Cooper v Southern Portland Cement Ltd

Cooper v Southern Portland Cement Ltd - [1972] HCA 28 - HCA 1972 case summary — Zoe

[23]

The third count upon which the jury has passed was based on the presence on the land of an allurement which attracted the appellant to the respondent's land where he was hurt. The count and the trial judge's summing up seem to have treated the allurement as itself a source of duty in the respondent towards the appellant if the respondent knew of the likelihood that children would respond to the allurement and be present in the area where the appellant was injured. Doubtless the pleader was encouraged to express the count in the terms he used by expressions to be found in Commissioner of Railways (N.S.W.) v. Quinlan [1] , a decision of the Privy Council which is central to the resolution of the present appeal. But having regard to the presence of the first count of the declaration and his refusal to allow it to go before the jury, it would seem that the judge did not regard the effective allurement as the equivalent of a permission to come to the alluring place. Questions will later arise as to the precise "status" of an "allurement" in this area of alleged liability, and as to what can be taken from the jury's verdict on this count having regard to the summing up. Meantime, I will discuss the matter on the footing that the appellant was a trespasser on the respondent's land and that the respondent had created thereon the situation I have described. Later, I shall consider what is the effect of the findings that the appellant was attracted to the place where he was injured by its alluring quality, that the proximity of the electric transmission line to the surface of the batter constituted a concealed danger and that the respondent was aware of the dangerous quality of that proximity. Finally, I shall consider whether the first count of the declaration ought to have been left to the jury on the footing that it would have been open to them to have found upon the evidence that the appellant was at the place where he was injured by the leave and licence of the respondent.

[30]

Having carefully studied them I do not read their Lordships' reasons whilst denying that the doctrine in Addie's Case [2] be confined to the condition of the land itself, as treating the nature of an activity carried on by the occupier on his land as irrelevant when considering whether a trespasser has a cause of action. I think that those reasons contemplate that the nature of such an activity may in some circumstances be such as to raise a larger and different duty towards a person coming upon the land without invitation or permission than that laid down in Addie's Case [2] , though, with great respect to the noble Lord who prepared them, I cannot say that I feel absolutely certain of their Lordships' views in this connexion. After all, as they saw the facts, the case before their Lordships was one of occupier and trespasser and nothing more. They were concerned to express the limits of the duty of the occupier in those circumstances. Any reference to the possibility of other duties arising out of other relationships was only made, as I read the reasons, in commenting upon expressions which their Lordships took to be attempts to formulate the duty of an occupier who stood in no other capacity or relationship to a person trespassing upon his land. In that connexion, however, their Lordships in affirming the statement of that duty by the House of Lords in Addie's Case [2] do seem to concede that if the situation which the occupier creates on his land is highly dangerous but not apparent to human beings coming upon the land, a failure to take reasonable steps to prevent that situation from causing harm to persons who to the knowledge of the occupier are likely, or at any rate highly likely, to come upon the land can be accounted "so callous as to be capable of constituting wanton or intentional harm" (see [1] ); for thus, at that point, their Lordships seem to explain their acceptance of this Court's decision in Commissioner for Railways (N.S.W.) v. Cardy [2] . However, it may be that that acceptance was also placed on "the ash tip, with its burning interior", being at once, having regard to its location, a dangerous allurement to straying children and a trap or an unusual hidden danger [3] , a view which seemingly prompted the terms of the third count in this case.

[34]

