Commissioner for Railways v Anderson - [1961] HCA 38 - HCA 1961 case summary — Zoe

CTHHCA

Commissioner for Railways v Anderson

[1961] HCA 38

High Court of Australia|1961-06-23|Before: Menzies JJ, McTiernan J, Willes J, Richardson J, Clancy JJ, Else-Mitchell J

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Source facts

Court

High Court of Australia

Decision date

1961-06-23

Before

Menzies JJ, McTiernan J, Willes J, Richardson J, Clancy JJ

Source

Original judgment source is linked above.

Judgment (63 paragraphs)

[1]

High Court of Australia McTiernan, Fullagar, Kitto, Taylor and Menzies JJ. Commissioner for Railways v Anderson [1961] HCA 38

[2]

ORDER Judgment of the Supreme Court of New South Wales varied by discharging so much thereof as orders that the verdict for the plaintiff be set aside and a new trial ordered on the first count of the declaration, and as orders that the costs of the first trial abide the event of a new trial. Otherwise appeal dismissed with costs.

[3]

This appeal concerns an action brought by the respondent in the Supreme Court of New South Wales to recover damages from the appellant for an injury which the respondent suffered on 12th October 1955 at the appellant's premises in Fairfield where the railway station is situated. These premises were entered by members of the public from the street, known as The Crescent, through posts erected on the frontage. The first and second posts on the left were five feet high and four feet apart and the rest of the posts were about four feet high but so arranged that only one person at a time could enter or leave through any of the spaces between them. There was no obstruction between the first and second posts, but directly opposite to them at a distance of four feet inside the frontage were two other posts, both five feet high and four feet apart, between which a beam was mortised at the height of four feet from the ground; and there was a similar beam between the first post and that opposite it inside the frontage, and between the second post and the one opposite to it.

[25]

Admittedly this entrance was within the area of the invitation implied in favour of all persons who came onto the premises for the purposes of travelling. A jury could reasonably think that all such persons would not have the same knowledge of the crossbar and that even those who were used to passing under it might misjudge the extent of the stoop necessary to avoid it when going through the entrance with the normal urgency of a passenger anxious to catch his train. Since a danger may be unusual which is familiar to the invitee who is the sufferer it seems to me to be illogical to say that it is necessary for him to show, as one element of his case, that he had no knowledge of it. I think that the mere fact that the respondent entered this entrance having some knowledge that the cross beam was part of its structure is not sufficient to establish that he accepted the appellant's invitation to go through the entrance with full appreciation of the danger of bumping his head. The invitee's conduct is not to be judged by the standard of volens, according to the view of the majority in Horton's Case [1] . Lord MacDermott strongly disagreed with this view. In Letang v. Ottawa Electric Railway Co. [2] , the Privy Council said in reference to the defence that the plaintiff knew of the danger of which she was the victim: "there is no evidence whatsoever that the appellant's wife, holding on as best she could to the handrail, had full knowledge of the nature and extent of the danger; or that, knowing this, she freely and voluntarily, with full knowledge of the nature and extent of the risk she ran, encountered the danger. As to this, it is to be noted that she was merely traversing the same steps and under the very same circumstances as many hundreds of tramway passengers. Probably the legal situation is answered by the observation already made, that neither the woman's knowledge nor will was made the subject of cross-examination at all. It rather appears that the judgments, in so far as sustaining this defence, are based solely upon the fact that there was some danger from slipperiness apparent to anybody on the steps. Unless, however, the defendant company, who had invited the woman to use that access and were accordingly bound to keep it reasonably safe, could establish that she fully knew and understood the nature and the extent of the danger and resolved voluntarily to undertake the risk, the defence fails" [3] .

