Cons FRomeoy FansRomeo' Eorsatvaton' | Cons Romeo v ry Conservation sonserigsion Commission ' Conservation - [1939] HCA 20 - HCA 1939 case summary

Cons FRomeoy FansRomeo' Eorsatvaton' | Cons Romeo v ry Conservation sonserigsion Commission ' Conservation - [1939] HCA 20 - HCA 1939 case summary — Zoe

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premises, there may be an express or implied term of the contract which entitles him to expect from the occupier of the premises the exercise of a particular degree of care (Francis v. Cockrell (1) ). But there is another class of person not comprehended within the classifications mentioned - persons who enter premises which are not private premises and enter them as of right as members of the public. There has not been established any general principle of law which is applicable to all such persons. Discussions of the questions which arise will be found in Salmond, Law of Torts, 8th ed. (1934), pp. 508, 509, and Winfield, Text-book of the Law of Tort (1937), pp. 596 et seq. Such a person is certainly not a trespasser. It would appear to be equally plain that, if he observes any conditions which are attached to his right to enter, he is not a bare licensee. In Purkis v. Walthamstow Borough Council (2) the view of Greer L.J. that the plaintiff was only a bare licensee was apparently based on the fact that the plaintiff was over the age of twelve years and that the use of the municipal playground on which he was injured was restricted to children under the age of twelve years. The view that such a person is an invitee appears also to be unreal. It may be that the standard of care to be exercised in his case is the same as that which is to be observed in the case of an invitee, but there is a very large measure of fiction in allowing the liabilities of persons in the category mentioned to be determined upon the basis of a supposed invitation to the community as a whole. An occupier of private premises may give no licences and issue no invitations to any persons, or he may, at will, withdraw any licences given or invitations issued. But the occupier of premises to which members of the public have a right of access cannot, merely at will, exclude them from such premises. If a member of the public entering upon such premises were charged with trespass, his defence would not be that he had been invited by the occupier of the premises to enter upon them, but simply that he was entitled as of right, apart from any invitation, express or implied, to be upon the premises for the purpose for which he had entered them. I therefore conclude that persons who enter premises as of right as members of the public cannot be satisfactorily included in any of the three classes to one

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been vested either directly in the council or in the trustees of the Gordon Road District by a proclamation. An officer of the Public Works Department informed the plaintiff's solicitors that no such proclamation had been made, and the matter was then allowed to rest so far as the council was concerned. But, after the period of three months mentioned in the section had expired, the plaintiff's advisers telephoned to the council clerk and were immediately informed that the council had made by-laws for the management of the wharf. These by-laws were in fact displayed upon the jetty itself. Such by-laws could be made only if a proclamation had been made under the Roads Act. Subsequently the proclamation of 1889 was discovered. The contention for the plaintiff is that the fact that he was misled by a public department which ought to have known the facts (and which professed to know the facts) is a sufficient excuse for failing to give notice of action to the municipality. I have had a considerable degree of doubt upon this matter. In my opinion there was a lack of vigour in prosecuting necessary inquiries, but I am not prepared to dissent from the unanimous opinion of my colleagues that these facts constituted a reasonable excuse. I desire, however, to add that the fact that the defendant was not prejudiced, as to obtaining evidence or otherwise, by the failure to give notice does not appear to me to be a relevant matter in deter- mining whether or not there was reasonable excuse. The operation of the statute does not depend in any degree upon prejudice to the defendant. Prima facie the municipality is entitled to suppose that it is free from the risk of actions in relation to any particular event to which sec. 231 (2) applies as soon as three months from the event have expired. If prejudice to the defendant is an element in the consideration of the matter, then the loss of the protection afforded by the section is always prejudicial. But, as I have said, the protection given by the section does not, in my view, depend upon any such considerations.

