1951) AC 737 there cannot fail to be doubt whether an occupier will, in every conceivable case, discharge his obligation to use reasonable care to prevent injury to an invitee merely by giving a warning even though it may fully bring home to the invitee the nature of the existing danger. For instance, if a ship owner were to warn an incoming passenger that the only gangway by which he might disembark from a ship was in a dangerous condition and likely to give way, would the former thereby discharge his obligation to use reasonable care to prevent injury to the passenger? As I understand the classic statement of Willes J. in Indermaur v. Dames (1866) LR 1 CP 274 it was not his Lordship's intention to declare that adequate notice of an unusual danger would in every case constitute a discharge of the occupier's obligation to use due care, but rather that that obligation might be discharged by "notice, lighting, guarding, or otherwise" (1866) LR I CP, at p 288 . In the present case, however, the danger, if there was one, was of a simple character; it was not hidden, knowledge of its existence was synonymous with appreciation of the risk, if any, which its presence entailed and the simple manner in which injury might have been avoided was readily apparent. (at p62)
5. In these circumstances the appellant approaches this aspect of the case with alternative arguments. Firstly, he contends that the onus lay upon the respondent to establish lack of knowledge and then it was argued that, upon the evidence, a finding in favour of the respondent on this issue was not open. This view commended itself to Else-Mitchell J. in the Full Court and he thought judgment should be entered for the appellant. The alternative argument was that even if the onus lay upon the appellant, the respondent's evidence contained a plain admission which put this issue at rest. The reasons of Jordan C.J. and Halse Rogers J. in Buckingham v. Luna Park (N.S.W.) (1943) 43 SR 245; 60 WN 175 provide authority for the proposition that the onus of proof in relation to that issue lay upon the respondent. So also do the observations cited by the learned Chief Justice in the course of his reasons. But the contrary view was taken by the Court of Session in McKirdy v. Royal Mail Lines (1955) 105 LJ 586 and the question is a much debated one. In the present case, however, it is unnecessary for us to express a final view upon it. In the first place the appellant upon his application for leave to appeal disclaimed any intention of proceeding to a new trial and leave to appeal to this Court was granted on that understanding. Unless, therefore, he succeeds in obtaining judgment the verdict will stand. This being so we are not concerned in this appeal with the propriety of the summing-up on this point. Then, assuming the appellant's contention as to the onus of proof to be correct, we may ask ourselves whether the general knowledge which the respondent admitted concerning the presence of the rail was sufficient to prevent him from recovering. The answer - which is an answer also to the contention that he had made a plain admission of full knowledge of the so-called danger and of an appreciation of the risks involved - is that it was a matter for the jury upon the whole of the evidence to decide whether the general knowledge which he had of the entrance and its characteristics precluded him from asserting that in the circumstances as they existed on the day when he suffered his injury he did not know and fully appreciate the so-called danger. This is said, of course, upon the assumption that the presence of the rail did in fact create an unusual danger. In such case one may ask what form of warning or notice would have been required to discharge the appellant's duty to use reasonable care. Would it have been sufficient to display a notice at some appropriate place? This, it seems to me, is essentially a jury question on the hypothesis I have adopted and if, in fact, a notice had been displayed it would have been for the jury to say, within reason, whether a notice in the form employed was adequate. Again, I am disposed to think that if a notice had been displayed it may well have been for the jury to say whether the display of a notice was, in the circumstances of the case, sufficient to discharge the appellant's duty to exercise reasonable care. There was, however, no notice but, in accordance with Horton's Case (1951) AC 737 , the appellant says this is of no consequence. A notice or warning, it was said, could not have added anything to the knowledge which the respondent already had. But if it would have been for the jury to say whether any particular form of notice was sufficient to discharge the appellant's duty in the circumstances of the case, it was equally for them, in the same circumstances, to say whether the respondent's general knowledge of the character of that part of the entrance where he sustained his injury was sufficient to make it unnecessary for the respondent to give notice or warning of the danger. There was, it may be said, some confusion in the respondent's evidence, though there seems little doubt that a finding that he had not known of the existence of the rail would have been directly opposed to his testimony. But there is no evidence that he had ever previously used that part of the entrance where he sustained the injury and, on the whole, I think that it was open to the jury to say that his degree of knowledge and appreciation on the day in question was not such as to be fatal to his case. (at p63)
