A person lawfully on premises who involuntarily moves to a forbidden area retains the benefit of the general duty of care and does not become a trespasser, particularly for transport operators and other occupiers of premises.
Later decisions that cite Public Transport Commission (NSW) v Perry
Decisions cited by Public Transport Commission (NSW) v Perry
PUBLIC TRANSPORT COMMISSION (N.S.W.) v. PERRY [1977] HCA 32; (1977) 137 CLR 107
Negligence
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4) and Jacobs(4) JJ.
CATCHWORDS
Negligence - Dangerous premises - Injury to entrant - Liability of occupier - Duty of care - Trespasser - Invitee - Passenger awaiting arrival of train - Involuntary fall on to line - Struck by train - Liability of railway operator.
HEARING
Sydney, 1976, August 24, 25. 1977, June 22. 22:6:1977DECISION
1977, June 22.
2. In an action tried in the Supreme Court of New South Wales with a jury, an
application for a verdict for the defendant by direction
was refused and a
verdict for the plaintiff for $90,000 was returned by the jury. An appeal to
the Court of Appeal Division of
the Supreme Court was dismissed. (at p110)
3. In this appeal, the appellant does not seek a new trial of the action but
presses for the allowance of the appeal and the entry
of a verdict in its
favour on the footing that, in the circumstances most favourable to the
respondent which the jury could find,
there was no liability in the appellant
for the respondent's injuries. (at p110)
4. Notwithstanding this attitude of the appellant, I have fully examined the
summing up of the learned trial judge to ascertain
precisely the basis upon
which the matter was left to the jury. I have also examined the whole of the
evidence which was placed
before the jury in relation to the occurrence. (at
p110)
5. Although, as will appear, I am of opinion that negligence in the driving
of the train would not attract to the appellant liability
for the respondent's
injuries, it is proper, in my opinion, to set out some parts of the evidence
of the driver, being the only
direct evidence relating to the manner in which
the train was driven and controlled. (at p110)
6. The driver is reported in the evidence as having said that:
"Approaching the other signal, at least the Killara end of
Lindfield platform, approximately 60 feet from the signal my
view of the platform is partially obstructed by this signal,
and just as I am approaching the signal I see an object in the
line in the distance towards the end of the platform. I have
already made my application of the brakes to stop on the
platform. Under normal circumstances and when I realize
this is something else other than what I thought it was on the
line I made the full emergency application of the brakes, and
as I made the full emergency application of the brakes as
much as possible under the circumstances and the train kept
proceeding down I immediately, knowing that I couldn't do
much better than I did, I gave the guard the signal to come
forward, you know, as quickly as possible to render any
assistance."
...
"Q. You said in your evidence that you saw something on
the line?
A. Yes.
Q. You had some thoughts about this?
A. When I first saw this object on the line I thought it was
a piece of paper.
Q. Any colour?
A. Yes, I thought it was a piece of brown paper. We
frequently see paper on the line - quite a lot of it.
Q. When was it - can you say?
A. When I first saw this object?
Q. Can you say with any certainty where it was that you
changed your mind about it being a piece of paper?
HIS HONOUR: Would you find out where he first thought it
was a piece of brown paper?
MR. JENKINS: Q. Where was your train when you first
thought it was a piece of paper?
A. As soon as I got a clear view of that signal and the
platform I got this object in my vision on the line.
Q. You say as soon as you got a clear view of the platform?
His Honour has suggested we might clear this up. Was your
attention drawn to the object before the signal, at the signal,
or where would you say?
A. Approaching on the signal area."
...
"Q. Where was the train when you decided or felt or came toIn cross-examination he said:
the conclusion this was not a piece of paper but it was a
body?
A. I would be about 200 yards from the platform.
Q. What did you do then?
A. I immediately applied the brakes to the fullest
emergency position."
"Q. You can get children and animals straying on to the
line?
A. Very few animals, apart from dogs. Not in the
metropolitan areas.
Q. Children stray on to the line occasionally?
A. I have never seen any myself.
Q. You know it does happen?
A. Yes.
Q. They are the sorts of things you are warned to be on the
alert against?
A. Yes.
Q. And people fall on to lines, don't they?
A. Yes - quite a lot.
Q. And that is something you are warned constantly to be
on the alert against, isn't it?
A. Yes.
Q. Indeed there is provision, is there not, at some stations
for the station staff to walk across the lines?
A. They do, but they are not supposed to.
Q. But you know that they do?
A. Yes.
Q. And you have to be on the alert for it?
A. You have to be on the alert for everything.
...
Q. From the moment you leave Killara Station it is dead
straight, isn't it, all the way to Lindfield?
A. No, it is not.
Q. You can see all the way?
A. No, you can't.
Q. You can see Lindfield Station from the moment you
have left Killara Station?
A. You can see the middle platform from Killara.
Q. You can see the left-hand one?
A. Not from where I am.
Q. That is a considered answer?
A. Not until you are about clear of the signal.
Q. Clear of the signal?
A. Coming into the signal area before you get a full view of
the platform.
Q. You could see the line?
A. You can see portion of it.
Q. You can see all of the line running along the platform,
from about halfway from Killara Station, can't you?
A. No, I would say 60 to 80 yards on the Killara side of the
signal I can see the full view of the platform.
Q. That is somewhere between 250 and 230 yards from the
commencement of the platform you can see the full line
ahead?
A. Once you get into that area.
Q. From about 300 yards before you get to the platform you
would be in a position to see the line as it goes alongside the
platform?
A. Just starting to get a view of it.
...
Q. And about 300 yards before the platform?
A. At a rough estimate it would be that, I suppose.
Q. So that at that point you saw something on the line
which should not have been there?
A. That is correct.
Q. That something could have been anything, couldn't it?
A. To me it look like a large piece of paper. We see a lot of
paper on the lines blowing about.
...
Q. That was the moment, was it not, according to your
training and experience when you should have anticipated
an emergency, wasn't it?
A. That is when I acted - when I saw it.
Q. But you did not act straight away, did you? You kept
on going?
A. Only momentarily. At that distance I could not realise
what it was. I thought it was paper. When I saw it was not
paper I applied the emergency brake.
Q. It does not matter what it was. It was something that
gave you notice of an emergency?
A. We don't always stop trains when we see something on
the line which we think is paper. We would never get to our
destination. At that distance, as soon as I realised it was a
woman on the line I immediately applied the emergency
brake.
...(at p113)
Q. As you approached this woman before the impact you
could see her quite clearly?
A. Yes - just before.
Q. You could see, could you not, that far from being a piece
of brown paper it was a woman dressed in a bright white and
purple dress?
A. I didn't take much notice of the colour at all. All I was
concerned about was trying to stop that train."
7. The driver remained unshaken throughout a long cross-examination of which
I have reproduced only a very small part. There was,
in my opinion, no basis
whatever on which the driver could be disbelieved: nor was there, in my
opinion, any material upon which
it could have been concluded that he saw the
respondent on the line at an earlier point of time than that of which he gave
evidence
or, if it be material, that he ought to have seen the respondent as a
human being before the time at which he said he did so. Further,
there was no
evidence to contradict his evidence as to the view he had from his position in
the driver's cabin of a fast moving
train: this I say, notwithstanding the
various photographs put in evidence. They do not represent what was or would
necessarily
be seen by the driver of a moving train at any particular and
relevant moment of time. (at p113)
8. If it had been possible to find that the driver knew of the respondent's
presence on the line at the time he saw what he concluded
was paper on the
line, the jury might properly have concluded that an emergency application of
the brakes at that point of time
would have brought the train to a halt before
it reached the point where the respondent was. However, because of the views I
have
formed as to the fate of this appeal, I do not pause to examine closely
the evidence in this respect so as to resolve whether the
evidence would have
supported that view. (at p114)
9. In support of a view that the driver was negligent in not applying his
emergency brakes so soon as he saw what he thought was
paper on the line,
reliance was placed on the concessions of the driver that it was necessary to
be on the lookout for persons
as well as things upon the line: and, in
particular, his statement that people fall "quite a lot" on the lines. It is
worth remarking
that the statement was not that people quite often fall off
stations on to the railway track. It was a general statement that included
the
falling of persons from moving trains or between platforms and moving trains.
But whatever the full impact of these concessions,
they can have, in my
opinion, no bearing upon the present case. In the first place, a railway
system, perhaps particularly such
a system in a densely populated metropolitan
area, cannot be conducted on the footing that the trains must travel at a
speed and
under such restraint that if at any time a person should fall upon a
line, whether from a moving train or from a station platform,
the train can be
halted without injury to the fallen person. Nor could it be concluded that,
because of the frequency with which
people fall on to the railway track, any
object seen on the rails must be treated as a human being: or even suspected
to be one:
and action thereupon taken as if, in fact, the object were a human
being. Nor do these concessions warrant the conclusion that this
driver was
not keeping a proper lookout. They do not furnish any material, in my opinion,
on which it could properly be said that
the driver in this case was reckless
in what he did or did not do, nor even, in my opinion, that he was lacking in
reasonable care
in his management of the train. There is, in my opinion, no
evidence from which it could be inferred that the driver was not keeping
a
proper lookout. (at p114)
10. I might mention here that, according to some calculations based on
various pieces of evidence as to distances between described
points on or
adjacent to the railway line, and on an assumed speed of the train at or about
these points, it was said to have been
possible to conclude that the train
could have been brought to a halt at a point northward of the position where
the respondent
lay on the line and thus have avoided injury to her, had the
emergency brake been fully applied at the time the driver said he realized
that a human being was on the railway track. But, in my opinion, the
appearance of exactitude which these calculations give is
quite spurious. They
do not, in my opinion, warrant the conclusion sought to be said to result from
them. They lack reality in
relation to such a mobile situation constituted by
this moving and loaded train on a down gradient in charge of its driver,
particularly
bearing in mind that the effectiveness of the braking system
depended on the contact of metal wheels with metal rails. These calculations
would be, in my opinion, an inappropriate basis on which to allow a jury to
disbelieve the evidence of the driver and to infer
negligence in him, let
alone reckless behaviour. Further, even if the driver's evidence were not
accepted, these calculations would
not, in my opinion, present evidence on
which a jury could reasonably hold that the driver did not take the earliest
opportunity
to apply the emergency brakes of the train. (at p115)
11. However, though I could not accept the conclusion sought to be drawn from
these calculations as warranting any relevant conclusion,
I am content to
decide the appeal on the footing that, had the driver become aware that the
respondent was on the railway track
at the time he saw what he thought was a
piece of paper, the accident could have been avoided by the application at
that point
of time of the emergency braking system of the train. (at p115)
12. The case has been dealt with throughout on the footing that the driver
was under a general duty of care to the respondent:
that, in the language of
Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 , she was in this respect, without
qualification,
his "neighbour".
