Cooper v Southern Portland Cement Ltd [1972] HCA 28; (1972) 128 CLR 427 (5 May 1972)

HIGH COURT OF AUSTRALIA

COOPER v. SOUTHERN PORTLAND CEMENT LTD. [1972] HCA 28; (1972) 128 CLR 427

Negligence

High Court of Australia.

Barwick C.J.(1), McTiernan(2), Menzies(3), Owen and Walsh(4) JJ.

(THE RIGHT HONOURABLE MR. JUSTICE OWEN died before the delivery of judgment in this case.)

CATCHWORDS

Negligence - Dangerous premises - Injury to person entering - Liability of occupier - Duty of care - Trespasser - Licensee - Child playing on land - Allurement.

HEARING

Sydney, 1972, March 27-29; May 5. 5:5:1972

APPEAL from the Supreme Court of New South Wales.

DECISION

May 5.

The following written judgments were delivered:-

BARWICK C.J. This appeal, brought by a plaintiff in an action at law in the of Appeal Division of that Court, entering a verdict for the defendant in the action (1971) 1 NSWLR 820 , raises the question whether the defendant, an occupier of land, may be held, in the circumstances, to be liable to a trespasser upon that land, and if so on what basis, for injuries received there by the trespasser as the result of acts and omissions which, but for the relationship of occupier and trespasser, could be held to amount to negligence on the part of the defendant. (at p432)

2. The appellant sued the respondent in five counts. By the first count he alleged that he was on the respondent's land with the leave and licence of the respondent and that there was on the land a concealed danger or trap the existence of which the respondent well knew and which caused injury to the appellant. (at p432)

3. By the second count the appellant alleged that the respondent's premises were frequented by "strangers" and openly used by other people and that there was, to the knowledge of the respondent, a great likelihood of boys and other persons coming and being upon the premises and that in those circumstances the respondent recklessly created and continued in existence a specific peril seriously menacing the safety of the said persons and that the appellant was a boy who came onto the said premises and in the vicinity of the said peril and thereby sustained injury. (at p432)

4. By the third count the appellant alleged that there was on the respondent's premises a heap of rubble which constituted an allurement to children, was negligently allowed to be in close proximity to a high tension electricity line, and which in fact allured the appellant upon the said land whereby he became injured. (at p432)

5. By the fourth and fifth counts the appellant alleged breaches of certain provisions of the Mines Inspection Act, 1901-1968 (N.S.W.) (at p432)

6. The learned trial judge, who presided at the trial of the action with a jury of four persons, allowed only the third count to go to the jury directing a verdict for the respondent on all the other counts. Upon an appeal by the respondent to the Court of Appeal Division of the Supreme Court the verdict which the jury returned for the appellant on the third count for the sum of $56,880 was set aside and a verdict entered on that count for the respondent (1971) 1 NSWLR 820 . A cross appeal by the appellant against the entry of the verdict for the respondent on each of the other counts was dismissed. (at p432)

7. Upon the appeal to this Court the appellant has not sought to have the verdict for the respondent on the fourth and fifth counts set aside, but has sought an order that the verdict and judgment for the respondent on the third count be set aside and the verdict of the jury restored. In default of such an order the appellant seeks an order that the verdicts for the respondent on the first and second counts at the trial be set aside and that there be a new trial on the issues raised by those counts. (at p433)

8. The evidence given before the jury could support, in my opinion, the following view of the facts of the matter. The respondent conducts in a fairly remote part of the southern highlands of New South Wales a limestone quarry. The limestone rock is quarried at a face, elevated to crushers where it is crushed and the limestone itself separated from the sand and other materials with which it is found in the quarry. The limestone after crushing is carried by conveyor to bins from which it is gravitated to railway trucks which pass beneath the bins. The trucks, when full, are taken to the respondent's cement works at another site in the southern highlands by locomotives of the New South Wales Government Railways. As trucks are filled under the bins they are moved by manpower on rails which run south of the bins to a point where buffers prevent their further movement. When enough trucks have been filled to make up a train of appropriate length they are removed by locomotives as I have indicated. The respondent over past years has used the sandy spoil or waste from the crushing and separation of the limestone to make an extensive platform which is considerably higher than the surrounding ground which otherwise remains in its natural partly timbered condition. (at p433)

9. During the year 1967 the respondent desired to lengthen the rail which ran from the base of the bins southwards, so as to accommodate a greater number of trucks filled with limestone and thus to constitute a longer train for movement by locomotives. To do this it increased the area of what I have called a platform by tipping more of the sandy spoil, sometimes referred to in the discussion of the case as "fines", in the area south of the bins. In this way an extension of the platform for a width of about one hundred feet was built increasingly higher, though itself level, than the surrounding country whose natural fall was to the south. On this extension of the platform the length of rail running from beneath the bins was extended. The whole length of the rail from the bins south was referred to as the "back shunt". The western boundary of the respondent's land ran close to the margin of the extended platform of which I have spoken. As the platform was increased in length and width by the tipping of further sandy material the spoil in fact extended beyond the limit of this fence; in other words, went through it, burying it to some extent. (at p433)

10. Approaching the respondent's land on the west was a high tension electrical transmission line owned and operated by an electricity county council. The line had been erected on wooden poles so that the uninsulated wires were originally some twenty feet above the natural level of the land below them. The transmission line came towards the boundary of the respondent's land at what was said to be an angle of the order of fifteen degrees to that boundary. The transmission line apparently crossed the boundary of the respondent's land towards its southern extremity. As the transmission line closed on the boundary of the respondent's land the spoil, tipped to raise the extended platform, passed underneath the transmission line. The distance between the face of the batter formed by the tipped material as it came to rest and the uninsulated wire of the transmission line was thus progressively decreased. Before the occurrence with which this appeal is concerned, the respondent had become aware that a dangerous situation was being created by the extension in this manner of the platform and had in fact taken steps pending the relocation of the transmission line to prevent further tipping of material which, if tipped, would have the effect of further decreasing the distance from the face of the batter and the overhead wires. However, this endeavour on the part of the respondent proved ineffective and further material was deposited beneath the line of the transmission wires so that, on the day in question and at the point with which the case became concerned, the distance from the face of the batter to the uninsulated transmission line carrying electricity of 33,000 volts was such that a boy of thirteen and a half in a crouched position could put his hand on the bare wire. The distance was of the order of five feet or less. (at p434)

11. There was adjacent to the quarry, the platform, the bins and the railway line, a village in which the employees of the respondent were housed. It is referred to in the evidence as a "company village". It consisted of some thirty-five to forty houses connected with the platform and the structures used in the separation and loading operations by what appears to be a gravel or dirt surfaced road. Between the village and the face of the platform on the north-east side there was bushland in its natural condition. From photographs tendered in evidence it was virtually open savannah country. No fences separated the platform and working areas from the village. (at p434)

12. Children of the employees were accustomed to play about this platform, certainly on its north-east side, and they were accustomed to cross it in order to play in the bushland of another person's property which abutted on the west side of the respondent's property. The play in this other person's property was round a rocky area which the children knew as "granny's castle" and as well rabbiting on an area which was south of "granny's castle" and approximately west or a little north of west of the area of the respondent's property with which this case is concerned. One form of play by the children was to toboggan down the slope formed by the tipping of spoil in the course of making the platform. When first tipped, the sandy material was loose and probably quite suitable either for sliding or tobogganing down or for the common youthful prank of rolling stones or rocks down it in order to see how far from the toe of the batter they would go. After weather had attacked the face of the batter it become harder, corrugated or gullied so as to be less suitable for at least some of these forms of play. (at p435)

13. Some of the employees of the respondent kept goats, presumably for their milk. These were tethered on the western side of the employer's property and at least some of them if not all of them were depastured within the boundary of the respondent's land. To attend to the goats, as apparently the children did for their parents, they would cross the platform and railway line which lay between the village and the point where the goats were tethered. (at p435)

14. It was said that the children were forbidden to go near the workings which were identified in the evidence as the quarry area. Their school teacher had instructed them that they must not go into certain parts of the property on the weekend or, perhaps for that matter, at all. There was no evidence that the children had ever been seen on the face of the batter formed by tipping material in the area of the back shunt though they had been seen by the respondent's employees on other parts of the platform. (at p435)

15. The appellant, the son of an employee of the respondent, and other boys, children of employees, on the day before the occurrence out of which the action has arisen, went into the area of the back shunt and were playing on the batter there formed by the tipped sandy spoil. They also did so on the day of the occurrence. But at least the appellant had not played at this place before the first of these days. At some stage on these days the boys had tobogganed down the slope formed by the freshly tipped material and at the time of the accident to the appellant, he and some of the boys with him had been rolling stones down that batter, thereafter clambering down its face to see where the stones had come to rest. The appellant, a lad of thirteen and a half, was clambering back up the batter when, as well as can be gathered, he slipped to his knees and put his hand on the electrified wire and was very seriously injured. (at p435)

16. As I have indicated, the only basis of action which was allowed to be considered by the jury was that the site of the accident constituted an allurement to children which had been effective to bring the appellant to the spot and that the respondent had been negligent in its conduct in not having taken steps to protect the appellant and other children from the peril in the nature of a concealed danger or trap which the proximity to the ground of the highly charged wire could undoubtedly be held to constitute. After verdict, having regard to the summing up of the trial judge, it can be taken that the jury were of opinion that the situation was one of danger and called for some reasonable steps to protect persons who might be likely to come into contact with the wire, that the batter formed by the tipped sandy material was attractive to children at play, that the appellant had in fact been attracted to it by its alluring quality, and that the failure on the part of the respondent to take any steps to avoid injury to children who might be allured to the site was negligent. (at p436)

17. The learned trial judge in summing up to the jury said this:

"The company was the occupier of the quarry premises;

the plaintiff is a boy of thirteen, who was on the premises and

was injured by a condition of a part of the premises. The

duty owed by the occupier of premises to a boy who is on the

premises without any legal right to be there is well established,

and the plaintiff must show a breach of this well established

duty. The occupier of premises is bound by a duty to take

reasonable care to protect children from risk to which they are

exposed by a dangerous condition of part of the premises if

that part of the premises constitutes an allurement to children

to enter on to the premises and approach that dangerous part.

The part must be dangerous in the sense that it is a concealed

danger or a trap. Its existence and dangerous quality must

be known to this occupier of the premises and unknown and

not obvious to the children. Further, it should be known to

the occupier that there is a likelihood that there will be in or

near the premises children who will be subject to the allurement

and who will in fact be allured to it. The word 'allurement'

is a traditional word. What is a thing that is alluring

to children? - something that is attractive to children, something

that attracts them to approach it and perhaps play about

it or approach it in any other way... You must remember

the whole of the background of this happening, the fact that

the quarry existed alongside a village; that the village was

completely connected to the quarry, not with any other thing;

it was a mining village attached to this quarry; it was remote

and situated in a part of the country which - at least judging

by the photographs - does not appear to be very attractive.

It was a small isolated sort of place, and yet there were a number

of school children there who, at weekends, sought their amusement

as best they could." (at p436)

18. It will be observed that the summing up contained elements which were not expressed in the count, though it might be possible to regard them as being implied in it. I shall return to this feature of the case at a later stage. (at p437)

19. The situation which undoubtedly the respondent had created, and which clearly could be held to be highly dangerous to humans, and particularly to children who came to the vicinity, was the proximity of the bare high tension wire to the unnatural level of the soil brought about by the tipping of the sandy spoil. In this case, unlike other decided cases, the respondent was not a distributor of electricity and did not bring the high voltage current to the site. Here the respondent brought the land surface within human range of the electricity thus creating a situation of lethal potentiality. (at p437)

20. The third count upon which the jury has passed was based on the presence on the land of an allurement which attracted the appellant to the respondent's land where he was hurt. The count and the trial judge's summing up seem to have treated the allurement as itself a source of duty in the respondent towards the appellant if the respondent knew of the likelihood that children would respond to the allurement and be present in the area where the appellant was injured. Doubtless the pleader was encouraged to express the count in the terms he used by expressions to be found in Commissioner of Railways (N.S.W.) v. Quinlan (1964) AC 1054 , a decision of the Privy Council which is central to the resolution of the present appeal. But having regard to the presence of the first count of the declaration and his refusal to allow it to go before the jury, it would seem that the judge did not regard the effective allurement as the equivalent of a permission to come to the alluring place. Questions will later arise as to the precise "status" of an "allurement" in this area of alleged liability, and as to what can be taken from the jury's verdict on this count having regard to the summing up. Meantime, I will discuss the matter on the footing that the appellant was a trespasser on the respondent's land and that the respondent had created thereon the situation I have described. Later, I shall consider what is the effect of the findings that the appellant was attracted to the place where he was injured by its alluring quality, that the proximity of the electric transmission line to the surface of the batter constituted a concealed danger and that the respondent was aware of the dangerous quality of that proximity. Finally, I shall consider whether the first count of the declaration ought to have been left to the jury on the footing that it would have been open to them to have found upon the evidence that the appellant was at the place where he was injured by the leave and licence of the respondent. (at p438)

