Commissioner for Railways (NSW) v Cardy

Commissioner for Railways (NSW) v Cardy - [1960] HCA 45 - HCA 1960 case summary — Zoe

[4]

The boy had played on the site years before but he had gone to live in the country and only on the day of the accident was he renewing his acquaintance with the dump which had undergone considerable changes in the interval. The evidence bearing upon the question whether he came with the Commissioner's licence was of the sort that cases here and in England about injuries to children in open or public places have led one to expect. The children come to a place where it is evident to them, if they be old enough, as it is to everyone else, that they ought not to be. Sometimes they are chased away by men employed there or otherwise concerned in the place; sometimes that is not done and generally speaking no adequate measures are taken to keep them away. Then the courts are asked to find that a child who has been injured comes with an implied licence. In case after case the finding has been made and the child has triumphed over the objection that he is a trespasser without any relevant rights with reference to his safety. In the present instance the evidence shows rather that adults and children were apt to come to seek for trophies from the dump and the children also to watch operations and to play, but it is plain that to say that they came in fact with the licence of the Commissioner or any of his servants with authority in the matter is quite unreal. It is rather to impute than to imply a licence and it is a course I am not prepared to take, notwithstanding the jury's verdict, unless the licence be treated rather as a legal or fictional than a factual conclusion. When the distinction between invitees and licensees was taken and the respective measures of responsibility to them for the safety of the premises upon which they came were defined, the duty of an occupier of land who consented to the use of it, or to the passage over it, by others for their own purposes, purposes which involved no material interest of his own, was regarded as the outcome of his consent, which was considered as a voluntary grant to others of a benefit from which he was entitled to exclude them. A person who conferred such a voluntary benefit could by doing so incur no duty of care to safeguard those who sought or accepted it from any danger arising from the nature or condition of the premises, unless the danger lay in a deceptive appearance of safety hiding a potential cause of injury of which the occupier knew but they neither knew nor could be expected to know. It is important to mark what placed the occupier under this very limited duty of care. It was his own voluntary act in consenting to the presence of the visitors to the premises. That is why in Gautret v. Egerton [1] , Willes J. likens the case to the voluntary gift or loan of a chattel. This appears to me to be far away from the case of a public authority which manifestly does not consent to the presence of strangers but is weak in its active resistance to their intrusion which it may be obliged to suffer but never permits. In the joint reasons given in this case by the late Chief Judge in Equity (Roper J.) and Herron J. in the Supreme Court their Honours say: "In modern times the courts have shown a tendency not to regard persons as trespassers when no real objection to their presence on the land of the occupier exists" [2] . This I think is very true. But it appears to me to depart from the foundation of the principle on which a licensor's liability was erected, namely his own voluntary act in giving his consent without exercising due care by warning or otherwise to avert injury to the licensees from concealed danger of which he is aware and they are ignorant where there is a deceptive appearance of safety. The learned judges by way of justifying or illustrating the statement refer to judicial observations and conclusions in a number of well known decided cases. They are cases or statements which countenance the inference of consent or licence in circumstances where it could be but a construction placed by the law upon conduct. It must in truth be a construction placed upon conduct, because if the question were treated as an inquiry into the real will of the one party and the real understanding of the other, then the answer as a hard practical matter of fact would be inevitable, namely that there was no actual consent or licence. Suppose the inquiry be approached with a firm determination to reason from the true place in legal principle of the expression or manifestation of consent or licence to use or traverse the premises and to treat that as creating and measuring the duty of care which is incurred by a volunteer conferring a benefit. Would it then be possible to find, in a constructive or imputed consent or licence of such a kind, any foundation for fixing upon the occupier the duty of care measured according to the standard established? The truth is that the real source of the inference that a duty arose must be sought elsewhere. It is to be found in a combination of factors. There are the dangers which attend the use of the premises, the circumstance that the premises are so used or frequented and that in spite of the knowledge which the occupier has or perhaps ought to have of that fact and of the description of persons who use or frequent the premises he exposes them to the danger and takes no precautions to safeguard them. In other words it is not upon the reality of a consent or licence consisting in the voluntary grant of a gratuitous benefit or advantage that the duty in such a case is founded, the real source is an implication that is made.

[6]

Upon the facts of this case the dumping of hot ashes certain to smoulder under an apparently firm and reliable crust or surface presented an unusual and hidden danger to all who frequented the place. It is impossible to accept the view that it was a characteristic of a dump which all who came upon it should know; but at the same time it is equally impossible to suppose that by his servants and agents the Commissioner was not fully alive to the characteristic. Adults and children did frequent the place and again, by his servants and agents, of this the Commissioner was aware. One may venture to think that no person who came to the case familiar with general juristic concepts but unindoctrinated with the notion that to be a trespasser is to be caput lupinum would expect to find a system of law which denied altogether the existence in the Commissioner of any duty of any sort in reference to the likelihood of persons coming to the site and suffering grievous injury. He would find that our law has not denied the duty but has placed it upon the supposal of a licence so that there will be no trespass. But is it necessary that we should go on ever constructing the liability out of the materials that can be found for inferring, implying or imputing a licence, fictional though it must inevitably seem? In the much canvassed case of Cooke v. Midland Great Western Railway of Ireland [1] Lord Atkinson explicitly placed his decision upon the inference that the children played upon the turntable with the leave and licence of the railway company. But the inference depended upon the frequency with which children went to it and was drawn in face of evidence that they were chased away, evidence which of course was not necessarily accepted. Only with difficulty can the consent be regarded as more than constructive. Lord Collins regarded the facts as enabling the jury to infer not merely a licence but an invitation (meaning, I imagine, a tacit request); yet again, though his Lordship took the turntable to be largely frequented by children without remonstrance, it is not easy to believe an active or conscious consent was given by any officer of the company possessing the requisite authority. Lord Macnaghten's opinion, although it has since been attributed by high authority to the same inference, reads as if his Lordship disregarded altogether the character of the children as trespassers; but no doubt that explanation of his reasoning is based upon the 1 st sentence of his opinion with which, in reference to the claim that the decision might be disastrous to railway companies, Lord Macnaghten ends: "but it does not seem unreasonable to hold that, if they allow their property to be open to all comers, infants as well as children of maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission and who are unable, in consequence of their tender age, to take care of themselves" [1] . Lord Loreburn L.C. who expressed his concurrence in Lord Macnaghten's opinion, gave reasons which appear to pass by the question of licence. The case shows as one might well think that in circumstances like those of the present case liability would then have been fastened upon the defendant, even though it might be done by an inference that the intruders came by tacit licence. It is only as an example of the two possible sources of duty that I refer to the case, a source consisting in an imputed or constructive licence, far different in character from that voluntary grant of a benefit upon which the restricted duty was originally considered to arise and a source consisting in the real considerations supplied by knowledge on the part of an occupier of a grave danger threatening those whom he knows frequent his premises. Lowery v. Walker [2] forms another example, for notwithstanding that so much turned upon the note of the County Court judge the inference he drew could not have stood without evidence to support it and that evidence disclosed little or no more than knowledge that the public customarily crossed the field into which the defendant placed the savage horse.

