In substance the appellant's complaint is that the learned trial Judge was wrong (a) in leaving to the jury the question whether the mode of construction was faulty and (b) in the direction which he gave to the jury on the question of the responsibility of the appellant in the event of the jury being of opinion that the intrusion of strangers from the adjoining building might reasonably have been anticipated by the appellant or its servants. As to the first of these objections I think there was no evidence on which the jury could reasonably find that the mode of construction of the awning was faulty, and that consequently the question whether it was so should not have been left to them. But it is said for the respondent that, having regard to the terms in which the learned Judge summed up on this question, the improbability of the jury having founded their verdict on this ground is so great that this is a proper case for the application of the rule that a new trial should not be granted on the ground of misdirection unless in the opinion of the Court some substantial wrong or miscarriage has been thereby occasioned (Supreme Court Rules 1916 Vict., Order XXXIX., r. 6). I do not think the Court is justified in assuming that the jury in considering their verdict dismissed this question from their minds. Apart from evidence as to the nature and effect of the physical injury to the respondent, the evidence led for him at the trial was directed mainly, if not entirely, to establish negligence in the original construction of the awning. The case made was that, if the hooks on the bars supporting the awning had been properly made and put into the eye-bolts, they would not have slipped out - as in fact they did - unless there were at least 200 people on the awning. It is true that the learned Judge told the jury that there was little, if any, evidence on which they could find that the mode of construction was in itself faulty and defective so as to attach liability to the defendant. But notwithstanding this expression of opinion the question of negligence in construction was left to the jury, and I do not feel justified in the circumstances of this case in concluding that the jury excluded this question from consideration in arriving at their verdict. It seems to me impossible to hold with any reasonable degree of confidence that the jury did not on this part of the case come to a conclusion adverse to the appellant; and, that being so, I think the appellant is entitled to a new trial.

The question raised by the second ground of objection is more difficult. The learned Judge, in effect, directed the jury that, if in the circumstances the appellant might reasonably have anticipated the intrusion on to the awning of persons other than those invited or permitted to be there and did not provide against such intrusion, the jury might find the appellant guilty of negligence. The evidence showed that the intruders came on to the awning without the consent and against the will of the servants of the appellant. The fact that the awning afforded a large flat platform and that it was being used as a stand by persons authorized by the appellant appears to have been regarded as something in the nature of an invitation or allurement to people on the adjoining buildings to come on to the awning, and it was put to the jury by the learned Judge that in the circumstances the appellant was bound not only to use the property with proper circumspection but to provide against its use by other people if such use might reasonably have been anticipated. It was also suggested to the jury that a mere protest or remonstrance against the intrusion was not a sufficient precaution on the part of the appellant to absolve it from responsibility for the consequences of the intrusion by unauthorized persons. Where the evidence showed, as I think it did, that the intruders came on to the awning without the consent and against the will of the appellant the proper question for the jury, in my opinion, was whether the appellant had proved that the collapse of the awning was caused by the intrusion of these persons and but for such intrusion would not have happened. The appellant, having permitted the use of the awning for a purpose for which it was not intended, might properly be held responsible for the consequences of such permitted user; but, if the appellant could establish that the accident was caused by the unauthorized acts of persons who were in fact forbidden by the servants of the appellant to come on to the awning, and that it would not have happened but for the unauthorized acts of those persons, to hold that the appellant was still liable seems to me to put the duty of an occupier too high. On that view the occupier might, it would seem, be held liable for the collapse of an awning even though he had not permitted any person to go upon it, provided the awning afforded an advantageous position for witnessing the procession and thus constituted an allurement or temptation to unauthorized persons to use it for that purpose. The defence sought to be established in this case was, I think, that the appellant was not responsible for the collapse of the awning because the collapse was caused by the intrusion of persons not authorized or invited by the appellant and in fact forbidden to go upon the awning. This issue was not, as I read the summing-up, submitted to the jury. On the contrary it was suggested to the jury that it was not material to determine "where the man or men came from that provided the last straw." The question ultimately submitted to the jury was whether, in expostulating with the intruders to try to stop them from coming on to the awning or in telling them they must not come on, the appellant as proprietor of the awning took all reasonable care. In my opinion the true issue was whether the appellant had proved to the satisfaction of the jury that but for the unauthorized intrusion of these persons the awning would not have fallen. I agree with the Full Court in thinking that the appellant's invitation or permission to a large number of persons to congregate on the awning without ascertaining whether such a course might not be fraught with danger to its stability was in itself an act of negligence in relation to persons using the highway who might be injured by its falling, but the further question remained whether this act of negligence was the cause of the accident and in the view which I take of the summing-up this question was not submitted to the jury.