21. It might be as well at the outset to observe that this Court is bound by the actual decision of a case by the Privy Council and by the principles by which that decision is essentially supported, that is to say, by the basic reasons for its decision. The Court is not bound by the decisions of the Court of Appeal of England or of the House of Lords though, as we have said, the utmost respect will be paid to them and we will not lightly differ from what the House of Lords decides. In hearing an appeal from an Australian court which involves matters governed by the common law, the Judicial Committee is declaring the common law for Australia which is not necessarily the same as the common law in the United Kingdom - see Australian Consolidated Press Ltd. v. Uren [1967] UKPCHCA 2; (1967) 117 CLR 221 . Thus, the trend of decisions in this Court is relevant, particularly as, in actions involving the common law brought by a resident of one State against a resident of another, this is the final Court of Appeal - see Constitution s. 75 (iv.) and Privy Council (Limitation of Appeals) Act 1968 (Cth). (at p438)

22. By the decision in Quinlan's Case (1964) AC 1054 , a case not between residents of different States, we are bound. Thus the commencing point for the consideration of this case, on the footing that the appellant was a trespasser on the land occupied by the respondent, must begin with that case. The actual decision was that the Railway Commissioner was not liable to the trespasser for failure adequately to warn him of the approach of a train of whose approach, because of the terrain, he might be, and, apparently, was in fact, unaware. The reason for the decision was that the case was one of trespasser and occupier of land and nothing more. In that situation there was an adherence to the principle laid down in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 . (at p438)

23. A proper sense of justice has always denied that there is an absolute rule that the occupier of land owes no duty whatever to a trespasser. He is said to come upon the land at his own risk - taking the land and all that is upon it as he finds it. But it seems always to have been recognised that humanity as a handmaiden to justice requires considerable modification of an absolute irresponsibility of the occupier based on his proprietorship or control of the land. He must do no wilful harm to the trespasser of whose presence he is aware. Knowledge of facts and circumstances upon which it would be reasonable to expect the presence of a trespasser, so that the occupier as good as knows of that presence, will be accounted as actual knowledge. Reckless disregard of that presence, or perhaps callous indifference to it, will rank with wilful conduct to attract liability. Mantraps may not be laid with impunity ; nor may spring guns be set because they are directed to trespassers whose presence on the land is expected. Concessions must necessarily be made to trespassing juveniles. I leave on one side the mechanisms by which the concessions are made. But these denials of a rule of absolute irresponsibility have been made in the name of common humanity. With the increased availability of lethal substances and their use in activities upon land and structures, the traditional solicitude on the part of the law for human life and safety might well have led directly to further modification of the rule as to the liability of an occupier towards a trespasser. A court might well be thought to be in line with the traditional use of a sense of humanity in imposing directly upon the occupier, as such, some liability in relation to humanly dangerous situations created by him. But so far this has not been done authoritatively so far as this Court is concerned. (at p439)

24. The moot point in this case is whether an occupier, who introduces or maintains upon his land a thing or substance highly dangerous to humans, or to some class or group of humans or creates a situation highly dangerous to humans or to such class or group, on his land, owes a duty, and if so of what kind, to persons who may come upon his land and suffer injury by the thing, substance, or situation, and of whose likely presence on the land he knows or, on the facts and circumstances known to him, ought to be taken to know. (at p439)

25. It seems to me from reading their Lordships' advice in Quinlan's Case (1964) AC 1054 that they did not consider that a steam locomotive driven at speeds of 20 to 25 miles per hour, was inherently and highly dangerous to mankind, so that common humanity could be thought to place upon the operator of the railway service the need to consider who was likely to be or to come into its path at a place where its approach was neither visible nor appreciable. Thus, the case was regarded as one in which the only relationship between the parties was merely that of an occupier of land and trespasser thereon; in other words, that that was the relevant relationship in relation to the injured man's claim for damages. The duty to which that relationship gave rise was regarded as settled in the terms used by the House of Lords in Addie's Case [1929] UKHL 3; (1929) AC 358 . The Commissioner was not in breach of that duty. (at p439)

26. The reasons of their Lordships for their advice in that case have created problems to which commentators have referred. It is not my purpose to canvass such matters. It is sufficient that I should express my own view as to what may be decided in this case conformably with their Lordships' decision. The trend of decisions in this Court was observed by their Lordships but not entirely affirmed. Perhaps one of the questions which their reasons raise is the extent to which, and the basis on which, this Court's decisions were accepted. But I think it is clear that their Lordships approved this Court's decision in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 . The Court there decided that an electricity distributing authority which brought electricity at a lethal voltage into the proximity of a public place was liable to a youth who, in the course of the unlawful use of a pole owned by that authority and without its permission, suffered injury by contact with electricity because of that authority's failure adequately by reasonable maintenance to prevent the possibility of that contact. Their Lordships' approval of that decision is, in my opinion, of paramount significance in resolving the present case. (at p440)

27. Having carefully studied them I do not read their Lordships' reasons whilst denying that the doctrine in Addie's Case [1929] UKHL 3; (1929) AC 358 be confined to the condition of the land itself, as treating the nature of an activity carried on by the occupier on his land as irrelevant when considering whether a trespasser has a cause of action. I think that those reasons contemplate that the nature of such an activity may in some circumstances be such as to raise a larger and different duty towards a person coming upon the land without invitation or permission than that laid down in Addie's Case [1929] UKHL 3; (1929) AC 358 , though, with great respect to the noble Lord who prepared them, I cannot say that I feel absolutely certain of their Lordships' views in this connexion. After all, as they saw the facts, the case before their Lordships was one of occupier and trespasser and nothing more. They were concerned to express the limits of the duty of the occupier in those circumstances. Any reference to the possibility of other duties arising out of other relationships was only made, as I read the reasons, in commenting upon expressions which their Lordships took to be attempts to formulate the duty of an occupier who stood in no other capacity or relationship to a person trespassing upon his land. In that connexion, however, their Lordships in affirming the statement of that duty by the House of Lords in Addie's Case [1929] UKHL 3; (1929) AC 358 do seem to concede that if the situation which the occupier creates on his land is highly dangerous but not apparent to human beings coming upon the land, a failure to take reasonable steps to prevent that situation from causing harm to persons who to the knowledge of the occupier are likely, or at any rate highly likely, to come upon the land can be accounted "so callous as to be capable of constituting wanton or intentional harm" (see (1964) AC, at p 1084 ); for thus, at that point, their Lordships seem to explain their acceptance of this Court's decision in Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274 . However, it may be that that acceptance was also placed on "the ash tip, with its burning interior", being at once, having regard to its location, a dangerous allurement to straying children and a trap or an unusual hidden danger (1964) AC, at p 1083 , a view which seemingly prompted the terms of the third count in this case. (at p441)

28. But their Lordships say this (1964) AC, at p 1081 :

" ... for the moment it is sufficient to say that their Lordships

cannot find any line of reasoning by which the limited

duty that an occupier owes to a trespasser can co-exist with

the wider general duty of care appropriate to the Donoghue v.

Stevenson [1931] UKHL 3; (1932) AC 562 formula: and, if the relation of occupier and

trespasser is to be displaced by 'some other relation', as may

happen, the grounds upon which that displacement can be

held to occur must admit of reasonably precise definition,

otherwise the task of charging juries as to what the law requires

or allows will become virtually incapable of formulation." (at p441)

29. When affirming the decision of this Court in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , their Lordships described it as -

" ... one of those in which the court, for sufficient reason,

is able to hold that, as regards the accident and the injury

caused, the relation of occupier and trespasser does not bear

upon the situation of the parties. The reason there held

sufficient was that the corporation was maintaining on and

over a public place a highly dangerous electric transmission

system in a defective condition." (1964) AC, at p 1080

Though their Lordships do not expressly say so in this connexion, I would infer that what they did say was said on the assumption that the relationship of occupier and trespasser was relevantly capable of existing in the case of a structure such as the electric light pole. In the long run, though critical of such an extension of the doctrines relating to land, I assumed so much in Munnings v. Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1 . Their Lordships' expression "does not bear upon the situation of the parties", with due respect, is far from self-explanatory, but I read it as meaning in its context that the relationship of occupier and trespasser was not the relationship relevant to the circumstances of the injury. Consequently, it seems to me that in affirming the decision in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , their Lordships were conceding that though the defendant be in fact the occupier of the land or structure on which the plaintiff receives his injuries when he has no right to be upon it, there can be an obligation of care on the part of the defendant which is larger than the duty of an occupier towards a trespasser where no other factors are present. The precise extent of that obligation need not presently be expressed; though, as their Lordships point out, the nature of the relationship must be defined with reasonable precision. The importance at the moment of the endorsement of the decision in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 is, in my opinion, that the occupier defendant was liable to a trespassing plaintiff, because, presumably, the relation of occupier and trespasser was not the relevant relationship of the parties. To use their Lordships' expression, the relation of occupier and trespasser had been "displaced by 'some other relation'" so far as it was necessary to consider whether a duty to the person trespassing had not been performed. The parties had not ceased in fact or in law to be occupier and trespasser in relation to the pole but that relationship did "not bear upon the situation of the parties" in connexion with the injury received. No doubt the proximity of the pole to a public place assisted to justify the conclusion that the state of the electrical wiring was a danger to humans and perhaps also assisted the conclusion that the Council ought to have expected the presence of people at or about the pole. It did not establish either the Council's knowledge or expectation of the presence of the plaintiff on the pole. (at p442)

30. Of course, whilst the relationship of occupier and trespasser is the relevant relationship, the obligation of an occupier can not be enlarged by supporting some co-existing relationship. That other relationship must "displace" that of occupier and trespasser so as to be the relevant relationship. In my opinion, it was because their Lordships thought Sir Frank Kitto to be attempting to extend the duty of an occupier whilst treating the relationship of occupier and trespasser as the relationship relevant to the receipt of the injury, that criticism was offered of what he had written in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 . See Quinlan's Case (1964) AC, at pp 1080-1081 . But, with due respect, I think this a misreading of what Sir Frank Kitto said. As I read the passage in question from Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , the case supposed was one in which, again to use their Lordships' language, the relationship of occupier and trespasser, though of course continuing in fact, was "displaced" by the other relationship derived in all the circumstances from the nature of the thing, activity, or situation brought or created by the occupier and the expectation of the presence of the injured person or of a group or class of persons of which he was one. The emphasis by their Lordships on the difference in the facts of the two cases confirms me in my conclusion that the reason given in Quinlan's Case (1964) AC 1054 do not deny the possibility of a person who is an occupier coming under a duty towards a person who is a trespasser different from the duty expressed in Addie's Case [1929] UKHL 3; (1929) AC 358 , if the relevant relationship of the parties is not simply that of occupier and trespasser. If the plaintiff can sue the defendant only in his capacity of occupier and because he is the occupier, Addie's Case [1929] UKHL 3; (1929) AC 358 , as currently expounded by the Privy Council, will determine the existence and extent of any duty to the plaintiff. But that proposition does not deny that in relation to injuries received or damage done there can be another relationship which determines the rights of the parties. (at p443)

31. Thus, whilst in Quinlan's Case (1964) AC 1054 there was a refusal to enlarge the duty of a person who was no more than an occupier towards a trespasser beyond those traditionally expressed in Addie's Case [1929] UKHL 3; (1929) AC 358 , room was left to displace the relevance of that relationship of occupier and trespasser by another relationship which grew out of the demands of humanity. The bringing of a lethal substance into the proximity of persons expected to be present does suggest a relationship which in common humanity calls for the imposition of a duty of care. It is the high potential of danger to humans or to a class or group of humans which, it seems to me, excites humanity in the circumstances. Of course, to speak of a high potential of danger is to introduce questions of degree. But that is no novelty in the development of the common law, particularly in the area of negligence. Nor, in my opinion, does it lack precision, either in expression, or in its possible application. The range of substances and of situations which will qualify as having a high potential of danger to humans will, perhaps, extend as technology advances. Their identification by the courts is not a task of a kind to which they are unused. Whether or not a high as distinct from some lesser degree of danger will always be essential need not now be decided: for in this case the voltage carried by the uninsulated transmission line was lethal. (at p443)

32. It is noticeable that in Quinlan's Case (1964) AC 1054 , there seems to have been some recognition of the fact that a highly dangerous situation might have to be fitted into the "Addie" formula. Thus, the result in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 is, at one time, attributed to a callousness to be treated as wilful or intentional vis-a-vis the trespasser. So to relax the apparent rigidity of the "Addie" formula by its generous application would seem to me to introduce undesirable imprecision and uncertainty. On the other hand, to displace a relationship of occupier and trespasser by a relationship deriving from the highly dangerous thing, substance or situation brought or created upon the land is, in my opinion, in line with the development of the common law, and the place the criterion of common humanity has so far taken in denying irresponsibility of an occupier towards a trespasser. (at p444)