[12]

The foregoing decisions of the House of Lords provide a lesson by example in the ways of the law when it evolves principle. The fixed rule that a trespasser comes at his own risk and that only a wilful injury to him is actionable is modified by the assimilation of "reckless disregard of the presence of the trespasser" to wilfulness. It needs no argument to show that reckless disregard of the presence of a man must include not only the case of a man who is there but also of one whose coming is expected or foreseen. But the application of the rule is modified to the point of exclusion by inferring a licence from circumstances notwithstanding the unreality of the supposition that there was any actually consenting mind or will. The process of inference is then transmuted to a different and wider conception, that expressed by Lord Goddard, conduct on the part of the occupier of such a kind that he cannot be heard to say that he did not give a licence. At that point, by precluding the denial of a licence, the law has surely reached the use of fiction, and if now we boldly look at the facts which give rise to the imposition in this manner of the liability it will be but to complete the course of development by a process for which the history of the law furnishes many precedents. It is but to attribute the liability to the constituent elements of the title to the correlative right and to explain why they create it. No doubt there is some conscious acceleration of the process and an open acknowledgment of the course pursued. But it is evident that for want of some rationalization of the kind great confusion, not to say dissatisfaction, as to the state of the law exists. Is there any reason why in Australia the step should not be taken? With respect to licensees and invitees the law has been completely changed in England by the Occupiers' Liability Act 1957 (5 & 6 Eliz. II, c. 31). What indirect effect the change may have on the practice of inferring, implying or imputing a licence from facts where no actual intention to grant a licence existed and none was expressed, it would be hazardous to prophesy. But it is at least clear that in England to impute a licence is now to place upon the occupier a duty of care measured by a much higher standard. Whatever may be the outcome it involves a distinct point of departure from the law obtaining in Australia. Why should we here continue to explain the liability which that law appears to impose in terms which can no longer command an intellectual assent and refuse to refer it directly to basal principle?

[46]

In what I have just said lies, in my opinion, the true significance, which is twofold, of the rules laid down by Willes J. about a century ago. In the present case, we are not concerned with the standard of care, or with the content of the duty owed either to an invitee or to a licensee, for the plaintiff was, in my opinion, clearly neither. But there are one or two observations to be made before proceeding. First, the duty to an invitee and the duty to a licensee are both correctly described as duties of care. It is convenient enough to speak of them as special duties, but they are not special duties lying outside the general law of negligence. The rules are concerned only with laying down the standard of care appropriate to two special classes of case. Secondly, those rules are concerned only with cases where a visitor has suffered harm through some dangerous condition of the premises. Thirdly - and this may be regarded as a corollary - they do not abrogate or supersede the general law of negligence as affecting an occupier in relation to either an invitee or a licensee. A very good illustration of this is to be found in the recent case of Mummery v. Irvings Pty. Ltd. [1] . In that case a visitor entered upon business premises with a view to doing business with the occupier. While he was there, he was struck in the face by a large piece of wood apparently ejected by a power-driven circular saw, which was in motion. It seems clear that the plaintiff was an invitee, and the jury so found. They found also (rightly, one would think) that there had been no breach of the duty of care specially defined in Indermaur v. Dames [2] as owing by an occupier to an invitee. The whole Court was of opinion, however, that, if there had been any evidence (and one Justice held that there was) of negligence on the part of the defendant's servant who was operating the saw, the plaintiff would have been entitled to recover as for a breach of the general duty of care arising from the circumstances. The Court in the majority judgment said: " the duty which the occupier of premises, as such, owes to invitees present on the premises is a separate and distinct duty from that which is involved when the servant of such an occupier causes injury to some person present on the premises by some casual act of negligence. The first duty is founded on the occupation of premises whilst the latter is not; " [1] . See also Rich v. Commissioner for Railways (N.S.W.) [2] . The special duty arises out of the relationship of occupier as such and invitee or licensee as such. The general duty arises out of a relationship created by all the circumstances of the particular case.

[48]

The two classes - invitees and licensees - are exhaustive of visitors who enter lawfully on premises. Any person who is neither an invitee nor a licensee is called a trespasser. An occupier is not expected to anticipate the entry of a trespasser, or the passage of a trespasser across his land, and he owes to a trespasser no special duty analogous to that which he owes to an invitee or a licensee, and no duty of care whatever is imposed upon an occupier by the relationship of occupier and trespasser. But, when we have said this, we have, in my opinion, said all that ought to be taken to be meant, or can today be taken to be meant, by such statements as that a trespasser enters at his own risk. There is no special duty, but circumstances over and above the character of the visitor as a trespasser may give rise to a general duty of care, with the result that an occupier is liable to a trespasser for negligence. Sir John Salmond wrote that an occupier would be liable even to a trespasser for any "positive act of negligent misfeasance", and this statement has been repeated in editions published after his death. It recognizes that an occupier may become liable for negligence even to a trespasser, and, so far as it goes, it is, I think, sound, but it does not, in my opinion, go far enough. It accounts satisfactorily for Lowery v. Walker [3] , but not for what Lord Goddard described as "that hard-worked case" of Cooke v. Midland Great Western Railway Co. of Ireland [4] . The last edition for which Salmond was himself responsible was published before Donoghue v. Stevenson [5] , and, in the light of that case, I think that the law is correctly stated in the 12th Ed. (1957) of Salmond, edited by Mr. Heuston, at p. 516. What is there said is: "The general principle" (sc. that an occupier owes no duty of care to a trespasser) "is concerned only with the incidents which the law attaches to the specific relation of occupier and trespasser and covers only cases in which the breach of duty of which the plaintiff complains arises out of the defendant's occupation or control of property, of "premises" or a "structure". There are, however, cases in which the 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 within the familiar principle expounded by Lord Atkin.".

