David Jones (Canberra) Pty Ltd v Stone - [1970] HCA 28 - HCA 1970 case summary — Zoe

CTHHCA

David Jones (Canberra) Pty Ltd v Stone

[1970] HCA 28

High Court of Australia|1970-07-01|Before: Walsh JJ, Fullagar J, Willes J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1970-07-01

Before

Walsh JJ, Fullagar J, Willes J

Source

Original judgment source is linked above.

Judgment (55 paragraphs)

[1]

High Court of Australia Barwick C.J. Owen and Walsh JJ. David Jones (Canberra) Pty Ltd v Stone [1970] HCA 28

[2]

ORDER Appeal allowed with costs. Judgment for the plaintiff set aside and judgment entered for the defendant.

[3]

On a day in June 1966, Mrs. Stone brought her young son aged four into the retail store conducted by David Jones (Canberra) Pty. Ltd. in the shopping area of Civic, Canberra, with the intention of there purchasing for him a pair of shoes: the next day was his birthday. An escalator of a kind with which we have become familiar in retail stores in the cities of Australia connected the first and ground floors of the store. At the head of it a large notice warned that "Children must not ride on this escalator unless accompanied by an adult". Having made her purchase for him on the first floor, Mrs. Stone led her child onto the escalator, holding his hand. She was not conscious, however, of the warning notice to which I have referred. During the transit from the first to the ground floor she became engaged in conversation with some other person on the escalator, during which time she abandoned her handhold of her child and ceased to observe him. Left to his own devices, the child took a step backwards onto the tread of the escalator immediately above that on which his mother was standing and then sat down upon it. While sitting, he appears to have put his finger into the space which separated the moving treads from the fixed balustrade at the side of the escalator. This was a gap said to be about a quarter of an inch in width but in any case to be no more than was necessary for the effective operation of the escalator. On discovery that the child's finger was caught, the escalator was stopped but not before serious damage was done to his hand.

[11]

I am unwilling to subscribe to the view that whenever a child, whether or not related to the adult, accompanies an adult to premises in circumstances which justify the conclusion that the adult is an invitee to those premises, the child is itself an invitee of the occupier. No doubt there may be particular circumstances which warrant a finding that some material interest of the occupier is served by the fact that the child accompanies the adult invitee: but those circumstances must, in my opinion, be considered in each case. The intended purchase of the shoes in the instant case may support the conclusion that Mrs. Stone's son was an invitee of the appellant. If I had now to decide whether or not the appellant owed the child the duty of an occupier to an invitee, the inclination of my mind would be in the affirmative: but it does not seem to matter in the present case whether Mrs. Stone's son should be regarded as an invitee or as a mere licensee in respect of his use of the escalator. The breach of the duty of care is said, in this case, to be the failure to warn of the unusual danger constituted by the gap beside the moving treads of the escalator. No failure to take any other step is put forward as a breach of any duty of care. Further, what is said to have been an unusual danger obtained that quality from the fact that it was in reality so far as the child was concerned a concealed danger, a latent rather than a patent risk of injury. If the gap between the moving staircase and the fixed balustrade did constitute an unusual or concealed danger, the appellant, according to what seems to have been a matter of concession on its part, knew of the gap and the possibility that a child's finger could be inserted in that gap causing substantial injury to the child's hand. Thus if there was a concealed danger, as the case was conducted, the appellant must be taken to have been in fact aware of it. I agree with the learned judge of the Supreme Court of the Australian Capital Territory that the warning notice at the head of the escalator was not a warning of the existence of the unusual or concealed danger if in fact the gap did constitute such a danger. Therefore, if there was a concealed danger of which the appellant was aware it would follow that, even if the child were no more than a licensee, the appellant would be liable if at the time of the receipt of his injury he was within the area of his licence to be on the premises. Consequently, I find no need in this case to decide whether or not the child was in the appellant's store as an invitee. I may mention that I would not regard the Canadian decision to which I have referred as supporting an affirmative answer to the question.

[12]

The first question it seems to me is to determine the area of the invitation or of the licence, as the case may be. On the proved facts of the case it is clear that the invitation or the permission, as the case may be, was qualified. In my opinion, the invitation to or permission for the child to enter and use the store was an invitation or permission to enter it and use it in the company of and under the control of the adult: in this case, the mother. It can properly be said, in my opinion, that the user of the premises including the use of the escalator which was within the ambit of the invitation or permission was such a use as a child in the company of and under the control of its mother might reasonably make. Both the area of permitted use and the determination of what was an unusual or concealed danger must be determined in the light of the fact that the child was to be accompanied by and in the control of an adult. Whilst it can properly be said that an occupier in such circumstances as the present cannot look to the adult to secure the safety of the child in its use of the premises to the exclusion of any responsibility of itself as occupier derived from the invitation or the permission to enter the store, neither the ambit of the invitation or the permission nor what constituted an unusual or concealed danger can be determined as if the invitation or permission had been extended to the child alone and unattended. Clearly, in either case it was to the child in the company of the mother that the invitation or permission was extended. The notice at the head of the escalator is emphatic of this situation. Consequently, the invitation or permission was to do those things in the store and upon the escalator which a child accompanied by an adult might reasonably do. To regard the invitation or permission as thus qualified, whilst at the same time denying that all responsibility for the child's safety was cast upon the adult, seems to me to effect a just distribution or responsibility between the occupier and the parent, in the case of a child thus permitted or invited to the premises.