33. Once the relationship of occupier and trespasser is displaced as the relevant relationship one is not limited, in my opinion, to the requirement of actual knowledge of the presence of the trespasser, or of its equivalent. That requirement is of the essence of the "Addie" formula. The displacing relationship, stemming from the highly dangerous thing, substance or situation, depends, it seems, on the proximate presence of the person likely to be injured by that thing, substance or situation. Thus, the expectation actual or imputed of that proximate presence on the part of the occupier bringing the thing or substance or creating the situation on the land seems logically to be the remaining element in the creation of a duty. If the source of danger is proximate to a public place the nature of that place may provide the expectation of the presence there of persons to whom the thing, substance or situation is likely to be injurious. If the source of danger is proximate to a place where persons are known to resort, though not a public place, again that place may provide in the circumstances the necessary expectation. But clearly, these are not the only instances, or types of instance, in which an expectation of the presence of persons can be attributed. That expectation can be concluded in many other factual situations. In Munnings v. Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1 the use of the adjacent land as a playground to the knowledge of the Electricity Authority's officers was enough in that case to infer the necessary expectation of the presence of people such as the plaintiff. In British Railways Board v. Herrington [1972] UKHL 1; (1972) AC 877 the position of the railway line between two meadows where children were known to play apparently was enough to justify the conclusion that the presence of children on the railway premises was to be expected if no adequate fence was maintained. (at p444)

34. The question in this case, granted the creation by the respondent of the situation highly dangerous to humans, or to a group or class of them, is whether the presence of the children on the back shunt in the proximity of the transmission line was to be expected by the respondent. If it was, the displacing relationship, in my opinion, would arise and the respondent would owe a particular duty of care for breach of which an action could be maintained. The expectation as I have indicated can, in my opinion, be actual or imputed from the facts and circumstances of the case. (at p445)

35. I am inclined to think that, because the duty to one's neighbour is styled a general duty of care, it is likely to be thought too large to impose upon a defendant who is an occupier but who has assumed the relationship stemming from the creation of a highly dangerous situation. That duty, in my opinion, would appear to be more specific and limited, namely, to take reasonable steps to prevent harm ensuing to the plaintiff from that dangerous situation as, for example, by adequately maintained fencing, or to enable him to avoid that harm as, for example, by providing a warning. So stated, I realize the duty in the circumstances is little, if at all, different from the acts required of a person who was not an occupier but otherwise in the same circumstances. Of course, the particular acts for which the performance of such a duty may call will vary with the circumstances. The ability of the occupier creating the danger to minimize or avert its consequences will be one of those circumstances. But here no such questions arise. The respondent created the situation. It was aware of its potential for serious harm and it had ample resources to have coped with the situation. It did nothing. (at p445)

36. At this point I should like to say something of the recent decision of the House of Lords in Herrington's Case [1972] UKHL 1; (1972) AC 877 . I have been favoured with a print of their Lordships' reasons. I am not at liberty, of course, to prefer that decision, or their Lordships' reasons therefor, to the decision or reasons in Quinlan's Case (1964) AC 1054 . Nor may I treat the decision of the House of Lords as qualifying or in any part overruling Quinlan's Case (1964) AC 1054 . But, as I read their Lordships' reasons, they did not regard their decision as inconsistent with Quinlan's Case (1964) AC 1054 . Thus, a brief discussion of Herrington's Case as illustrative of the limits of Quinlan's Case (1964) AC 1054 is not out of place. (at p445)

37. It was decided in Herrington's Case [1972] UKHL 1; (1972) AC 877 that the operators of a railway service by means of a third electrically activated rail at ground level came under a duty in the circumstances to maintain a fence between their property on which the rails were laid and the area of land adjacent thereto on which children were known to play. A fence placed by the railway operators on the boundary of their land having been allowed to fall into disrepair, a child stepped through or over it, reached the live rail and was injured thereby. There was really no evidence on which it could be held that the railway operators knew that the child was on their property or that children were coming upon that property at the place where the child was injured. There was some evidence that those operators had knowledge that children had come on to the railway line at some other point which, as far as I can see, was unrelated to the area in which the injury was received. (at p446)

38. The child was a trespasser on the railway operators' land. There was no question of allurement or permission, actual or inferred. Yet a verdict for the child was sustained. It was sustained, as it seems to me, because the placement of the live rail at ground level on insecurely fenced land created a highly dangerous situation for humans or at any rate for the group or class of them of whom the child was one. Consequently, the railway operators, in the circumstances, came under a duty to take reasonable steps to avoid injury to those whom they should expect to come upon their property if it were unfenced. This is not the place for a discussion of the various speeches of their Lordships in support of the result I have mentioned. But none of their Lordships, though of course not bound by it, seems to me to regard the reasoning of Quinlan's Case (1964) AC 1054 as standing athwart his path to that conclusion. Consequently, I find nothing in their speeches to lead me to think that I am in error in thinking that Quinlan's Case (1964) AC 1054 does not deny the possible existence of a liability in the respondent to the appellant in this case, treating the appellant as a trespasser, any question of allurement apart. (at p446)

39. Having regard to the close similarity in their essential structure of the facts in this case to those in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 , it may be possible to resolve this case by treating it as precisely covered by the decision in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 , the result of which was accepted in Quinlan's Case (1964) AC 1054 . But I am not prepared to do so. Further, it may be possible to conclude that the failure of the respondent to do anything to avoid injury from contact with the bare electrically charged wire to persons whose presence at the site of the accident to the appellant ought to have been expected was "so callous as to be capable of constituting wanton or intentional harm" within an unqualified application of the principle laid down in Addie's Case [1929] UKHL 3; (1929) AC 358 . But I am not prepared to so resolve the case, though it might be possible to regard the respondent's inactivity in the matter as reckless. I would not so hold in the circumstances. (at p447)

40. In my opinion, the relevant relationship of these parties was not necessarily that of occupier of land and trespasser thereon. It could be held to be the relationship of a person who had created on his land a situation highly dangerous to mankind and a person whose presence on the land was expected or to be expected by the creator of the situation. The question whether, on the evidence, the presence of the appellant at the point of danger was to be expected can be dealt with as I deal with the question whether there was any evidence that the appellant was at the place with the permission of the respondent, a matter pertinent to the first count of the appellant's declaration and to which I now turn. If there was such evidence, clearly there was evidence on which it could have been held that the appellant's presence on the land at the particular location was to be expected. (at p447)

41. I should observe at the outset, in this connexion, that there is a difference between liberality in finding that actual, though inferred, permission has been given and imputing a permission which was not in fact given. I do not regard the latter in any case as warranted. Ample warrant for the former is to be found in the facts of the decided cases. (at p447)

42. I think there was evidence from which the jury could conclude that the children of the respondent's employees, living in the "company" village in its remote situation, were free, so far as the respondent was concerned, to play on any part of the platform or its slopes, putting aside for one moment the new slope at the back shunt, except the actual quarry workings: and that they did so to the knowledge of the respondent through various of its employees. Further, the evidence, in my opinion, would have warranted the conclusion that the children were free to cross the platform in order to reach the places on Cooper's property, the property on the west of the respondent's property, which for present purposes may be regarded as their playground, both granny's castle and the rabbiting area; also that they were free to cross the platform to attend to the goats. Apart from the quarry workings and the proximity of the power line to the extended platform there would seem, so far as appears, to have been little danger to children using the platform. It may be thought natural for the children in such a remote place to play on and around the platform, either as an occupation for its own sake or as incidental to crossing the platform to reach granny's castle, the rabbiting area or the place where the goats were tethered. Indeed, in my opinion, it might be thought to be something to be expected of them. It could also be concluded that it would be natural for children to wander upon the platform as they made across it. The "sandhills", as the children rather illuminatingly called the slopes of the platform, could be thought to be readymade playgrounds in the circumstances in which these children found themselves and likely to attract them to play upon them in the way in which children, according to the evidence, did in fact play, that is to say, by running up and down them or rolling stones down them or tobogganing down them with an improvised toboggan made of corrugated iron. The attractiveness of these "sandhills" for these purposes was at its greatest when the material had been newly tipped over the edge. Probably they lost their attraction progressively as the face of the batter became hardened by weather and gullied by rain. There was no reason, which I can appreciate, why the "sandhill" on the western side of the platform should be any less attractive to the children as a play area than one on the eastern side. No doubt the latter would be more proximate to the village but the other would be more proximate to the playing areas in Cooper's property, granny's castle and the rabbiting ground. And it might be thought that the newer slope was more attractive to the children than a weathered slope. Of course, the fact that prior to the relevant time they had not played on or around the back shunt is a fact for consideration but not a conclusive fact. (at p448)

43. The absence of fences, the position of the platform between the village and the places to which the children went to play or to attend to the goats kept by their parents, the isolated nature of the whole situation, the nature of the platform and its marginal batters, the knowledge that the children did play on the platform and its batters, and did cross it to go to granny's castle, the rabbiting ground and the place where the goats were tethered, all furnish evidence, in my opinion, from which it could be inferred that the respondent acquiesced in the use by the children of the platform and the batters for play and for passage to and fro their other playing grounds, that is to say, there was room on the evidence to infer, as distinct from impute, permission on the part of the respondent for the children to do these things. (at p448)

The evidence would be sufficient, in my opinion, to enable the permission to be inferred as extending to the batters on the western side of the platform including the batters newly formed in the course of extending the back shunt. Indeed, I can see no ground upon which it could be said that if there were permission to use the platform for play and for passage that any part of it must be held to be excluded from the permission, with the exception of the working areas of the quarry. If it were concluded that the respondent had given permission to the children to play and to pass over the platform and its batters, its duty to its permittees, at the very lowest, could in this case attract liability for the subsequent injury to the child. The situation of great danger was one not appreciable by the children and certainly was one into which they could stumble by inadvertence in the course of play. The danger in general was known to and appreciated by the respondent. Therefore, there was evidence, in my opinion, to support the first count which ought to have been submitted to the jury. (at p449)

45. But even if permission thus to use the platform is not inferred, there is, in my opinion, evidence on which it could be found that the respondent, having regard to the nature and extent of the danger, ought to have expected the children to come within its range, particularly if the attractiveness of the newly formed batter on the western side is accepted as a fact. I include the nature and extent of the danger in this conclusion because these features call for thought to be given to the question whether persons are likely to be injured by it. In my opinion, the so-called "allurement" of the "sandhills" may be taken into account both in deciding whether or not permission was given to use the platform and its batters and whether or not the presence of the injured person, or of the class of whom he formed one, ought in all the circumstances to have been expected at or about the place where the appellant received his injury. (at p449)

46. In my opinion, an allurement on the occupier's land does not itself give rise to a cause of action if it leads a child to trespass, though it might be said that in explaining their acceptance of Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 their Lordships might seem to regard the allurement, if the ashtip became effective in that respect, to have given a right of action. As I remarked earlier, the appellant's pleader seems to have taken such a view, for the third count, and indeed the summing up, is founded mainly on the allurement of the place where the appellant sustained injury. However, holding the opinion which I do, I would not support the third count as drawn or as treated by the trial judge in summing up. The trial judge, in the portion of his summing up which I have set out, expanded the count, though still leaving the allurement as the source of a duty to protect the children who might be allured to the situation of danger. (at p450)

47. But the matter does not end there. After verdict, bearing in mind the summing up, it must be taken that the jury found that the respondent had created a situation of danger on its land. That situation was the proximity of the surface of the batter of the platform to the uninsulated high voltage transmission line. That situation of danger could only be regarded as highly dangerous to human life and safety. Then, the jury must be taken to have found that the respondent knew of the existence and dangerous quality of what they must have concluded was a concealed trap as far as children were concerned. Further, because the place of the danger was attractive to children seeking their amusement in the remote area where they lived, and having regard to the terms of the summing up, the jury must have concluded that the respondent must have known that it was likely that children would be attracted to the place of danger. In my opinion, that finding in the circumstances of the case is the equivalent of a finding that the presence of the children in the area was to be expected by the respondent. Upon the possible view of the facts, which I have already indicated, there was, in my opinion, sufficient evidence to support such findings. They are sufficient, in my opinion, to support a verdict against the respondent on the footing that, having created a situation highly dangerous to human life, the proximate presence of children was to be expected by it, with the consequence that the respondent owed the appellant a duty to take reasonable steps to prevent the appellant suffering injury by that highly dangerous situation. If there was any duty, there can be no question that the respondent failed to perform it. (at p450)

48. Therefore, because of the findings inherent in it, and upon the basis I have indicated, I would not disturb the verdict of the jury. A comparable course taken in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 does not seem to have excited criticism in the Privy Council in Quinlan's Case (1964) AC 1054 . (at p450)

49. In my opinion, the appeal should be allowed and the verdict of the jury restored.

McTIERNAN J. In my opinion the appeal should be allowed and the verdict of the jury on the third count should be restored. It is said by the count: the defendant was the occupier of premises and there was on them a pile of rubble which was alluring to children and such as was likely to induce the presence on the said premises of children and the plaintiff was a child who was on the said premises and was allured by the said heap of rubble and thereupon the defendant by itself its servants and agents was so careless negligent and unskilful in and about allowing the said pile of rubble to be in close proximity to a high tension electricity line that the plaintiff sustained the injuries and suffered the damage more particularly set out in the first count hereof. The salient features of the evidence before the jury are stated by the Chief Justice in his judgment. The trial judge gave directions to the jury as follows:

"The company (respondent) was the occupier of the quarry

premises; the plaintiff (appellant) is a boy of thirteen, who

was on the premises and was injured by a condition of a

part of the premises. The duty owed by the occupier of

premises to a boy who is on the premises without any legal

right to be there is well established, and the plaintiff must show

a breach of this well established duty. The occupier of premises

is bound by a duty to take reasonable care to protect children

from risk to which they are exposed by a dangerous condition

of part of the premises if that part of the premises constitutes

an allurement to children to enter on to the premises and

approach that dangerous part. The part must be dangerous

in the sense that it is a concealed danger of a trap. Its existence

and dangerous quality must be known to this occupier of the

premises and unknown and not obvious to the children.