The particular duty of care was said to be to
keep a proper lookout. It was this duty which was said to have been
breached.
This
approach, in my opinion, was fundamentally erroneous. (at p115)
13. The most important and indeed basic fact in this case is that the
respondent was on the appellant's land when the occurrence
occurred. The only
relevant duty on the part of the appellant's driver towards the respondent
derived from, and could only derive
from, the occupancy by the appellant of
the land on which the railway was conducted and the respondent's presence
there. Both the
trial judge and the members of the Court of Appeal rejected
the view that the respondent was a trespasser on the land. But it was
not said
by that Court, as in my opinion it could not be said, that the respondent was
either a licensee or an invitee of the appellant
at the place on the railway
track where she lay. I shall say more on this question a little later. In the
view of the Court of
Appeal, the respondent did not fall within any of the
established categories of relationship to the occupier of the land and
therefore
a general duty to keep a proper lookout devolved upon the
appellant's driver. (at p116)
14. Hutley J.A., having earlier decided in his reasons for disallowing the
appellant's appeal that the respondent was not a trespasser
on the railway
track, said:
"The real difficulty is how to fit a person who is neither aand later:
trespasser, licensee nor invitee into the structure of occupier's
duties as fixed by the judgment of Willes J. in Indermaur v.
Dames (1866) LR 1 CP 274, at p 288 . The categories cannot in my opinion
be used to control the existence of liability in the sense that every
person who happens to be on land occupied by another has to
be either a trespasser, licensee or invitee. The difficulty of
fitting every case into one of the three categories was
discussed by the High Court in Aiken v. Kingborough
Corporation [1939] HCA 20; (1939) 62 CLR 179, at pp 190-191, 205 per Latham C.J. and
Dixon J.
The situation of the plaintiff (respondent) being outside the
established categories, what is then the duty, if any, owed by
the defendant (appellant) to her?"
"It is, however, foreseeable that there will be obstacles on
the track for which the driver has to be on the look out in the
interests of the safety of the train. He has to maintain a
continuous watch to ensure that such obstacles do not
endanger his train and passengers. Where an obstacle on
the track is not a trespasser, and is human, why should not
that person be entitled to be the beneficiary of that duty? In
other words, why should not such a person be entitled to the
benefit of the driver's attention for obstacles, and if he fails to
give proper attention have a right of action. No reason was
given to the court except the submission that the plaintiff
was a trespasser, a view which I consider unsound.
Common humanity, to which even a trespasser is entitled, would
appear to require this right." (at p116)
15. Glass J.A., having also decided that the respondent was not a trespasser,
said:
"It was open to the jury to find, basing itself upon evidence
specifically directed to the subject and upon its own common
knowledge, that passengers may come from the platform on
to the lines as a result of falling, slipping, tripping or being
pushed. On most occasions such movements would be
involuntary and on some occasions the result of inadvertent
folly. It was also proved that employees of the defendant
might be voluntarily on the railway lines for completely
lawful reasons. That persons might find themselves on the
railway track adjoining the platform for a variety of proper
reasons was well within the scope of the reasonable foresight
of a driver of a suburban train. It followed that the plaintiff
was a member of a class of persons which was foreseeably
exposed to the risk of injury if the train driver failed to avoid
careless acts and omissions in the driving of the train. By
virtue of this circumstance the driver owed a duty of care to
the plaintiff for breach of which the defendant was
vicariously responsible."
(at p117)
16. Samuels J. A., having said that he did not see any foundation for a
finding that the respondent was a trespasser, said:
"Since she was not a trespasser, the duty owed to her was186-187 ." (at p117)
to take reasonable care to avoid injuring her as she lay on the
track: Commissioner for Railways v. McDermott (1967) 1 AC 169, at pp
17. These views, as did the attitude of the trial judge, spring from what, in
my respectful opinion, is a failure to appreciate
the deep significance for
this case of the decision of the Privy Council in Southern Portland Cement
Ltd. v. Cooper (Cooper's Case)
[1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623 . In that
litigation, this Court, bound by the unqualified view of the Privy Council
in
Commissioner
for Railways v. Quinlan (Quinlan's Case) (1964) AC 1054 , based
largely on the decision of the House of Lords in
Robert Addie &
Sons
(Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 , but building on some remarks
made in their Lordships' reasons
in Quinlan's Case,
felt itself able to found
liability
in the defendant upon a relationship springing out of the nature of
the
situation created by
the defendant involving the proximity
of electricity
at a lethal voltage to children of whose possible presence
the defendant must
have been taken to be aware. This
conclusion was drawn notwithstanding the
fact that the defendant was the occupier
of the land
and that the children had
no legal
right to be present on or at the particular place. (at p117)
18. Upon appeal to the Privy Council from the decision of this Court, their
Lordships, to an extent qualifying the views expressed
in Robert Addie & Sons
(Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 and in their decision in
Quinlan's Case (1964) AC 1054
, held
that a particular duty in the
circumstances of the
case, substantially the same as that found by this Court,
was laid on
the defendant
as occupier towards the plaintiff who was accepted
as a trespasser. But this Court's reasons for its conclusion were
not
sustained
or indorsed by their Lordships. The Board, having
the ability thus
to qualify earlier decisions, was content to sustain
the result
at which this
Court had arrived without resort
to any relationship other than that of
occupier and trespasser: and,
indeed, as
I think, in denial of the possibility
of any other
relevant relationship. (at p118)
19. The transcendent importance of their Lordships' decision for the
resolution of the instant case is that their Lordships affirmed
that if injury
occurs to a person present on the property in the occupation of the defendant,
any duty of the defendant towards
that person must spring out of one of the
established relationships which may exist between that person and the
defendant as occupier
even when mechanical operations are conducted on that
property by the occupier. Their Lordships appear to have accepted the view
of
the House of Lords in Herrington v. British Railways Board [1972] UKHL 1; (1972) AC 877
denying validity to the endeavour of
the Court of Appeal
in Videan v. British
Transport Commission (1963) 2 QB
650 to create a general duty of care where
the occupier
maintains or operates
on the land machinery or other sources of
potential
injury to humans. (at p118)
20. Their Lordships' qualification of earlier decisions, by somewhat
enlarging the duty of the occupier towards a trespasser in
certain respects,
has no relevance to the present case. We are not here dealing with a situation
comparable to that with which
their Lordships were dealing in Cooper's Case
[1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623 . The qualification of their Lordships
of
the formerly
held view of the extent of the duty of
an occupier to a
trespasser may no doubt in future be of considerable consequence,
if not
indeed definitive, in circumstances akin
to those which obtained in Thompson
v. Bankstown Corporation [1953] HCA 5; (1953)
87 CLR 619 and Munnings
v. Hydro-Electric
Commission [1971] HCA 27; (1971) 125 CLR 1 . Here, we are dealing with a railway line
and
railway service upon the appellant's
land and an intending passenger
coming
upon a railway platform to board a train. The conditions
of the appellant's
premises exhibit
no features unknown to the
passenger and no features of
inherent danger to her in her use of
the appellant's premises for their
intended purposes. (at p118)
21. Before going further in stating the consequences of their Lordships'
decision in Cooper's Case [1973] UKPCHCA 1; (1973) 129
CLR 295; (1974)
AC 623 , I should say
something as to the reasons for decision in Commissioner for Railways v.
McDermott
(1967)
1 AC 169 . The
injured person in that case was lawfully upon
the railway crossing. Her position was contrasted with that
of a trespasser
(1967)
1 AC, at p 190 . The crossing was inadequately maintained. Its
condition was conducive to the falling of
persons upon it
in the
path of
oncoming trains, which would approach round a curve in the line and into the
crossing. The plaintiff
being, as was
held,
at least a licensee on the
crossing, the defendant was thus in breach of its duty as an occupier to her.
That
duty in relation
to the crossing, upon which the injured person lawfully
was, was stated to be one of "taking all reasonable precautions"
to reduce
to
a minimum the danger of injury to the person "lawfully using the crossing"
(1967) 1 AC, at p 189 . (at p119)
22. This was the decision in the case. But some statements were made which
might be thought to lend encouragement to the view
that concurrently with the
duty of an occupier there could be a general duty of care. The precise extent
of these statements is,
with due respect to their Lordships, anything but
clear. Indeed, one may suspect that the reasons for judgment exhibit a
tendency
to regard the crossing as a public thoroughfare attracting duties
appropriate to such a place (1967) 1 AC, at p 189 . It seems to
me that par.
(3) of the headnote in the report of the case takes too much from what was
said at pp. 187-189, and any reference
to a general duty of care was
unnecessary to the decision of the case. Their Lordships were content to
distinguish Quinlan's Case
(1964) AC 1054 on the footing that it dealt with a
trespasser. But no examination of that case is reflected in the judgment. The
impossibility of finding concurrent duties, that of occupier and that of the
general duty of care applicable in a public place
is apparent from their
Lordships' reasons in Quinlan's Case. Equally, a caveat against imputing to an
occupier a general duty of
care in respect of his occupation of property can
be perceived in those reasons. There was clearly no intention on the part of
those participating in Commissioner for Railways v. McDermott (1967) 1 AC 169
of overruling Quinlan's Case (1964) AC 1054 in any
respect. Consequently,
that case must be explained so as to make its reasoning consistent with
Quinlan's Case. This is even more
necessary since their Lordships, having
taken in hand in Cooper's Case [1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623 an
examination
of Quinlan's
Case, have affirmed its insistence upon the
singularity of the
duties of an occupier and its denial of the possibility
of
a concurrent
general duty of care. The felicitous phrase of their Lordships
in
Commissioner of Railways v. McDermott, "occupation
of premises
is a ground of
liability and is not a ground of exemption from
liability" (1967) 1 AC, at p
186 , in my opinion adds
nothing to
the jurisprudence of the liability of an
occupier to those who
come upon the property. As the event of which complaint
is made
has happened on the occupier's property, it goes without saying
that
the source of any liability in the occupier is the
occupation
and therefore
the control of the property. It is indisputable
that the liability which is
thus derived is not the same
as the liability
of an occupier to which persons
resort as of common right.
It is also beyond question that the liability of
the
occupier is dependent
upon the relationship to the injured person and that
that liability is a restricted liability however much
room there may be for
argument in particular cases as to its precise extent.