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erected for the purpose of profit, though some money may have been collected by way of tolls or charges. Members of the public were under no obligation to use the jetties, but they could do so for their own convenience or for business if they so pleased, but invitation or licence on the part of the Government in any ordinary sense there was none. The public exercised a sort of common right ; the jetty was thrown open for public use. Apart from authority I should feel inclined to say that the law should not and does not in these circumstances impose upon the Government any duty towards the public to repair the jetties or to take reasonable care that persons and vessels using them might do so without danger to themselves or their vessels ; the public, I should say, use them at their own risk so long as the Government and its officers do no positive act by which any member of the public comes to harm. But this view cannot be supported in the face of the decision of the Judicial Committee in R. v. Williams (1). In that case the Government of New Zealand had the control and management of a tidal harbour which the public had a right to navigate without payment of harbour dues. It had erected staiths or wharves for the use and accommodation of vessels frequenting the port and received wharfage and tonnage dues in respect of vessels using them. Alongside the staiths or wharves there was a snag lying at or near the bottom of the harbour, and of this snag and the danger thereby occasioned the Government or its officers had notice but suffered it to remain and gave no warning to the public or masters of vessels using the staiths or wharves. Whilst shifting his berth a vessel using the staiths or wharves, whose master had no knowledge or notice of the danger, struck this snag and was damaged. "The present case," said their Lordships, "differs from the Lancaster Canal Co. v. Parnaby (2) and Mersey Dock Trustees v. Gibbs (3), in that their are no harbour dues and the public have a right to navigate subject to harbour regulations but the harbour is under the control and management of the Executive Government which has power to remove obstructions in it. The staiths and wharves belong to the Executive Government which receives wharfage and tonnage dues in respect of vessels using them.

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Government and the manager of the Railway Department directs where vessels which are to load with coals shall be placed. It appears to their Lordships that this case is within the principle upon which the above cases were decided and upon the facts proved they are of opinion that the law imposes a duty upon the Executive Government to take reasonable care that vessels using the staiths in the ordinary manner may do so without danger to the vessel." A relationship of duty arose between the Government and the owner of the vessel damaged inasmuch as the Government controlled and managed the harbour, which the parties had a right to use, also the staiths and wharves belonging to the Government and for which they received wharfage and tonnage dues. The duty cannot be confined to vessels ; it must cover the lives and limbs as well as the property of the owners using the staiths and wharves in the ordinary manner. The fact, however, of a profit being made or not made makes no difference in principle (Mersey Docks Trustees v. Gibbs (1) ). The principles on which Lancaster Canal Co. v. Parnaby (2) was decided is thus stated by Tindal C.J.: "The common law, in such a case, imposes a duty upon the proprietors, not perhaps to repair the canal, or absolutely to free it from obstruction, but to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate without danger to their lives or property . . . they are responsible upon a similar principle to that which makes a shopkeeper, who invites the public to his shop, liable for neglect on leaving a trap door open without any protection by which his customers suffer injury" (3): Cf. Latham v. R. Johnson & Nephew Ltd. (4). So in the case now before us the Government erected a jetty in waters navigable by vessels of light draught and allowed the same to be used by the public under regulation, in some instances possibly without charge and in others subject possibly to various small charges and dues. But in principle the case cannot be distinguished from the decision in R. v. Williams (5), and when the control and manage- ment of the jetties was transferred to the municipalities the same (1) (1866) L.R. 1 HLL. 93. (3) (1839) 11 A. & E., at p. 243.