For these reasons I am of the opinion that the appeal should be allowed and a new trial ordered.

There are only two points of substance for consideration as to whether a new trial should be ordered. We have come to the conclusion that the Full Court of Victoria rightly refused to take that course.

It is always a serious matter to order a new trial. Both on principle (Hip Foong Hong v. H. Neotia & Co.[1]) and by express rule (Supreme Court Rules, Order XXXIX., r. 6) a new trial should not be directed unless the Court is satisfied that there has been some substantial wrong or miscarriage of justice. The general meaning of that requirement is found in Bray v. Ford[2]. The appellate tribunal must be satisfied that some wrong or miscarriage has occurred and, if so, that it is substantial. Each branch finds an illustration in this case. As Lord Buckmaster said in Wing Lee v. D. C. Lew[3]), the right to a new trial is based on a discretion which is judicial and rests on sound principles and therefore is not arbitrary. We may get some guidance from the judgment of Lord Loreburn L.C. in Brown v. Dean[4], where two relevant passages occur. The first is a cautionary observation as to "the extreme value of the old doctrine Interest reipublicæ ut sit finis litium, remembering as we should that people who have means at their command are easily able to exhaust the resources of a poor antagonist." The other is in the nature of a principle: "When a litigant has obtained a judgment in a Court of justice ... he is by law entitled not to be deprived of that judgment without very solid grounds." Lord Loreburn's observations seem to us to apply with very great force to the present case.

The first point is as to the alleged original construction of the verandah. At the trial the plaintiff relied on the opinion of a skilled witness that there was defective construction in respect of a welded bar and of certain hooks essential to the support of the structure. The point made before us was that there was no evidence on which the jury could reasonably find negligence in construction, or, at all events, negligence imputable to the appellant with regard to the bar. The slenderness of the evidence is undeniable, and the responsibility of the appellant for initial weakness of the bar is arguable. It is true that in form the learned trial Judge (Mann J.) left the jury free to come to a conclusion either way on the construction issue. But when the charge is read as a whole, and by the light of the evidence, we entertain no doubt whatever that, giving credit to the jury for common sense and the ordinary reasonableness of daily life, they followed the plain indications of the learned Judge and disregarded this portion of the plaintiff's claim, basing their verdict on what Mann J. told them was "the real gist of the case." It is not credible that the jury in arriving at the verdict they gave founded themselves on original negligence of builder or manufacturer, and entirely absolved the appellant from the more distinct, immediate and prominent charges of its own negligence in supervision and overloading. Assuming, therefore, an error in leaving the first issue to the jury, we are satisfied it led to no wrong or miscarriage, and if the error itself can be called a wrong or miscarriage, it was not substantial, and does not enter into the verdict of the jury.