6. These observations make it necessary to consider whether the presence of the rail did, in fact, create an unusual danger to intending passengers using the entrance, as the respondent did, in broad daylight. Much of the discussion on this point was concerned with the unusual characteristics of the entrance but this was not to the point in the circumstances disclosed by the evidence. The question was whether it was open to the jury to say that intending passengers, using reasonable care for their own safety, were exposed to any risk of injury. For my own part I am unable to see that it was open to the jury to say that they were. I do not understand it to be suggested that it created any real risk of injury to a lone passenger entering through it in broad daylight. Rather the suggestion was that one of many passengers using the entrance at peak hours might be unable to see the rail until it was too late to avoid it. But in those circumstances the presence of an obstruction would be made even more obvious by the manoeuvres of those preceding such a person. In all the circumstances it was not, in my opinion, open to the jury properly instructed to find that the presence of the rail created any real risk of injury to intending passengers. It may be that its presence was an unusual characteristic and it may be that it constituted an obstruction capable of causing inconvenience, but to say that it created a danger or risk of injury to intending passengers in broad daylight was, I think, to go much further than the circumstances justified. In my opinion the appeal should be allowed for this reason. (at p64)
MENZIES J. Earlier proceedings in this matter were conducted on the footing that the duty of care owed by the defendant Commissioner to the plaintiff, who injured himself when entering the railway station at Fairfield to catch a train, was that of an occupier of premises to an invitee, and although there was in the plaintiff's declaration a second count of uncertain import, it did not allege a contractual relationship and no case that the defendant's duty to the plaintiff was contractual was made at the trial beyond the plaintiff's oral evidence that on the morning of the mishap he was the holder of a weekly ticket. The learned trial judge directed the jury to find for the defendant upon the second count, and the Full Court dismissed an appeal against this direction on the ground that the second count alleged nothing different from the first. The learned trial judge and the Full Court having proceeded on the basis that as the parties fought it, this was an invitor and invitee case, I propose to adhere to this and to disregard the second count, if indeed it was directed to any different relationship. I confine myself, therefore, as did the Full Court, to the first count in the plaintiff's declaration. (at p64)
2. The accident from which the plaintiff suffered serious injuries happened simply enough. There was at the entrance to the Fairfield station a double line of posts standing vertically at about hip height; between these, pedestrians using the station could pass. At one end of these posts there were set four larger posts at the corners of a square about sixteen square feet in area; they were nearly head high and at just under shoulder height the square was enclosed on three sides by a horizontal wooden bar. The open side was the street side so that anyone could enter the enclosure or recess, as it was called, from the street without difficulty but would have to stoop to leave it on the other side. The recess was made for the convenience of those entering and leaving the station with wheeled vehicles such as bicycles or prams, but it was common ground that pedestrians were accustomed to pass through it when entering or leaving the station, particularly at rush times. It was not contested that pedestrians did this as invitees. On the occasion when he was injured, the plaintiff entered the recess from the street in a press of people and although he knew of the existence of the bar on the other side he did not have it in mind at the time; realizing too late that it was there he ducked but he bumped his head against it, suffering severe injuries. The jury awarded the plaintiff 8,200 pounds damages upon the first count. The Full Court set aside this verdict and by a majority (Else-Mitchell J. dissenting) refused to enter judgment for the defendant and directed a new trial. This Court granted the defendant leave to appeal from the judgment of the Full Court refusing it a verdict, upon the undertaking that if it should not be successful in obtaining judgment in its favour, it would not take advantage of the order made by the Full Court for a new trial. (at p65)
3. Even without the evidence of complaints of earlier collisions with the bar, there was evidence upon which the jury could have found that the defendant knew or ought to have known that the bar which the plaintiff hit was dangerous to those entering or leaving the station, because the Commissioner was through its servants aware of the physical facts which a reasonable man would appreciate constituted a danger in a thoroughfare (see Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274, at p 303 ), so the two questions now to be decided are whether it was open to the jury to find that the bar constituted an unusual danger and, if so, whether the plaintiff's knowledge of the existence of the bar was fatal to his success in the action. (at p65)
4. At the trial the defendant put forward that it was common at its suburban stations for there to be an enclosure such as that which I have described, but in the result the evidence showed that the enclosure at Fairfield was the only one of its kind. However, this would not of itself show that the bar constituted an unusual danger. To prove that the entrance to one station out of many was approached by steps and that in certain circumstances steps were dangerous would not show that the steps at the one station constituted an unusual danger. In the circumstances of this case, however, I have reached the conclusion that it was open to the jury to find that the bar did constitute an unusual danger. It can happen, but it can be said to be unusual, that a means of entrance to and exit from a station which the public are invited to use is obstructed by a bar at shoulder height under which users must duck at their peril. It could be that a person passing through a railway station entrance would not expect to meet an obstruction such as the bar with which the plaintiff collided. If there was evidence, the question was, of course, one for the jury: Lewis v. Sydney Flour Pty. Ltd. (1956) SR (NSW) 189; (1955) 73 WN 231 . So much for the first question. (at p66)