one of those in which the court, for sufficient reason, is able to hold that, as regards the accident and the injury caused, the relation of occupier and trespasser does not bear upon the situation of the parties. The reason there held sufficient was that the corporation was maintaining on and over a public place a highly dangerous electric transmission system in a defective condition. [7] Though their Lordships do not expressly say so in this connexion, I would infer that what they did say was said on the assumption that the relationship of occupier and trespasser was relevantly capable of existing in the case of a structure such as the electric light pole. In the long run, though critical of such an extension of the doctrines relating to land, I assumed so much in Munnings v. Hydro-Electric Commission [8] . Their Lordships' expression "does not bear upon the situation of the parties", with due respect, is far from self-explanatory, but I read it as meaning in its context that the relationship of occupier and trespasser was not the relationship relevant to the circumstances of the injury. Consequently, it seems to me that in affirming the decision in Thompson's Case [1] , their Lordships were conceding that though the defendant be in fact the occupier of the land or structure on which the plaintiff receives his injuries when he has no right to be upon it, there can be an obligation of care on the part of the defendant which is larger than the duty of an occupier towards a trespasser where no other factors are present. The precise extent of that obligation need not presently be expressed; though, as their Lordships point out, the nature of the relationship must be defined with reasonable precision. The importance at the moment of the endorsement of the decision in Thompson's Case [1] is, in my opinion, that the occupier defendant was liable to a trespassing plaintiff, because, presumably, the relation of occupier and trespasser was not the relevant relationship of the parties. To use their Lordships' expression, the relation of occupier and trespasser had been "displaced by "some other relation" " so far as it was necessary to consider whether a duty to the person trespassing had not been performed. The parties had not ceased in fact or in law to be occupier and trespasser in relation to the pole but that relationship did "not bear upon the situation of the parties" in connexion with the injury received. No doubt the proximity of the pole to a public place assisted to justify the conclusion that the state of the electrical wiring was a danger to humans and perhaps also assisted the conclusion that the Council ought to have expected the presence of people at or about the pole. It did not establish either the Council's knowledge or expectation of the presence of the plaintiff on the pole. 1. (1953) 87 C.L.R. 619. 2. [1964] A.C., at p. 1080. 3. (1971) 125 C.L.R. 1. 4. (1953) 87 C.L.R. 619. 5. (1953) 87 C.L.R. 619.

[35]

Of course, whilst the relationship of occupier and trespasser is the relevant relationship, the obligation of an occupier can not be enlarged by supporting some co-existing relationship. That other relationship must "displace" that of occupier and trespasser so as to be the relevant relationship. In my opinion, it was because their Lordships thought Sir Frank Kitto to be attempting to extend the duty of an occupier whilst treating the relationship of occupier and trespasser as the relationship relevant to the receipt of the injury, that criticism was offered of what he had written in Thompson's Case [1] . See Quinlan's Case [2] . But, with due respect, I think this a misreading of what Sir Frank Kitto said. As I read the passage in question from Thompson's Case [1] , the case supposed was one in which, again to use their Lordships' language, the relationship of occupier and trespasser, though of course continuing in fact, was "displaced" by the other relationship derived in all the circumstances from the nature of the thing, activity, or situation brought or created by the occupier and the expectation of the presence of the injured person or of a group or class of persons of which he was one. The emphasis by their Lordships on the difference in the facts of the two cases confirms me in my conclusion that the reason given in Quinlan's Case [1] do not deny the possibility of a person who is an occupier coming under a duty towards a person who is a trespasser different from the duty expressed in Addie's Case [2] , if the relevant relationship of the parties is not simply that of occupier and trespasser. If the plaintiff can sue the defendant only in his capacity of occupier and because he is the occupier, Addie's Case [2] , as currently expounded by the Privy Council, will determine the existence and extent of any duty to the plaintiff. But that proposition does not deny that in relation to injuries received or damage done there can be another relationship which determines the rights of the parties.

[51]

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

[61]

