Appeal and new trial - Order of appellate court in action for damages for personal injuries - Trial by jury - Direction and questions to jury on one footing - Plaintiff's right of action upon different footing - Whether new trial should be ordered by High Court - Sufficiency of jury's answers to specific questions.

BARWICK C.J. The appellants are a father and his infant son. The latter sued injuries received by him through contact with uninsulated conductors carrying electricity. The former sued to recover expenditure by him rendered necessary by the receipt of those injuries by his son. Throughout what follows I shall treat the son as the sole appellant. My conclusions as to the fate of his appeal will determine that of the father's appeal. (at p3)

2. The brief facts are that the appellant, with another youth climbed so far upon a pole erected by the respondent that he was electrically burned through touching the cables attached to the structures associated with the pole. (at p3)

3. The basis on which the appellant sought to express in his pleadings the cause of action he claimed to have against the respondent varied from a breach of a general duty to take reasonable care for the safety of others to a breach of an occupier's duty to a trespasser, embracing in the course of amendment a claim for breach of an occupier's duty to a licensee. In the long run, the appellant placed his case on the duty owed to him in the circumstances by the respondent as an occupier of the pole, conceding that he was a trespasser thereon. The case was so treated by the learned trial judge (1969) 25 LGRA 71 who concluded that the evidence in the case was sufficient to warrant the jury in answering favourably to the appellant each of the following questions:

"1. Was the Hydro-Electric Commission installation

constituted

an "allurement" to children using the area?

2. If Yes to 1 was the action of the child plaintiff in climbing

the installation an occurrence of so high a probability

that it was to be expected or anticipated by the

Commission?

3. If Yes to Questions 1 and 2, was the Commission in

failing to take further and better precautions than it

did to prevent such an occurrence guilty of a lack of

care which went beyond mere negligence and amounted

to a reckless or wanton disregard for the plaintiff's

safety? (at p4)

4. His Honour summed up to the jury accordingly, declining to leave to them a case founded on a general duty of care. He asked the jury, in the event of an affirmative answer to each of the above questions,

"4. At what figure do you assess the infant plaintiff's

damages?

5. Was the infant plaintiff guilty of an unreasonable lack of

care for his own safety?

6. If Yes to Question 5, indicate the degree of responsibility

(expressed as a percentage) which you think he should

bear for his damage?" (at p4)

5. The jury did answer the first three questions in the affirmative, the fifth in the negative, found damages in the sum of $15,000 and made no answer to the sixth question which related to the possibility of an apportionment of responsibility for the appellant's injuries. (at p4)

6. The learned trial judge who, after argument and due consideration, had refused to take the case away from the jury for lack of evidence to support the appellant's case denied a motion in arrest of judgment made to him after verdict on the ground that upon the evidence the jury could not reasonably have answered the first three questions as they did (1969) 25 LGRA 63 . (at p4)

7. The Full Court of the Supreme Court of Tasmania upon an appeal by the now respondent also treated the case as one between an occupier and a trespasser. It set aside the verdict of the jury and the judgment for the appellant entered thereon and gave judgment for the respondent on the ground that there was not sufficient evidence to support the verdict for the appellant: and in particular, that there was insufficient evidence to warrant the answer to the third question (1970) 25 LGRA 82 . (at p5)

8. As I have already indicated, the basis of liability, if any, of the respondent for the appellant's injuries has been taken both during the hearing of the action and of the appeal to be that of, or akin to that, of an occupier of land towards a person entering the land. However, in the argument of the appeal in this Court the validity of that basis of the respondent's liability has been debated, though the respondent, because of the course of the proceedings, has sought to confine the appellant to a case found exclusively upon it. (at p5)

9. A full account of the facts and circumstances of the case is to be found in the judgment of my brother Windeyer whose reasons I have had the benefit of reading. Consequently, I have need to mention only those facts which I wish to emphasize in expressing my own conclusions as the respondent's liability. (at p5)

10. There was evidence before the jury from which they could conclude that the respondent had placed the pole around which the events leading to the appellant's injuries centred upon unfenced vacant land in a suburb of Hobart. Young people had frequented this land for their own purposes over a considerable period of time, including a period before the pole had been placed in position. They could be taken to have done and to do so as licensees of the owner of the land. The authority of the respondent to place the pole and the wires thereon in and over this land was derived from an agreement with the owner of the land granting the respondent a wayleave. The pole was the last of a series of poles designed to support wires carrying electricity at a high voltage in the course of a commercial undertaking carried on by the respondent pursuant to the Hydro-Electric Commission Act 1944 (Tas.) (the Act). From the particular pole the wiring was carried underground. The pole had some metal cladding around it extending upwards for less than seven feet from the ground. The prime purpose of this cladding may have been to protect the cable carrying the current from the overhead wiring to and through the ground: but it may have also been intended as a means of preventing persons from climbing upon the pole. However the cladding was insufficient to do so. With the aid of projections on the outside of the cladding persons including young persons without the display of unusual agility could ascend to the top of the cladding and thereafter use other projections on the pole to come within reach of the uninsulated conductors attached to the pole. The cladding as a means of preventing access to those conductors did not conform to the standard which the respondent had itself adopted as one required for public safety in carrying out its operations. The respondent's servants responsible for the installation of the pole and the attachment thereto of the uninsulated conductors were aware that the area was unfenced and frequented by young people as a playground. The appellant and his companion who climbed this pole on the day in question did so unlawfully (see s. 63 of the Act) and without authority. On that day they used a piece of bush timber placed on rising ground near the pole and against it to reach the top of the cladding. On other occasions they had reached the pole above the cladding without any other assistance than the projections of which I have spoken. The appellant came into contact with the uninsulated conductors whilst thus unlawfully and unauthorizedly upon the pole. He was able to do so because of the lack of preventive measures of an obvious kind which could have been, and in connexion with other poles had been, adopted by the respondent. The jury, in my opinion, could have concluded that it was foreseeable by the respondent that a human being, but particularly that a youth, might for some purpose climb the pole and reach the uninsulated conductors: and that in that event personal injury of a serious kind might result. The legal prohibition of such use of the pole, even if known to those frequenting the surrounding land, did not prevent such conclusions being drawn. The tendency of youth to climb is notorious. That youth does so without authority and wittingly, or unwittingly, in breach of legal prohibition is, in my opinion, also a matter of notoriety. Further there may well be circumstances in which adults may be led to ascend such a pole. (at p6)