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It may maintain, repair and extend the jetty or wharf. Under the power to make by-laws, it may regulate the use of the jetty and, for some forms of use, levy tolls and charges. Its control and manage- ment enables it to give directions when and where boats should moor and people should go, to exclude persons who go upon it for purposes not belonging to a jetty and to take measures for the safe custody of goods and for the safety of persons. But all this must be done in the public interest, and the council has none of the general rights or privileges of ownership. It is difficult to find in the provision by government of a wharf or jetty for a small coastal or waterside township in Australia any substitution of a public or corporate undertaking for the work of individual enterprise. The Mersey Docks Trustees may, in 1866, have looked like a governmental substitute for a dock company, but at no time could it have seemed possible that a jetty, at such a place as Woodbridge, was anything but a government or municipal work. At the same time the result of the statute is to give into the control and management, that is the occupation, of the municipality premises used by the public as of common right and to arm the municipality with all the powers and authorities needed to make the use of the premises safe. For a public body to stand in such a relation to premises devoted to public use is no longer exceptional. Parks, gardens, playgrounds, shelters, swimming-pools, public picture galleries and public libraries are examples of places which are not highways but to which members of the public may go as of right. More often than not the care and management of, if not the property in, such places have been vested by or under statute in a corporation or in trustees who are obliged to give free access to the public, but who have full powers of mainten- ance and repair, as well as of management. The nature of the body as well as of the place must be considered, but, speaking generally, unless some other intention can be collected from the statute, a duty of care for the safety of those using the place must, I think, be cast upon the corporation or trustees by the very situation in which the statute has put them. They are in charge of a structure provided for the use of people who must, in using it, rely upon its freedom from dangers which the exercise of ordinary care on their own part

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dangers, it will become a source of injury. The body to which the statute has confided the care and management of the place alone has the means of securing the users against such injury, the risk of which arises from continuing to maintain the premises as a place of public resort and from the reliance which is ordinarily placed upon an absence of unusual or hidden dangers by persons making use of structures or other premises provided for public use. The general grounds for regarding the situation as throwing a duty of care upon the public authority appear in the already well-known statement of Lord Atkin in Donoghue v. Stevenson (1), and the more particular application of the principles there formulated to occupiers of premises will be found in a passage in the judgment of Bowen L.J. in Thomas v. Quartermaine (2) : - *' The common law imposes on the occupier of premises no abstract obligation at all as to the state in which he is to keep them - provided that he carries on no unlawful business and is guilty of no nuisance. In the case of premises that contain an element of danger, a duty arises as soon as there is a probability that people will go upon them : but it is a duty only towards such people as actually do go. It is not a duty in the air, but a duty towards particular people. The occupier is bound to use all reason- able care to prevent such persons from being hurt. It is obvious that this duty must vary according to the character of the danger, and the circumstances under which the premises are to be visited. It differs in the case of hidden dangers, and the case of dangers that are palpable and visible: it may vary according to the age and comprehension of the visitor: in the case of bare licensees, and of those who come on the premises on the occupier's business and at his invitation. The only obligation on the occupier is to take such precautions as are reasonable in each instance to prevent mischief, and this is but the adaptation to a special case of the general doctrine sic utere tuo ut alienum non laedas." But it is one thing to impute in general terms a duty of care and another to define its measure. It is commonly said that the occupier of premises has a distinct and (1) (1932) A.C., at pp. 579-582. (2) (1887) 18 Q.B.D., at pp. 694, 695.

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and three only, invitees, licensees and trespassers. This classifica- tion disregards the distinct measure of duty which an occupier incurs to one who obtains admission by paying for it, the typical case of the man who pays for admission to a spectacle or an amuse- ment (Francis v. Cockrell (1) ). Tt omits the different measure of duty in respect to the safety of the premises which a master owes to his servant : Cf. Jury v. Commissioner for Railways (N.S.W.) (2). I think it also fails to take into account the duty of care owing by an occupier of premises to members of the public coming thereon as of common tight. There has recently been an attempt to refer cases of this sort to one or other of the categories of the threefold classification, an attempt made out of deference to the authority with which it has been declared that no more than three classes can exist. Cases have arisen out of accidents in children's public playgrounds and the like, and these it has been sought to place either in the category of invitor and invitee or of licensor and licensee (Purkis v. Walthamstow Borough Council (3); Ellis v. Fulham Corporation (4); Coates v. Rawtenstall Corporation (5) ) - Ct. Nickell v. City of Windsor (6) (a public library) and Pettiet v. Municipal Council of Sydney (7) (a park). But in Purkis' Case (8) the present Lord Chancellor expresses a " strong inclination to hold" that such a case is outside the three categories and involves a separate measure of duty, because the corporation is in a different position, exercising powers in the interests of the public and providing playgrounds upon which children have a qualified right to enter in accordance with the regulations. A consideration of the nature and foundation of the duty of a licensor to a licensee and of an invitor to an invitee appears to me to show that his Lordship's view is clearly right. An occupier who grants a bare licence to enter upon his premises incurs a very low measure of duty for the safety of the licensee, because the former is conceived as voluntarily conceding a benefit or privilege to the latter. I repeat what I said on a former occasion : - " The foundation of the