[60]

This is an appeal from the Full Court of the Supreme Court of New South Wales unanimously dismissing an appeal against a verdict and judgment for £2,000 damages for personal injury in favour of the plaintiff (the present respondent) against the defendant (the present appellant) [1] . The litigation has proceeded, and I think properly proceeded, on the basis that to succeed the respondent had to establish that when he suffered his injuries he was a licensee upon the appellant's land and that the appellant failed to take the care that it is requisite that the occupier of land should take for the safety of a licensee. The jury by its verdict must be taken to have found both that the respondent was a licensee and that the appellant failed to observe the duty of care that it owed him as a licensee. That duty has often been stated and there are many formulations coming to much the same thing. I do not propose to add another and for the purposes of this case I think it is sufficient to make two references. The first is to what Dixon J. (as he then was) said in Lipman v. Clendinnen [2] relating to the duties of occupiers of land to those who come upon their land in various capacities and his Honour's statement of the occupier's duty to a licensee, i.e. " an obligation of reasonable care to prevent his relying upon a deceptive appearance of safety and thus sustaining harm from a danger of which the occupier is aware and he is not. The metaphor "concealed trap" has become almost a term of art for describing the danger from which the occupier must take care to protect the licensee" [3] . The second is to the opinion of the Privy Council in Perkowski v. Wellington Corporation [4] , where Lord Somervell of Harrow, speaking for the Judicial Committee, said: "The authorities on the duty of occupier to licensee were considered by Farwell L.J. and Hamilton L.J. in Latham v. R. Johnson & Nephew Ltd. [5] . Farwell L.J. quotes with approval a statement by Williams J. in Hounsell v. Smyth [6] , adopted by Wightman J. in Binks v. South Yorkshire Railway Co. [7] . "No right is alleged: it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint - that they were not churlish enough to interfere with any person who went there. One who thus uses the waste has no right to complain of an excavation he finds there. He must take the permission with its concomitant conditions, and, it may be, perils". One recognized exception to this principle is that the occupier must warn the licensee of a danger of which he knows which is in the nature of a trap. "A trap", said Hamilton L.J. [8] , "involves the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger" " [1] .

[63]

The facts are that the appellant occupied an area of some five hundred acres near the Clyde railway station. This area had for many years been used by the appellant as a dump where all sorts of rubbish, including hot ashes from the boxes of railway locomotives, was deposited. The dump was continually extended by tipping from trucks brought by temporary rails to its edge, from which further stuff was tipped over to build up an advancing face appreciably higher than the natural level of the land. By November 1953, when the accident with which this action is concerned occurred, the dump covered a large area of the land and its western face was some ten feet higher than the natural surface level. Skirting this western face of the dump there was a roughly-formed roadway which led from an entrance from Sheffield Street near the south-western corner, across the land in a northerly direction to a camp which had been established by the appellant a little to the east of the north-western corner for the accommodation of fettlers employed by it and their families. This was also a convenient route between houses to the south of the land and the Clyde railway station (which was a little to the west of the north-western corner of the land), and well-defined tracks ran west from the roadway to the north-western corner of the land. The roadway was only a few feet from the face of the dump and on the other side of the roadway the land fell away gradually to a small watercourse, Duck Creek, which formed the western boundary. On 14th November the appellant, a boy of fourteen-and-a-half, with his younger brother, came upon the land through the entrance from Sheffield Street. Their only clothing was swimming togs and shirts and they were barefooted. They followed the roadway for some distance and then, out of curiosity, turned aside and climbed the nearby face of the rubbish dump. They were on top of the dump for a short time and then decided to come down again. The point at which they made their descent was, unbeknown to them, a place where the appellant had previously tipped hot ashes which had been covered with other rubbish. The respondent's bare feet broke through the overlying crust and he was burnt by the underlying hot ash.

[67]

In finding as it did that the respondent was a licensee when and where the accident occurred, the jury may well have disregarded some of the evidence called by the appellant to show that he was a trespasser, and, upon appeal, the finding must stand unless it is not supported by the evidence as a whole taken in its aspect most favourable to the respondent. What the respondent relies upon is as follows. There were no notices warning people to keep off the land and the dump and, indeed, at the turnstile across Duck Creek near the Clyde railway station there was a notice to the effect that bicycles were not permitted. There was no gate at Sheffield Street across the entrance through which the plaintiff came upon the land. There was a substantial use made by members of the public of the roadway running from Sheffield Street to the fettlers' camp and the tracks to the Clyde railway station, and this must have been known to the appellant. Although one watchman was continuously on duty who from time to time warned people off the land, as did a detective from time to time, it is apparent that members of the public were often on the land and sometimes on the dump itself without being warned off. In particular, in addition to those who used the road and the tracks to cross the land, there had been fossickers who collected firewood, coal and other materials from the dump and to whom, it seems, those tipping rubbish sometimes threw down boxes and the like as the tipping was in progress. Although, according to the evidence of a local resident, this collecting of firewood and coal was more a thing of the past - particularly the depression years - than of 1953, the evidence could, I think, be regarded as justifying the conclusion that fossicking was still going on in 1953, albeit to a smaller degree. On several occasions, boys had been burnt in circumstances not unlike those in which the plaintiff himself was burnt, but there was no evidence that what had happened had been brought to the knowledge of the appellant. The respondent himself, although going on to the land for the first time for some six or seven years, had, when he used to live in the neighbourhood previously, been accustomed to go upon the land, including the dump, and play there, and he had done so then on many occasions without let or hindrance.