The second point is of a different character, and is of wider importance: - The appellant urges that as the structure gave way only after the irruption upon it of persons not authorized by the appellant to come on to the verandah, and therefore trespassers, non constat the collapse would have occurred if only those other persons who were authorized to be there had been present, and so, for the intruders, not being invitees or licensees, but constituting the dangerous overloading, the appellant is not responsible. The respondent meets this by two positions. In the first place he says that the appellant owed him a higher duty than that of merely exercising reasonable care to avoid insecurity. Tarry v. Ashton[5] and similar cases were relied on. It may be that there was a higher duty, and that the duty was absolute unless excused by the act of God or by vis major or by some latent defect undiscoverable upon careful and available examination, or by the unanticipated act of a third person (see Barker v. Herbert[6]). As to this contention we do not find it necessary to form any conclusion either as to the extent of duty or its application, because on the second position we are of opinion the respondent is entitled to hold the verdict. That position is that upon the facts in evidence the jury were justified in considering the appellant responsible for the total overloading of the verandah, including the persons, regarded as not authorized, and for the consequent collapse of the structure. As to this part of the case Mann J., after leaving other aspects of alleged negligence to the jury, dealt with the matter separately and at some considerable length. He summed up the position thus: - "They" (the defendants) "are bound, as I have said, not only to use the property with proper circumspection but to provide against its use by other people if that were a thing which they might reasonably have anticipated. There seems to have been nothing more than a mild protest against interlopers coming on to share this platform in front of Hoyt's building." As much controversy centred around this position and as unfortunately a difference of opinion exists as to this, it is well to state the matter as clearly as possible. The fundamental consideration is that the respondent's claim is based, not as invitee or licensee of the appellant as in the Latham v. R. Johnson & Nephew Ltd.[7] and Hardy v. Central London Railway Co.[8] class of cases, but upon his inherent and independent right as a passenger upon the King's highway. His claim - limiting it for present purposes to the higher duty - is that the appellant, having constructed the verandah over the public street as a verandah for the purposes of an awning, and so far lawful, applied it so negligently to the use of a stand for witnessing the procession as to cause it - as between the appellant and himself - to be overweighted and, by its collapse, to injure him. It is not essential to the respondent's case that the people upon the stand were invested with the character of invitees or licensees in order to hold the appellant responsible for overloading. But it is essential to his case, as submitted to the jury and found by the verdict, that the presence of people whose weight constituted in whole or part the overloading which brought down the structure was in some way imputable to the appellant. The question, to the extent that it is one of law, is: How far is the doctrine of anticipated action on the part of others applicable to such a case as the present? With respect to the greater number - at least 30 - of the persons present, no question arises as to this, for ex concessis they were authorized or permitted to be there. The struggle is as to the few - about 5 - who, so to speak, appear to have turned the scale, and who increased the already superimposed weight, and, by adding to the inevitable vibration of a moving crowd viewing the incidents of the procession, seriously altered the factor of safety. In our opinion the doctrine of anticipation is applicable. It is true that no case exactly in point can be found; but, though that circumstance should make a Court cautious, it is no reason for denying the right to redress. This is a claim rested on the common law. While it is perfectly true that new principles are not now to be invented by the Courts but must be left to the Legislature, it is equally true that long established principles of the common law regulating the relations of society are not to be denied their just application to those relations merely because the circumstances attending them are novel and more complex. This is really part of the common law itself. Bracton, in his Treatise on the Law and Customs of England, bk. I., ch. 2, written nearly seven centuries ago, says: "If however any new and unaccustomed cases shall emerge, and such as have not been usual in the realm, if indeed any like cases have occurred, let them be judged after a similar case, for it is a good occasion to proceed from like to like." Vaughan v. Menlove[9] is an apposite instance. There, as Tindal C.J. said[10], it was "a case primæ impressionis." But the basic principle which, as Park J. stated it[11], is "every man must use his own so as not to hurt another," was adapted to the facts of the case which were "new in specie." The test was "the care which a prudent man would take," and taking that as their guide the jury were left to say whether there was negligence on the occasion in question. Among modern recognitions of Bracton's rule we have, for instance, that of Lord FitzGerald in Wake v. Hall[12]) and of Lord Herschell in Allen v. Flood[13]; and still more recently we find Bankes L.J. in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920)[14], saying: - "There can, of course, be no exact precedent, as the Electricity Commissioners are a body of quite recent creation. It has, however, always been the boast of our common law that it will, whenever possible, and where necessary, apply existing principles to new sets of circumstances." (See further Prager v. Blatspiel, Stamp & Heacock Ltd.[15].) The fundamental principle is, as already stated, that a man in exercising his own rights of property is to pay due regard to the rights of others. If by what the law calls negligence he injures another he is responsible unless some valid answer is available. The circumstances of the present case appear to be so debatable that it is not out of place to go a little further into the rationale of the matter. Negligence is the absence of that care which the law requires in the circumstances. Care means taking reasonable precautions to guard against injury to another, which an ordinarily prudent person would anticipate as likely at that time and in that place to arise unless such precautions were taken. Whether in a given case care is required by law and, if so, the extent of such care depend upon the relations of the parties and must be determined by the Court (see per Lord Kinnear in Butler (or Black) v. Fife Coal Co.