Further, it should be known to the occupier that there is a

likelihood that there will be in or near the premises children

who will be subject to the allurement and who will in fact be

allured by it. The word 'allurement' is a traditional word.

What is a thing that is alluring to children? - something that

is attractive to children, something that attracts them to

approach it and perhaps play about it or approach it in any

other way ... It was a small isolated sort of place, and yet

there were a number of school children there who, at week-ends,

sought their amusement as best they could. Then there were

the physical features of the quarry itself. There was the

fact that on week days - and very often on Saturdays -

production was taking place, and even on Sundays there may

be maintenance going on. Then you have the background of

the evidence - if you accept it - that the schoolmaster, and

indeed officials of the company, from time to time warned

children of dangers inherent in the village and on the works,

and also - if you accept it - that children were quite often

warned to keep away from the premises, and indeed ordered off

the premises. It is against that background and the background

of the evidence also, that on Sundays, despite these

prohibitions, children - being children and apt to the sin of

disobedience - wandered onto the premises either to cross over

them or to play on them and that, if you accept the evidence

again, that there was an attraction in what has been called

the dumps where waste material is put in with the heap in

such a way that slopes were formed and the children, again

if you accept the evidence, liked to play on these slopes,

rolling stones down them, running up and down them or using

pieces of steel in such a way that they could indulge in the

sport that is called tobogganing. I do not know how much of

this evidence you accept and how much you reject, but

undoubtedly you must accept part of it, on one view that

has been put to you. It is your duty now, against that background,

to examine what I have put to you. The occupier

of premises is bound to take reasonable care. The law is

not so unreal as to demand of any human being or institution

perfect care; but having regard to all the circumstances, the

duty is to take reasonable care and a failure to take reasonable

care is a breach of that duty and is called - as I have already

told you - negligence. The occupier is under a duty to protect

children. This duty of care, in the circumstances of this

accident, is only in favour of children. Because it is considered

- and you might think realistically so, - that children, being

children, might be lured or attracted on to premises where

they have no right to be, where an adult would not be so lured

or attracted, or if there were an allurement or attraction he

would be expected to reject that allurement or attraction.

Did this slope constitute an allurement? You have heard

the arguments of Mr. Loveday (for the plaintiff) on this point.

He said that in this village at that time, the children, on the

evidence he asks you to accept, did like to play and were

attracted to these slopes, to use them in the way the evidence

indicates ... The part of the premises must be dangerous in

the sense that the danger was a concealed danger; that it

constituted, in effect, a trap. Well, on this matter Mr. Loveday

asks you to say without any great hesitation that the presence

of an unguarded uninsulated electric wire carrying 33,000 volts

within four or five feet of a slope, which he claimed was an

allurement to children, was clearly a trap and a concealed

danger. There were no warnings, no guards, and the wire

was in easy reach of any person who was playing on this slope

- any children - I should say, who were playing on the slope,

and as I understand it, Mr. McGregor (for the defendant)

did not advance any arguments to the contrary. Then its

existence and dangerous quality must be known to the occupier.

Here, Mr. Loveday put to you that this danger must have been

known to the occupier; it was on the defendant's own premises

and the danger had been created by the activities of the

company in dumping soil to the extent that the edge of the soil

on the slope was brought so close to the wire that employees

of the company engaged in the very operation must have known

of the existence and the quality of the danger. He asks you

also to accept the evidence of Mr. Cosgrove, that it was an

estimated five feet from the slope for quite a period before.

And if you do not accept that evidence, he asks you to accept

the evidence of Mr. Howard, the mine superintendent, who

recognised the potential danger, but that according to Mr.

Howard it was not five feet from the slope but a considerably

greater distance away from the slope on the Thursday, and he

took immediate steps to have that wire removed. Unfortunately,

the wire was not removed before the Sunday, when the

plaintiff came in contact with it. Mr. McGregor asks you to

say that in all the circumstances the knowledge of the danger

was not to be imputed to the company because something went

wrong after the Thursday when the danger was only potential

and not actual, and that the company had, through its officers

and servants and employees, really no knowledge that the

wire was so approximate to the edge of the slope. The other

matter is - and this again, I think, is one of those obvious

matters that Mr. McGregor made no submissions about - that

the danger must be unknown and not obvious to the child.

Well, you have heard the description of the situation, and you

might think a child of thirteen would not appreciate that the

wire hanging in proximity to the edge of a slope was a

potentially lethal wire. Then, as I told you, it must be known

or at least be foreseeable and foreseen by the occupier that there

was a likelihood that there would be in or near the premises

children who would be subject to the allurement that existed on

the premises. Again, it is idle to give illustrations of other

situations. You bear the situation in mind here of the village,

its locality: its proximity to the works and all the other

evidence about how children had conducted themselves in

and about and near these premises over the week-ends for

years before the accident. And also, as I told you, it must

be foreseeable by the occupier that this part would be an allurement

to children. Again you find the danger of becoming

repetitive. You have the evidence - if you accept it - that

children did pass over or go to various spots on the works

premises; and you have the evidence that on other dumps

children did play, whether they were tobogganing or rolling

stones or doing other things. So much depends on what you

find the situation to be. But to whatever you find the situation

to be you apply the principle I have given you and you ask

yourselves: 'Has the plaintiff established - in the way I

indicated - that he met with his injury as a result of the breach

of duty on the part of the defendant?' If you are not so

satisfied, the verdict is for the defendant."

There was evidence on which the jury could find for the plaintiff on every allegation made by the third count. (at p453)

2. The reasons of Asprey J.A., and of Holmes J.A. also, for deciding that the verdict of the jury on this count should be set aside were that the plaintiff or any other boy with whom he was playing had no licence or permission to be at the place where the accident happened. Their Honours took the view that there was no evidence fit for the jury to consider that the permission which children living in houses on the premises had to roam over the premises, extended to the place where the accident happened; and further, they took the view that evidence adduced for the company showed that such permission did not extend to the place where the accident happened. Taylor A.-J.A. took the view that there was evidence on which the jury could reasonably find, if the issue had been left to them, that the scope of the permission enjoyed by the children to ramble over the premises would have extended to the place where the accident happened. I agree with Asprey J.A. and Holmes J.A., so far as this question is concerned. (at p454)

3. A second reason why Asprey J.A. and Holmes J.A. decided that the verdict of the jury on the third count could not stand was that the trial judge did not give to the jury any direction in accordance with the formulation, in a passage in the judgment of the Judicial Committee in the case of Commissioner for Railways v. Quinlan (1964) AC 1054, at p 1084 (hereinafter referred to as Quinlan's Case), of a principle so far as it is expressed to be applicable to children. The passage is as follows:

"If on the evidence a plaintiff is a trespasser, a person

present without right or licence, the occupier's duty to him is

determined by the general formula as laid down in Addie's

Case [1929] UKHL 3; (1929) AC 358 . That formula may embrace an extensive and, it

may be, an expanding interpretation of what is wanton or

reckless conduct towards a trespasser in any given situation,

and, in the case of children, it will not preclude full weight

being given to any reckless lack of care involved in allowing

things naturally dangerous to them to be accessible in their

vicinity." (at p454)

4. The summing up of the trial judge in the case, the subject of the present appeal, does not use the words "reckless lack of care" in relation to the issue raised (by the third count), namely, that the defendant allowed the "pile of rubble to be in close proximity to a high tension electricity line". (at p454)

5. The count contains no categorization of the plaintiff other than he "was a child who was on the said premises". In referring to Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274 (hereinafter referred to as Cardy's Case), the Judicial Committee said in Quinlan's Case (1964) AC, at p 1083 , "Their Lordships do not demur at all to the decision that was come to in this case". They continued (1964) AC, at p 1083 :

"A boy of 14 sustained grievous injuries by burning from

sinking his feet through the crust of an ash-tip, which contained

a mass of red hot material. A pathway that was freely

used by pedestrians ran along one side of this tip, and people,

particularly children, frequently visited the tip despite 'casual

and intermittent warnings' by railway servants. It was held

that the defendant was liable in damages to the injured boy.

The circumstances seemed to place the case squarely among

those 'children's cases', in which an occupier who had placed

a dangerous 'allurement' on his land is liable for injury caused

by it to a straying child. In any accepted use of the word

the ash-tip, with its burning interior, was a 'trap' or an

'unusual and hidden danger'. A considerable portion of the

court's full and learned judgments is devoted to the question

whether it was necessary or possible to describe the boy, playing

on the surface of the tip, as a licensee, and their Lordships

are at one with Dixon C.J. in his exposition of the unreality

of this description as applied to children in several previous

authorities. Nor, as he says, is it necessary to resort to this

categorization to give them the legal remedy that is felt to be

their due. Children's cases in this context do unavoidably

introduce considerations that do not apply where the sufferer

of injury is an adult. What is allurement to a child and,

being so, imposes by itself a measure of responsibility, is not an

allurement to an adult: and those conceptions of licence or

permission, which may be highly relevant for the determination

of the adult's rights, are virtually without meaning, at any

rate as applied to small children." (at p455)

6. The term "a straying child" seems to me to be an apt description of the plaintiff in the present case, when he was at the place where he was injured, if he could not be described as a licensee or permittee. (at p455)

7. In Cardy's Case it is said (1960) 104 CLR, at pp 288-289 :

"The respondent" (the boy Cardy) "and a brother aged

twelve years went through an entrance on the southern

boundary, which the jury could find was always open, and

proceeded by a road into the land from which a path led in the

direction of the dump area. They strayed from this path to

the heap of ashes and rubbish and went up its steep side,

which was ten feet high. As stated above, when the respondent

was scrambling down that side of the heap his feet sank into

hot ashes beneath the surface and were badly burned. Only

the respondent was injured. Neither the dump area nor the

heap itself was fenced, and it was, on the evidence, easily

accessible, over vacant ground, from the path. The jury

could find that there was nothing in the appearance of the

heap of ashes and rubbish which the boys climbed to indicate

that beneath its surface there were hot ashes. The appellant

conceded in argument that it was possible that the ashes which

burned the respondent's feet were hot when deposited by its

workmen on the heap. If the jury considered that the tacit

permission to enter and walk over the land extended to climbing

this heap they could find that the appellant did not take the

proper measure of care due by an occupier to a licensee to

protect the respondent from the danger he encountered. But

I would not go as far as holding that a grown-up person, even

though he could claim that he had tacit permission to walk

about the dump area, could also rightly claim that the permission

extended to climbing the heap of ashes and rubbish

on which the respondent was injured. In my opinion, the

verdict can be sustained on the basis that the respondent was

not a trespasser on the land and the heap of ashes and rubbish

was an allurement to a boy of his age. It is a well-known

propensity of boys of the respondent's age to go up a bank,

heap or mound which is at a place where they come to play and

is accessible to them. This heap was not a natural formation

of ground but an artificial construction on the land and it

could be an allurement in the legal sense for children. In

my opinion, it was clearly open to the jury to find the respondent

followed instincts, generally natural to boys of his age,

by going up the side of this heap of ashes and rubbish on which

he was injured." (at p456)

8. In my opinion the passage referring to Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 , quoted above from the judgment of the Judicial Committee in Quinlan's Case (1964) AC 1054 , has an impact on the case of Robert Addie and Sons (Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 (Addie's Case), as a source of the common law to be applied in Australia in order to decide a case in which a child sues an occupier on a cause of action analogous to that pleaded by the third count of the plaintiff's declaration in the present case. In Addie's Case, Viscount Dunedin said (1929) AC, at p 376 :

"The truth is that in cases of trespass there can be no

difference in the case of children and adults, because if there is

no duty to take care that cannot vary according to who is the

trespasser. It is quite otherwise in the case of licensees,

because there you are brought into contact with what is known

as trap and allurement ... but obviously what is allurement

and a trap to a child is not so to an adult ..."