The words I have quoted
cannot be read as denying
any of these propositions
or as meaning that the
occupier has or might have a
general duty of care unrestricted as in Donoghue
v. Stevenson [1931] UKHL 3; (1932) AC 562
and concurrent with the duty as an
occupier. In
reality, the phrase, as I have said,
adds little and indeed does not illumine
the subject. (at p120)
23. In Quinlan's Case (1964) AC 1054 , their Lordships examined a number of
authorities, including Thompson v. Bankstown Corporation
[1953] HCA 5; (1953) 87 CLR 619 .
In that case, there appeared in the reasons for judgment of Kitto J. the
following passage (1953)
87 CLR,
at
pp 642-643 :
"The respondent's contention appears to assume that the."
rule of law which defines the limits of the duty owed by an
occupier to a trespasser goes so far as to provide the occupier
with an effective answer to any assertion by the trespasser
that during the period of the trespass the occupier owed him a
duty of care. The assumption is unwarrented, for the rule is
concerned only with the incidents which the law attaches to
the specific relation of occupier and trespasser. It demands,
as Lord Uthwatt said in Read v. J. Lyons & Co. Ltd.
[1946] UKHL 2; (1947) AC 156, at p 185, a
standard of conduct which a reasonably-minded occupier
with due regard to his own interests might well agree to be
fair and a trespasser might in a civilized community
reasonably expect. It would be a misconception of the rule to
regard it as precluding the application of the general
principle of M'Alister (or Donoghue) v. Stevenson [1931] UKHL 3; (1932) AC 562 , to a
case where an occupier, in addition to being an occupier,
stands in some other relation to a trespasser so that the latter
is not only a trespasser but is also the occupier's neighbour,
in Lord Atkin's sense of the word: see Transport
Commissioners (N.S.W.) v. Barton [1933] HCA 9; (1933) 49 CLR 114, at pp 122, 127 et seq
" ... their Lordships cannot find any line of reasoning byIn Munnings v. Hydro-Electric Commission (1971) 125 CLR, at p 11 I expressed the view that in the light of these reasons in Quinlan's Case (1964) AC 1054 , their Lordships accepted the view that in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 the relevant relationship was not that of occupier and trespasser. This Court in Munnings v. Hydro-Electric Commission (1971) 125 CLR 1 took the view that the relevant relationship between plaintiff and defendant was not that of occupier and trespasser. Neither the decision nor any statement in Commissioner for Railways v. McDermott (1967) 1 AC 169 affords any warrant for the view that a general duty of care can co-exist with the duty of an occupier. As I have indicated, the rejection in Herrington v. British Railways Board [1972] UKHL 1; (1972) AC 877 of the view of the Court of Appeal in Videan v. British Transport Commission (1963) 2 QB 650 as to a general duty of care underlines the unacceptability of any such concept. (at p121)
which the limited duty that an occupier owes 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 a law requires or allows will become virtually incapable
of formulation."
24. To make the reasons in Commissioner for Railways v. McDermott (1967) 1 AC
169 conformable to the reasoning in Quinlan's Case
(1964) AC 1054 and in
Cooper's Case [1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623 , the basis of the case must
be confined,
as I have earlier
expressed it, in those reasons. Any
reported
decisions which might appear to support the possibility of concurrent
duties
upon
the occupier, one as under the categories
as set out in Indermaur v.
Dames (1866) LR 1 CP 274 , and the other the general
duty of
care as in
Donoghue v. Stevenson [1931]
UKHL 3; (1932) AC 562 , cannot stand, in my opinion, against the
authoritative
pronouncements to the contrary
in Quinlan's Case
and in Cooper's
Case. Cases in which an employer has been held liable to his employees
do not,
in my opinion,
bear on the question
arising in this case. If these reported
decisions are in any sense supportable, it
must be under some particular
circumstances
not present or paralleled in this case. (at p122)
25. Reference has been made to the decision of the House of Lords in Dublin,
Wicklow and Wexford Railway Co. v. Slattery (1878)
3 App Cas 1155 . The only
question in that case before their Lordships was whether, because of the
limited nature of the appeal
to the Court of Exchequer Chamber, a verdict for
the defendants ought to have been directed when a rule nisi to set aside a
verdict
for the plaintiff was discharged. Lord Cairns L.C. said (1878) 3 App
Cas, at p 1162 :
"Thereupon the appellants appealed to the Court ofNo questions relevant to the matters in issue in this case were raised in debate. But, in any case, it would appear that the plaintiff in that case was an invitee in crossing the railtrack, that being a necessary path to the ticket office where the intention was to purchase a rail ticket. (at p122)
Exchequer Chamber. The appeal could not, according to the
practice, raise again the question whether the verdict was
against evidence or the weight of evidence: it only raised
the question whether the verdict should be entered for the
defendants. On this point the Judges in the Exchequer
Chamber in Ireland were equally divided, and the verdict for
the plaintiff was therefore directed to stand.
It is this question, and this only, namely, whether the
verdict should be entered for the appellants, the defendants
in the action, which comes before your Lordships by way of
appeal."
26. Also, in Thatcher v. Great Western Railway Co. (1893) 10 TLR 13 and in
Caterson v. Commissioner for Railways
[1973] HCA 12; (1973) 128 CLR
99 , the plaintiff was an
invitee on the station platform, or in the railway carriage, attending as he
was persons
thereon or therein
as travellers on the defendant's train. (at
p122)
27. Here, it cannot be contended, in my opinion, that it was in any other
capacity than that of an occupier that any duty towards
the respondent
devolved upon the appellant. No such circumstances are present in this case as
existed in Thompson v. Bankstown
Corporation [1953] HCA 5; (1953) 87 CLR 619 ; Munnings v.
Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1 or, as this
Court saw the case, in
Cooper
v. Southern Portland Cement Ltd. [1972] HCA 28; (1972) 128 CLR 427 . No ground
whatever exists,
in my opinion, for finding or constructing any
other relevant
relationship. In
particular, the presence of the respondent's body
on the
railway track did not, in my opinion,
raise any "displacing relationship".
The
duty of the appellant remained that of an
occupier towards a person present on
the occupied
property. (at p122)
28. There is thus, in my opinion, no escape from a decision as to the legal
relationship of the respondent when upon the railway
line to the appellant as
occupier of the line. Upon the resolution of that question, the nature and
extent of the appellant's duty
will depend. So to approach the matter is in no
sense to seek to treat the appellant's occupation of the line as a ground of
exemption
from liability. It is to give effect to the obligations which
properly fall upon the appellant and to the responsibility which it
assumes by
reason of its occupation of the railway line. (at p123)
29. So far as presently relevant, therefore, the result of their Lordships'
decision in Cooper's Case [1973] UKPCHCA 1; (1973) 129
CLR 295; (1974)
AC 623 is that where
injury befalls a person on land occupied by another, any duty owed by the
owner
or occupier
to the injured
person in respect of his injuries must be
found, and exclusively found, in the legal relationship of
the injured
person
to the
occupier. Their Lordships in Cooper's Case adverted to the reason for
confirming the duties of the occupier
within
the traditional
categories. They
said (1973) 129 CLR, at p 308; (1974) AC, at p 644 :
"The rights and interests of the occupier must have full
consideration. No unreasonable burden must be put on
him. With regard to dangers which have arisen on his land
without his knowledge he can have no obligation to make
inquiries or inspection. With regard to dangers of which he
has knowledge but which he did not create he cannot be
required to incur what for him would be large expense." (at p123)
30. The lines between contractual right, invitation and licence are no doubt
at times difficult to draw and become blurred in
application to unusual
situations. But, in totality, these categories of relationship serve to
distinguish between those persons
towards whom the occupier by his acts, or by
the pursuit of his interests, accepts a degree of responsibility and those
persons
who do not come upon the relevant part of the property by his
persuasion, or by permission, in either case expressly or impliedly
extended
or given. In this case, we are not really concerned to distinguish between an
invitee or a licensee: we are concerned
with deciding whether the presence of
the respondent on the railway track was "courted" by the appellant by its acts
or its pursuit
of its interests or whether, on the other hand, that presence
of the respondent was, so far as the appellant is concerned, forced
upon it
without its encouragement or persuasion. (at p123)
31. I now return to the consequences of Cooper's Case [1973] UKPCHCA 1; (1973) 129 CLR 295;
(1974) AC 623 . That decision, following
Quinlan's Case
(1964) AC 1054 in
this respect, leaves no room in
the case of an occupier for any general duty
of care such as
is owed to a neighbour
in a public place, even though
machinery brought
upon or used upon the property or other activity of the
occupier there is the
cause of the injuries sustained. Here, no contractual
right is or, in my opinion, could be asserted. I shall
later say something
on
the question whether the respondent could be held
to be an invitee or licensee
at the relevant place and
time. The nature of
the duty owed respectively to an
invitee and a licensee
is well settled. (at p124)
32. In relation to a trespasser, their Lordships said (1973) 129 CLR, at p
307; (1974) AC, at p 642 :
"The fundamental difference between the relationship ofand (1973) 129 CLR, at p 308; (1974) AC, at pp 643-644 :
occupier and trespasser and other relationships which give
rise to a duty of care is that the occupier's relationship with a
trespasser is forced on him against his will, whereas other
relationships are generally undertaken voluntarily. So it
cannot be said in this case that a man ought not to enter into
a relationship with others unless he has the ability and
resources necessary for the proper performance of the duties
which that relationship entails."
"But in applying that passage" (scil., of Lord Atkin's
speech in Donoghue v. Stevenson (1932) AC, at p 580.
) "to trespassers it must
be remembered that the neighbourhood relationship has been
forced on the occupier by the trespasser and it would
therefore be unjust to subject him to the full obligations
resulting from it in the ordinary way." (at p124)
33. Their Lordships' decision means, in my opinion, in this case that unless
the respondent could establish the appellant's licence
or invitation to be
upon the railway track, the only duty which was owed by the appellant to the
respondent was that which would
be appropriate in the circumstances to a
trespasser. It is the relationship to the occupier which it, the occupier has
created,
expressly or by implication, which imports the duty towards a
licensee or an invitee. The invitation or licence makes their presence
on the
land lawful so far as the occupier is concerned. The occupier's duty to the
person who does not fall within either of those
categories is the duty spoken
of in relationship to a trespasser, a person without legal right (including in
that description,
for present purposes, an invitation or mere licence)
deriving from the occupier to be where he or she was when injury befell. (at
p124)
34. No substantial attempt was made in the argument of this case to establish
that the respondent was an invitee or even a licensee
on the railway track. No
doubt the failure to establish the child as a licensee in Videan v. British
Transport Commission (1963)
2 QB 650 was a considerable discouragement to
such an attempt. Clearly, the respondent was an invitee upon the platform for
the
purpose of boarding a train. The invitation to the respondent to be upon
the appellant's property extended no further relevantly,
in my opinion, than
the confines of the railway platform: and, of course, to the train when
entered and to the platform of the
traveller's destination. The invitation was
not express. It cannot, in my opinion, be enlarged beyond the purposes for
which it
was impliedly extended to the respondent: in my opinion, it did not
extend to the area of the railway track. The respondent cannot
properly be
regarded, in my opinion, as invited generally into the appellant's property.