[39]

When a very young child complains of injury alleged to have been caused by the breach of duty of care owed by an occupier of premises, special problems may be encountered in seeking to apply to such a claim the principles which have been established for determining what is the relevant duty of care owed by the occupier and what may be required of him in the fulfilment of that duty. Nevertheless, I am of opinion that in general, and leaving aside situations in which there may be "another relevant relationship" in the sense in which that expression was used in Commissioner for Railways v. McDermott [1] , the liability of an occupier of premises to a person who has entered upon them and has been injured must depend, whether that person be an adult or a child, upon a breach of a duty of care arising out of the defendant's occupation of the premises and the presence on them of that person. The principles according to which a plaintiff seeking to establish a breach of such a duty of care must first be assigned to his proper place in the "fixed classification of the capacities or characters in which persons enter upon premises occupied by others", the case then being governed "by the standard of duty prescribed for that class" (Lipman v. Clendinnen [2] ), are to be applied when the plaintiff is a young child, but in the application of them it is necessary to take into account the propensities of children and their inability to perceive and to avoid potential sources of danger to them. The course has not been taken by the courts, when confronted in such cases with the difficulties of applying those principles, of holding them to be inapplicable and resorting to a different approach to the questions whether the occupier was or was not under a duty of care and what was the standard of care required if the duty existed. The courts have sought to apply the established rules concerning the duties of occupiers, when dealing with children who in different characters come upon the lands of the occupiers. But for the purpose of determining in which class a child plaintiff should be placed and in what manner the rules for measuring the occupier's duty should be applied, it has been found necessary to formulate some special concepts, such as those of "allurement", of an implied licence to enter and of a conditional licence to enter.

[48]

In my opinion it is necessary, when seeking to apply the foregoing explanations of what is meant by an unusual danger to the case of an invitee who is a very young child, to endeavour to adapt and mould them to the circumstances of such a case, in a manner which will produce a result less artificial and unreal than that to which a direct and literal application of them would lead. If a young child is to be regarded as a member of a class of persons consisting of all children of tender years, it may be said that any danger is an unusual one and that an occupier of premises to which such a child comes as an invitee must take reasonable care to save him from all dangers which may imperil him because of the inability of that class of persons to recognize and avoid them. But, in my opinion, an occupier is not always to be held liable for the presence on his premises of something which is capable of causing harm to a child. In Phipps v. Rochester Corporation [1] Devlin J. discussed, in relation to the duty of a licensor, the special problem presented by children who have not reached the age of reason and understanding. He referred [2] to the "different ways of escape" which have been chosen by judges unwilling to accept the conclusion that licensors must make their premises safe for little children. He reviewed many earlier cases which dealt with these problems. Most of these cases do not bear directly on the present case. Many of them are concerned with the relationship of licensor and licensee and not with that of invitor and invitee. Questions are raised in them as to the duty owed to a child not accompanied by an adult and as to the principles by which a child who would otherwise be a trespasser may be considered, by reason of allurement or of continued user by children of the land, as entering upon it with the licence of the occupier. The further question has been raised whether or not such a licence, if found to have been given, is sometimes to be regarded as conditional upon the child being accompanied by a competent guardian. The notion of a conditional licence did not find favour with Devlin J. (see [3] ). But it had been accepted, although on the particular facts it was held to have no application, by the Court of Appeal in Bates v. Stone Parish Council [4] , which apparently had not been brought to the notice of Devlin J. in the case of Phipps v. Rochester Corporation [5] .

[54]

I do not think it would be useful to discuss other cases which I have examined. I have not found in them any clear guide to the decision which ought to be given in this appeal. I proceed to state the conclusions which I have reached after consideration of the facts and of the principles which appear to me to be applicable to them. The respondent was an invitee of the appellant. The question of liability ought to be determined by reference to the duty created by that relationship and not otherwise. The duty was to take reasonable care for the safety of the respondent in respect of any unusual danger to him which was present on the premises and of which the appellant knew or ought to have known. It was not a duty to ensure his safety. Nor was it a duty to protect him against all risks of injury which he might encounter on the premises and which were or should have been within the knowledge of the appellant. It must be determined whether or not a danger was present which could properly be described as being in the relevant sense an "unusual danger" to the child, taking into account the fact that he was in the company of an adult, assumed to be a responsible person and to be able and willing to take reasonable care for the safety of the child. This is ultimately a question of fact. But in this case it does not depend upon disputed findings as to the primary facts. It is a question upon which this Court is entitled and required to give effect to its own view, if it decides that the only proper conclusion by way of inference from the primary facts is that there was not an unusual danger. A conclusion that no unusual danger existed is not compelled merely by the circumstance that the child was accompanied by an adult, but that circumstance is of importance in deciding the question. There may be cases in which the facts would warrant a finding that there existed some unusual danger for a child although accompanied by an adult and although there would be no danger to an adult. For example, a small hole in a floor through which a child's foot, but not an adult's foot, could pass might constitute an unusual danger. Another example is provided by Swan's Case [1] . But it is not always enough, in order to support a finding that there is an unusual danger against which the occupier must take care to protect a child, to show that there is something on the premises which is capable, in some circumstances, of causing injury to him and that the adult accompanying him is unaware of the risk of its doing so and fails without negligence on the adult's part to recognize that risk. In a store, as in most other places, there are many ways in which a very young child may sustain injury, notwithstanding that reasonable care is taken by an adult who has charge of him. Things which are commonly found as part of the structure of the premises or of the equipment or of the stock in a store can cause injury to a child heedless of danger and may be in his eyes unusual. But the occupier is not bound to identify each of these and to give specific warnings in respect of each of them. From many of these dangers the child would ordinarily be protected by an adult who will need no warning to assist him in protecting the child. There will be some cases in which the occupier will be under a duty to take reasonable measures for the protection of the child and will not be entitled to rely entirely on the adult's care for the child. No doubt this situation will occur most frequently when there is some defect or abnormality in the condition of the premises or of things contained in them. But it may occur also, I think, if there is something which, although not defective, is from an adult's point of view, a thing not usually found in such a place.