"In the present case" Viscount Dunedin continued "had

the child been a licensee I would have held the defenders liable;

secus if the complainer had been an adult."

In my opinion it follows from the approval of the Judicial Committee in Quinlan's Case (1964) AC 1054 of the decision of the High Court in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 that the plaintiff in the present case was entitled to recover damages against the defendant company on proof of the allegations in the third count, even though he could not be categorized as a licensee or invitee but could be categorized as a trespasser, if it were permissible to resort to categorization in the case of a boy of the plaintiff's age. (at p457)

9. As regards the omission from the summing up of the words "reckless lack of care" (see passage quoted above from Quinlan's Case (1964) AC, at p 1084 ), this omission, in fact, resulted in misdirection of the jury. If the directions to the jury, suggested by counsel for the respondent, as being prescribed by that decision had been given to the jury, I think it would be right to presume they would have found as they did for the plaintiff on the third count. It appears from the judgment of their Lordships in Quinlan's Case that they anxiously considered whether

"...it is right that this unhappy litigation should be further

prolonged by an order that the action should be tried once

more. On the first occasion the respondent obtained a verdict

on the ground that he entered on the crossing as a licensee,

and this verdict was upset on appeal because there was no

evidence of any such licence. On this occasion he has obtained

a verdict on the ground that, though he was himself a trespasser,

the appellant had sufficient notice of the likelihood

of his presence to owe him a duty of care, which was breached

by the locomotive engine not giving sufficient warning by

whistle before it approached the crossing." (1964) AC, at pp 1086-1087

Having regard to the evidence in the instant case of the means of ingress available to straying children, into the place at which the accident happened and the circumstances of the accident, I think that justice requires that the verdict on the third count be restored rather than that a new trial of that count be had.

MENZIES J. The appellant is an infant who was thirteen years of age when, on Sunday, 30th July 1967, he suffered the very severe injuries which gave rise to the proceedings in which this appeal arises. He was electrocuted when, in some unexplained way, he touched a high tension electric cable suspended from poles at a height of about five feet above the rear slope of an artificial sandhill upon the defendant's property at South Marulan. This sandhill carries a railway line which forms a "back shunt" down which railway trucks can move by the force of gravitation to bins to which limestone is carried by elevators after having been quarried and crushed. The sandhill and back shunt form, therefore, part of the defendant's works for the convenient loading of limestone into railway trucks for transport from South Marulan. (at p457)

2. South Marulan is a country township established by the defendant for the purposes of its business. In addition to the defendant's works there are there thirty-five to forty houses, a school, a store and some recreational facilities. Electricity is brought to the area from the electricity undertaking of the Southern Tablelands County Council. (at p458)

3. The defendant, in 1967, was in the course of extending the back shunt by tipping sand or "fines" from motor trucks down the rear of the sandhill. In doing this the level of the sandhill was raised under a power line carrying 33,000 volts. The poles originally carried the power line some twenty feet above the ground surface below it but the management had noticed that with the extension of the back shunt the new slope had become dangerously close to the power line and had prohibited further tipping at that place. To discourage tipping piles of fines had been left at the top of the slope. Arrangements were also being made for the relocation of the power line and this would have been carried out during the week following 30th July 1967. Despite the prohibition against further tipping some employee of the defendant had, a day or two before 30th July, pushed the fines, forming the heaps at the top of the slope, down the slope and under the power line, thus bringing the power line to within easy reach of a person upon the slope at the point where the accident occurred. Unquestionably this created a situation of extreme peril for anyone upon the slope in the vicinity of the power line. The peril was, of course, the greater for any such person who was not aware that the power line was carrying electricity at high voltage. (at p458)

4. The plaintiff is the son of an employee of the defendant who lived in one of its houses at South Marulan. On the afternoon of Sunday, 30th July 1967, the plaintiff, in company with some other boys, went to the back shunt to play. It was while he was playing there that the plaintiff was electrocuted by contact with the power line. (at p458)

5. Although it would be going too far upon the evidence to say that it could be found that boys like the plaintiff had the free run of the defendant's land at South Marulan, there is evidence to support the conclusion that they were accorded a good deal of freedom. This was necessarily so. South Marulan was the home township of those who lived there; they were on the defendant's land when they were in their houses; they stepped out of doors onto the defendant's land; they were upon the defendant's land when at school, when shopping, when visiting one another, when playing around their homes. Precautions were taken, including the giving of warnings at school about keeping away from the works, and from time to time boys had been ordered away from various places. There was some evidence that the back shunt was one of the places that was out of bounds and there was no evidence that it was a place at which boys were wont to play. The plaintiff's own evidence was that he had been only once on the back shunt before 30th July 1967 and that was on the previous day. There was no evidence that the defendant's management knew that the back shunt was a place where boys did, or were likely to, resort. There were, however, no notices warning against going on to the back shunt or of the danger constituted by the low hanging power cable. Furthermore, the back shunt did adjoin an area outside the defendant's land where boys were accustomed to play. There was evidence that boys did slide down other slopes upon the defendant's land that had a gradient like the rear of the back shunt but were less suitable for sliding, for, while the other slopes were weathered and hard, the rear of the back shunt was fresh and soft. (at p459)

6. The plaintiff sued in a number of counts, three of which are of significance upon this appeal. Of these the first was as a licensee upon the land of the defendant occupier for breach of duty as a licensor; the second was as a trespasser upon the land of the defendant occupier whose presence was known to the occupier and who was injured by reckless disregard of his safety; the remaining count was as a child allured by the defendant occupier to the rear of the back shunt which was highly dangerous by reason of the negligence of the defendant in allowing the line carrying electricity at high tension to be within rech of a person upon the slope. (at p459)

7. The learned judge at the trial took from the jury the first and second of the counts which I have just mentioned. The first on the ground that there was no evidence that the plaintiff was a licensee. The second on the ground that there was no evidence that the defendant had recklessly disregarded the safety of persons upon the rear slope of the back shunt. The remaining count (which I will for convenience call "the Cardy count" for it was clearly enough based upon the decision of this Court in Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274 ) was left to the jury who returned a verdict for the plaintiff for $56,880. The defendant appealed against this verdict; the plaintiff cross-appealed alleging error on the part of the learned trial judge in holding (1) that there was no evidence upon which the jury were entitled to hold that the plaintiff was a licensee of the defendant, and (2) that there was no evidence that the defendant had been guilty of reckless disregard of the safety of the plaintiff, and in taking these counts from the jury. The Court of Appeal of the Supreme Court of New South Wales allowed the appeal and set aside the verdict and dismissed the cross-appeal (1971) 1 NSWLR 820 . The plaintiff has appealed to this Court against both orders and seeks the restoration of the verdict in his favour, or, alternatively, a new trial of the action. I propose to consider first whether the jury's verdict upon the "Cardy" count should be restored. For the purposes of this consideration it must be accepted that at the time when, and at the place where, the plaintiff suffered his injuries he was a trespasser upon land occupied by the defendant. (at p460)

8. Recent decisions of the House of Lords, the Privy Council and of this Court relating to claims by trespassers against occupiers of land for injury suffered thereon have all proceeded upon the footing that Robert Addie and Sons (Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 , which established the law governing the duty owed by a person as an occupier of land to a trespasser upon that land, is still applicable. The rule is, in short, that the trespasser goes upon the land of another at his own risk; an occupier is under no duty to protect a trespasser; the only duty owed by an occupier to a trespasser is not to injure him intentionally or to act recklessly or culpably, giving no thought to his safety. That this is still accepted as the law is evident from Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 . See the statement of Dixon C.J. (1960) 104 CLR, at p 286 , "The rule remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from intentional or wanton harm to him". See too Windeyer J. (1960) 104 CLR, at pp 318-319 . This is recognized too in Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054, at pp 1072-1074 , and British Railways Board v. Herrington [1972] UKHL 1; (1972) AC 877 per Lords Reid and Wilberforce. Nevertheless, despite recognition of the binding force of the decision of the House of Lords in Addie's Case [1929] UKHL 3; (1929) AC 358 , the decisions in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 and Herrington's Case [1972] UKHL 1; (1972) AC 877 would indicate that there has been some further development. Otherwise neither case could have been decided as it was. In each case an occupier of land was held liable in negligence to a child who was trespassing on the defendant's land without any finding that the injury suffered was caused intentionally or recklessly. It seems to me that these decisions of necessity import the existence of some duty of care owed by an occupier of land to a trespasser in some circumstances. The problem, as I see it, is to define this duty. (at p460)

9. Perhaps there is advantage in starting with some negative propositions. (at p460)

10. The first is that the law does not impose upon an occupier of land a higher duty towards a trespasser in circumstances that the occupier is aware that trespassing is likely, than is owed to one whom the occupier knows to be trespassing. To do this would be absurd. If an occupier of land is shooting across his own land at a target which he has erected and he sees a trespasser upon his land he is not entitled to make the trespasser another target, i.e. to harm him intentionally; or recklessly to fire at his target when the trespasser is seen to be in the line of fire, i.e. to act recklessly towards, or with culpable disregard of, the known trespasser. If, however, the person is trespassing unbeknown to the occupier and happens to get into the line of fire and is shot, the occupier is under no wider duty whether or not he knew that persons were likely to trespass on his land. If he had no reason to think that trespassing was likely it would be difficult to prove recklessness or culpability; if he did know of this likelihood, the general rule is that recklessness or culpability would still have to be found in order to establish liability to the trespasser. The mere likelihood of trespass cannot, therefore, impose a higher liability upon an occupier of land to an unknown trespasser than that which is owned by an occupier to a known trespasser. This was stated by Bramwell B. in Degg v. Midland Railway Co. (1857) 1 H & N 773, at pp 780-782 [1857] EngR 289; (156 ER 1413, at p 1416) in a passage approved in Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC, at pp 1071-1072 . See too (1964) AC, at p 1085 . (at p461)

11. Secondly, an occupier does not owe a trespasser what may be described as a general duty of care as formulated in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562, at p 580 , whether or not the occupier knows of the trespassing. See Cardy's Case, per Dixon C.J. (1960) 104 CLR, at p 286 ; Quinlan's Case (1964) AC, at pp 1070, 1078, 1081 and 1084 ; and Herrington's Case where Lord Morris said (1972) AC, at p 909 "... it cannot be said that the Railway Board owed a common duty of care to the young boy in the present case ..."; and Lord Wilberforce said (1972) AC, at p 917 , "There is no principle...to be deduced from Donoghue v. Stevenson which throws any particular light upon the legal rights and duties that arise when a trespasser is injured..."; and Lord Pearson said (1972) AC, at p 927 "...the unknown and merely possible trespasser is not a 'neighbour' in the sense in which that word 'neighbour' was used by Lord Atkin in Donoghue v. Stevenson, and the occupier owes to such a trespasser no duty to take precautions for his safety". Earlier in Grand Trunk Railway Co. of Canada v. Barnett (1911) AC 361, at p 370 , Lord Robson for the Privy Council emphasized the difference between an absence of reasonable care and "a wilful or reckless disregard of ordinary humanity". Later cases have given no countenance to approximating these different duties. (at p462)

12. Thirdly, the clear distinction which the law makes between the duty of an occupier of land to one who is a licensee upon that land, and to one who is a trespasser upon that land, is not to be blurred either (1) by using adjectives such as "bare" licensee or "pure" trespasser (see Addie's Case per Viscount Dunedin (1929) AC, at pp 371-372 ) or (2) by the imputation of permission to a trespasser (see Edwards v. Railway Executive (1952) AC 737 ; Cardy's Case per Dixon C.J. (1960) 104 CLR, at p 283 , per Fullagar J. (1960) 104 CLR, at pp 292-293 , and per Windeyer J. (1960) 104 CLR, at pp 324-325 ; and Quinlan's Case (1964) AC, at pp 1083-1084 ). (at p462)

13. The foregoing negative propositions seem to be well established but difficulties are encountered when moving from the negative to the positive. It is therefore with less assurance that I proceed to state what seems to me to have been established positively. (at p462)

14. First, the cases where the rigour of the law as stated in Addie's Case [1929] UKHL 3; (1929) AC 358 has been relaxed are cases where the trespassers have been children. Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 and Herrington's Case [1972] UKHL 1; (1972) AC 877 are instances. It is difficult to be sure how this human element has been given legal significance. Upon grounds of logic it is tempting to treat the circumstances that the plaintiff trespasser is a young child as merely a circumstance affecting the culpability of an occupier who creates a hazard upon his land which he knows does, or is likely to, attract children to their peril. Nevertheless I resist this temptation for the reason that those judges who have emphasized that the trespasser was a child have done so in the course of formulating a duty of care owed to such a person by an occupier of land. See, for instance, Cardy's Case (1960) 104 CLR, at p 299 per Fullagar J., Quinlan's Case (1964) AC, at p 1083 , and Herrington's Case [1972] UKHL 1; (1972) AC 877, at p 897 where Lord Reid said:

"Child trespassers have for a very long time presented to

the courts an almost insoluble problem... Legal principles

cannot solve the problem. How far occupiers are to be required

by law to take steps to safeguard such children must be a

matter of public policy."