The company [respondent] was the occupier of the quarry premises; the plaintiff [appellant] is a boy of thirteen, who was on the premises and was injured by a condition of a part of the premises. The duty owed by the occupier of premises to a boy who is on the premises without any legal right to be there is well established, and the plaintiff must show a breach of this well established duty. The occupier of premises is bound by a duty to take reasonable care to protect children from risk to which they are exposed by a dangerous condition of part of the premises if that part of the premises constitutes an allurement to children to enter on to the premises and approach that dangerous part. The part must be dangerous in the sense that it is a concealed danger of a trap. Its existence and dangerous quality must be known to this occupier of the premises and unknown and not obvious to the children. Further, it should be known to the occupier that there is a likelihood that there will be in or near the premises children who will be subject to the allurement and who will in fact be allured by it. The word "allurement" is a traditional word. What is a thing that is alluring to children? - something that is attractive to children, something that attracts them to approach it and perhaps play about it or approach it in any other way It was a small isolated sort of place, and yet there were a number of school children there who, at week-ends, sought their amusement as best they could. Then there were the physical features of the quarry itself. There was the fact that on week days - and very often on Saturdays - production was taking place, and even on Sundays there may be maintenance going on. Then you have the background of the evidence - if you accept it - that the schoolmaster, and indeed officials of the company, from time to time warned children of dangers inherent in the village and on the works, and also - if you accept it - that children were quite often warned to keep away from the premises, and indeed ordered off the premises. It is against that background and the background of the evidence also, that on Sundays, despite these prohibitions, children - being children and apt to the sin of disobedience - wandered onto the premises either to cross over them or to play on them and that, if you accept the evidence again, that there was an attraction in what has been called the dumps where waste material is put in with the heap in such a way that slopes were formed and the children, again if you accept the evidence, liked to play on these slopes, rolling stones down them, running up and down them or using pieces of steel in such a way that they could indulge in the sport that is called tobogganing. I do not know how much of this evidence you accept and how much you reject, but undoubtedly you must accept part of it, on one view that has been put to you. It is your duty now, against that background, to examine what I have put to you. The occupier of premises is bound to take reasonable care. The law is not so unreal as to demand of any human being or institution perfect care; but having regard to all the circumstances, the duty is to take reasonable care and a failure to take reasonable care is a breach of that duty and is called - as I have already told you - negligence. The occupier is under a duty to protect children. This duty of care, in the circumstances of this accident, is only in favour of children. Because it is considered - and you might think realistically so, - that children, being children, might be lured or attracted on to premises where they have no right to be, where an adult would not be so lured or attracted, or if there were an allurement or attraction he would be expected to reject that allurement or attraction. Did this slope constitute an allurement? You have heard the arguments of Mr. Loveday [for the plaintiff] on this point. He said that in this village at that time, the children, on the evidence he asks you to accept, did like to play and were attracted to these slopes, to use them in the way the evidence indicates The part of the premises must be dangerous in the sense that the danger was a concealed danger; that it constituted, in effect, a trap. Well, on this matter Mr. Loveday asks you to say without any great hesitation that the presence of an unguarded uninsulated electric wire carrying 33,000 volts within four or five feet of a slope, which he claimed was an allurement to children, was clearly a trap and a concealed danger. There were no warnings, no guards, and the wire was in easy reach of any person who was playing on this slope - any children - I should say, who were playing on the slope, and as I understand it, Mr. McGregor [for the defendant] did not advance any arguments to the contrary. Then its existence and dangerous quality must be known to the occupier. Here, Mr. Loveday put to you that this danger must have been known to the occupier; it was on the defendant's own premises and the danger had been created by the activities of the company in dumping soil to the extent that the edge of the soil on the slope was brought so close to the wire that employees of the company engaged in the very operation must have known of the existence and the quality of the danger. He asks you also to accept the evidence of Mr. Cosgrove, that it was an estimated five feet from the slope for quite a period before. And if you do not accept that evidence, he asks you to accept the evidence of Mr. Howard, the mine superintendent, who recognised the potential danger, but that according to Mr. Howard it was not five feet from the slope but a considerably greater distance away from the slope on the Thursday, and he took immediate steps to have that wire removed. Unfortunately, the wire was not removed before the Sunday, when the plaintiff came in contact with it. Mr. McGregor asks you to say that in all the circumstances the knowledge of the danger was not to be imputed to the company because something went wrong after the Thursday when the danger was only potential and not actual, and that the company had, through its officers and servants and employees, really no knowledge that the wire was so approximate to the edge of the slope. The other matter is - and this again, I think, is one of those obvious matters that Mr. McGregor made no submissions about - that the danger must be unknown and not obvious to the child. Well, you have heard the description of the situation, and you might think a child of thirteen would not appreciate that the wire hanging in proximity to the edge of a slope was a potentially lethal wire. Then, as I told you, it must be known or at least be foreseeable and foreseen by the occupier that there was a likelihood that there would be in or near the premises children who would be subject to the allurement that existed on the premises. Again, it is idle to give illustrations of other situations. You bear the situation in mind here of the village, its locality: its proximity to the works and all the other evidence about how children had conducted themselves in and about and near these premises over the week-ends for years before the accident. And also, as I told you, it must be foreseeable by the occupier that this part would be an allurement to children. Again you find the danger of becoming repetitive. You have the evidence - if you accept it - that children did pass over or go to various spots on the works premises; and you have the evidence that on other dumps children did play, whether they were tobogganing or rolling stones or doing other things. So much depends on what you find the situation to be. But to whatever you find the situation to be you apply the principle I have given you and you ask yourselves: "Has the plaintiff established - in the way I indicated - that he met with his injury as a result of the breach of duty on the part of the defendant?" If you are not so satisfied, the verdict is for the defendant. There was evidence on which the jury could find for the plaintiff on every allegation made by the third count.