[30]

It was admitted by the plaintiff that he had used the railway station almost daily for a number of years, and that he was well aware of the existence and position of the wooden bar on which he bumped his head, and Mr. Larkins devoted a large part of his forceful argument to maintaining that this knowledge was sufficient to debar the plaintiff from recovering damages in the action. For this proposition he cited a number of authorities, the most important of which is London Graving Dock Co. Ltd. v. Horton [1] . I think it unnecessary to review these authorities. Strictly speaking, I do not think it is necessary for the purposes of this case to decide whether the broad general proposition put forward by Mr. Larkins can be supported. For it certainly cannot be put more broadly than Lord Porter put it in Horton's Case [1] . His Lordship said: - "It is enough to protect the invitor from liability if he proves that the invitee knew and fully appreciated the risk" [2] . In the present case no more can be taken to be established than that the plaintiff knew of the existence and position of the wooden bar. It is not shown that he appreciated that it involved a "risk" or constituted a "danger" in any way. I think myself that, while knowledge of a dangerous state of affairs or appreciation of a risk may be relevant facts from more than one point of view, it is not really correct to say that in every case an invitor owes no duty of care to an invitee who knows that a certain state of affairs exists, and even knows that it is dangerous. An invitee, like anybody else, may suffer from a momentary inattention, or make a slight error of judgment in negotiating the danger, without being guilty himself of negligence. And there may be cases in which it may properly be found that the invitor's duty of care requires him to make allowance for such possible events, so that he cannot either escape that duty or discharge that duty by merely making sure that his invitee knows the bare facts. A trite example is that of an invitee who walks up a garden path in daylight, observes that there is a deep hole in the middle of it, and walks round the hole. He knows from that moment onwards that there is a dangerous hole in the path. Returning in darkness, he forgets about the hole, falls into it, and is seriously injured. Can it possibly be said that there can be no other result of an action brought by him than a verdict by direction for the defendant?

[46]

The respondent's injuries were sustained when he was about to enter Fairfield railway station where it was his habit to board a train on his way to work. From the evidence in the case it appears that the entrance which the respondent was using had somewhat unusual features. It is but one of the entrances to the station and it is a wide opening from which a path leads a little distance to the nearer platform. But across all but some four feet of the entrance there stood a number of upright posts so arranged, or staggered, that, although they permitted the passage of pedestrians, they constituted an impediment to the entrance of vehicles. It was, we are told, quite common for many intending passengers to come to the railway station by bicycle and they were permitted to leave their machines at the station in a place provided for the purpose inside the entrance referred to. Indeed, it had been the respondent's practice to ride his bicycle to the station but he did not leave it on the railway premises; it was his practice to leave his machine at a garage near the station. From there he would proceed on foot to the entrance already mentioned. It was not usual, it appears, for bicycles to be taken through that part of the entrance in which the posts already mentioned were erected; they were taken through the four feet space adjacent to it. In view of the manner in which the respondent's injuries were caused it is necessary that this portion of the entrance should be described with some particularity. At each side of the four feet space was a substantial post erected in a vertical position. To the rear of each of these posts was another post so that the bases of each of the four posts marked a corner of an area about four feet square. Then, at a height of somewhere between four feet and four feet six inches, a wooden rail connected each pair of posts on the side and also the two rear posts so that approaching this part of the entrance from the outside there appeared a recess about four feet square and then a rail across the back of the recess at the height already mentioned. It was through this part of the entrance that bicycles were commonly taken on to the railway property and the rear rail was there, so it seems, to compel cyclists to dismount before entering. There is no dispute that the railway station served a populous district and at peak hours large numbers of people entered and left the station. As Owen J. said in the Supreme Court the rear rail served "the purpose of preventing cyclists riding through the entrance on their cycles and thus perhaps running into persons on foot entering or leaving the station." [1] But this part of the entrance was also commonly, or, at least, sometimes, used by intending passengers unaccompanied by bicycles and it was, of course, necessary for them to stoop, or duck as the evidence calls this manoeuvre, in order to pass under the rail. It was in the process of doing this that the respondent was injured. He says that on the occasion in question he left his bicycle at the adjacent garage and then hurried to the entrance. There were, he says, hundreds of people there and he followed the crowd through this part of the entrance. He was hurrying and was right on the rail - he was about to run into it - and then "ducked his head" to save himself and "hit himself on the top" of the head. His complaint now is that the rail constituted an unusual danger and that his injury was the result of the appellant's failure to exercise reasonable care to protect him from the risks which its presence created.