It could not properly be said, in my opinion,
that the respondent had the
appellant's invitation or licence to walk upon the track. A school boy on the
platform whose school
case dropped from his hand without fault on his part to
the railway line would have no invitation or licence derived from the
appellant
to descend to the track to recover it. The invitation to him as an
intending passenger would not include an invitation or licence
in such
circumstances to be on the railway track. I cannot think that the invitation
to the would-be passenger included by implication
a statement "should you
faint and fall upon the line, you are invited, or you have my permission to
be, and whilst unconscious
to remain, there". The implication of such an
invitation or licence is neither reasonable nor in accordance with reality.
Nor can
I think that, because the respondent was properly upon the platform
and able to stand near the edge of it, she had the appellant's
invitation or
permission, if she should over-balance, to be on the railway track. Further,
an attempt to imply such an invitation
or licence in order to create a duty in
the appellant towards the respondent whilst on the railway line is not
consonant, in my
opinion, with the emphasis which has been placed upon the
situation of the occupier. It would represent, in my opinion, a failure
to
give proper weight to the circumstance that, in truth, the respondent's
presence on the railway track was, in the language of
their Lordships,
"forced" upon the appellant and not in any sense courted by it by its
invitation or licence. (at p125)
35. The trial judge and the Court of Appeal Division were of opinion that the
respondent was not a trespasser at the relevant
time. They founded this
opinion upon the undoubted circumstance that the respondent could not have
been sued in trespass by the
appellant for having fallen or having remained
unconscious upon the railway track. But that circumstance is no foundation, in
my
opinion, for the conclusion that the appellant in the circumstances owed
the respondent any duty other than that owed to a trespasser.
Perhaps the
designation of "trespasser" has tended to obscure the real question in the
case. As I have said, the source and extent
of any duty to a person on the
land of another is the occupancy of the land, and the legal relationship of
the injured person to
the occupier. If the occupier has not created expressly,
or by necessary implication, a right based on contract, invitation or licence
to be at the particular place upon the land, the injured person is without any
standing upon which to found any duty higher than
that owed to a trespasser.
Such a person is without legal right or occasion to be at the particular place
on the invitation or
permission of the occupier and is properly styled a
trespasser, whether or not a cause of action in trespass is available to the
occupier. It is trespass to be on the land of another without legal right,
invitation or permission. It may not be actionable trespass
because of
attendant circumstances. The defendant may have a defence in the involuntary
nature of the action which is said to be
the trespass. All that the cases, to
which reference is made in the reasons for judgment of the members of the
Court of Appeal
Division, decide is that actionable trespass requires volition
on the part of the trespasser. I have already pointed out that in
Commissioner
of Railways v. McDermott (1967) 1 AC 169 , the respondent was lawfully on the
crossing. None of the cases have decided
that the "involuntary trespasser" has
a legal right, invitation or licence to do that which is said to be a
trespass. The important
thing for present purposes is the absence of legal
right, invitation or licence stemming from the appellant. Thus, if the
respondent
were neither licensee nor invitee on the railway track, she lacked
any relevant legal right to be there. It is nothing to the point,
in my
opinion, that she came there involuntarily. Had she been pushed from the
platform, she would not have thereby obtained a
right to be on the rails
derived from the appellant. The person who pushed her could not confer upon
her any relevant right against
the appellant by invitation or licence.
Equally, she could not attract to herself any such right to be upon the
railway track from
the circumstance that she was unconscious when she fell
from the platform. Thus, however the respondent is described, the appellant,
in my opinion, came under no greater duty to her than the duty owed to a
person having no legal right derived from contract, invitation
or licence to
be upon the land at the particular place where injury was suffered. (at p127)
36. There then remains the question of the nature of that duty. Several
paragraphs from Cooper's Case [1973] UKPCHCA 1; (1973) 129
CLR 295; (1964)
AC 623 might here be
cited in relation to the duty owed to the person present on the occupier's
land
without legal
right, invitation
or licence. Their Lordships said (1973)
129 CLR, at p 307; (1974) AC, at pp 642-643 :
"Their Lordships are breaking no new ground in holdingTheir Lordships indorsed (1973) 129 CLR, at p 306; (1974) AC, at p 642 Lord Pearson's view in Herrington v. British Railways Board when he said (1972) AC, at p 928 :
that the nature and extent of an occupier's duty to a
trespasser must be based on considerations of humanity. As
long ago as 1820 in Ilott v. Wilkes (1820) 3 B & Ald 304 (106 ER 674)
, a case dealing with
injury to a trespasser by a spring gun, Best J. said
(1820) 3 B & Ald, at p 319 (106 ER, at p 680) : 'the
law of England will not sanction what is inconsistent with
humanity'. In Grand Trunk Railway Co. of Canada v.
Barnett (1911) AC 361, at p 370
, the judgment of the Board refers to 'wilful or
reckless disregard of ordinary humanity rather than mere
absence of reasonable care'."
"I think the word 'reckless' in the context does not meanand adopted (1973) 129 CLR, at p 309; (1974) AC, at pp 644-645 the words of Lord Uthwatt in Read v. J. Lyons & Co. Ltd. [1946] UKHL 2; (1947) AC 156, at p 185 :
grossly negligent but means that there must be a conscious
disregard of the consequences - in effect deciding not to
bother about the consequences. Thus a subjective, mental
element, a sort of mens rea, is required as a condition of
liability."
"there is demanded of him a standard of conduct no higher
than what a reasonably minded occupier of land, with due
regard to his own interest, might well agree to be fiar and no
lower than a trespasser, ... might in a civilised community
reasonably expect." (at p127)
37. As the respondent was, in my opinion, neither invitee nor licensee at the
place on the railway track where she lay, the duty
appropriate to the instant
circumstance was, in my opinion, a duty not to be reckless to the point of
inhumanity towards the person
known to be at the particular place upon the
land or, to add what seems to me might in some circumstances be a grey and
indefinite
area not presently relevant, a person whose presence at the
particular place is "as good as known". Here, it could not properly
be said,
in my opinion, that the driver relevantly knew, or even as good as knew, of
the respondent's presence on the line before
the time at which he says he
recognized that what he had seen was a human being. But, even if it could be
said that he knew, or
as good as knew, of her presence at any earlier time,
having regard to what I am about to say, that earlier knowledge would make
no
difference, in my opinion, to the result of the case. It could not properly be
said that, in not applying the emergency brakes
at that earlier point of time,
he was reckless to the point of inhumanity, however negligent it might have
been not to have done
so. (at p128)
38. Earlier I discussed some aspects of the evidence in this case from the
point of view of negligence though, as I think, there
was no general duty of
care operating in the case. It is quite plain from that discussion that, in my
opinion, it could not be
concluded that the driver of the train was reckless
or lacking in humanity or accorded the respondent less than a trespasser might
fairly and reasonably expect in a civilized community. No doubt the respondent
could not be said to be at fault in being overcome
by the epileptic attack:
that, however, is no basis for implying any right by invitation or licence to
her to be upon the railway
track. But equally the driver, presented with her
presence on the railway track, could not be said to be in breach of the
occupier's
duty to the respondent. (at p128)
39. Being of this view I have no need to discuss whether, even if the
respondent could be said to be an invitee or licensee on
the railway track,
the appellant was in breach of duty towards her. But I should remark, firstly,
that the respondent did not sue
as invitee or licensee. The action was based
on a breach of a general duty of care. Secondly, whether invitee or licensee,
a general
duty of care was not owed to the respondent by the plaintiff. The
nature of these duties to invitee or licensee is well settled.
It is enough to
say that I would see considerable difficulty in saying in this case, on the
view I have taken of the permissible
findings of fact, that the driver was in
breach of any such duty. (at p128)
40. In my opinion, the trial judge ought to have taken the case from the jury
on the footing that the only duty owed by the appellant
to the respondent was
the duty which an occupier of property has towards a person who has no legal
right or licence to be at the
particular place on the property where the
injury occurred: and that there was no material on which the jury could find
that the
appellant was in breach of that duty. (at p128)
41. I find no need to examine in any detail the reasons for judgment of the
Court of Appeal Division of the Supreme Court. It
sufficiently appears from
what I have written that the quotations from these reasons which I have made
are, in my opinion, insupportable
upon a proper understanding and application
of the decision in Cooper's Case [1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623
and of the
nature
of the trespasser as one who has no legal right, invitation or licence
vis-a-vis
the occupier to be upon the
relevant part of the
property, whether
or not the trespass is actionable. (at p129)
42. The appeal, in my opinion, should be allowed and orders made which would
cause judgment to be entered in the action for the
defendant. (at p129)
GIBBS J. On the morning of the 14th February 1972, at about 8.15, Mrs.
Perry, the respondent, went to the railway station at Lindfield,
a northern
suburb of Sydney with the intention of catching a southbound train to
Chatswood. She held a weekly ticket entitling
her to travel by train. She was
standing on the platform, waiting for a train to arrive, when suddenly, and
without warning, she
collapsed and fell unconscious on to the railway line.