[16]). The actual sufficiency of the precautions taken having regard to the legal standard and also whether the relevant injury should have been anticipated are questions of fact determinable by the jury (per Lord Kinnear[17]). The necessity and extent of care, in some well-known relations, as invitor and invitee, licensor and licensee, owner and trespasser, bailor and bailee, carrier and passenger, are now well established. In other circumstances, for instance in the present case, the question has not been expressly settled, and has given rise to considerable discussion and some difference of opinion. That is only to be expected from the multiform and changing aspects of life in a progressive society. As a matter of law, we think that, having regard to the relation between the appellant and the respondent and to the proved circumstances of the case, the appellant, if it chose to use its verandah for the undesigned purpose of a stand for viewing the procession, was under the legal obligation towards street passengers of at least taking reasonable precautions to prevent the structure becoming overweighted beyond its strength, either by the presence of too many permitted persons, or by the advent of additional persons whose presence, though unpermitted, ought in the circumstances of the user by the appellant to have been anticipated. As to the first alternative no doubt can exist. The second is easily illustrated: Suppose during a public procession a property owner, using his verandah as the appellant's was used, displays some emblem calculated to arouse public indignation and resentment, and a number of persons spurred by the feelings so engendered mount the verandah to tear down the emblem, with the result that the verandah falls and hurts a passer-by. Technically the invaders are trespassers, but, nevertheless, since the consequence is what the property owner should have anticipated from his own act, the passer-by would, in our opinion, have a good cause of action against him, not to be defeated by the plea that the persons who broke down the structure were trespassers. Those persons - the invaders - if injured would as to reparation stand in a different position, because their relation to the property owner was different. Similar processions are not infrequent in Melbourne. People do, on these occasions, as a matter of common knowledge, mount on verandahs and such points of vantage. Owners who are merely not churlish enough to hunt the public off might well be thought to do no more by inaction than let them take their own risk. But when an owner sets the example as in this case, openly prepares his verandah as a sightseeing stand, and provides sitting accommodation for more than are actually present and does all that the appellant did in this case, what then is the legal position? We are of opinion that it was competent for the jury, upon a consideration of what the appellant itself admittedly did, in the circumstances then present, to conclude, from their own knowledge of local habits and conditions, that the appellant ought to have anticipated the probability of what actually happened, namely, the attempted entry upon the verandah of persons desiring a more advantageous or convenient place for viewing the procession, and ought to have either refrained from going so far, or have taken adequate measures to prevent further incursions on the verandah. The verandah was, apparently, a very comfortable and attractive place for the purpose: there was nothing to suggest to an onlooker that it was unsafe; it was openly used for the purpose by a considerable number of people; accommodation was provided for a still greater number; planks were visibly placed to meet the exigencies of the occasion. From the answer of a director of the appellant company to the sixth interrogatory, it appears that he took steps to distribute over the verandah the people thereon, and lining-boards were placed on the verandah to distribute such people. Unless that implies a sense of insecurity, what was done indicated - and it certainly might to an outsider indicate - a general suitability and availability of the whole area of the verandah for the occasion. Human nature being as it is, local habits being known, and previous similar processions having taken place, when the appellant created indications of space and convenience for a further number and apparent safety - because appearances were all that would naturally influence outsiders - and with but a step down to reach the verandah on the part of those persons whom everyone would expect to swarm on the neighbouring structures, what ought the appellant reasonably to have anticipated? Ought it to have anticipated on such an occasion, when impulse is so powerful, that other persons, less comfortably or conveniently, or perhaps - to all appearances - less safely, placed, might suddenly and without stopping to ask permission join the persons already on the verandah? That was a question which Mann J. in substance asked the jury and which the jury answered in the affirmative. The learned Judge invited the jury also to consider in that connection the effect on the public mind of what he termed the "mild expostulation," and the jury clearly thought that it was no real corrective, but that, as opposed to the rest of the circumstances, it would not operate as any real deterrent or preventive - if, indeed, those who finally entered observed it. Not only do we think the jury were well within their powers as reasonable men gauging the probabilities of the moment in coming to their conclusion (see, for instance, McLoughlin v. Warrington Corporation[18] and In re Polemis and Furness, Withy & Co.[19]; and see also Beven on Negligence, 4th ed., at p. 59), but it appears to us it would have been remarkable if they had thought otherwise. If that point once be reached, then it matters not that as between the appellant and the invaders there was technically a trespass - if trespass there was - for, as between an innocent spectator in the street below and the appellant, the latter by what Mann J. calls "allurement," or what may be called "inducement" or "attraction" or "temptation" or any other name, insufficiently counteracted in effect, was instrumental in bringing about the final and additional stress which eventuated in the fall of the structure. It ran the risk of endangering persons lawfully on the highway, and for this it is, on the finding of the jury, in our opinion properly answerable to the respondent who has suffered by it.