[51]

In these circumstances the appellant approaches this aspect of the case with alternative arguments. Firstly, he contends that the onus lay upon the respondent to establish lack of knowledge and then it was argued that, upon the evidence, a finding in favour of the respondent on this issue was not open. This view commended itself to Else-Mitchell J. in the Full Court and he thought judgment should be entered for the appellant. The alternative argument was that even if the onus lay upon the appellant, the respondent's evidence contained a plain admission which put this issue at rest. The reasons of Jordan C.J. and Halse Rogers J. in Buckingham v. Luna Park (N.S.W.) [2] provide authority for the proposition that the onus of proof in relation to that issue lay upon the respondent. So also do the observations cited by the learned Chief Justice in the course of his reasons. But the contrary view was taken by the Court of Session in McKirdy v. Royal Mail Lines [3] and the question is a much debated one. In the present case, however, it is unnecessary for us to express a final view upon it. In the first place the appellant upon his application for leave to appeal disclaimed any intention of proceeding to a new trial and leave to appeal to this Court was granted on that understanding. Unless, therefore, he succeeds in obtaining judgment the verdict will stand. This being so we are not concerned in this appeal with the propriety of the summing-up on this point. Then, assuming the appellant's contention as to the onus of proof to be correct, we may ask ourselves whether the general knowledge which the respondent admitted concerning the presence of the rail was sufficient to prevent him from recovering. The answer - which is an answer also to the contention that he had made a plain admission of full knowledge of the so-called danger and of an appreciation of the risks involved - is that it was a matter for the jury upon the whole of the evidence to decide whether the general knowledge which he had of the entrance and its characteristics precluded him from asserting that in the circumstances as they existed on the day when he suffered his injury he did not know and fully appreciate the so-called danger. This is said, of course, upon the assumption that the presence of the rail did in fact create an unusual danger. In such case one may ask what form of warning or notice would have been required to discharge the appellant's duty to use reasonable care. Would it have been sufficient to display a notice at some appropriate place? This, it seems to me, is essentially a jury question on the hypothesis I have adopted and if, in fact, a notice had been displayed it would have been for the jury to say, within reason, whether a notice in the form employed was adequate. Again, I am disposed to think that if a notice had been displayed it may well have been for the jury to say whether the display of a notice was, in the circumstances of the case, sufficient to discharge the appellant's duty to exercise reasonable care. There was, however, no notice but, in accordance with Horton's Case [1] , the appellant says this is of no consequence. A notice or warning, it was said, could not have added anything to the knowledge which the respondent already had. But if it would have been for the jury to say whether any particular form of notice was sufficient to discharge the appellant's duty in the circumstances of the case, it was equally for them, in the same circumstances, to say whether the respondent's general knowledge of the character of that part of the entrance where he sustained his injury was sufficient to make it unnecessary for the respondent to give notice or warning of the danger. There was, it may be said, some confusion in the respondent's evidence, though there seems little doubt that a finding that he had not known of the existence of the rail would have been directly opposed to his testimony. But there is no evidence that he had ever previously used that part of the entrance where he sustained the injury and, on the whole, I think that it was open to the jury to say that his degree of knowledge and appreciation on the day in question was not such as to be fatal to his case.