5. There are no doubt many cases where to give a warning of danger is sufficient to discharge the duty of an invitor to an invitee so that if the invitee does what he is warned against doing, he acts at his own risk, but I do not think that this is a case where the invitor would in all cases fulfil its duty to an intending passenger by bringing to his notice the existence of the obstructing bar. To know of the bar is not the same thing as appreciating the danger of forgetting it, and it seems to me that at the least it was the duty of the defendant which maintained a dangerous obstruction to keep passengers using the enclosure conscious of the risk which they ran in doing so unless the simple expedient of stooping was taken in time. It follows that to show that the plaintiff knew of the existence of the bar did not absolve the defendant from any duty towards him: it still owed him a duty of care which the jury could find was broken by failing to bring home to him, as he used it, that a means of entry which the defendant provided for his use had to be used evasively if it were to be used safely. Had the plaintiff been effectively warned that it was dangerous to enter the station through the enclosure, it would have been a different case and the question then would have been whether such a warning was in all the circumstances a sufficient performance of the defendant's duty of care. Here the defendant does not claim it fulfilled a duty of care: it claims rather that no duty of care arose because the plaintiff knew of the existence of the bar. The duty of an invitor to an invitee is to use reasonable care to prevent damage from unusual danger of which an occupier knows or ought to know. Here the relationship of invitor and invitee existed which would ordinarily give rise to the duty, and it was the argument that in the particular circumstances it never arose that found favour with Else-Mitchell J., who adopted the propositions that an occupier is under no duty of care to an invitee who is himself careless and that the plaintiff's knowledge of the existence of the bar absolved the defendant from any duty of care. (at p67)
6. I do not regard this as a case where it can be said that the jury could not have found that the plaintiff was not negligent even if the onus of proving this had rested upon him, but in any event I am not prepared to accept the broad proposition that there is never a duty of care owed by an occupier to a careless invitee or to an invitee who is aware of the dangerous condition of the premises to which he is invited. It is true that in South Australian Co. v. Richardson [1915] HCA 41; (1915) 20 CLR 181, at p 194 , and in Bond v. South Australian Railways Commissioner [1923] HCA 50; (1923) 33 CLR 273, at pp 286, 287 , Isaacs J. did use language to the effect that a plaintiff invitee must as part of his cause of action against the occupier negative a knowledge of the dangerous condition of the premises and negative negligence on his own part. In the earlier case when speaking of an invitor's alternative to making his premises safe, he said: "He has the alternative course open to him, by giving proper notice of the unusual danger, and, if he does, he cannot be held guilty of negligence with regard to safeguarding his visitor from damage. If actual notice of unusual danger is sufficient, it necessarily follows that the invitee's knowledge, however acquired, of that danger is equally sufficient to prevent him from complaining. The plaintiff's action for breach of this duty therefore includes as an essential that he, or the person he represents, was unacquainted with the danger" (1915) 20 CLR, at p 194 . The decision in the case was, however, that notwithstanding the invitee's own evidence that he knew that there was some risk in using the defendant's premises, he might still recover, and so the Court there upheld the order of the Full Court of South Australia for the new trial of an action where at the trial judgment had been entered for the defendant because the plaintiff had knowledge or notice of the condition of the defendant's premises. Moreover, I prefer the judgment of Griffith C.J. to that of Isaacs J. and assuming that his Honour was referring to an unusual danger of which the occupier knew or ought to have known, I agree with the following statement of the Chief Justice: "With regard to the extent of the obligation, that is, the degree of care required of the inviter, I am of opinion that a person who provides a road or other means of access to, or egress from, his premises, and invites persons having business with him to make use of the means of access so provided, is bound as against them to take reasonable care that the means of access are reasonably safe for such use as they are invited to make of them in their apparent condition. The visitor, on his part, is bound to take reasonable care in the use which he makes of the means of access which he is invited to use. Since the obligation arises from the invitation, and is coextensive with it, it follows that, if the invitation itself is qualified by warning of danger, or knowledge of danger by the visitor, or otherwise, the obligation is qualified correspondingly. If, for instance, there is in a road which a person is invited to use any obvious defect, or defect known to him, of such a nature as