She had suffered an epileptic, or epileptiform, attack. There was evidence
from which it might have been concluded that she was about 125ft from the
northern end of the platform when she fell, although
the distance could have
been less. A train was approaching from the north. There were some other
people on the platform. One of
them, Mr. O'Donnell, saw the respondent on the
line, and the approaching train, and ran along the edge of the platform for a
distance
of sixty to eighty yards waving his hand and his briefcase, hoping to
attract the attention of the driver of the train. The train
did slow down, but
not soon enough. It struck the respondent and caused her serious injuries. (at
p129)
2. When the train was about 300 yards to the north of the platform, the
driver saw that something was on the line. From that point
he had an
uninterrupted view of the platform. He had already started to apply his
brakes, for the purpose of making a normal stop
at the Lindfield station, but
the train was still travelling at about forty m.p.h. He thought that the
object on the line was a
large piece of brown paper. In fact the respondent
was wearing a white dress with purple stripes. He did not see Mr. O'Donnell
running down the platform. He knew that people did fall on to railway lines -
quite a lot, he said - and he had been warned to be
on the alert against such
a possibility. However when he first saw the object on the line he made no
further application of his
brakes. He travelled for some distance, which he
estimated to be about a hundred yards, before he realized that what he could
see
on the line was a person. He then applied the emergency brakes. He said
that after the train hit the respondent it went for about
a car length before
it stopped. A car length is about sixty-three ft. However other witnesses said
that the train stopped within
a few feet after striking the respondent. (at
p130)
3. There was evidence that if the train were travelling on that line at forty
m.p.h., and the emergency brakes were applied, the
train, if laden, would stop
within a distance of 870 feet, and, if empty, would stop in about 660 feet. It
was peak hour, so the
train might have been expected to be fairly full. (at
p130)
4. The respondent brought an action against the appellant, the Public
Transport Commission of New South Wales, for damages for
the personal injuries
which she sustained in the accident. She pleaded that she had been injured by
the negligence of the appellant,
its servants and agents. The learned trial
judge directed the jury that the appellant, through the driver of its train,
was required
to keep a proper lookout and to take all reasonable steps to
bring the train to a stop upon the happening of any emergency which
a proper
lookout would reveal. The jury returned a verdict for the respondent for
$90,000. An appeal to the Court of Appeal of
the Supreme Court of New South
Wales was dismissed. (at p130)
5. The appellant now contends that it did not owe to the respondent a duty to
take reasonable care for her safety. The respondent
was, so the appellant
submits, a trespasser on the railway line, and the appellant's only duty to
her was that which an occupier
of land owes to a person who has trespassed on
that land. It is further submitted that in the circumstances the appellant was
under
no duty to the respondent until the driver of the train had actual
knowledge that she was on the railway line, i.e., until he had
identified the
object on the line as a person. As soon as the driver became aware that what
he had seen on the line was a person
and not a piece of paper, he did all he
could to stop the train. Therefore, the submission concludes, the appellant
was not in
breach of its duty to the respondent. (at p130)
6. The special rules which the common law has evolved to govern the liability
of an occupier of premises to a person who sustains
injury while on those
premises do not in every case state exhaustively the nature of the occupier's
duty to the person who has
come on to his premises. The relationship between
the parties may be such as to give rise to a duty upon the occupier to take
reasonable
care for the safety of the other person. If the relationship
between the parties imposes upon the occupier this general duty of
care, which
may be higher than that which he owes in his capacity as occupier, the fact
that he is an occupier does not relieve
him of the higher duty. The two duties
exist concurrently. The statement made in Commissioner for Railways v.
McDermott (1967)
1 AC 169, at p 186 , and repeated in Herrington v. British
Railways Board [1972] UKHL 1; (1972) AC 877, at pp 913, 929 , that "occupation
of premises
is
a ground of liability and is not a ground of exemption from liability"
is
incontestably correct, at least so far
as persons
lawfully on the premises are
concerned. The books are full of cases in which
workmen have successfully sued
their employers
for
damages for injuries sustained on the employer's premises,
and in which the
liability of the employer has been based, not on
the
fact
that he was in occupation and control of the premises, but upon a breach
of
the general duty of care. Similarly there
are
many cases in which a company or
authority operating a railway has been held liable
for damages for injuries
caused by its
negligence,
although the injured person was on railway property
when the injuries were sustained.
I need not refer in detail to
the cases in
which the occupier of railway premises has been held liable when passengers
have tripped
or slipped on railway platforms;
in some
of those cases the
liability of the defendant was based on a breach of the duty owed by
an
occupier, but in others it was
based
on a breach of the general duty of care.
By way of example, perhaps unnecessary, of the
point I am making I would refer
to
three
cases which concerned persons who were not passengers. In Dublin
Wicklow, and Wexford
Railway Co. v. Slattery (1878) 3 App
Cas 1155
the man in
respect of whose death the action was brought was run down while crossing
a
railway line for the purpose of
buying
a ticket for his cousin who intended to
travel on the railway. None of the distinguished
law lords who debated the
issues
in that
important case thought it necessary to inquire whether the
deceased was an invitee or
a licensee of the railway company;
liability
was
based on negligence. Much more recently, in Caterson v. Commissioner for
Railways
[1973] HCA 12; (1973) 128 CLR
99 this Court upheld a verdict
given in favour of a
plaintiff who had carried his friend's luggage into a railway
carriage and
who
had jumped off the train when,
without warning, it had begun to move. It was
not regarded as material to consider
whether or
not the plaintiff had bought a
platform
ticket, for again it was the general duty of care that was held to
have been
broken. In
Thatcher v. Great Western Railway Co. (1893)
10 TLR 13
where a person standing on a platform after seeing off his friends
was struck
by an open door on the train, it was argued
that the duty of the railway
company was only that which is owed by an occupier
to
a licensee. However the
Court of Appeal rejected
this contention and held that the railway company
owed the plaintiff a duty
to
take reasonable care for his safety. (at p132)
7. It may be taken as settled that in appropriate circumstances a person who
has lawfully come on to premises occupied by the
defendant can recover damages
for injuries sustained by reason of the negligence of the defendant, i.e., for
breach of the duty
defined in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 . In other
words the occupier may owe to a person lawfully on his
land a general
duty of
care in addition to the special duty which is owed by an occupier to an
invitee or a licensee. I need not
consider whether
an occupier may similarly
owe concurrent duties to a trespasser. The decision in Commissioner for
Railways v.
Quinlan (1964) AC
1054 and dicta in the judgment of their
Lordships in Southern Portland Cement Ltd. v. Cooper (1973) 129 CLR,
at p 309;
(1974)
AC, at p 645 may be thought to favour the view that an occupier owes a
trespasser only that duty of ordinary humanity
which was
expounded and
explained in Herrington v. British Railways Board [1972] UKHL 1; (1972) AC 877 . Earlier
decisions of
this Court support the conclusion
that two parallel duties may
exist. However, this question
need not be decided in the present
case. In my
opinion, for reasons
I am about to give, the respondent was not a trespasser.
(at
p132)
8. On behalf of the appellant it is said that the respondent had neither
right nor permission to be on the railway line and that
she was therefore a
trespasser upon it. With all respect I regard this as too narrow and
artificial a view. At the outset it may
be remarked that the presence of the
respondent upon the appellant's railway line was not a legal wrong committed
by the respondent
against the appellant. Since the respondent had got on to
the line involuntarily her presence there gave the appellant no right
of
action. It has been established for centuries that a defendant does not commit
an actionable trespass by going on to the plaintiff's
land involuntarily:
Smith v. Stone [1658] EngR 443; (1647) Style 65 (82 ER 533) . If a trespasser, within the
meaning of the rules as to the liability
of an occupier, is a person
whose
presence on the land is a legal wrong (as some remarks of Lord Diplock in
Herrington v. British
Railways Board (1972) AC,
at p 943 would suggest) the
respondent was clearly not a trespasser. However I doubt whether it is right
to say that a person
can never be regarded as a trespasser, for the purpose of
the rules governing an occupier's liability, if
his presence on the premises
came about involuntarily. It would seem to me that it would be unfairly
burdensome to an occupier
to hold that persons who have
come on to his
premises without his permission, and in circumstances in which he could not be
expected
reasonably to foresee their
presence, are entitled to expect that
care for their safety which is owed to invitees or licensees,
if they have
come on to the
premises involuntarily, for example, by falling from an
adjoining tree, or by landing in a crashed
aircraft, or by being thrown
there
by hoodlums. But that question does not arise in the present case, where the
respondent came
on to the premises of the appellant
quite lawfully, with the
permission of the appellant. She could then become a trespasser only
if she
went outside the scope of
her permission. The relevant principle was stated by
Lord Atkin in Hillen and Pettigrew v. I.C.I.
(Alkali) Ltd. as follows (1936)
AC 65, at p 69 :
"In my opinion this duty to an invitee only extends so longIn my opinion a person who is lawfully upon premises, and is using the premises in an ordinary and reasonable way, becomes a trespasser only if he goes voluntarily on to a part of the premises to which the invitation does not extend: if he falls, or is pushed, on to a forbidden area he does not thereby become a trespasser. This view is strongly supported by Commissioner for Railways v. McDermott (1967) 1 AC 169 . In that case it was submitted that the plaintiff was a trespasser, being on the railway track and away from the level crossing. Their Lordships rejected this contention, because there was evidence from which the jury could have inferred that the plaintiff stumbled and fell onto the track, and that she was not deliberately or negligently trespassing there (1967) 1 AC, at p 184 . Further support for the conclusion which I have reached is to be found in Braithwaite v. South Durham Steel Co. Ltd. (1958) 1 WLR 986; (1958) 3 All ER 161 . In that case the plaintiff, in accordance with the proper and settled practice, was walking along a narrow walkway adjacent to a railway track in the occupation of the British Transport Commission. Part of the walkway was also occupied by the Commission, but the plaintiff had an implied licence to use it. A train was travelling silently along the line, and the driver shouted to warn the plaintiff of the danger. The plaintiff turned to ascertain the reason for the shout and in so doing inadvertently put his foot or body a few inches on or over the sleepers to which the Commission's implied licence did not extend and he was struck by the approaching train and injured. It was held that the guard had failed to keep a proper look-out, that the Commission was negligent, and that the plaintiff's involuntary encroachment outside the licensed area, caused by the negligence of the Commission, did not constitute him a trespasser. Edmund Davies J. said (1958) 1 WLR, at p 991; (1958) 3 All ER, at p 165 :
as and so far as the invitee is making what can reasonably
be contemplated as an ordinary and reasonable use of the
premises by the invitee for the purposes for which he has
been invited. He is not invited to use any part of the
premises for purposes which he knows are wrongfully
dangerous and constitute an improper use. As Scrutton L.J.
has pointedly said: 'When you invite a person into your
house to use the staircase you do not invite him to slide down
the banisters' (The Carlgarth (1927) P 93, 110
). So far as he sets foot on so
much of the premsises as lie outside the invitation or uses
them for purposes which are alien to the invitation he is not
an invitee but a trespasser, and his rights must be
determined accordingly."