[69]

"The respondent" (the boy Cardy) "and a brother aged twelve years went through an entrance on the southern boundary, which the jury could find was always open, and proceeded by a road into the land from which a path led in the direction of the dump area. They strayed from this path to the heap of ashes and rubbish and went up its steep side, which was ten feet high. As stated above, when the respondent was scrambling down that side of the heap his feet sank into hot ashes beneath the surface and were badly burned. Only the respondent was injured. Neither the dump area nor the heap itself was fenced, and it was, on the evidence, easily accessible, over vacant ground, from the path. The jury could find that there was nothing in the appearance of the heap of ashes and rubbish which the boys climbed to indicate that beneath its surface there were hot ashes. The appellant conceded in argument that it was possible that the ashes which burned the respondent's feet were hot when deposited by its workmen on the heap. If the jury considered that the tacit permission to enter and walk over the land extended to climbing this heap they could find that the appellant did not take the proper measure of care due by an occupier to a licensee to protect the respondent from the danger he encountered. But I would not go as far as holding that a grown-up person, even though he could claim that he had tacit permission to walk about the dump area, could also rightly claim that the permission extended to climbing the heap of ashes and rubbish on which the respondent was injured. In my opinion, the verdict can be sustained on the basis that the respondent was not a trespasser on the land and the heap of ashes and rubbish was an allurement to a boy of his age. It is a well-known propensity of boys of the respondent's age to go up a bank, heap or mound which is at a place where they come to play and is accessible to them. This heap was not a natural formation of ground but an artificial construction on the land and it could be an allurement in the legal sense for children. In my opinion, it was clearly open to the jury to find the respondent followed instincts, generally natural to boys of his age, by going up the side of this heap of ashes and rubbish on which he was injured." 1. (1960) 104 C.L.R., at pp. 288-289.

[110]

What the law does not admit, however, is that a trespasser, while incapable of being described otherwise than as a trespasser, should be elevated to the status of an ordinary member of the public to whom, if rightfully present, the occupier owes duties of foresight and reasonable care. It does not alter a trespasser's description merely to christen him a "neighbour". If this additional duty of care were to be thought to be imposed upon the occupier by the circumstance that, to his knowledge, there is a likelihood of the trespasser's presence on the land - and it does not seem that any other circumstance is regarded as critical for the purpose - their Lordships consider that the law, as established, would not so much be applied or developed as contradicted. For present purposes the chief importance of Quinlan's Case [1] is the acceptance of the decision in Cardy's Case [2] as stating a principle consistent with the Privy Council's rejection of identifying trespassers with "neighbours" resorting to public places. It was argued for the respondent here, and argued with force, having regard to what was said in their Lordships' opinion [3] , that Cardy's Case [2] was accepted by the Privy Council as a case where the occupier had shown reckless disregard of the plaintiff trespasser. Cardy's Case [2] in the High Court, however, was not decided on this ground, and, upon the whole, I am not satisfied that the Privy Council accepted it merely upon that narrow ground. Two statements of their Lordships [4] are of great significance: The circumstances seemed to place the case squarely among those "children's cases", in which an occupier who had placed a dangerous "allurement" on his land is liable for injury caused by it to a straying child. and Children's cases in this context do unavoidably introduce considerations that do not apply where the sufferer of injury is an adult. What is allurement to a child and, being so, imposes by itself a measure of responsibility, is not an allurement to an adult: and those conceptions of licence or permission, which may be highly relevant for the determination of the adult's rights, are virtually without meaning, at any rate as applied to small children. If these passages indicate the ground upon which the Privy Council accepted Cardy's Case [2] , Quinlan's Case [1] affords no reason for not applying Cardy's Case [2] here. 1. (1960) 104 C.L.R. 274. 2. [1964] A.C. 1054. 3. [1929] A.C. 358. 4. [1964] A.C., at p. 1082. 5. [1964] A.C., at pp. 1084-1085. 6. [1964] A.C. 1054. 7. (1960) 104 C.L.R. 274. 8. [1964] A.C., at p. 1084. 9. (1960) 104 C.L.R. 274. 10. (1960) 104 C.L.R. 274. 11. [1964] A.C., at p. 1083. 12. (1960) 104 C.L.R. 274. 13. [1964] A.C. 1054. 14. (1960) 104 C.L.R. 274.