[68]

Although I think this evidence would probably have been sufficient to have supported a finding that members of the public used the roadway and perhaps other tracks on the land with the tacit permission of the appellant, I have reached the conclusion that it afforded no basis for the finding that the respondent was upon the dump itself as a licensee. At most, the evidence shows that such steps as the appellant took to keep intruders off the dump were not effective. The respondent, as plaintiff, must start with the disadvantage that not only did he have no express permission to climb upon the dump but the probabilities are that there was no implied permission for him to do so. To prove that he became a licensee - and the onus of proof lay upon him - he had to show that he belonged to a class of intruders whose habitual trespassing the appellant had tolerated and this, of course, implies that the occupier knew that there was such trespassing: see Jenkins v. Great Western Railway [1] and Matheson v. Attorney-General [2] . As Lord Justice-Clerk Aitchison put it in Breslin v. London and North Eastern Railway Co. [3] : "A practice of frequenting a particular place will not set up a right or a permission to go there unless it extends over such a period of time as will warrant the inference that it was known to the owner or his servants and acquiesced in by them. Apart from express permission, it is habitual resort to or use of a place which confers upon the person resorting to or making use of the place the character of licensee" [4] . The evidence, as I see it, fell far short of this in a number of ways, so far as the dump itself was concerned. There was evidence of trespassing upon the dump, but hardly of what could be described as habitual use, at any rate after 1945. Although it was known to the appellant that there was some trespassing, it could not have been found that the appellant countenanced it, notwithstanding that the steps it took were not effective to prevent trespassing upon the dump. Edwards v. Railway Executive [1] shows that neither knowledge that intrusions are taking place nor the omission to do all that could be done to prevent such intrusions are of themselves sufficient to justify the inference that an intruder is a licensee and not a trespasser. It can fairly be said that in this case the appellant did much less than take every possible step to prevent trespassing upon the dump and it may even be that such steps as it did take can be belittled by being described as halfhearted; but it would, I think, be going beyond the evidence to infer that the respondent went upon the dump with its assent or even with its acquiescence. The decision of the House of Lords in Edwards v. Railway Executive [1] - like the earlier decisions of the Court of Appeal in Latham v. R. Johnson & Nephew Ltd. [2] and of the House of Lords in Robert Addie & Sons (Collieries) v. Dumbreck [3] - emphasized that a court (and it was a jury finding with which the House was dealing) is not justified in lightly inferring assent to a user amounting to a licence and that such assent cannot be inferred merely from inadequate precautions to stop trespassing. This latter point appears as plainly from Lord Porter's statement [4] of the circumstances of the case of Robert Addie & Sons (Collieries) v. Dumbreck [3] as from their Lordships' statements of the law.

[70]

It was naturally enough argued that if it was open to the jury to find that the appellant assented to the respondent coming upon the land at all, it was also open to it to find that the assent extended to the whole of the land and not merely to the road and tracks. It seems to me, however, that the onus was on the respondent to show that he was a licensee at the place where the accident occurred, and that could not be discharged by showing that the appellant assented to the public using the roads and tracks upon the land. If a landowner allows members of the public to use a path across his land, it would not follow from that that he also assented to their exploring a quarry or climbing trees or playing in a pond. As long ago as 1859, Pollock C.B. in Hardcastle v. South Yorkshire Railway and River Dun Company [5] said: "When a man dedicates a way to the public, there does not seem any just ground, in reason and good sense, that he should restrict himself in the use of his land adjoining, to any extent, further than that he should not make the use of the way dangerous to the persons who are upon it and using it; to do so would be derogating from his grant: but he gives no liberty or licence to the persons using the way to trespass upon his adjoining land, and if they in so doing come to misfortune, we think they must bear it, and the owner of the land is not responsible" [1] . These words were used in relation to the dedication of a right of way, but they apply equally to assent to other persons using a road or path upon an owner's land. Jenkins v. Great Western Railway [2] is one case that recognizes that assent to entry upon land is not assent to entry upon the whole of the land. Pettiet v. Municipal Council of Sydney [3] , upon which Mr. Meares relied, is a case that depended upon its own facts and is in no way in conflict with what I have said. The following cases illustrate how an invitee or a licensee can become a trespasser either by the unauthorized use of premises or by not keeping to authorized limits - Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. [4] ; The Carlgarth [5] ; Perry v. Thomas Wrigley Ltd. [6] ; Clyne v. Podolsky [7] .

[75]

The New South Wales Commissioner for Railways is the owner and occupier of an area of about five hundred acres at Clyde, a populous industrial suburb of Sydney. In its natural state this land sloped generally from the east to the west. There it is flat and low lying, with Duck Creek, a sluggish watercourse running northwards to the Parramatta River, as its western boundary. The northern boundary is the Main Western railway line. At the northwestern corner of the land a footbridge, erected apparently by the Railways, crosses Duck Creek giving access from the land to Clyde railway station nearby. On the eastern side of the land there are railway workshops covering an extensive area. But a great part of the land has no buildings on it. Adjacent to the workshops, but somewhat to the south and running inwards some distance, are some railway lines called the interlocking yard. There from time to time obsolete rolling stock was brought to be dismantled by railway workmen. The land is bounded on the south by the back fences of houses fronting Sheffield Street which ends at Duck Creek. Before these houses were all built the land could be entered from various parts of Sheffield Street. But at the time of the accident the only opening from Sheffield Street that remained was at the end of the street near Duck Creek. There at the end of the line of houses there is a small electric power installation; and between that and the bank of Duck Creek is an open space or gateway giving access to the land. There was apparently no gate there at the date of the accident, or if there was it stood open. Before about 1947 a large part of the land was in a more or less natural state, covered in part with scrub; and with a pool of water in one place. During this period foot tracks were formed by people going to and fro across the land, mainly to Clyde railway station. The footbridge there was freely available to pedestrians. Indeed this was emphasized by a notice there prohibiting its use by cyclists. At this period, that is speaking generally before about 1947, children were in the habit, especially at week-ends, of playing on the land, roaming over it, paddling or bathing in the water hole, and often playing among the old rolling stock in the interlocking yard. Part of the land towards the north-east was used by the Railways for a rubbish tip. And from about 1947 onwards the depositing of rubbish increased, the rubbish being used as filling for building up the lower portions of the land and generally levelling it. This filling was brought in railway trucks drawn by locomotives along rails laid upon the top of the dump. These were at first moved and extended as the tip grew. Later, instead of moving the rails, a bulldozer was used to spread the contents of the trucks from where their loads were tipped. This tipping of rubbish was a large undertaking. A witness called for the Railway Commissioner gave evidence that some fifteen to twenty truck loads came in each day. A gang of five men was regularly employed emptying the trucks, with the aid of a mechanical unloader, and spreading their contents. An important component of the miscellaneous material thus deposited on the land was ashes, the rakings apparently of fire boxes and furnaces. The rest was general debris, including tins and empty wooden cases, brought from railway premises throughout the metropolitan area. The wood could be used as fire wood and some of it was collected for this purpose by adults and children. There was some evidence that at one time children were accustomed to collect wood from the tip while railway employees were working there, they assisting by throwing it out to them from the trucks. But the evidence of this seems to relate to events long before the period with which we are concerned. The children who in more recent times visited the area of the rubbish tip seem to have either done so outside working hours or gone to parts where work was not going on. They were naturally attracted to fossick round the tip, for there could be found discarded articles such as children love to appropriate, old wheels suitable for billy carts and similar treasure.