"It affronts common sense that licensors, having by their
negligence caused a licensee to take a startled and
unpremeditated step of a few inches outside the licensed area,
should thereafter be entitled to say that if any portion of the
plaintiff's anatomy was outside the licensed area he must be
regarded as a trespasser to whom no duty was owed other
than that of refraining from harming deliberately or
recklessly. None of the cases cited to me warrant what in
my judgment would be a wholly artificial approach to the
facts of this case ..." (at p134)
9. That case is distinguishable from the present, because there the
involuntary encroachment was caused by the defendant's negligence,
but the
decision supports the view that the fact that the plaintiff has no permission
to be on the part of the premises where he
in fact is found does not
necessarily make him a trespasser if he got there involuntarily. (at p134)
10. In the present case the respondent was making a reasonable and proper use
of part of the railway premises where she was entitled
to be - she was
standing upon the platform waiting for the train to arrive. Her involuntary
fall on to another part of the premises
in the occupation of the appellant did
not make her a trespasser. It did not exempt the appellant from its duty to
take reasonable
care for her safety. (at p134)
11. The matter may be summed up as follows. A carrier by rail owes a duty to
take reasonable care for the safety of a passenger,
whether the passenger is
in the course of being carried or is standing on a platform waiting for an
approaching train. The carrier
is not absolved from that duty because the
passenger becomes ill and collapses, whether she falls upon the platform or
falls off
it on to the railway line where she would otherwise have no right to
be. In the present case the learned trial judge was quite right
in directing
the jury that the appellant was under a duty to take reasonable care for the
safety of the respondent. (at p135)
12. The final question is whether there was evidence on which it was open to
the jury to find that the appellant was negligent.
The case was very much on
the borderline and a jury could well have decided it either way. Nevertheless
there was in my opinion
evidence to sustain the verdict. I need hardly repeat
that the obligation that lay upon the appellant was no more than to take
reasonable care. The appellant was not obliged to bring its trains to a halt
before they reached every station for fear that a passenger
might fall in
their path. But the appellant's drivers were bound to keep a proper look-out
and to take reasonable steps to stop
the train if they in fact saw someone on
the line. It was open to the jury to conclude that the driver had not kept a
proper look-out.
The fact that he mistook the respondent, in her white dress
with purple stripes, for a piece of brown paper and that he did not
see Mr.
O'Donnell running and waving his briefcase, could have been given weight in
reaching that conclusion. It was further open
to the jury, on the facts that I
have outlined, including the estimates of the speed and position of the train
and of the distance
within which it could have been stopped, to conclude that
if the driver had kept a proper look-out, he would have seen and recognized
the danger in time to bring the train to a halt before it reached the
respondent. (at p135)
13. The decision of the Court of Appeal was in my opinion correct and the
appeal should be dismissed. (at p135)
STEPHEN J. On the morning of 14th February 1972 Mrs. Perry was standing on
the platform at Lindfield railway station on Sydney's
north shore line waiting
for a south-bound train to take her to work at Chatswood. She suddenly
collapsed and fell unconscious
on to the rails. Soon afterwards, and before
any of the other passengers waiting on the platform were able to go to her
assistance,
the train she had been waiting for arrived and, despite emergency
braking, struck her as she lay on the line. (at p135)
2. She was seriously injured and sued in negligence; the case was heard in
the Supreme Court and, after extensive evidence from
a number of witnesses
including the train driver and guard, a number of eye-witnesses and two expert
witnesses, the jury of four,
by statutory majority, found for Mrs. Perry and
awarded her substantial damages. (at p136)
3. At the close of evidence counsel for the defendant, the Public Transport
Commission, had sought a direction that judgment be
entered for the defendant
upon the grounds that there was no evidence of negligence on its part and that
the only duty owed to
Mrs. Perry was that owed to a trespasser. The learned
trial judge, in rejecting this application, said that he did not regard Mrs.
Perry's involuntary presence upon the track as that of a trespasser; she was
owed the same duty of care when lying unconscious
on the track as when waiting
on the platform, the defendant must take reasonable measures to prevent risk
of foreseeable and preventable
injury. The issue for the jury, said his
Honour, was whether the train driver was keeping a proper lookout for
emergency situations
such as that precipitated by Mrs. Perry's fall from the
platform. (at p136)
4. His Honour then charged the jury that the Commission's duty, through its
driver, was to keep a proper lookout and to take all
reasonable steps to stop
the train in the event of an emergency; if any breach of that duty was a cause
of Mrs. Perry's injuries
she was entitled to damages. There then followed a
most careful examination of the evidence, to which no exception was taken, and
the jury thereafter returned its majority verdict for Mrs. Perry. (at p136)
5. The Commission's appeal to the New South Wales Court of Appeal was
unsuccessful and it now appeals to this Court. On neither
occasion has the
Commission sought a new trial; instead it has contended that judgment should
be entered in its favour, there being
no evidence capable of supporting the
jury's finding of fault; Mrs. Perry, once she fell from the platform, was, so
it was said,
in the position of a mere trespasser so far as concerned the
Commission. (at p136)
6. Were the doctrine enunciated in Robert Addie & Sons (Collieries) Ltd. v.
Dumbreck [1929] UKHL 3; (1929) AC 358 still operating in its
full
vigour, to categorize Mrs.
Perry as a trespasser might well have sufficed to acquit
the Commission of
liability as occupier
of
railway property. The evidence disclosed neither
malice nor such recklessness as would
be "tantamount to malicious acting" (per
Viscount Dunedin (1929) AC, at p 377 ) and in their absence that doctrine
would allow
no trespasser to recover. But this is no
longer so. In
Commissioner for Railways v. Quinlan (1964) AC 1054 , Herrington v. British
Railways Board [1972] UKHL 1; (1972)
AC 877 and Southern
Portland Cement Ltd. v. Cooper
[1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623 the duty of occupiers to
trespassers has
been subjected to intensive
re-examination and whatever
uncertainties remain
it is at least clear that malice and
recklessness no longer mark out the
boundaries
of that duty. Instead
"the nature and extent of an occupier's duty
to a trespasser
must be based on considerations of humanity"
(Cooper's Case
(1973)
129 CLR, at p 307; (1974) AC, at pp 642-643 ) and an "all-embracing"
consideration of the facts is required
to identify those trespassers
to whom
that duty may be owed; factors such as the degree
of likelihood of the coming
of trespassers
and the extent of the risks
they will then run from hidden or
unexpected dangers are
to be weighed against detriments to the occupier
involved in taking steps
to safeguard them (Cooper's Case (1973) 129 CLR, at
pp
308-309; (1974) AC, at p 644 ). (at p137)
7. However, in the present case, both trial judge and jury and the Court of
Appeal have alike treated Mrs. Perry as no trespasser.
Whether they are right
in doing so must form the first subject of inquiry. I may say that argument
and discussion in this case
has concentrated upon the status of trespasser and
that of invitee; any contractual right of entry has been ignored and for the
purposes of this judgment I conform to this approach. (at p137)
8. Mrs. Perry entered Lindfield railway station at the Commission's
invitation and as she stood on the platform awaiting the arrival
of her train
she was owed by the Commission no lower duty than it owed to any invitee. But
that duty was not confined to perils
of the premises. If the Commission, in
the person of one of its porters, had knocked her down while carelessly
conveying luggage
along the platform in a trolley it would have been liable to
her in negligence without need for any inquiry as to the state or condition
of
the platform. As was said by the distinguished members of the Court of Queens
Bench in Tebbutt v. Bristol and Exeter Railway
Co. (1870) LR 6 QB 73, at p 75
in upholding the plaintiff's appeal:
"It was contended that, assuming this to have been an act
of negligence on the part of the porter, for which the
defendants would have been responsible to a passenger by
their own line, yet that the company were not responsible to
the plaintiff, inasmuch as he was neither a passenger of
theirs, nor a person who was on their premises on any
business in which they were interested, but was a mere
licensee using the platform for his own convenience.
It is unnecessary to consider what would have been the
rights of the parties if the plaintiff's complaint had reference
merely to the state and condition of the platform upon which
he was allowed to enter. What he complains of is an act of
misfeasance done by a servant of the defendants in the
course of his employment - the doing carelessly what the
servant was employed to do, and which caused damage to the
plaintiff." (at p138)
9. In Quinlan's Case it was said (1964) AC, at pp 1082-1083 , citing
Gallagher v. Humphrey (1862) 6 LT (NS) 684 , that, had the
plaintiff been a
licensee and not a trespasser, while he would have had to take the level
crossing there in question as he found
it, he would nevertheless "presumably"
have been "entitled to complain of any positive act of negligence on the part
of the railway
staff". In Commissioner for Railways v. McDermott (1967) 1 AC
169, at p 190 , that passage was seen as a recognition "that the duty
arising
from the relationship of occupier and licensee did not exclude any duty which
might arise from other features of the situation".
It was to such a duty that
Cockburn C.J. gave effect when, in Gallagher v. Humphrey (1862) 6 LT (NS), at
p 685 he spoke of negligence
"superadded" to any particular state of the
premises, a licensee being obliged, without complaint, to take the premises as
he finds
it but having a cause of action in negligence for superadded
negligence unconnected with the state of the premises. Almost one hundred
years later the Board, speaking through Lord Somervell of Harrow, said, of the
postulated case of an occupier negligently driving
a motor-car into a
licensee, "the principle that the licensee must take the land as he finds it
would clearly have no application"
(Perkowski v. Wellington Corporation (1959)
AC 53, at p 67 (at p138)
10. An invitee or licensee who enters upon the property of another does not
thereby forfeit the benefit of having owed to him,
by those who are in a state
of proximity to him and should foresee the consequences which their conduct
may have upon him, the
neighbourly duty to take reasonable care for his
safety. He remains entitled once on the premises, as he was off them, to have
this duty performed by those with whom he is in the necessary relationship of
proximity. To a lawful entrant the occupier will normally
owe such a duty, the
entry involving the requisite degree of proximity. (at p138)
11. Overlaid upon this situation will be the more specific right-duty
relationship, dependent upon the status of occupier of premises
and of lawful
entrant upon them and concerned in particular with structural hazards which
the state of the premises may represent.
This duty, arising from the presence
of a sufficient degree of control by the occupier over his premises (Wheat v.
E. Lacon &
Co.
Ltd., per Lord Denning [1966] UKHL 1; (1966) AC 552, at p 577 ) is no
exception from but is rather a special and limited manifestation
of the
general duty of care which
proximity imposes (McDermott's Case) (1967) 1 AC,
at p 186 ; the result is that there are, in
the case
of a lawful entrant upon
premises, "two duties of care existing concurrently, neither displacing the
other" (1967) 1 AC,
at p 187
. (at p139)
12. So it is that it has repeatedly been said that the occupation of premises
provides no exemption from liability but is, rather,
a ground for liability
(Quinlan's Case (1964) AC, at p 1072 ; Videan v. British Transport Commission,
per Pearson L.J. (1963) 2
QB 650, at p 677 ; McDermott's Case (1967) 1 AC, at
pp 186-187 ). In Herrington's Case Lord Morris described the contrary view as
"heresy" (1972) AC, at p 907 and Lord Wilberforce remarked that it "has been
refuted more than once" (1972) AC, at p 913 . His
Lordship there described
"the correct conception" as that stated by Viscount Radcliffe in Quinlan's
Case (1964) AC, at p 1072
that the Addie [1929] UKHL 3; (1929) AC 358 rules were expressive
of certain consequences as regards proximity and foreseeability" flowing from
the relationship
of occupier and invitee or licensee, the law then being able
to "take into account other relevant factors, if
they exist, which
bear upon
these matters of foresight and prudence". (at p139)
13. The lawful entrant upon the property of another thus suffers no loss of
the right to have reasonable care taken for his safety.