The verdict, therefore, not being erroneous for the reasons advanced, should stand, and this appeal should fail.

In this case the plaintiff, who was lawfully standing in a public highway watching a procession, was injured by the fall of a verandah or awning attached to a building owned and occupied by the defendant and overhanging the highway. The plaintiff alleged that the verandah fell by reason of the negligence of the defendant or those for whom it was responsible, in its construction, management or use. He also alleged that the defendant or those for whom it was responsible allowed the verandah to be in a condition dangerous to those using the highway, or, in other words, created a public nuisance. The action was tried before a jury, and a general verdict was found for the plaintiff, damages £1,500. A new trial was refused by the Supreme Court of Victoria, and an appeal has been brought to this Court.

Apparently, at the trial little attention was paid to the count for nuisance - to the duty of an occupier of property abutting on a highway to keep his property from being a cause of danger to the public. Some authorities there are which suggest an absolute duty on the part of an occupier whose property overhangs the highway to insure the safety of the public "against ... consequent harm not due to some cause beyond human foresight and control" (Pollock on Torts, 10th ed., p. 506; Tarry v. Ashton[20]; Kearney v. London, Brighton and South Coast Railway Co.[21]). This strict rule of responsibility approaches the rule of Rylands v. Fletcher[22], and cannot well be distinguished from it. Modern authorities, however, refuse to apply that strict rule in the case of a normal or ordinary use of property, as is the case of awnings or verandahs to a building, overhanging the public highway (Barker v. Herbert[23]; Rickards v. Lothian[24]). The duty of an occupier is rather "to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against" (Pollock on Torts, 11th ed., pp. 526-527, 512-513; cf. Latham v. R. Johnson & Nephew Ltd., per Hamilton L.J.[25]; Noble v. Harrison[26]). The duty, as Sir Frederick Pollock says, is impersonal rather than personal (Penny v. Wimbledon Urban Council[27]). Again, the occupiers may be answerable for the neglect of the duty, as Hamilton L.J. (now Viscount Sumner) points out in Latham's Case[28], "even though but for the intervening act of a third person or the plaintiff himself" the "injury would not have occurred." "No doubt each intervener is a causa sine qua non, but unless the intervention is a fresh independent cause, the person guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such interventions and to have foreseen that if they occurred the result would be that his negligence would lead to mischief." McLoughlin v. Warrington Corporation[29] is but an illustration of this view. Undoubtedly there was evidence to go to the jury of a breach by the defendant of this duty of an occupier of property abutting on a highway, but the case was not so presented to the jury by the learned Judge, and a verdict cannot be sustained on this ground.