[58]

There are no doubt many cases where to give a warning of danger is sufficient to discharge the duty of an invitor to an invitee so that if the invitee does what he is warned against doing, he acts at his own risk, but I do not think that this is a case where the invitor would in all cases fulfil its duty to an intending passenger by bringing to his notice the existence of the obstructing bar. To know of the bar is not the same thing as appreciating the danger of forgetting it, and it seems to me that at the least it was the duty of the defendant which maintained a dangerous obstruction to keep passengers using the enclosure conscious of the risk which they ran in doing so unless the simple expedient of stooping was taken in time. It follows that to show that the plaintiff knew of the existence of the bar did not absolve the defendant from any duty towards him: it still owed him a duty of care which the jury could find was broken by failing to bring home to him, as he used it, that a means of entry which the defendant provided for his use had to be used evasively if it were to be used safely. Had the plaintiff been effectively warned that it was dangerous to enter the station through the enclosure, it would have been a different case and the question then would have been whether such a warning was in all the circumstances a sufficient performance of the defendant's duty of care. Here the defendant does not claim it fulfilled a duty of care: it claims rather that no duty of care arose because the plaintiff knew of the existence of the bar. The duty of an invitor to an invitee is to use reasonable care to prevent damage from unusual danger of which an occupier knows or ought to know. Here the relationship of invitor and invitee existed which would ordinarily give rise to the duty, and it was the argument that in the particular circumstances it never arose that found favour with Else-Mitchell J., who adopted the propositions that an occupier is under no duty of care to an invitee who is himself careless and that the plaintiff's knowledge of the existence of the bar absolved the defendant from any duty of care.

[59]

I do not regard this as a case where it can be said that the jury could not have found that the plaintiff was not negligent even if the onus of proving this had rested upon him, but in any event I am not prepared to accept the broad proposition that there is never a duty of care owed by an occupier to a careless invitee or to an invitee who is aware of the dangerous condition of the premises to which he is invited. It is true that in South Australian Co. v. Richardson [1] , and in Bond v. South Australian Railways Commissioner [2] , Isaacs J. did use language to the effect that a plaintiff invitee must as part of his cause of action against the occupier negative a knowledge of the dangerous condition of the premises and negative negligence on his own part. In the earlier case when speaking of an invitor's alternative to making his premises safe, he said: "He has the alternative course open to him, by giving proper notice of the unusual danger, and, if he does, he cannot be held guilty of negligence with regard to safeguarding his visitor from damage. If actual notice of unusual danger is sufficient, it necessarily follows that the invitee's knowledge, however acquired, of that danger is equally sufficient to prevent him from complaining. The plaintiff's action for breach of this duty therefore includes as an essential that he, or the person he represents, was unacquainted with the danger" [3] . The decision in the case was, however, that notwithstanding the invitee's own evidence that he knew that there was some risk in using the defendant's premises, he might still recover, and so the Court there upheld the order of the Full Court of South Australia for the new trial of an action where at the trial judgment had been entered for the defendant because the plaintiff had knowledge or notice of the condition of the defendant's premises. Moreover, I prefer the judgment of Griffith C.J. to that of Isaacs J. and assuming that his Honour was referring to an unusual danger of which the occupier knew or ought to have known, I agree with the following statement of the Chief Justice: "With regard to the extent of the obligation, that is, the degree of care required of the inviter, I am of opinion that a person who provides a road or other means of access to, or egress from, his premises, and invites persons having business with him to make use of the means of access so provided, is bound as against them to take reasonable care that the means of access are reasonably safe for such use as they are invited to make of them in their apparent condition. The visitor, on his part, is bound to take reasonable care in the use which he makes of the means of access which he is invited to use. Since the obligation arises from the invitation, and is coextensive with it, it follows that, if the invitation itself is qualified by warning of danger, or knowledge of danger by the visitor, or otherwise, the obligation is qualified correspondingly. If, for instance, there is in a road which a person is invited to use any obvious defect, or defect known to him, of such a nature as to require special care in using it, the invitation is a qualified invitation to use the road with such special care as is required under such circumstances What degree of care on the part of persons using such a defective or dangerous road is reasonable in any particular case is a question of fact depending upon all the circumstances, which include their actual knowledge of the defect and the opportunity which they have of knowing it" [1] . In the same way in Bond v. South Australian Railways Commissioner [2] it was decided that an invitee's prior knowledge of a station platform from which he fell in the dark did not prevent him from recovering damages for the negligence of the defendant in omitting to light the station, and Knox C.J. and Starke J. said: "The knowledge of the appellant and any notice or warning given to him of the danger is relevant for the purpose of determining whether the respondent took reasonable care and whether the appellant chose to accept the risk or was guilty of contributory negligence, but these questions must be determined as matter of fact The error in the judgment in the Court below resides in the view that the duty of the respondent towards the appellant was discharged if the appellant knew or was informed of the danger, whereas the true rule is as already stated" [3] . Isaacs J. to the contrary said: "Where the invitee is, either by notice or knowledge cognizant of the danger he incurs, he cannot assert even an initial duty in the invitor to guard him against it" [4] . It seems to me that the actual decisions in these cases are certainly not adverse to the plaintiff here and that the reasoning of the Judges other than Isaacs J. does support his case. In Buckingham v. Luna Park (N.S.W.) Ltd. [5] , Jordan C.J. and Halse Rogers J. were of the opinion that where the invitee complains of injuries caused by an unusual danger, the burden of proof is upon him to establish that he had no knowledge or no adequate knowledge or warning of the danger. This accords with the views of Isaacs J. in the cases cited, but Davidson J. took a different view and I prefer his judgment.