Those upon whom that
duty is imposed and against whom that right is enforceable comprise a class
the membership of which depends
upon proximity and foreseeability, factors
which in the case of an occupier will also impose upon him the special duty of
care
which accompanies control of premises. The interests of the entrant will
then usually be adequately served by observance of the
Addie rules, but if
there intrudes superadded negligence on the occupier's part which, had it
occurred off the premises, would
have attracted liability to him it will do so
none the less because occurring on the premises. (at p139)
14. The case of the unlawful entrant is a distinct one. If his entry be by
stealth and unanticipated, entry alone will not cast
any duty of care whatever
upon the occupier. His arrival on the premises not being authorized, known or
anticipated no duty in
respect of the state of the premises will arise upon
entry and he will in no sense be any "neighbour" of the occupier. Once his
presence is known the position changes and a duty, which has been described as
one of common humanity, is cast upon the occupier.
In the view which I take of
this case the precise ambit of that duty need not concern me. In Cooper's Case
[1973] UKPCHCA 1; (1973)
129 CLR 295;
(1974) AC 623 their Lordships have sought to re-examine
and restate its basis and its content. I add only
this, that
the really
difficult area in the case of unlawful entrants arises not in relation to the
acts or omissions of occupiers
who know
of their
presence but in relation to
what, if anything, should be done by an occupier, in advance of that
knowledge, so
as to prevent
or
reduce the risk of harm to any such entrant who
may in the future appear on the premises. It is in the realm of
precautions
against
the as-yet-unidentified entrant that difficult questions of degrees of
reasonable anticipation arise, coupled
as they necessarily
are with fears of
unduly burdening occupiers for the benefit of future trespassers. (at p140)
15. I have said that I do not regard myself as concerned in this case with
any question of the duties owed by an occupier to a
trespasser. Mrs. Perry's
precise status as she lay unconscious on the line I view as irrelevant; that
involuntary physical movement
from platform to railway line which was the
consequence of Mrs. Perry's fall was not antecedent to, and did not affect the
setting
in which there arose, the duty for breach of which she sues. That
movement was no more than a circumstance to which that pre-existing
duty
applied. The duty was one owed to her as she stood upon the station platform.
It was a duty by the Commission to intending
passengers to take reasonable
care for their safety, not merely in relation to the premises but in relation
also to the operation
of the Commission's trains. (at p140)
16. It follows that I regard as correct the learned trial judge's charge to
the jury, directing their attention to the questions
of the keeping of a
proper lookout and of the prompt taking of steps to bring the train to a stop
should the maintenance of such
a lookout reveal the existence of an emergency
on the line ahead. (at p140)
17. Mrs. Perry was a person lawfully upon the Commission's premises; within
those premises the Commission was conducting an activity,
the running of
trains at speed along tracks, which was capable of causing injury or death to
any who might come into physical contact
with the moving trains; add to that
the fact, attested to in evidence, that people fall onto tracks "quite a lot",
that being something
that train drivers are warned constantly to be on the
alert against; add also the fact that it is precisely alongside station
platforms
that the Commission's tracks are necessarily situated in close
proximity to people congregated above those tracks, tracks which
lie at their
feet and from which they cannot be fenced off. These circumstances, viewed in
the context of a general duty of care
for Mrs. Perry's safety, were in my view
ample to entitle the jury to conclude that if there was any failure on the
part of the
train driver to keep a proper lookout that would constitute a
breach of the Commission's general duty of care owed to her which,
if it were
a cause of Mrs. Perry's injuries, would render it liable in damages. (at
p141)
18. This view of the facts accords well enough with common community
experience. Rail transportation has been a feature of our
society for more
than one hundred and twenty years and the fall from the platform, like the
level crossing accident, is one of
the classic hazards which every child is
warned of and of which no railway authority can be unaware. (at p141)
19. In McDermott's Case (1967) 1 AC 169 the duty found to have been breached
was not that arising out of the Commission's occupation
of the railway line.
It depended rather upon "the inherently dangerous activity of running express
trains through a level crossing
which was lawfully and necessarily used" by a
variety of persons (1967) 1 AC, at p 187 . Lord Gardiner L.C. there said that
such
an activity was likely to cause serious accidents unless carried out with
all reasonable care and that therefore there was a duty
to use all reasonable
care. The like duty arises in the present case although what will satisfy that
duty will, of course, differ.
(at p141)
20. The steps which the Commission should take in observance of its duty of
care must, no doubt, be judged in the light of relative
infrequency of
occurrence of a particular emergency and of relative gravity of harm which is
likely to ensue. The ease with which
precautions may be taken must also be
significant and may well be conclusive when the precaution, for want of which
the emergency
proves fatal, is one which, quite apart from the particular
emergency, ought to have been observed in any event. Such is very much
the
case when the keeping of a proper lookout is in question. (at p141)
21. What the Commission must do to satisfy its duty will depend upon what may
reasonably be expected of it in all the circumstances.
It would, for example,
be unreasonable to require it to run its trains at such a low speed as to
enable them to stop immediately
should persons suddenly fall directly in front
of a train. But it is quite another thing to require only that those who drive
trains
should keep a proper lookout on the track ahead, something which is no
doubt in any event essential for the safety of the train
and its passengers. I
regard the Commission as owing to Mrs. Perry that duty of keeping a proper
lookout, owed to her as much as
it is to passengers actually in transit on
trains. (at p142)
22. In the view I take it is nothing to the point that the invitation
extended by the Commission to Mrs. Perry to enter the station
premises was one
suitably limited in terms of area and which did not extend to the tracks
alongside the railway platform. It may
readily enough be conceded that Mrs.
Perry was not invited to lie upon the tracks any more than an intending
passenger awaiting
a Sydney ferry is invited to plunge into the waters of
Circular Quay. But nothing follows from this lack of invitation. The special
duty of care owed by an occupier of premises in relation to hazardous
structures is well suited to the application of this notion
of a sharply
defined and limited area of invitation or of licence. Not so, however, the
underlying and more general duty of care,
whose existence and scope at any
particular time and place will depend upon proximity and foreseeability. Such
a duty neither owes
its origin to the existence of particular premises nor is
its content to be measured by the extent of any invitation to enter premises;
with premises it has no necessary connexion whatever. It will continue to be
owed by the Commission so long as the person entitled
to its protection
continues within a neighbourly relationship to the Commission. Mrs. Perry's
fall onto the tracks did not sever
that relationship and led to no termination
of the Commission's duty towards her but was, rather, the first step in the
creation
of a situation of emergency and of peril, the harmful effects of
which the Commission was obliged to take reasonable steps to avert.
(at p142)
23. An examination of the evidence, much of it conflicting, leaves me in no
doubt but that it was open to the jury, so directed,
to bring in a verdict for
Mrs. Perry. The jury had to consider whether or not the driver had kept a
proper lookout and, if he had,
whether he had acted with all reasonable care
for the safety of Mrs. Perry once he had perceived, as a result of that
lookout,
the emergency created by her position on the track. There was
evidence which the jury might accept and which would lead it to answer
each of
these questions adversely to the Commission, just as there was a body of
evidence to the contrary, also open for acceptance
by the jury if it saw fit.
(at p142)
24. I do not propose to enter upon an examination of the evidence. This has
been undertaken in considerable detail in the course
of the several judgments
in the Court of Appeal and with those analyses I agree. I do, however, make
one observation. This is that
exceptional case which, although concerned with
questions of speed and distance of a moving vehicle, may, on a view of the
evidence
open to the jury, readily be resolved without the aid of calculations
based upon possibly erroneous assumptions. It was open to
the jury to conclude
that the train had almost come to a halt when it struck Mrs. Perry, that she
was carried forward only a matter
of a few feet before the train stopped. It
must follow that had the train's full braking capacity been applied very
slightly earlier
than it was Mrs. Perry would have escaped injury. This
conclusion being open to the jury and there also being evidence, referred
to
in the learned trial judge's charge, from which the jury might have concluded
either that a better lookout ought to have been
maintained or that more prompt
emergency braking ought to have been applied, or that there were failures in
both these respects,
it follows that the jury's verdict was well capable of
being supported upon a view of the evidence properly open to it. (at p143)
25. I would accordingly dismiss this appeal. (at p143)
MASON AND JACOBS JJ. On the morning of 14th February 1972 the respondent,
having purchased a weekly train ticket, was standing
on the railway station at
Lindfield, a suburb on the Sydney north shore, waiting for a train to take her
to Chatswood, that is
to say, south towards the city. She took up a position
about 125 ft from the northern end of the platform. She had some form of
fit
or seizure which caused her to become unconscious and she fell on to the
railway line with her legs over one of the rails.
Thereafter the front wheels
of an electric train travelling towards the city from Killara, the next
station to the north, either
passed over her body or pushed her along the
line. She suffered very serious injuries. She brought an action in the Supreme
Court
of New South Wales against the appellant claiming damages for negligence
and the jury returned a verdict in her favour for $90,000.
An appeal to the
New South Wales Court of Appeal was dismissed. (at p143)
2. The driver of the train had brought the train out of Killara station and
travelled at about forty to forty-five m.p.h. in the
direction of Lindfield
station, intending that the train should stop there with the foremost carriage
at the southern end of the
station platform. He had already applied his
service brake for the purpose of stopping the train at Lindfield station when
about
300 yards from the station he observed something on the line adjacent to
the Lindfield platform. By that time his speed had been
reduced by about five
m.p.h. At first he thought that what he saw was a piece of brown paper, but
when he was about 200 yards from
the Lindfield platform he recognized that the
object was a human body. He gave evidence that he then immediately applied the
brakes
to the full emergency position but the evidence of Mr. Rooney who was
on Lindfield station at the time would have entitled the jury
to conclude that
the full emergency application of the brakes took place much closer to the
respondent than two hundred yards.