And Lord Morris said [1972] UKHL 1; (1972) AC 877, at p 909 :

"The general law remains that one who trespasses does so

at his peril. But in the present case there were a number of

special circumstances - (a) the place where the fence was faulty

was near to a public path and public ground; (b) a child might

easily pass through the fence; (c) if a child did pass through

and go on to the track he would be in grave danger of death

or serious bodily harm; (d) a child might not realize the risk

involved in touching the live rail or being in a place where a

train might pass at speed. Because of these circumstances

(all of them well known and obvious) there was, in my view,

a duty which, while not amounting to the duty of care which

an occupier owes to a visitor, would be a duty to take such

steps as common sense or common humanity would dictate

..."

Furthermore, I doubt whether logic is the instrument whereby this branch of the law is being developed. It is perhaps more likely that the significance of extreme youth lies in the conjunction of the well known readiness of children to be attracted to what is dangerous and in their lack of appreciation of the danger. Furthermore it may be thought less humane to create jeopardy for children than for adults. (at p463)

15. Secondly, the relaxation of the rigour of the rule in Addie's Case [1929] UKHL 3; (1929) AC 358 has occurred in cases where the occupier has created a situation of extreme danger upon his land. Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 and Herrington's Case [1972] UKHL 1; (1972) AC 877 are again striking examples of this. (at p463)

16. Thirdly, in some cases where the relaxation of the rule has occurred there has been a conjunction of great danger with what has been described as "allurement", i.e. that, what is dangerous is also attractive to potential trespassers, particularly children. The best instance of this is Cardy's Case. See (1960) 104 CLR, at p 299 per Fullagar J., and (1960) 104 CLR, at p 326 per Windeyer J. (at p463)

17. Fourthly, the cases in which a child trespasser has succeeded in claims against an occupier of land are cases where the danger that has been created was not obvious to young children. See again Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 and Herrington's Case [1972] UKHL 1; (1972) AC 877 . (at p463)

18. Fifthly, it is not merely that what has been, or is being, done on the land is likely to cause minor injury. It is something that was likely to cause great harm. This element has been emphasized in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 and Herrington's Case [1972] UKHL 1; (1972) AC 877 . This may be related to the element of "humanity" which, as will be seen, is now explicitly recognized as an element of potential liability. (at p463)

19. Of the many decided cases relevant to the problem now before us I propose to say something about five. (at p463)

20. The first is not a recent case. It is Transport Commissioners (N.S.W.) v. Barton [1933] HCA 9; (1933) 49 CLR 114 . Addie's Case [1929] UKHL 3; (1929) AC 358 was followed, and was followed in circumstances and in a manner not unlike that adopted by the Privy Council in Quinlan's Case (1964) AC 1054 . Furthermore, in the judgment of Dixon J. there is to be found a passage which I regard as a precursor of what his Honour said years later in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 . In Barton's Case [1933] HCA 9; (1933) 49 CLR 114 the duty of a railway authority, running a train service on a line through unfenced land, towards those grazing stock on land adjacent to the line in relation to an animal injured while straying on the line was stated to be that of an occupier of land to a trespassing animal, viz. not to inflict injury upon it intentionally or recklessly to disregard its presence. In the course of his judgment Dixon J. said (1933) 49 CLR, at pp 131-132 :

"But all attempts have failed in the past to fix upon a

standard of conduct, an external standard at any rate, which

requires less than due care in the circumstances and more than

abstention from intentional harm. I think that in relation to

the persons and property of trespassers it will not be found

possible to formulate an ascertainable standard of such a

character. With reference to the safety and security of the

premises, I think the occupier is under no higher duty to a

trespasser than to refrain from causing intentional harm

without a justification such as the prevention by reasonable

means of trespass. With reference to positive acts likely

to cause harm to others, I think the occupier's duty depends

upon knowledge of the presence of the trespasser on his

property, and is measured by the care which a reasonable man

would take in all the circumstances including the gravity and

likelihood of the probable injury, the character of the intrusion,

the nature of the activities causing the danger and the consequences

to the occupier of attempting to avoid all injury."

This was, I think, early recognition that Addie's Case [1929] UKHL 3; (1929) AC 358 was susceptible of development. (at p464)

21. In Edwards v. Railway Executive (1952) AC 737 , a boy, trespassing on a railway line, was injured by a train. He sued the owner of the railway for injuries which he sustained but the House of Lords, after rejecting the contention that he was a licensee, decided that the railway owner was not liable to the plaintiff as a trespasser because there was no evidence of wilful or reckless behaviour on the part of the motorman driving the train. Addie's Case [1929] UKHL 3; (1929) AC 358 was applied. In later cases it has been emphasized that the Railway Executive were not at fault in maintaining fencing to exclude trespassers. Here, I think, lay the principal distinction between Edwards' Case (1952) AC 737 and Herrington's Case [1972] UKHL 1; (1972) AC 877 . (at p464)

22. In Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 the infant trespasser succeeded on the footing that the Commissioner for Railways was in breach of a duty described by Dixon C.J. as follows (1960) 104 CLR, at p 286 :

"In principle a duty of care should rest on a man to safeguard

others from a grave danger of serious harm if knowingly

he has created the danger or is responsible for its continued

existence and is aware of the likelihood of others coming into

proximity of the danger and has the means of preventing it

or of averting the danger or of bringing it to their knowledge."

The step which it seems to me was taken here in advance of his Honour's formulation in Barton's Case [1933] HCA 9; (1933) 49 CLR 114 is that, whereas in Barton's Case [1933] HCA 9; (1933) 49 CLR 114 it was stated that knowledge of the presence of a trespasser was an element necessary for liability on the part of the occupier, in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 the occupier's awareness of the likelihood of strangers coming to the danger was regarded as enough. It is to be noted that the duty is stated in terms significantly narrower than those to be found in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 . It is, I think, clear that the Chief Justice was stating a duty of a special character within the category of negligence, viz. "to safeguard others from a grave danger of serious harm" from a situation for which the defendant is knowingly responsible. (at p465)

23. The decision in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 was accepted by the Privy Council in Quinlan's Case (1964) AC 1054 , and to that case I now turn. The decision is, of course, of critical importance. The trespasser there was an adult who was run down by a train upon a private level crossing. The jury had been instructed that, if they came to the conclusion that the Commissioner was aware of the likelihood of people using the crossing, he owed a general duty to the plaintiff as a member of the public to take reasonable precautions for his safety. This direction the Privy Council said was in error. The duty owed by the Commissioner to the plaintiff was stated in the terms of Addie's Case [1929] UKHL 3; (1929) AC 358 . It was said that to adopt the opinion that "given a course of trespassing by members of the public and knowledge of it by the defendant's servants, his" (i.e. the Commissioner's) "duty of care towards a trespasser became equivalent to the duty of care owed to members of the public properly using a public level crossing" (1964) AC, at p 1082 would be in error. Their Lordships said (1964) AC, at pp 1084-1085 :

"What the law does not admit, however, is that a trespasser,

while incapable of being described otherwise than as a trespasser,

should be elevated to the status of an ordinary member

of the public to whom, if rightfully present, the occupier owes

duties of foresight and reasonable care. It does not alter a

trespasser's description merely to christen him a 'neighbour'.

If this additional duty of care were to be thought to be imposed

upon the occupier by the circumstance that, to his knowledge,

there is a likelihood of the trespasser's presence on the land -

and it does not seem that any other circumstance is regarded

as critical for the purpose - their Lordships consider that the

law, as established, would not so much be applied or developed

as contradicted."

For present purposes the chief importance of Quinlan's Case (1964) AC 1054 is the acceptance of the decision in Cardy's Case [1960] HCA 45[1960] HCA 45; ; (1960) 104 CLR 274 as stating a principle consistent with the Privy Council's rejection of identifying trespassers with "neighbours" resorting to public places. It was argued for the respondent here, and argued with force, having regard to what was said in their Lordships' opinion (1964) AC, at p 1084 , that Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 was accepted by the Privy Council as a case where the occupier had shown reckless disregard of the plaintiff trespasser. Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 in the High Court, however, was not decided on this ground, and, upon the whole, I am not satisfied that the Privy Council accepted it merely upon that narrow ground. Two statements of their Lordships (1964) AC, at p 1083 are of great significance:

"The circumstances seemed to place the case squarely

among those 'children's cases', in which an occupier who had

placed a dangerous 'allurement' on his land is liable for injury

caused by it to a straying child."

and

"Children's cases in this context do unavoidably introduce

considerations that do not apply where the sufferer of injury

is an adult. What is allurement to a child and, being so,

imposes by itself a measure of responsibility, is not an allurement

to an adult: and those conceptions of licence or permission,

which may be highly relevant for the determination

of the adult's rights, are virtually without meaning, at any

rate as applied to small children."

If these passages indicate the ground upon which the Privy Council accepted Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 , Quinlan's Case (1964) AC 1054 affords no reason for not applying Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 here. (at p466)

24. Finally, there is Herrington's Case [1972] UKHL 1; (1972) AC 877 where the House of Lords, after reviewing all the earlier authorities, decided that the British Railways Board did owe a duty of care that was broken to a child of six who was injured by contact with an electrified rail to which he came, through a gap in the fence maintained by the defendant on the boundary between a National Trust property open to the public and the defendant's railway line. The Board was at fault in not keeping the fence in good order. (at p467)

25. A close study of Herrington's Case [1972] UKHL 1; (1972) AC 877 has left me with the conviction that Addie's Case [1929] UKHL 3; (1929) AC 358 ought no longer to be regarded as an exhaustive statement of the law governing the duties of an occupier of land to a trespasser upon his land. This follows, not only from certain statements either expressly rejecting Addie's Case [1929] UKHL 3; (1929) AC 358 as such an exhaustive statement or formulating propositions different from that to be derived from Addie's Case [1929] UKHL 3; (1929) AC 358 . It follows from the actual decision itself. The law as stated in Addie's Case [1929] UKHL 3; (1929) AC 358 has been modified or at least developed. The development is, I think, that an occupier of land, who is responsible for creating or maintaining thereon something which is very dangerous, is bound to act in a humane way towards trespassers who he knows will, or will probably, come upon his land, and who, unless reasonable precautions are taken for their protection, are likely there to suffer serious harm. Whether, in a particular case, it is probable that strangers will trespass and the extent of the precautions to be taken for the protection of trespassers depends upon a comprehensive examination of all the relevant circumstances. In the case of a child trespasser it is highly relevant that the danger would be attractive for children in the neighbourhood of the land and would not be obvious to them. The development as so stated is not, I think, essentially different from that formulated earlier by Dixon C.J. in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 and which I have already cited when that statement is read in the factual setting that existed in that case. The decision in Herrington's Case [1972] UKHL 1; (1972) AC 877 is, I think, in line with the acceptance of Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 by the Privy Council in Quinlan's Case (1964) AC 1054 . (at p467)

26. I have made no reference to the cases of Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 ; Munnings v. Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1 ; or Excelsior Wire Rope Co. Ltd. v. Callan (1930) AC 404 . This omission is deliberate and I should explain it. It appears to me that there is still a significant difference between the duty owed by an occupier of land to a trespasser - which is the matter here under consideration - and that owed by a person who does not occupy land on which he is responsible for a situation of danger and to which he knows that strangers will, or are likely to, resort - such as was the case in both Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 and Munnings v. Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1 . So far as Excelsior Wire Rope Co. Ltd. v. Callan (1930) AC 404 is concerned, I consider that what Dixon C.J. said in Barton's Case (1933) 49 CLR, at pp 129-130 and in Cardy's Case (1960) 104 CLR, at p 284 is correct, i.e. it was decided on the footing that the defendant was not an occupier. (at p468)

27. Accordingly, I propose to apply the formulation of Dixon C.J. in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 to decide this appeal. Here the acts of the defendant did create a situation of grave danger of serious harm; this situation could have been averted. Finally there was some evidence upon which it might be found that the defendant was aware of the likelihood of persons coming within the proximity of the danger. The precautions taken, although inadequate to keep people away, showed a recognition that people could be expected to go there. Furthermore, the fact that the back shunt was part of the area to which those who lived in the area might resort, was known. (at p468)

28. In these circumstances I do not think that the verdict of the jury should have been disturbed by the Court of Appeal and I would allow the appeal and restore that verdict. (at p468)