[80]

One witness, a foreman in the construction branch of the Railways, gave evidence that he had seen adults and children crossing the area, the children sometimes riding bicycles on the roadway, swimming in Duck Creek and "scrounging" at the bottom of the rubbish tip. He was aware of this scrounging as a common practice. He said that when he saw persons whom he did not know to be railway employees or connected with the fettlers' camp he would tell them to get off the land. Whether he meant that he systematically warned people off the whole area is not clear. But, whatever action he took, his intervention could only have been spasmodic, for he was stationed at Chullora seven miles away and he visited Clyde only once or twice a week. He had to supervise construction work going on, not only at Clyde, but also at Chullora and at Enfield and Yennora, all of them large areas. Doubtless he was concerned if unauthorized persons lingered near places where work was going on; but it does not appear that he was much concerned with the rest of the land. The ganger in charge of the unloading gave evidence that he kept people off the actual tipping area during working hours. Another witness was one of three men who, working in shifts, acted as watchman one at a time. He gave evidence that he used to warn people off the land. But he admitted he did not interfere with any of those - and they were numerous - who every morning and afternoon went across the land to or from the railway station. Clearly one man could not have patrolled these five hundred acres so as effectually to prevent anyone crossing or to drive off all children playing there. And it seems obvious from the nature of the watchman's duties that he was not expected to do so. During ordinary working hours he had to be near the workshops. If he then saw anyone on the tip he said he went down to tell them to get off. When work for the day finished he had to close and secure the shops. There were more than twenty-three buildings in the area, for the security of which he was responsible. His interest in the tipping area after work ceased was, as he put it, simply to see that nobody was "poking around down there; there is valuable machinery down there". He was alluding to the bulldozer and the mechanical unloader. His main concern was, clearly enough, the railway buildings and equipment, rather than the exclusion of the public from the vacant land. He knew that children did play on the tip. "Kiddies," he said, "take a short cut over the top of the tip or play on the tip". There was ample evidence of this.

[86]

The second count describes the premises as in the first count. It then alleges that the plaintiff "lawfully entered on the said railway yards yet the defendant his servant or agents wrongfully suffered a certain heap of hot ashes to remain in the said railway yards without any means to prevent persons from falling against walking on or sinking into the same or any warning that the said ashes were hot whereby the plaintiff whilst lawfully in the said railway yards came into contact with the said heap of ashes ". Apart from what may be extracted from the word "wrongfully", this count seems to me scarcely to allege facts from which a duty either to remove the ashes "suffered to remain" or to fence or warn would clearly arise. It does not allege that to the defendant's knowledge the ashes were likely to prove dangerous nor that persons were to the defendant's knowledge or with the defendant's leave and licence accustomed to go where the ashes were: cf. Cornman v. Eastern Counties Railway Co. [1] . A count modelled on that suggested by Willes J. in Corby v. Hill [2] , as amplified by Brett M.R. in Heaven v. Pender [3] , might have more appropriately stated the plaintiff's case. However, the defendant pleaded over; and, in addition to a plea of not guilty by statute, expressly traversed most of the allegations in both counts, including the allegations that the plaintiff lawfully entered the railway yards and was lawfully there. The plaintiff joined issue; so that the case went to trial on the issue, among others, whether at the time he was injured the plaintiff was lawfully on the land. At the outset of the trial counsel for the plaintiff sought leave to amend the declaration by adding a third count. Counsel for the defendant objected to this. We do not know what form this proposed count took, except that it did not allege that the plaintiff's presence on the land was lawful. The learned judge deferred his decision on whether to allow the amendment until the plaintiff had closed his case. He then, after hearing argument, refused it. His reasons for doing so are not in the material before us. At the end of the evidence the defendant's counsel asked for a verdict by direction. His Honour refused this, and the matter therefore went to the jury under his Honour's direction on two issues as affecting liability. First, was the plaintiff lawfully on the land? His Honour put this to the jury as meaning, had he the implied or tacit permission of the defendant to be there. Secondly, was there a concealed trap or hidden danger as a result of which the plaintiff suffered injury? The jury found a verdict for the plaintiff.

[88]

The argument on this appeal was, however, not strictly confined to the issues raised by the pleadings, but dealt with the matter more broadly. And we may I think first approach the question as if the declaration were amended to allege in substance the facts given in evidence. That was the course adopted in Indemaur v. Dames [1] where the matter arose on a motion for a non-suit pursuant to leave reserved [2] : cf. Mummery v. Irvings Pty. Ltd. [3] . It is appropriate here because fundamentally the plaintiff's cause of action was in negligence. The special rules concerning the duties that occupiers owe to persons who in different characters - as trespassers, licensees or invitees - come within the range of dangers on their lands are part of the law of negligence (Glasgow Corporation v. Muir [4] ; Transport Commissioners of New South Wales v. Barton [5] ; Salmond on Torts 12th ed. (1957), p. 478). That this is so has not always been generally recognized, because strict formulae prescribing differing standards of care seem out of harmony with the more flexible general principles that to-day govern the law of negligence and determine the scope of the correlative concept of a duty of care. Yet statements of an occupier's duty to lawful visitors to his premises - invitees and licensees - were in reality among the first fruits of the nineteenth century development of the law of negligence in actions on the case. The landowner's right to do as he liked upon his own land and to use it as he wished was then modified by a duty to consider the safety of those who might lawfully come there - a duty measured by a standard of care appropriate to the character or capacity in which the visitor came. This duty was independent of contract. It was asserted, not in assumpsit, and not in trespass, but in case. This is brought out in the well-known passage in the speech of Lord Uthwatt in Read v. J. Lyons & Co. Limited [1] , in the course of which he said: "The background is the original freedom of the landowner, keeping within his own bounds, to do what he liked with and on his own, the King's law, save in felonies and trespass actions, stopping at his boundary. With the development of the law and the appearance of the conception of negligence as a general ground of liability, that freedom of action without liability for resulting harm has been curtailed, and to the rights of a landowner, now represented by the occupier, there have been attached the duties of a host" [2] .