The train was no doubt substantially laden
with passengers, it being Monday morning in a peak hour, though it had
commenced the
service only two stations further up the line. The minimum
stopping time for a fully laden train travelling in that place at forty-five
m.p.h. was 1,090 ft and at forty m.p.h. 870 ft. Unladen the distances were 830
ft and 660 ft respectively. (at p144)
3. The train in fact stopped at a point between one foot and a carriage
length, i.e. 62 1/2 ft, beyond the position where the
respondent lay.
Witnesses varied on this point, but the evidence would justify the jury in
determining that if the driver had applied
the brakes harder or in emergency
position at a time before he positively identified the object on the line as a
human body, the
train could have been stopped before reaching the plaintiff;
but that by the time the driver identified the object on the line it
was just
too late to stop the train before the front carriage of the train came in
contact with the respondent's body. (at p144)
4. The braking system was fully described in evidence by Mr. Grimshaw.
Braking was ordinarily actuated by movement of the brake
handle to a service
position causing release of air pressure in the system with degree of braking
controlled by the driver by return
of the braking handle to the lap position
from the service position between releases of air. Thus after one braking
further brakings
short of full emergency braking could be achieved by moving
the brake handle again from the lap position to the service position.
Emergency braking was achieved by release of air in the system at the maximum
possible rate. (at p144)
5. Upon these facts the appellant claims that there was no evidence of a
breach of any duty of care owed towards the respondent
at any relevant time
whereby she suffered her injury. It is submitted that no duty of care was owed
to a person in the position
of the plaintiff until the driver positively
identified the plaintiff as a human being, that at the time when the duty of
care
arose, that is to say, upon such identification, the driver of the train
did all that he could to avert injury to the respondent,
and that her injuries
were not caused by any act or omission of the driver at a time when a duty of
care was owed. This submission
is based upon the contention that the only duty
owed by the appellant to the respondent at a time causally related to the
injury
was the duty which may arise in certain circumstances between an
occupier of land and a trespasser on the land. The appellant was
the occupier
of the railway line which it used for the running of its trains. The
respondent, it is said, was a trespasser, even
though an involuntary one. The
duty, it is submitted, of an occupier to a trespasser is not deliberately to
do such a person harm
or not to act with lack of care for the safety of the
person when that person is known or "as good as" known (see Southern Portland
Cement Ltd. v. Cooper [1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623 ) to be present on the
occupier's land. In this connexion,
it is said and
rightly, there is no
essential difference in the duty of care which is owed between the case where
an injury is
caused by the condition
of the occupier's
premises and that where
the injury is caused by the carrying on on such premises of some
activity, in
this case
the driving of
the train. It is, however, hardly possible since
Southern Portland Cement Ltd. v. Cooper
to limit the enunciation
of duty in
the
way suggested. We shall return to this aspect later. (at p145)
6. The basis of the submission presently being considered is that the
respondent was properly to be categorized as a trespasser
on the lines, even
though an involuntary one and that the involuntariness of the trespass is of
no legal significance. There is,
however, an important piece of evidence which
was given by the driver of the train. He was asked:
"Q. And people fall on to lines, don't they?The respondent was thus invited, to use the conventional language, to be upon the railway platform beside the railway lines, and the jury could have inferred that people quite often fell on to lines from railway platforms as well as from other places. (at p145)
A. Yes - quite a lot.
Q. And that is something you are warned constantly to be
on the alert against, isn't it?
A. Yes."
7. Once the latter fact was accepted by the jury, the legal question whether,
and if so what, duty of care existed fell to be
determined in the light of
that circumstance. If the fact was disputed, then it fell to be determined by
the jury and the question
of law whether and, if so, what duty of care arose
required determination by the Court in the light of that determination of
fact.
For the purposes of this appeal, in which no new trial, but only a
verdict for the appellant is sought, it must be assumed that
this circumstance
was established in the respondent's favour and that no question arises on the
adequacy of the summing up upon
this aspect. (at p146)
8. Bearing in mind the circumstance that people quite often fell on the
lines, what was the duty of care owed by the Commissioner
and his servants to
a person who was invited on to the station platform but fell on the lines
inadvertently? Was it, as the appellant
argues, only a duty to take care for
the safety of such a person when it was known that he or she was on the lines?
Or was it a
duty to take reasonable care for the safety of a person who,
having been invited to be in a position close to the lines, inadvertently
fell
on to the lines? We have no doubt that it was the latter. To speak of such a
person as an invitee or a licensee who by exceeding
his or her invitation or
licence became simply a trespasser on the lines with consequent rigid
definition of the duty owed is impermissibly
to formalize the categories of
duty. So to say is not to question the exhaustiveness of the categories as
affirmed in Commissioner
for Railways v. Quinlan (1964) AC 1054 and Southern
Portland Cement Ltd. v. Cooper [1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC
623 . It is
simply
to clothe them with the reality of particular circumstances as they
newly come
before the courts. There is no
occasion to apply
to the appellant a
so-called "general" duty of care arising from the circumstance
that it was
reasonably foreseeable
that some
person or another might be in the path of the
train at some time or another. Within
the concept of the appellant as occupier
of
the land and the respondent as invitee on to one part of the land who was
involuntarily
upon another part of the land the duty
of
care can be enunciated
which is applicable to the circumstances. See Southern Portland
Cement Ltd. v.
Cooper (1973) 129 CLR,
at
p 300; (1974) AC, at p 637 . The significant
circumstances are that the respondent was
invited to be close to the lines,
that
her
fall on to the lines was inadvertent and that people did fall on to
the lines "quite
a lot". In these circumstances there was
a
duty to take
reasonable care not to cause injury to a person in the position of the
appellant. It was for the jury to determine
(a) whether there was a failure to
keep a look-out for such a person and to take the
step, when an unusual but
yet unidentified
object was seen on the lines, of slowing down in case it
should be such a person, and
(b) whether the failure was a breach of the
duty
of care. (at p146)
9. Further, even if the respondent be categorized merely as a trespasser, it
does not follow that a duty of care arose only when
the driver actually knew
that she, a human being, was on the railway line in the path of his train. The
duty of an occupier to
a trespasser is higher than that in the circumstances
which the jury could have found to have existed in this case. Cases such as
Commissioner for Railways v. Quilan (1964) AC, at p 1070 deal with the duty
of care owed to persons whom the occupier may suspect
will come upon the land
"at some time or another" (see Southern Portland Cement Ltd. v. Cooper (1973)
129 CLR, at p 303; (1974)
AC, at p 639 ). The question with which we now deal
is different, namely, the duty which arises when something is brought to the
notice of an occupier or his servant which would lead an ordinary man to
suspect that a person, albeit a trespasser, may actually
be upon the land and
in a position where a continuation of the occupier's activity is likely to
cause death or very serious injury
if the suspicion turns out to be a reality.
(at p147)
10. We have no doubt that there then arises a duty of care on the part of the
occupier towards the person whom an ordinary man
would suspect to be actually
upon the land and in a situation where the activities of the occupier or his
servant, if pursued,
will probably kill or seriously injure that person. If a
man is out shooting on his land and something comes to his notice which
would
ordinarily lead to a suspicion that a human being may well be actually in the
line of fire, he cannot escape liability by
saying "Perhaps I had reason to
suspect that something which could well be a human being was actually in the
line of fire but I
did not know positively that what I had observed was a
human being. Therefore it was not incumbent on me to alter my shooting pattern
in any way nor to take any step to negative the possibility that it might be a
human being in my line of fire". (at p147)
11. If there comes to the notice of the occupier or, in this case its
servant, something which would ordinarily lead to a suspicion
that there may
well be a person actually on the land who would be likely to suffer death or
serious injury as a result of the course
of conduct of the occupier or his
servant if pursued, the duty arises in the occupier to take reasonable care to
ascertain whether
the suspicion has any foundation before he continues to
pursue unaltered his course of intended. The considerations of humanity
referred to by their Lordships in Southern Portland Cement Ltd. v. Cooper
[1973] UKPCHCA 1; (1973) 129 CLR 295; (1974) AC 623 lead
directly to this
conclusion. (at
p147)
12. Provided that there was evidence to support the determination, it was for
the jury to determine whether the circumstances
in fact existed which gave
rise to the legal duty and, if so, whether the duty was breached. That is to
say, that it was for the
jury to determine whether the circumstances would
have led an ordinary man to suspect that a human being might well be upon the
line in a position of danger and, if so, whether the driver acted reasonably,
and, if not, whether his failure so to do was a cause
of the respondent's
injuries. (at p148)
13. There was in our opinion evidence upon which the jury could on each of
these inquiries reach a conclusion favourable to the
respondent. The driver of
the train gave evidence that he was on the look-out all the time, ready for
any emergency. He agreed
that an emergency was more likely to occur at a
station than on the open line. He knew that quite often people fell on to
lines.
The driver observed something on the line when he was 300 yards from
the platform of Lindfield station. He thought it looked like
a large sheet of
brown paper, but it was something which ought not to have been there, and it
indicated to his mind the possibility
of an emergency. It was something which
potentially created an emergency, a hazard. It was open to the jury to
conclude that in
these circumstances a man in the position of the driver,
knowing that people quite often fell on to the lines, would ordinarily
have
suspected that the object might well be a human body. The jury could then
proceed to consider whether the driver of the train
thereafter acted
reasonably. The driver had already commenced the application of the service
brake, an application sufficient to
stop the train at Lindfield station. He
made no stronger application of the brake until he positively identified the
object as
a human being. Only then did he apply the full emergency brake. This
may have been at a distance of two hundred yards from the platform
but the
jury may have concluded that it was much closer. It appears to us that the
omission of the driver which the jury could
regard as showing a lack of
reasonable care was his failure to do anything until he positively identified
the object as a human
body. Here was an object on the lines beside a railway
platform at a busy time in the morning. All that the driver needed to do
in
order to ensure that, if it was a person who had fallen from the platform,
then that person would not be injured was to apply
his brake to the next stage
by a further service application, so that the train would have been capable of
being stopped at the
northern end of or partly along the platform. As it was,
the train stopped, on a finding of fact which was open to the jury, as
little
as one foot after hitting the body. Thus on a view of the facts which was open
to the jury, a duty of care arose in law
and it was for the jury to determine
whether the driver ought to have taken some action at the earlier time, and
whether, if action
had been taken, it would have averted the injury to the
respondent. (at p149)
14. Thus, even on an assumption that the respondent was in law to be
categorized as one to whom no higher duty was owed than a
duty owed by an
occupier towards a trespasser, the appellant does not succeed in the
submission that there was no evidence of breach
of that duty. (at p149)
15. We would dismiss the appeal. (at p149)
ORDER
Appeal dismissed with costs.