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.