[90]

This nineteenth century invasion of the landowner's preserves by actions on the case for negligence occurred, however, before such actions were all ascribed to one general principle of liability. Indemaur v. Dames [3] was decided seventeen years before Lord Esher, then Brett M.R., said in Heaven v. Pender [4] , that "whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger" [5] . Lord Esher's colleagues on the Court, Cotton L.J. and Bowen L.J., expressly declined to concur in this. So that not until the famous pronouncements in the House of Lords in Donoghue v. Stevenson [6] and Bourhill v. Young [7] could the law of negligence be stated confidently in terms of a general principle. In the meantime decisions concerning the liability of an occupier to those who come upon his land seemed to have reduced this branch of the law to a formulary. The duty of the occupier is, however, rooted at bottom in his duty to his neighbour in Lord Atkin's sense. For, as Dixon J., as he then was, said in Lipman v. Clendinnen [1] , "The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises". [2] The formulary rules really do no more than state what the law has determined a reasonable man must do to discharge a duty of care arising in particular circumstances. And they are decisive only in cases where the plaintiff's case is founded upon the duty of the defendant as occupier for the safety of his premises. A plaintiff who can rely on a duty of care arising in particular circumstances is not to be defeated merely because the defendant is the occupier of the land on which he came to harm. His presence upon the land and the circumstances in which he came there may be merely elements in a total situation from which a duty of care arises, and not the foundation of the defendant's duty of care. As Taylor J. expressed it in Commissioner for Railways (N.S.W.) v. Hooper [3] , "circumstances may arise, unrelated to questions of the safety of the occupied premises, in which the obligations of the occupier for both negligent acts of commission and omission fall to be determined in accordance with the general principles of liability for negligence" [4] . Furthermore merely putting a plaintiff who sues an occupier into his proper order in the tripartite hierachy of invitee, licensee or trespasser may not be conclusive of the standard of duty an occupier owes to him. For, as will appear, sometimes plaintiffs who strictly were trespassers have, for reasons of humanity, been classified as licensees. And sometimes true licensees may, by the terms of their licence, be allowed upon the premises only at their own risk, and thus, if injured, be in no better position than a mere trespasser would be. This may be the result of express stipulation, as for example in Ashdown v. Samuel Williams & Sons Ltd. [5] ; or a similar condition might, I consider, be by implication annexed to a licence, at all events in Australia. For example, a station-owner, holding an area of say fifty thousand acres, might well have no objection to anyone walking or riding through his paddocks, provided he shut the gates and did not disturb the stock. But would he therefore be obliged to warn everyone who might avail himself of this licence of every hidden danger, natural or created by man, that the land might hold for him his horse or his dog - of quicksand in the creek, of the bridge become rotten, of the coils of barbed wire hidden by long grass near the sliprails, of dingo traps set? Surely not. Even the obligation to warn of poisoned baits, whether arising by statute or at common law, seems, ordinarily and in the absence of malice, to exist only when they are laid on public land or near a road or a boundary (N.S.W. Act No. 19 of 1902; Townsend v. Wathen [1] ; Hutchins v. Maughan [2] ).

[96]

A trespasser is not necessarily a bad man. A burglar is a trespasser; but so too is a law-abiding citizen who unhindered strolls across an open field. The statement that a trespasser comes upon land at his own risk has been treated as applying to all who trespass, to those who come for nefarious purposes and those who merely bruise the grass, to those who know their presence is resented and those who have no reason to think so. All are alike, so it is said, debarred in law from complaining of the condition of the place where they trespass; but some, children especially, have in fact been allowed more readily than others to shed their disability. The trespasser's disability is a consequence of the landowner's or occupier's rights in his land. It is not the penalty of wrongdoing. A trespasser is not deprived of rights because he trespasses; but by trespassing he gets no rights against the occupier of the land where he trespasses. That is all. "A trespasser", said Maule J. in delivering the judgment of the Common Pleas in Barnes v. Ward [1] "is liable to an action for the injury which he does: but he does not forfeit his right of action for an injury sustained" (and see Henwood v. Municipal Tramways Trust (S.A.) [2] ). Thus, it is only a defendant who is an occupier who can answer a plaintiff by saying, you were a trespasser. It is no answer to an action for negligence against A that at the time of the injury the plaintiff was trespassing on the land of B. This hardly needs authority; but it has been decided (Buckland v. Guildford Gas Light & Coke Co. [3] ; Farrugia v. Great Western Railway [4] ). In actions against persons other than the occupier, the fact that the plaintiff was a trespasser may be relevant to the question whether his presence in the area of danger was so reasonably foreseeable as to make him a "neighbour". And, on the other hand, the occupier's immunity from actions by trespassers may be qualified if he knows that they are, or very probably may be, present. But the immunity itself is not the consequence of an assumption that people will not trespass, although it has sometimes been thus explained. For example, in United Zinc & Chemical Co. v. Britt [5] , a case often referred to by English lawyers since Sir Frederick Pollock brought it to notice by a footnote in the law reports [6] , Holmes J., in giving the opinion of the Court, pointed out that there was no evidence of children being in the habit of going near the poisoned pool. Speaking of trespassers, he said "the owner of the land would have owed no duty to remove even hidden danger; it would have been entitled to assume that they would obey the law and not trespass" [1] . With all respect, this seems to rationalize the rule rather than explain its origin. That, as I have said, lies rather in the rights of a landowner in his land. Dallas J. stated it plainly in 1817 in Deane v. Clayton [2] : " I may, with any view, and for any purpose, place logs on my own land, and a party having no right to be there, and sustaining damage by his own trespass, cannot bring an action for the damage so sustained" [3] . That is as applicable to heaps of ashes as to logs. But it is not the end of the matter; for the developing common law of negligence in this industrial age has been able to ameliorate the lot of the trespasser who is injured, yet leave apparently unaltered the fundamental rule that a person who goes unlawfully on the land of another does so at his own risk. In three ways plaintiffs have been enabled to avoid foundering on the rock that they were trespassers.