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the occupier should not be expected to take any particular precaution to avert the consequences which arise from the nature or condition of_the premises of which the licensee seeks gratuitous use, but, on the other hand, that, if the occupier knows that the premises in his control contain a hidden danger as to the existence of which he would expect the volunteer to be deceived when he availed himself of the occupier's permission, then the latter ought to undeceive him or take some reasonable precautions for his safety from the concealed peril. . . . The analogy of gratuitous loans and gifts of chattels which the lender or giver knows to conceal a danger seems to have affected this branch of the law (see per Willes J. in Indermaur vy. Dames (1) and in Gautret vy. Egerton (2) ). But in such cases it is enough if the giver of the thing 'knew its evil character at the time, and omitted to caution the donee (Blakemore v. Bristol and Exeter Railway Co. (3))'" (4). The duty of care arises from the grant of permission or licence to enter. From the very foundation of the duty it necessarily follows that knowledge of the danger on the part of the occupier and ignor- ance on the part of the visitor are essential conditions of liability in the case of a bare licence. Though not a few instances may be found where by a slip or through looseness of statement the duty has been judicially described as if means of knowledge as opposed to knowledge of the defect or danger were enough to fix the licensor with liability, to extend an occupier's duty of care for the safety of a licensee beyond precautions against dangers of which the occupier is aware is to depart from principle, principle which, before the present chaos overtook the law of torts, was regarded as settled. 'To create a cause of action something like fraud must be shown. . . . Every man is bound not wilfully to deceive others, or to do any act which' may place them in danger " (per Willes J. in Gautret v. Egerton (2) ). Again, the duty is fully discharged once the licensee is made acquainted with the existence of the concealed danger. The licensor's duty is simply to take reasonable care to prevent the licensee's relying on

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A majority of the Full Court were of opinion that there was reasonable excuse for failure to give the defendant council notice of injury within three months. The circumstances upon which the correctness of that opinion depends are set out in full in the statement of facts upon the reservation. It is unnecessary to do more than mention the chief points. The plaintiff, while still in hospital, instructed his solicitors to claim damages, as I gather, from the responsible authority, whoever that might be. The instructions were given on 22nd May 1937. His solicitors at once set to work to discover in whom the jetty was vested. After finding the relevant legislation, they sought information from the proper officers of the Hobart Marine Board and the Public Works Department. By a responsible officer of the latter, who made a search, they were assured that no proclamation vesting the jetty in the municipality had ever been made. They formed the opinion that the Marine Board was the responsible authority and prepared to sue the board and the Crown. In his judgment Inglis Clark J. says that they did not abandon the intention of suing the municipality. It does seem clear, however, that the Marine Board was the defendant whom they proposed to sue as primarily responsible. The Crown had done repairs at the instance of the municipality, which had exercised some de-facto control, and it may be that it was thought wise to join these parties in any case so that the board would not attribute the fault to them in their absence. At all events, there can be no doubt that the plaintiff's solicitors believed that no steps had been taken under the statute to vest control and management of the jetty in the municipality. If this was the cause of the failure to give notice of injury within the prescribed time, I feel little doubt that it was reasonable. Against its reasonableness it is said that the council had made by-laws which were exhibited at the jetty and that an inquiry from the council clerk would have shown that the by-law- making power had been exercised and where the by-laws were to befound. Inany case, it is said, Gazettes ought to have been searched.

Cons FRomeoy FansRomeo' Eorsatvaton' | Cons Romeo v ry Conservation sonserigsion Commission ' Conservation

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Judgment (186 paragraphs)

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