[61]

It was argued that the decision of the House of Lords in London Graving Dock Co. Ltd. v. Horton [1] that the plaintiff's knowledge of the unusual risk resulting from the inadequacy of certain staging exonerated the occupiers from liability for the damage sustained by the plaintiff owing to that inadequacy established the general rule that an invitee's knowledge of what is dangerous upon premises always exonerates the occupier from liability. The actual decision there could not conclude this case because of the distinction that I have already drawn between the plaintiff's knowledge of the existence of the bar and his comprehension of the risk that he ran in entering the station through the enclosure; and because I do not share the view of Isaacs J., Jordan C. J. and Halse Rogers J. that the burden lies upon the invitee to prove that he had no knowledge of the danger, it was in this case a question for the jury whether or not he had that comprehension. I have, however, reached the conclusion that the decision of the majority of their Lordships did not go beyond denying that it was essential to an invitor's successful defence to establish that the invitee not only knew and appreciated the danger but also willingly undertook it. The contention that their Lordships accepted was, in the language of Lord Porter, "that an invitor's duty to an invitee is to provide reasonably safe premises or else show that the invitee accepted the risk with full knowledge of the dangers involved" [2] . What was rejected was that the invitor had to go further and show that the invitee accepted the risk willingly: see per Lord Porter [3] and per Lord Normand [4] . The application to this case of the principle that was accepted by the House of Lords would require the Commissioner to show that the plaintiff when he entered the station by way of the recess accepted the risk with full knowledge of the dangers involved. Whether this was shown was a question for the jury and it seems to me that it would be wrong for an appeal court to say that the jury could not have decided that this had not been shown by the Commissioner. As Lord Porter said, "the question therefore is: Did the invitee undertake the risk of performing his task with full appreciation of the danger? This, as has been said more than once, is a question of fact for a jury" [3] . In that case the trial judge so found and the House of Lords decided there was evidence upon which he could do so. The decision of the House of Lords does not govern this case and applies only when there is a finding that the invitee accepted the risk with full knowledge of the dangers involved. That it is the acceptance by the invitee of the risk that the invitor must establish to negative his liability was emphasized by the House of Lords in the later case, Smith v. Austin Lifts Ltd. [1] , in which it was decided that an occupier was liable to an invitee who knew that premises were defective, because he did not fully appreciate the danger and accept the risk.