[98]

First, courts have been ready to treat as "reckless" or "malicious", and thus matters of which even a trespasser can complain, any acts done by the occupier that are fraught with danger to anyone, whether lawfully on the land or not, whom the occupier knows is, or very probably may be, within the area of danger. That is how Viscount Dunedin in Robert Addie & Sons' Case [4] explained the decision of the Court of Session in Haughton v. North British Railway Co. [5] . That was not a decision on the facts, but a judgment on a reclaiming in respect of a plea to relevancy. The critical averment was that the defender's servants knew that children were on the line when they began shunting. "In other words", said Viscount Dunedin, "that was malicious injury to a trespasser" [6] . And in Excelsior Wire Rope Co. v. Callan [7] he again spoke of "acting so reckless as to amount to malicious acting" [8] . In cases of this kind the injury occurs not because of the condition of the premises, but as a consequence of something done by the occupier while the plaintiff was upon the land. Mourton v. Poulter [9] is a familiar example. The "reckless" conduct, however, may sometimes seem to be little more than a want of reasonable care - measured by all the circumstances - for the safety of a person who, as the occupier knows, may be harmed by what the occupier is doing: see Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. [1] per Lord Atkin [2] ; Transport Commissioners of New South Wales v. Barton [3] per Dixon J. [4] ; Rich v. Commissioner for Railways (N.S.W.) [5] , cf. Harrison v. North Eastern Railway Co. [6] , where people habitually crossed the railway line, but not at any particular place, and there was no negligence. But none of this, it seems, would have availed the plaintiff in the present case if he were a trespasser; for he was not injured by any activity of the appellant while he was on the land. He was, however, injured because he had no warning of dangers created by the appellant in the conduct of its enterprise; and that brings up for consideration the second course by which a plaintiff can avoid the trespasser rock.

[100]

Secondly, are the cases in which, although the plaintiff is a trespasser and the defendant an occupier, the facts attract some category of the law of torts and some concept of duty transcending the special rules concerning the duties of occupiers to entrants: e.g. Thompson v. Bankstown Corporation [7] . Lynch v. Nurdin [8] was really a case of that kind. So also are cases in which the negligence alleged lies, not in a failure to care for a person who comes into a place of danger, but in a failure to take reasonable means to warn him of the risk of doing so. No man has a duty to make his land safe for trespassers. But, if he has made it dangerous and the danger he has created is not apparent, he may have a duty to warn people who might come there of the danger of doing so. Whether there be such a duty in a particular case must depend upon the circumstances, including the likelihood of people coming there. But if they would be likely to come, the duty does not, in my view, disappear because in coming they would be trespassing. It is a duty owed to likely comers, to those who would be intruders as well as to those who would be welcome. That there may be such a duty is implicit in the early decisions about spring-guns and dogspikes. Whether a trespasser who was injured could recover or not depended at common law upon whether notice had been given him of the presence of those dangers on the defendant's land (Bird v. Holbrook [9] ). Scott L.J. in his dissenting judgment in Adams v. Naylor [10] showed the relevance of this to the present question. There two boys in 1942 went upon a mine-field that the military authorities had laid upon sand dunes on the coast of England. They had been playing near the mine-field and entered it to recover their ball. They were able to do so because in one place a short length of the fence - apparently of triple concertina barbed wire, six feet high and six feet thick - had become almost wholly buried under a sand drift. A warning notice board at that point had also become in part obscured. But, apart from this space of some fifteen yards, the fence was clearly visible, for the most part to its full height. There were red notice boards at intervals along it, and warning had been given in the schools in the neighbourhood. Morton J., as he then was, said that he had no doubt that the boys knew perfectly well that they were going upon forbidden ground. Scott L.J. took a rather different view of the facts. The appeal to the House of Lords turned upon the effect of the Personal Injuries (Emergency Provisions) Act 1939, and not on the question of common law duty. Lord Morton's statements that it was not the duty of the military authorities to make it impossible for children to enter and that there is no fourth class of persons coming between licensees and trespassers who must be effectively prevented from becoming trespassers must, I would most respectfully say, surely be right - just as was Lord M'Laren's statement in Haughton's Case [1] : "I cannot see how the circumstance that people trespass on a line imposes on the company the obligation of paying a man to keep them off." [2] .

[102]

But that does not really touch the present question. I do not see how, speaking generally, there can be a duty either to prevent people trespassing or to make the premises safe for those who do. But the duty that I think can, in appropriate circumstances, exist is a duty to warn persons coming upon premises of hidden dangers they may encounter there, when those dangers are not natural features of the land but arise from conditions created by the occupier. Such a duty is not necessarily discharged by posting notices such as "trespassers will be prosecuted"; for the warning required is not that trespassing is not tolerated but that entry may be dangerous. One test whether such a duty exists at common law may lie in determining whether or not an occupier seeing a man or a child about to run into some hidden danger that he has created on his land may fold his arms and close his mouth and let him go unwittingly to harm just because he is a trespasser. I do not overlook the fact that there are some statements that would suggest that such passive indifference does not give rise to any legal liability. But there are also grounds for a more humane view that accords I believe with the true principles of the common law. For example, Bayley J. in Ilott v. Wilkes [1] said: "if, indeed, the defendant had been present, and had seen a trespasser enter, and had the means of preventing the injury, and had not done all in his power to prevent it, unquestionably it might have been considered as proceeding from his own act." [2] . In Kimber v. Gas Light & Coke Co. [3] , the plaintiff was lawfully on the premises, as each of the judgments mentions; but Bankes L.J. said that the obligation to give a warning arose quite independently of the occupation of premises and did not arise out of any invitation or licence. In A. C. Billings & Sons v. Riden [4] the general duty of contractors doing work to exercise reasonable care not to expose people to danger was stated by Lord Reid, in whose opinion Viscount Simonds concurred, as a duty to all persons who might be expected lawfully to visit the premises. Others of their Lordships did not refer to this aspect. And in the Court of Appeal Denning L.J., as he then was, had, referring to authorities, stated the matter more broadly "as a duty which rests on anyone who does work on the land, including the occupier himself. If the occupier does work on his own land he is under the same duty as a contractor. The reason is because the duty arises, not out of the fact of occupation, but out of the fact that he is doing work which he knows or ought to know may bring danger to others; and that gives rise to a duty of care " [5] and: "The defendants are liable, not because they are occupiers, but because they created a dangerous state of things and they are under a duty to use reasonable care to prevent damage from it " [6] This accords with the reasoning in Thompson v. Bankstown Corporation [7] . For example: "A man or child may be infringing upon another's possession of land or goods at the time he is injured and it will be no bar to his recovery, if otherwise he can make out the constituent elements of a cause of action" (per Dixon C.J. and Williams J. [8] ); and, "It cannot avail the respondent to point to the comparatively narrow duty which an occupier owes to a trespasser where there is no source of obligation but the relation which the trespass itself creates" (per Kitto J. [9] ). The present respondent, therefore, might have - and possibly if an amendment to his declaration had been allowed would have - sought to avoid foundering on the rock that he was a trespasser and to get past it by basing his case on the absence of any warning of the danger of the hidden fires.