The case put to the jury was whether the defendant or those for whom it was responsible so negligently constructed the verandah or so negligently managed and used it that it fell down and injured the plaintiff. There was not, I think, any evidence of negligence in construction; and the jury should have been so directed. An engineer called for the plaintiff indulged in a number of conjectures, but the matters on which he based his conjectures were all disproved as matters of fact. The learned Judge, however, instructed the jury that there was little, if any, evidence on which they could find that the mode of construction was in itself faulty and defective so as to attach liability to the defendant. Under these circumstances the Court can I think rightly act upon Order XXXIX., r. 6, of the Rules of the Supreme Court, and say that no substantial wrong or miscarriage was occasioned by reason of the misdirection. There was a possibility that the jury disregarded the opinion of the learned Judge; but that possibility is so slight that I think it may be disregarded.

We come now to the learned Judge's charge with reference to the management and use of the verandah. There was ample evidence to go to the jury of such negligence. The defendant's case, however, was that the fall of the verandah was caused, not by the neglect of the defendant, but by the independent intervention of third parties for whom it was not responsible, namely, trespassers from an adjoining verandah. I quite agree with the learned Judge that, if the fall of the verandah was caused by the combined act of the defendant and the third parties in overweighing the verandah, that would afford no answer to the plaintiff's claim; but the learned Judge went much further: he suggested that the third persons were allured on to the verandah and, therefore, were there in substance at the invitation or with the leave of the defendant. There was not, in my opinion, the slightest evidence of any such invitation or leave. The people on the adjoining verandah jumped on to the defendant's verandah without any such leave, and even against the protest of the defendant's servants. And as to allurement, a man is "a trespasser ... if he goes on private ground without leave or right, however natural it may have been for him to do so" (Latham's Case[30]). Having suggested to the jury that the defendant's verandah was an allurement to people on the adjoining verandah the learned Judge proceeded: "It is a matter for you to consider whether that course of conduct on the part of people so situated was not just such a course of conduct as the defendants might reasonably have anticipated and ought to have provided against if they had given any thought to the matter at all, if they had realized the danger, the peril of the people beneath. ... They are bound, as I have said, not only to use their property with proper circumspection but to provide against its use by other people if that were a thing which might reasonably have been anticipated." Possibly this direction was suggested by the observations in Rickards v. Lothian[31] and In re Polemis and Furness, Withy & Co.[32].

Now, I quite agree that the defendant is responsible if it or those for whom it is responsible allowed too great a weight upon the verandah; but I cannot assent to the view that an occupier of property is under a duty to prevent the intrusion of trespassers upon his property, or to forsee that such an intrusion was likely and would cause damage. Such a view is opposed to the decision in Barker v. Herbert[33], and it is not within the proposition of Viscount Sumner in Latham's Case[34], for the defendant's case is that it was guiltless of negligence and that the cause - the effective and direct cause - of the accident was the intervention of third persons - trespassers - over whom it had no control and who came upon its verandah without any right and without any leave on its part. (See also Weld-Blundell v. Stephens[35].)

In my opinion the verdict should be set aside and a new trial had. But I do not regret that the opinion of the Court in this case is otherwise, for a proper direction on the facts of this case would, I should think, on any further trial almost certainly again result in a verdict for the plaintiff.

The Court being equally divided in opinion, the order appealed from is affirmed. The appeal will be dismissed, the appellant to pay costs of the appeal.

Solicitors for the appellant, W. B. & O. McCutcheon.

[9] [1837] EngR 424; (1837) 3 Bing. N.C. 468.

[10] (1837) 3 Bing. N.C., at p. 474.

[11] (1837) 3 Bing. N.C., at p. 476.

[12] (1883) 8 App. Cas. 195, at p. 211.

[13] (1898) A.C. 1, at pp. 127, 128.

[14] (1924) 1 K.B. 171, at p. 192.

[15] (1924) 1 K.B. 566, at p. 570, per McCardie J.

[24] (1913) A.C., at p. 280; 16 C.L.R., at p. 401.

[31] [1913] UKPC 1; (1913) A.C. 263; 16 C.L.R. 387.

[32] (1921) 3 K.B., at pp. 571, 574, 577.

[35] (1920) A.C. 956, at pp. 986 et seq.