[128]

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

[134]

I think it follows from that conclusion that the third count of the appellant's declaration, which was the only count which the learned trial judge left to the jury, did not contain allegations of facts sufficient to create in the respondent the duty of care of which the respondent is alleged in the count to have been in breach. It is to be observed that the count contains no allegation as to the capacity in which the appellant was on the land. It states that there was a pile of rubble, which was alluring to children and was such as to induce the presence of children. It states that the appellant was a child who was on the premises and was allured by the pile of rubble. The breach of duty alleged is that the respondent was careless in allowing the pile of rubble to be in close proximity to a high tension electricity line. I think that it may readily be supposed that in framing this count the pleader was hopeful of supporting it by means of the paragraph in Quinlan's Case [1] , which refers to "children's cases" and to "allurement" and which includes a statement to the effect that it is not necessary to resort to the categorization of children as licensees "to give them the legal remedy that is felt to be their due". It is stated also in that paragraph that what is allurement to a child "imposes by itself a measure of responsibility". I have found this a difficult passage. I am not alone in that. But after a consideration of the whole of the reasons given by their Lordships, I cannot accept the view that the passage means that whenever there is on land something which is alluring to children and a child is allured by it, the occupier must be held to have had such a duty of care towards that child that carelessness in allowing a danger to exist there would constitute a breach of the duty. The inclusion in the count of the allegation that the thing which was alluring was likely to induce the presence of children seems to me to be no more than a paraphrase of the word "alluring". In my opinion, it would not accord with the authorities to hold that such a duty is imposed upon the occupier by the facts that I have mentioned, regardless of the lack of any consent express or inferred to the presence of children and regardless not only of the lack of any actual knowledge that children resort frequently to the area in which the danger exists, but also of the lack of any circumstances from which it could be inferred that the occupier had reason to believe that it was very likely, or at all likely, that they would resort to that area.

[136]

The duty owed by the occupier of premises to a boy who is on the premises without any legal right to be there is well established, and the plaintiff must show a breach of this well established duty. From that statement it appears that the learned judge was discussing the duty owed by an occupier of premises, not a duty arising from some other relationship; and he was discussing this duty on the basis that the plaintiff had no legal right to be where he was when he was injured. His Honour then stated the relevant duty in the following terms: The occupier of premises is bound by a duty to take reasonable care to protect children from risk to which they are exposed by a dangerous condition of part of the premises if that part of the premises constitutes an allurement to children to enter on to the premises and approach that dangerous part. The part must be dangerous in the sense that it is a concealed danger or a trap. Its existence and dangerous quality must be known to this occupier of the premises and unknown and not obvious to the children. Further, it should be known to the occupier that there is a likelihood that there will be in or near the premises children who will be subject to the allurement and who will in fact be allured by it. The factual elements which according to that statement were required in order to establish liability went beyond what is alleged in the third count. But apart from any question as to the sufficiency of the pleading, it appears that his Honour's view was that if in a part of an occupier's premises there is a dangerous condition and that part of the premises constitutes an allurement to children to enter onto the premises and to approach the dangerous part, then to a child who, thus allured, does approach the dangerous part of the premises, although the child is not a licensee and has no right to be there, the occupier has a like duty to that which he would have to a licensee. But his Honour added that it must be known to the occupier that it is likely that there will be in or near the premises children who will be subject to the allurement. In my opinion, it could not have been found on the evidence in this case that that condition was satisfied. It is true that the reference to the likelihood of children being in or near a dangerous part of the premises imports into the condition an indefinite element, but I think that it could not have been found in this case that children were likely to be so near as to be affected by the allurement. Be that as it may, I think that there is a more important objection to this part of the summing up. I am not able to accept the view of the law which is basic to the directions to which I have referred, although I think that that view does gain some support from the paragraph in Quinlan's Case [1] to which I have referred. But it is, in my opinion, denied by what follows that paragraph and by the explanation that their Lordships give to a passage quoted from the judgment of Dixon C.J. in Cardy's Case [2] . The cases of the allurement of children in which liability has been held to exist are there treated by their Lordships as applications of the principle that an occupier is liable for injury to trespassers whose presence is known or of whose presence there is an extreme likelihood, if the occupier's conduct is capable of being described as wanton or reckless. See Clerk and Lindsell on Torts, 13th ed., (1969) par. 1059. In my opinion, Mr. Glass of counsel for the respondent was right in submitting that Quinlan's Case [3] did not set up a separate rule of liability relating to children subjected to an allurement to a danger, but treated the allowing of dangerous things attractive to children to be accessible, in places known to be frequented by children or so situated that it is extremely probable that children will come to them, as an important circumstance in the application of the general formula laid down in Addie's Case [4] . I think, as others have thought (see, for example, Victorian Railways Commissioners v. Seal [5] ), that there is a difficulty in accommodating the acceptance by their Lordships of the decision in Cardy's Case [6] (to which I shall refer again) to the principles upon which there is an emphatic insistence in Quinlan's Case [3] . But, in my opinion, that difficulty does not provide a justification for treating Cardy's Case [1] as authority for any legal proposition which conflicts with the principles clearly stated in Quinlan's Case [2] . I think that consistently with those principles, the only way in which the decision in Cardy's Case [1] can be supported is to treat it as a case in which there was wanton or reckless conduct on the part of the defendant. See Fleming on Torts, 4th ed. (1971), pp. 410-411. 1. [1964] A.C., at p. 1083. 2. (1960) 104 C.L.R. 274, at pp. 285, 286. 3. [1964] A.C. 1054. 4. [1929] A.C. 358. 5. [1966] V.R. 107, at pp. 130-132. 6. (1960) 104 C.L.R. 274. 7. [1964] A.C. 1054. 8. (1960) 104 C.L.R. 274. 9. [1964] A.C. 1054. 10. (1960) 104 C.L.R. 274.