[104]

But he chose the third course around that rock. He said he was a licensee. He relied upon what Professor Fleming James, in a learned and comprehensive survey of the development in America of this branch of the law, has called the "re-classification of trespassers" (Yale Law Journal (1953) 63144, at p. 180) - "Often this re-classification has involved a continued formal acceptance of the old categories, but with the transfer of a class of trespassers to a more favoured group" (p. 181). Another American writer has said that "in the majority of cases in which an owner's duty to a "licensee" has been judicially discussed, the so called "licensee" has been a mere tolerated trespasser" (Professor Bohlen, Studies in the Law of Torts, p. 176). It may be that in England and in this country this has not been so in the majority of cases. But it has been so in very many. Since Lowery v. Walker [1] , occupiers who acquiesced in persons habitually trespassing have often been treated as impliedly permitting this, and the trespassers have thus been raised in status to licensees. Sometimes, even when trespassing was not acquiesced in but was resented, the trespassers have nevertheless been classified as licensees on the ground that the resentment was not made sufficiently manifest and the trespassing was not combated with sufficient vigour. The Law Reform Committee in its Third Report (1954, Cmd. 9305) refers to the "cases in which under the law as it stands, trespassers are held to have been converted into licensees through permission inferred from acquiescence on the part of the occupier" and remarks upon "the dubious character of the inference of tacit consent in some instances" - a description that is, I think, so mild that it is hardly accurate. Many of the cases do not really depend upon the implication in any proper sense of a licence, because there could be no true implication that consent was given when the facts show positively that consent, if asked for, would have been withheld. These cases really depend, as counsel for the Railway Commissioner put it here, not on implied permission, but on permission imputed to the occupier because he has known that people were accustomed to enter his land and has taken no measures, or no strong measures, to deter them. The difficulties of this doctrine of a tacit licence are greatest in the region where it has been most readily applied - the young child trespasser. The decision of the House of Lords in Edwards v. Railway Executive [2] , has now set some limits to it. That case, however, really bears no resemblance to the present case. The facts there, as stated by Lord Porter, were that the boy who was killed by the train knew that the railway fence he got through was there to keep him and other children out. He knew that it was wrong to go on the railway embankment and that he had no right to do so. He knew that it was dangerous to cross the railway lines. He was not allured into danger. He went to get his ball. It is obviously impossible, it seems to me, if words be used with anything like their proper meaning, to describe a person whether adult or child, as being by leave and licence in a place where in fact he had no permission to go and knew that he ought not to go. That was so in Edwards v. Railway Executive [1] , and it was so too in Hardy v. Central London Railway Co. [2] , where the children were shown to have been well aware that they were forbidden to play on the escalator. But here the facts are different. There is no positive reason here against finding that the plaintiff was a licensee "in the sense of the decided cases", as Viscount Dunedin expressed it in Excelsior Wire Rope Co. v. Callan [3] . The time has come to discard this fictional sense; for in cases like the present the liability of the defendant does not in true principle depend upon determining as the first and critical question whether or not the plaintiff was a trespasser. The true question is rather, has he been adopted by the defendant as a "neighbour". Yet, as the authorities stand, the case for the plaintiff might be put, as it was put, on the conventional basis that he should be considered a licensee.

[106]

I turn, therefore, to see whether, on that basis, there was evidence to support the jury's verdict, although strictly I think the plaintiff was a trespasser. The evidence would clearly justify a finding that there was a general licence to the public to use the road across this railway land as a way to and from the railway station. The open access to the land; the notices forbidding cyclists, and thus impliedly permitting pedestrians; the use of the way every morning and afternoon by numbers of people without interference - all these not only justify such a conclusion, they make any other conclusion unjustifiable. "In a frequented neighbourhood and where the owner or occupier may be supposed to know that others regularly enter it and he does not object, an open field may be enough to prove that persons, who would otherwise have been trespassers, in fact enter it by his tacit permission and are licensees" (per Lord Sumner, then Hamilton L.J., in Latham v. R. Johnson & Nephew Ltd. [4] ). But the more difficult question is whether there was any licence to use the land except as a way, any licence, that is, for the plaintiff to leave the road and go upon the area of the dump. The evidence, I think, justifies a conventional finding that there was, for the following reasons: The land as a whole was used by children as a playground; and use as a playground is essentially different from use as a way; and that children were accustomed to go upon the dump and to fossick around it was well known to the servants of the Railway Commissioner. In Gough v. National Coal Board [1] Singleton L.J. said "There is evidence that on some occasions children were chased away. Whether that was sufficient in the circumstances is a question of fact" [2] . And so too here. The plaintiff had never been chased away. There was no fence, nothing to suggest to him that he was confined to the land below the bank. When he went up the bank he merely indulged the natural curiosity and venturesomeness that, fortunately for the nation, boys have. If there be a general licence to go upon land some reason must be shown for excluding a particular part of it (Gough v. National Coal Board [1] ). If the plaintiff came lawfully upon the land as one of a class permitted to play there, he did not become a trespasser when he went upon that part of it likely to prove most attractive to him, there being, when work was not in progress, nothing to indicate that it was barred to him. The only question on this aspect of the case was whether an invitation to the plaintiff to come there to play could be imputed to the defendant. That was a question of fact for the jury.

At a glance

Court

Decision date

Before

Source

Judgment (113 paragraphs)

Parties