29. This conclusion makes it unnecessary to reach a final conclusion upon the rejection by the Court of Appeal of the plaintiff's cross appeal. However, I think I should say that I have found no evidence of reckless unconcern by the management of the defendant about the danger which had arisen. The management was concerned and took some, although inadequate, precautions to lessen that danger until the line could be resited. I am, however, disposed to think that, in the very special circumstances already stated, it would have been open to the jury to find that the plaintiff was on the back shunt with the leave of the defendant. The leave to be upon the defendant's premises, which the plaintiff unquestionably had, was leave of a general nature and I think that, on the evidence, it could have been found that the plaintiff was not trespassing when he was playing upon the back shunt. However this may be, I consider that the appeal should be allowed on the other ground and the verdict of the jury in favour of the plaintiff restored. (at p468)

WALSH J. In the judgments of other members of the Court in this appeal accounts are given of the facts of which evidence was given at the trial of the action and of the manner in which the case for the appellant was left to the jury. Because of the importance that I attach to the question whether the place where the appellant sustained his injuries was, or was in close proximity to, a place to which children had permission from the respondent to come, or a place which could be found by the jury to have been known to be frequented by children or other members of the public, I shall refer myself to some features of the evidence that bear upon that question. But otherwise I shall seek to avoid a repetition of the statements of the facts which are contained in other judgments. (at p469)

2. If the question of the liability of the respondent to compensate the appellant for his injuries ought to be determined by the application of the established rules that define the extent of the duty which an occupier of land owes to a trespasser, I am of opinion that the evidence failed to establish that there was any breach of duty for which the respondent could be held liable. In Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054, at p 1072 , it was stated that the content and limits of that duty "have been laid down in words that do not seem to admit of much qualification or to invite the skill of the amplifier". Their Lordships proceeded, by means of citation from earlier authorities, to expound what they called (1964) AC, at p 1074 "the accepted formulation of the occupier's duty to a trespasser". It will be convenient for the sake of brevity to refer to that formulation as "the Addie formula". I think that I may state its essential elements in the following way. There is a duty not to injure a trespasser wilfully. There is a duty not to act recklessly with regard to the safety of a trespasser whom the occupier knows to be present. The "knowledge" required by the rule just stated must be actual personal knowledge of the other person's presence, or, alternatively, it must be knowledge of the existence of an extreme likelihood of the presence of a trespasser, so that it may be said that the occupier "as good as knows" that someone else is there. There must be "something a great deal more concrete than a mere warning of likelihood": see Quinlan's Case (1964) AC, at p 1077 . These rules apply to activities on the land as well as to its static condition. They constitute "an exclusive or comprehensive definition" of the duty. (at p469)

3. I do not need to attempt a detailed examination of what is meant by saying that there is a duty not to act recklessly, or as it has sometimes been expressed, a duty not to act with a wanton or reckless disregard for another's safety. But it is proper to refer, as this is a case of injury to a child, to the following statement concerning what may be embraced within the general formula laid down in Robert Addie and Sons (Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 and adopted in Quinlan's Case (1964) AC 1054 . In the latter case their Lordships said (1964) AC, at p 1084 :

"That formula may embrace an extensive and, it may be,

an expanding interpretation of what is wanton or reckless

conduct towards a trespasser in any given situation, and, in

the case of children, it will not preclude full weight being given

to any reckless lack of care involved in allowing things naturally

dangerous to them to be accessible in their vicinity."

But however extensive may be the interpretation that is given to what is wanton or reckless conduct, I am of opinion that the evidence given at the trial could not support a finding that the respondent, through its servants, was guilty of conduct that warranted that description. It is true that any human contact with the transmission line which was above the respondent's land would be extremely dangerous and if the situation had been that trespassers were known to be in the habit of coming to a place where such contact would be possible, it could have been found, I think, that so long as that danger continued, a failure to take any step to prevent their access to that place or to warn them of the peril constituted wanton or reckless conduct. But it is plain, in my opinion, that the question of the "recklessness" of the conduct of the respondent's servants is closely bound up with the question of their knowledge (in the extended sense of that term explained in Quinlan's Case (1964) AC 1054 ) of the presence of trespassers. On the evidence I think it was clear that the servants for whom the respondent was responsible could not have seen it to be a matter of extreme likelihood that at the relevant time trespassers would come to the place where they would be in danger of contact with the wires. (at p470)

4. Having regard to the terms in which, in Quinlan's Case (1964) AC 1054 , the Addie formula was expounded, I do not think that it would be proper for this Court to substitute, for the test of knowledge of the "extreme probability" of the presence of trespassers, the modified test proposed by Lord Reid in British Railways Board v. Herrington [1972] UKHL 1; (1972) AC 877, at p 899 , when he referred to an occupier who knew that there was "a substantial probability" that trespassers would come or any other test still less stringent suggested in the speeches of their Lordships in that case. But even if the formula were modified in any of those ways that would not assist the appellant since, in my opinion, there could not be in this case an inference of such a likelihood as would satisfy such a modified test. At the most, it could have been found that the respondent's servants may have realized that the coming of trespassers was a possibility. But the evidence, upon any reasonable view of it, indicated in my opinion that this was improbable rather than probable. (at p471)

5. I am of opinion, therefore, that if the appellant was entitled to have his case submitted to the jury this must have been because he was entitled, upon findings that might reasonably have been made, to succeed upon some ground of liability in the respondent other than a breach of the duty ordinarily owed by an occupier of land to a trespasser. It becomes necessary to consider the following questions: (1) Was the appellant, at the relevant time and place, a trespasser on the respondent's land or was he a licensee? (2) Assuming that the circumstances were such that no finding would have been open, in the case of an adult person, as to the capacity in which he was then and there present, except that he was a trespasser, is the appellant nevertheless entitled to maintain that the respondent could have been found to have been in breach of a duty of care, different from that owed to an adult trespasser, by reason of the fact that he was a child or of the facts that he was a child and had been "allured" to the place where he was injured? (3) Could the respondent have been found liable for a breach of a duty of care not arising out of any relationship of occupier of land to entrant thereon but out of a different relationship, which was in the circumstances the relevant one by which the claim of the appellant to damages should be determined? (at p471)

6. I have stated three separate questions. They are not completely separate and distinct questions, but nevertheless I think it will be convenient to examine each of them in turn. (at p471)

7. There is no evidence at all that there was any express grant of permission made on behalf of the respondent to the appellant or to any other children to go on or near the "back shunt" area upon which the accident occurred, either on week days or at week-ends. There is a good deal of evidence that children, including the appellant, were told that they were forbidden to do so and that the area was out of bounds for them. But for present purposes we are not concerned so much with the strength or weakness of rebutting evidence as with the existence of evidence upon which an affirmative finding could be made that permission had been given. In my opinion it is in accordance with authority, and would be clear apart from authority, that in order to establish a consent or licence to be in or near the place in which a danger has been encountered, it is not enough to show that the plaintiff has been permitted to be in some other part of the land occupied by the defendant. Accordingly when the question is asked whether it could be found that the appellant had permission to be in the back shunt area, it is not possible to say that such permission may be inferred from the fact that he lived in a house situated on the respondent's land. There was evidence of some use by children of the defendant's land at places not in the immediate vicinity of the village in which they lived. I am prepared to assume that, at a place which was described as the "sandhills", situated at a considerable distance from the back shunt area, children played from time to time. There was evidence also that children, including the appellant, passed across the respondent's land and across the railway line, at a considerable distance to the north of the back shunt area. I am willing to make the further assumption, although I think its validity is doubtful, that there was sufficient acquiescence by the respondent in the use of the sandhills mentioned above and in that passage across the land to enable a finding to be made that the respondent permitted such use and passage. The foregoing assumptions do not provide, in my opinion, a sufficient basis for any inference that children were permitted to be in the area of the back shunt. (at p472)

8. I recognize that in some cases the question now being considered may give rise, as Professor Fleming observed in his Law of Torts, 4th ed. (1971), p. 410, to "nice problems of demarcation". But in this case it seems clear to me that a conclusion was not open that the appellant was in the back shunt area with the permission of the respondent. I have taken into account the absence of fences marking off the works area from the rest of the respondent's land. But in all the circumstances I cannot think that the absence of fences was an indication that the respondent acquiesced in the roaming of children over the whole of the large area of land which it owned, and, in particular, that it acquiesced in their presence in the area of the back shunt. (at p472)

9. If an occupier has a small area of land and the circumstances are such that it may be found that other persons have been invited or permitted to be on one part of the land, it may often be easy to conclude that they have permission also to be on the rest of the land. But in this case the land of the respondent extended over a large area. The houses where employees and their families lived were a substantial distance away from the back shunt area. So were the "sandhills" on which children used to play by sliding down them. So far as the slope of the back shunt was concerned, there was no evidence that children had ever been there before the accident, except the evidence of the appellant that he had been there once only, that is to say, on the day before the accident occurred. The boy, Kevin Smith, who was called as a witness, said that he had never been there before. The witness, Cosgrove, said he had often seen children playing on the heaps of fines described as sandhills which, according to his estimate, were half a mile away from the place where the accident occurred. In the light of those circumstances, I am of opinion that the evidence that children were in the habit of being on other parts of the respondent's land cannot provide any basis, either for an inference that the respondent had given its consent to the presence of children on the back shunt area, or, for an inference that the respondent's servants knew or believed that there was a likelihood of children being in that area. (at p473)

10. In the foregoing discussion I have been dealing with the question whether there was evidence upon which it could have been found by way of inference from proved facts that there was an actual licence to the appellant to be in the back shunt area. I think that a finding that there was such a licence was not open and I do not think that in the present state of the authorities there is any warrant for resorting to an imputed or constructive licence by means of which liability may be attached to the respondent, if it be found to have failed in the duty of care which it would have owed to a licensee. The observations of Dixon C.J. in Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274, at p 280 , coupled with the comment upon those observations made in Quinlan's Case (1964) AC, at p 1083 , seem to require an abandonment of the notion that in circumstances which do not really support a finding of actual consent, a child may yet be entitled to put his case, as Windeyer J. phrased it in Cardy's Case (1960) 104 CLR, at p 325 , on "the conventional basis that he should be considered a licensee". (at p473)

11. It is important to notice a consequence which flows from the abandonment of that notion. The cases in which children were found to be licensees, in circumstances in which the licence could not really be other than a fictional licence, were frequently, if not always, cases in which "allurement" played a prominent part. It was because a child was "allured" that it was thought that although otherwise he would have had to be classed as a trespasser, he could be treated as a licensee. If we abandon that approach we are required to consider what significance, if any, is now to be attached to the existence of an allurement in determining whether or not the occupier is to be held liable. This is a problem to which I have sought to give expression in the second of the questions for consideration formulated above. By way of further explanation of that question, I should say that at this point I am still leaving aside the question whether the appellant is entitled to rely on a relationship other than his relationship as an entrant upon the relevant area of the respondent's land to the respondent as occupier of that area. I am concerned to enquire whether within the limits of the last-mentioned relationship, there is room for a view that there was owed to the appellant, assumed not to be either an invitee or a licensee, a duty differing from that defined in the Addie formula. The conclusion I have reached is that the question must be given a negative answer. (at p474)

12. I think it follows from that conclusion that the third count of the appellant's declaration, which was the only count which the learned trial judge left to the jury, did not contain allegations of facts sufficient to create in the respondent the duty of care of which the respondent is alleged in the count to have been in breach. It is to be observed that the count contains no allegation as to the capacity in which the appellant was on the land. It states that there was a pile of rubble, which was alluring to children and was such as to induce the presence of children. It states that the appellant was a child who was on the premises and was allured by the pile of rubble. The breach of duty alleged is that the respondent was careless in allowing the pile of rubble to be in close proximity to a high tension electricity line. I think that it may readily be supposed that in framing this count the pleader was hopeful of supporting it by means of the paragraph in Quinlan's Case (1964) AC, at p 1083 , which refers to "children's cases" and to "allurement" and which includes a statement to the effect that it is not necessary to resort to the categorization of children as licensees "to give them the legal remedy that is felt to be their due". It is stated also in that paragraph that what is allurement to a child "imposes by itself a measure of responsibility". I have found this a difficult passage. I am not alone in that. But after a consideration of the whole of the reasons given by their Lordships, I cannot accept the view that the passage means that whenever there is on land something which is alluring to children and a child is allured by it, the occupier must be held to have had such a duty of care towards that child that carelessness in allowing a danger to exist there would constitute a breach of the duty. The inclusion in the count of the allegation that the thing which was alluring was likely to induce the presence of children seems to me to be no more than a paraphrase of the word "alluring". In my opinion, it would not accord with the authorities to hold that such a duty is imposed upon the occupier by the facts that I have mentioned, regardless of the lack of any consent express or inferred to the presence of children and regardless not only of the lack of any actual knowledge that children resort frequently to the area in which the danger exists, but also of the lack of any circumstances from which it could be inferred that the occupier had reason to believe that it was very likely, or at all likely, that they would resort to that area. (at p475)

13. In his summing up to the jury the learned trial judge said that he was leaving to them only one cause of action. Later his Honour said:

"The duty owed by the occupier of premises to a boy who

is on the premises without any legal right to be there is well

established, and the plaintiff must show a breach of this well

established duty."