to require special care in using it, the invitation is a qualified invitation to use the road with such special care as is required under such circumstances . . . What degree of care on the part of persons using such a defective or dangerous road is reasonable in any particular case is a question of fact depending upon all the circumstances, which include their actual knowledge of the defect and the opportunity which they have of knowing it" (1915) 20 CLR, at pp 186, 187 . In the same way in Bond v. South Australian Railways Commissioner [1923] HCA 50; (1923) 33 CLR 273 it was decided that an invitee's prior knowledge of a station platform from which he fell in the dark did not prevent him from recovering damages for the negligence of the defendant in omitting to light the station, and Knox C.J. and Starke J. said: "The knowledge of the appellant and any notice or warning given to him of the danger is relevant for the purpose of determining whether the respondent took reasonable care and whether the appellant chose to accept the risk or was guilty of contributory negligence, but these questions must be determined . . . as matter of fact . . . The error in the judgment in the Court below resides in the view that the duty of the respondent towards the appellant was discharged if the appellant knew or was informed of the danger, whereas the true rule is as already stated" (1923) 33 CLR, at p 277 . Isaacs J. to the contrary said: "Where the invitee is, either by notice or knowledge cogizant of the danger he incurs, he cannot assert even an initial duty in the invitor to guard him against it" (1923) 33 CLR, at p 286 . It seems to me that the actual decisions in these cases are certainly not adverse to the plaintiff here and that the reasoning of the Judges other than Isaacs J. does support his case. In Buckingham v. Luna Park (N.S.W.) Ltd. (1943) 43 SR (NSW) 245; 60 WN 175 , Jordan C.J. and Halse Rogers J. were of the opinion that where the invitee complains of injuries caused by an unusual danger, the burden of proof is upon him to establish that he had no knowledge or no adequate knowledge or warning of the danger. This accords with the views of Isaacs J. in the cases cited, but Davidson J. took a different view and I prefer his judgment. (at p69)
7. It was argued that the decision of the House of Lords in London Graving Dock Co. Ltd. v. Horton (1951) AC 737 that the plaintiff's knowledge of the unusual risk resulting from the inadequacy of certain staging exonerated the occupiers from liability for the damage sustained by the plaintiff owing to that inadequacy established the general rule that an invitee's knowledge of what is dangerous upon premises always exonerates the occupier from liability. The actual decision there could not conclude this case because of the distinction that I have already drawn between the plaintiff's knowledge of the existence of the bar and his comprehension of the risk that he ran in entering the station through the enclosure; and because I do not share the view of Isaacs J., Jordan C.J. and Halse Rogers J. that the burden lies upon the invitee to prove that he had no knowledge of the danger, it was in this case a question for the jury whether or not he had that comprehension. I have, however, reached the conclusion that the decision of the majority of their Lordships did not go beyond denying that it was essential to an invitor's successful defence to establish that the invitee not only knew and appreciated the danger but also willingly undertook it. The contention that their Lordships accepted was, in the language of Lord Porter, "that an invitor's duty to an invitee is to provide reasonably safe premises or else show that the invitee accepted the risk with full knowledge of the dangers involved" (1951) AC, at p 746 . What was rejected was that the invitor had to go further and show that the invitee accepted the risk willingly: see per Lord Porter (1951) AC, at p 747 and per Lord Normand (1951) AC, at p 755 . The application to this case of the principle that was accepted by the House of Lords would require the Commissioner to show that the plaintiff when he entered the station by way of the recess accepted the risk with full knowledge of the dangers involved. Whether this was shown was a question for the jury and it seems to me that it would be wrong for an appeal court to say that the jury could not have decided that this had not been shown by the Commissioner. As Lord Porter said, "the question therefore is: Did the invitee undertake the risk of performing his task with full appreciation of the danger? This, as has been said more than once, is a question of fact for a jury" (1951) AC, at p 747 In that case the trial judge so found and the House of Lords decided there was evidence upon which he could do so. The decision of the House of Lords does not govern this case and applies only when there is a finding that the invitee accepted the risk with full knowledge of the dangers involved. That it is the acceptance by the invitee of the risk that the invitor must establish to negative his liability was emphasized by the House of Lords in the later case, Smith v. Austin Lifts Ltd. (1959) 1 WLR 100 , in which it was decided that an occupier was liable to an invitee who knew that premises were defective, because he did not fully appreciate the danger and accept the risk. (at p70)
8. It is for the foregoing reasons that I have reached the conclusion that the defendant was not entitled to judgment and that this appeal should be dismissed. (at p70)
ORDER
Judgment of the Supreme Court of New South Wales varied by discharging so much thereof as orders that the verdict for the plaintiff be set aside and a new trial ordered on the first count of the declaration, and as orders that the costs of the first trial abide the event of a new trial.Otherwise appeal dismissed with costs.