[140]

The case of Thompson v. Bankstown Corporation [3] was approved by the Privy Council. But it is distinguishable from this case. One ground of distinction which, if accepted, would set apart both that case and the case of Munnings v. Hydro-Electric Commission [4] from the present case is that in each of the earlier cases the plaintiff was not a trespasser upon land occupied by the defendant and for that reason, although he may have been in a technical sense a trespasser upon a pole belonging to the defendant, he was not considered to be affected at all by the rules contained in the Addie formula. Such a view was expressed in Munnings' Case by the Chief Justice [5] and by Menzies J. [6] . See also the judgment of Windeyer J. [7] . It was for the same reason that Menzies J. regarded the case of Excelsior Wire Rope Co. Ltd. v. Callan [8] , as being in no way inconsistent with Addie's Case [1] . His Honour's explanation of what has sometimes been thought to be a conflict between those two cases accords with the opinions stated by Sir Owen Dixon in Transport Commissioners (N.S.W.) v. Barton [9] and again in Cardy's Case [10] . But a quite different distinction between the two English cases, suggested by Scrutton L.J. in Mourton v. Poulter [1] , was accepted by the Privy Council in Quinlan's Case [2] . On that view the difference between the two cases was a difference as to the recklessness of the acts by which the injuries were caused. But in order to distinguish the present case from Thompson's Case [3] and from Munnings' Case [4] it is not necessary, in my opinion, to decide whether it is correct to say that the Addie formula had no bearing on the facts in the latter cases for the reason that the injured persons did not come as trespassers onto the lands of the occupiers. For there is another reason for which, in my opinion, it could be held in those cases, but not in this case, that another "relevant relationship" existed between the parties. All three cases have in common the fact that injury was caused by contact with electric wires which were under the control of the defendants. But in the other cases the land above which the wires were placed and from which access to them could be obtained was land upon which the public had a right, or were regarded as having a right, to be and upon which that right was regularly exercised. In Thompson's Case [3] it was a public highway. In Munnings' Case [4] the children were regarded as having a right to be on the land no different, for relevant purposes, from the public right which existed in Thompson's Case [3] . It is this positive feature, consisting of the right in the plaintiffs to be on the land that is, in my opinion, a sufficient ground of distinction between those cases and this case. In my opinion, that is of more significance than the negative feature that it was not the land of the defendants upon which the plaintiffs came to harm. In the statement in Quinlan's Case [5] of the reason which was held sufficient in Thompson's Case [3] for the conclusion that the relationship of occupier and trespasser did not bear on the situation of the parties the words "on and over a public place" are, in my opinion, of cardinal importance. The same idea is expressed in Munnings' Case [4] , in which the Chief Justice [6] referred to the bringing of a dangerous substance "into proximity of members of the public". Menzies J. [7] referred to the pole being "in a place of public resort" and Gibbs J. [8] said that the pole stood in a place which "was in fact a public place open to all and a place where children were accustomed to play without any hindrance or dissuasion". In the present case it would have been impossible upon the evidence to apply those descriptions to the place where the danger existed.

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