From that statement it appears that the learned judge was discussing the duty owed by an occupier of premises, not a duty arising from some other relationship; and he was discussing this duty on the basis that the plaintiff had no legal right to be where he was when he was injured. His Honour then stated the relevant duty in the following terms:

"The occupier of premises is bound by a duty to take

reasonable care to protect children from risk to which they

are exposed by a dangerous condition of part of the premises

if that part of the premises constitutes an allurement to children

to enter on to the premises and approach that dangerous part.

The part must be dangerous in the sense that it is a concealed

danger or a trap. Its existence and dangerous quality must be

known to this occupier of the premises and unknown and

not obvious to the children. Further, it should be known to

the occupier that there is a likelihood that there will be in or

near the premises children who will be subject to the allurement

and who will in fact be allured by it."

The factual elements which according to that statement were required in order to establish liability went beyond what is alleged in the third count. But apart from any question as to the sufficiency of the pleading, it appears that his Honour's view was that if in a part of an occupier's premises there is a dangerous condition and that part of the premises constitutes an allurement to children to enter onto the premises and to approach the dangerous part, then to a child who, thus allured, does approach the dangerous part of the premises, although the child is not a licensee and has no right to be there, the occupier has a like duty to that which he would have to a licensee. But his Honour added that it must be known to the occupier that it is likely that there will be in or near the premises children who will be subject to the allurement. In my opinion, it could not have been found on the evidence in this case that that condition was satisfied. It is true that the reference to the likelihood of children being in or near a dangerous part of the premises imports into the condition an indefinite element, but I think that it could not have been found in this case that children were likely to be so near as to be affected by the allurement. Be that as it may, I think that there is a more important objection to this part of the summing up. I am not able to accept the view of the law which is basic to the directions to which I have referred, although I think that that view does gain some support from the paragraph in Quinlan's Case (1964) AC, at p 1083 to which I have referred. But it is, in my opinion, denied by what follows that paragraph and by the explanation that their Lordships give to a passage quoted from the judgment of Dixon C.J. in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274, at pp 285, 286 . The cases of the allurement of children in which liability has been held to exist are there treated by their Lordships as applications of the principle that an occupier is liable for injury to trespassers whose presence is known or of whose presence there is an extreme likelihood, if the occupier's conduct is capable of being described as wanton or reckless. See Clerk and Lindsell on Torts, 13th ed., (1969) par. 1059. In my opinion, Mr. Glass of counsel for the respondent was right in submitting that Quinlan's Case (1964) AC 1054 did not set up a separate rule of liability relating to children subjected to an allurement to a danger, but treated the allowing of dangerous things attractive to children to be accessible, in places known to be frequented by children or so situated that it is extremely probable that children will come to them, as an important circumstance in the application of the general formula laid down in Addie's Case [1929] UKHL 3; (1929) AC 358 . I think, as others have thought (see, for example, Victorian Railways Commissioners v. Seal [1966] VicRp 16; (1966) VR 107, at pp 130-132 ), that there is a difficulty in accommodating the acceptance by their Lordships of the decision in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 (to which I shall refer again) to the principles upon which there is an emphatic insistence in Quinlan's Case (1964) AC 1054 . But, in my opinion, that difficulty does not provide a justification for treating Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 as authority for any legal proposition which conflicts with the principles clearly stated in Quinlan's Case (1964) AC 1054 . I think that consistently with those principles, the only way in which the decision in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 can be supported is to treat it as a case in which there was wanton or reckless conduct on the part of the defendant. See Fleming on Torts, 4th ed. (1971), pp. 410-411. (at p477)

14. I turn to the third question which I posed above. Here, it is necessary to consider how one should apply, in the circumstances of this case, the principle stated positively in Quinlan's Case (1964) AC, at p 1074 that "the accepted formulation of the occupier's duty to a trespasser" is intended to be an exclusive or comprehensive definition of the duty, together with the "important qualification" of that principle which their Lordships mentioned. The qualification was that the occupier's duty was limited in accordance with the Addie formula "so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured". Later, in approving the decision in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 , their Lordships said of it (1964) AC, at p 1080 :

"It was one of those '(cases)' in which the court, for

sufficient reason, is able to hold that, as regards the accident

and the injury caused, the relation of occupier and trespasser

does not bear upon the situation of the parties."

At this point, it seems to me that their Lordships were describing a factual situation in which the one party remains an occupier and the other remains a trespasser, but in which although that relation still exists, it does not bear upon their situation, "as regards the accident and the injury caused". When (1964) AC, at p 1081 their Lordships spoke of the relation of occupier and trespasser as being "displaced" by some other relation they did not mean, in my opinion, that the former relation had ceased to exist, for example, by the trespasser receiving permission to remain on the land. They meant that the relation is displaced in the sense that some other relation has taken its place as that which is relevant, in a legal sense, for the determination of the rights and liabilities of the parties. But their Lordships stressed the point that this could be held to occur only when the grounds for so holding admitted of "reasonably precise definition" (1964) AC, at p 1081 . Their Lordships were at pains to make it clear that it is not enough, in order to displace the relationship, to describe the party injured as a "neighbour" of the other party, in Lord Atkin's sense of the word. (at p477)

15. The question which must now be considered is whether it is permissible to find in the evidence in this case any ground for holding that there was "some other relation" between the parties, which gave rise to a duty of care which could be found to have been broken. In my opinion, it is not permissible to do so. It is not sufficient for this purpose, in my opinion, that the danger to any person who came into contact with the high tension wire was of a high degree and that the respondent permitted such a danger to exist at a place where access to it was possible. There are not, in this case, any facts additional to those just stated which are, in my opinion, relevant to the question under consideration. I cannot regard it as being in accordance with the principles enunciated in Addie's Case (1929) AC 358 , as confirmed in Quinlan's Case (1964) AC 1054 , to say that the application of the formula may be excluded where the condition of the premises is "extremely" dangerous or "highly" dangerous, but not where it is dangerous in some smaller degree. I do not mean that the degree of the danger is irrelevant. But I cannot accept it as being itself a decisive fact, which is sufficient to create a special relationship which "displaces" that of occupier and trespasser. (at p478)

16. The case of Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 was approved by the Privy Council. But it is distinguishable from this case. One ground of distinction which, if accepted, would set apart both that case and the case of Munnings v. Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1 from the present case is that in each of the earlier cases the plaintiff was not a trespasser upon land occupied by the defendant and for that reason, although he may have been in a technical sense a trespasser upon a pole belonging to the defendant, he was not considered to be affected at all by the rules contained in the Addie formula. Such a view was expressed in Munnings' Case by the Chief Justice (1971) 125 CLR, at p 7 and by Menzies J. (1971) 125 CLR, at p 18 . See also the judgment of Windeyer J. (1971) 125 CLR, at p 25 . It was for the same reason that Menzies J. regarded the case of Excelsior Wire Rope Co. Ltd. v. Callan (1930) AC 404 , as being in no way inconsistent with Addie's Case [1929] UKHL 3; (1929) AC 358 . His Honour's explanation of what has sometimes been thought to be a conflict between those two cases accords with the opinions stated by Sir Owen Dixon in Transport Commissioners (N.S.W.) v. Barton [1933] HCA 9; (1933) 49 CLR 114, at p 129 and again in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274, at p 284 . But a quite different distinction between the two English cases, suggested by Scrutton L.J. in Mourton v. Poulter (1930) 2 KB 183, at p 190 , was accepted by the Privy Council in Quinlan's Case (1964) AC, at p 1076 . On that view the difference between the two cases was a difference as to the recklessness of the acts by which the injuries were caused. But in order to distinguish the present case from Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 and from Munnings' Case [1971] HCA 27; (1971) 125 CLR 1 it is not necessary, in my opinion, to decide whether it is correct to say that the Addie formula had no bearing on the facts in the latter cases for the reason that the injured persons did not come as trespassers onto the lands of the occupiers. For there is another reason for which, in my opinion, it could be held in those cases, but not in this case, that another "relevant relationship" existed between the parties. All three cases have in common the fact that injury was caused by contact with electric wires which were under the control of the defendants. But in the other cases the land above which the wires were placed and from which access to them could be obtained was land upon which the public had a right, or were regarded as having a right, to be and upon which that right was regularly exercised. In Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 it was a public highway. In Munnings' Case [1971] HCA 27; (1971) 125 CLR 1 the children were regarded as having a right to be on the land no different, for relevant purposes, from the public right which existed in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 . It is this positive feature, consisting of the right in the plaintiffs to be on the land that is, in my opinion, a sufficient ground of distinction between those cases and this case. In my opinion, that is of more significance than the negative feature that it was not the land of the defendants upon which the plaintiffs came to harm. In the statement in Quinlan's Case (1964) AC, at p 1080 of the reason which was held sufficient in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 for the conclusion that the relationship of occupier and trespasser did not bear on the situation of the parties the words "on and over a public place" are, in my opinion, of cardinal importance. The same idea is expressed in Munnings' Case [1971] HCA 27; (1971) 125 CLR 1 , in which the Chief Justice (1971) 125 CLR, at p 10 referred to the bringing of a dangerous substance "into proximity of members of the public". Menzies J. (1971) 125 CLR, at p 18 referred to the pole being "in a place of public resort" and Gibbs J. (1971) 125 CLR, at p 49 said that the pole stood in a place which "was in fact a public place open to all and a place where children were accustomed to play without any hindrance or dissuasion". In the present case it would have been impossible upon the evidence to apply those descriptions to the place where the danger existed. (at p479)

17. I have not found it easy to solve the problem which, in my opinion, is created by Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 and the treatment of it in Quinlan's Case (1964) AC 1054 . But after much consideration of that problem, I have reached the conclusion that I cannot treat Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 as authority for the proposition that in the circumstances of the present case the respondent owed to the appellant a duty, based upon another relevant relationship, which duty was more extensive than that of an occupier of land to a trespasser on that land. My reason for that conclusion has already been indicated. If it had stood alone, the paragraph which appears in Quinlan's Case (1964) AC, at p 1083 might have been interpreted as treating Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 as one which stood quite outside the principles relating to the duty of an occupier of land to a trespasser and which depended upon a special duty owed to children by an occupier of land who has on his land both an allurement and a hidden danger. But, as I have said earlier, when the whole of the reasons of their Lordships are considered, the decision in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 must be taken to have been accepted as one which could be justified upon the application of the Addie formula to the facts, because the conduct of the defendant could have been properly found to have amounted to a reckless disregard for the safety of persons who frequented and openly used a place in which there was a serious hidden danger. I am of opinion that, thus understood, the decision in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 cannot be of any real assistance to the appellant. It does not warrant the view that the circumstances of the present case gave rise to a different relationship which displaced that of occupier and trespasser. (at p480)

18. I feel no satisfaction in coming to that conclusion. The view that I have taken about the way in which Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 must be explained since the decision in Quinlan's Case (1964) AC 1054 has not been adopted without hesitation. In my respectful opinion it assigns to Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 a basis not in conformity with the reasons given by those who decided it. In my opinion, it is only by doing that that their Lordships could have reconciled their acceptance of the decision of Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 with their strict insistence upon the rules which, according to the main thesis of the judgment, are applicable to adult trespassers and child trespassers alike. Nevertheless, I have felt constrained to apply those rules in the present case. (at p480)

19. In the case of British Railways Board v. Herrington [1972] UKHL 1; (1972) AC 877 , which I mentioned earlier, there are statements which can only be regarded as departures from, rather than mere developments of, the law as formulated in Addie's Case [1929] UKHL 3; (1929) AC 358 . But I do not think that I am at liberty to give effect to anything contained in Herrington's Case [1972] UKHL 1; (1972) AC 877 which is inconsistent with the law as laid down in Quinlan's Case (1964) AC 1054 . For example, Lord Pearson expressed the opinion (1972) AC, at p 928 , that the rule in Addie's Case [1929] UKHL 3; (1929) AC 358 has been rendered obsolete and has become an encumbrance impeding the proper development of the law. I do not think that I am free to adopt that view. The same observation applies to other passages in the reasons of their Lordships in Herrington's Case [1972] UKHL 1; (1972) AC 877 . (at p481)

20. The conclusions that I have stated have the necessary consequence that in my opinion the appellant was not entitled to have left to the jury any of the counts with which the appeal is concerned. (at p481)

21. In my opinion the appeal should be dismissed. (at p481)

ORDER

Appeal allowed with costs. Order of the Supreme Court

of New South Wales, Court of Appeal Division,

set aside and in lieu thereof order that the appeal to

that Court be dismissed with costs.