11. The fundamental question in this appeal is whether the evidence led for the appellant established a cause of action against the respondent sounding in damages. In approaching and resolving that question I propose to put on one side the pleadings in the case, as in substance did the learned judge who presided over the trial of the action. Pleading as a means of determining the issue of fact to be tried seems to have failed, largely because as an art it has ceased to be practised. This case is illustrative of that melancholy fact. (at p6)

12. As I have already said, both the trial judge and the members of the Full Court proceeded upon the footing that the basis of any liability of the respondent rested on the fact that the respondent was an occupier of the pole, if not of land and that that occupation was the sole and exclusive source of any liability to the appellant: so in the long run did the parties. In my opinion, with every respect to the learned judges who have so far dealt with the matter, this was an erroneous basis on which to consider and determine the rights of the parties. (at p7)

13. The respondent was not an occupier of any part of the land surrounding the cladding round the pole nor was the appellant a trespasser thereon. The land which was underneath the pole, supporting it, might be said to be in the occupation of the respondent. But nothing could turn in this case on that circumstance. That land was not part of the surface of the land at the relevant time: it was as far below that surface as the pole was embedded in the land. Upon it the plaintiff did not tread. There may possibly have been an extremely small area of the surface of the land between the cladding and the surface of the pole which could be said to be in the occupation of the respondent. But again nothing, in my opinion, could turn upon that fact. The pole itself was not part of the land, though placed there by the permission of the owners of the land. It was not intended to form part of the realty: the statute (the Act), which constituted the respondent, ensured that it was not. See s. 56. (at p7)

14. This case therefore is not a case in which the relationship of occupier of land and trespasser thereon was relevant to the respective rights and liabilities of the parties in connexion with the appellant's injuries. It may be thought that such a view places overmuch reliance on what some may call technical distinctions: but, particularly having regard to the course taken by the Privy Council in Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054 it is proper, in my opinion, as far as possible to confine the absence of responsibility, or the limitations upon the responsibility, of the occupier of land for injuries received by persons trespassing thereon to those cases in which such occupation and the occupier's activities thereon are the source of liability. Such a course may reduce the occasions when resort need be had to such vague and, to my mind, unsatisfactory concepts as "wanton disregard" or to the supposition of a licence as a means of accommodation to modern conditions and the exercise of a lively sense of justice that absence of or limitation upon responsibility of an occupier of land which was born of a now distant historical time though still maintained in the recent decision. (at p7)

15. The limitations upon the responsibility of an occupier of land towards those who trespass on it were affirmed in Quinlan's Case (1964) AC 1054 in traditional terms. Those limitations derived, in my opinion, essentially from the nature of land and from historical development of rights and duties connected with its occupation. It is clear to my mind that the narrowness of the responsibility of an occupier of land towards trespassers upon the land cannot be divorced from the fact that it is land upon which the trespasser has come. (at p8)

16. A suggestion has been made that in relation to the responsibility of an occupier of land to those coming upon it, a distinction should be made between responsibility for injuries which stem from the condition of the land itself and for those which result from the operation by the occupier of the land of some plant, machinery or structure upon the land. However much one might be attracted to such a distinction as a useful method of modifying some of the effects of the rigidity of the common law in relation to an occupier's liability, it is not open to this Court, in my opinion, to entertain it. In Quinlan's Case (1964) AC 1054 the injuries of the plaintiff flowed from impact with the locomotive operated by the defendant as part of a system of railways: they did not arise from any condition of the land whereon the plaintiff was when struck. Their Lordships of the Privy Council rejected the suggested distinction. Consequently, we are bound to regard the absence of responsibility of the occupier of land for the injuries received by a trespasser thereon as extending to injuries sustained by the manner of operation by the occupier of plant, machinery and structures thereon. In my opinion, the appellant's cause of action in this case was not, and indeed could not be, based on the duty or lack of it owed by an occupier of land to a trespasser upon the land. (at p8)

17. Consequently I find no need in order to resolve these appeals to venture on the overtrodden field of allurement to juveniles as a source of responsibility of an occupier of land towards them when they trespass upon it nor on the slippery ground of imputed licence: nor need I seek to explore the extent or application of a doctrine which would allow of some acts or omissions of the occupier of land being regarded as so wanton, or reckless as to attract liability towards a trespasser whose actual or extremely likely presence on the land was known. Consideration of such matters can be left to the occasion when the only relevant relationship of parties to an action for damages for personal injuries is that of occupier of land and trespasser thereon. (at p8)

18. However, the categories of invitee, licensee and trespasser, developed in connexion with the liability of an occupier of land for injuries received thereon, have been used not only in respect of injuries received on structures erected upon the land and under the control of the occupier of the land but also in respect of injuries received on structures not erected on land or under the control of an occupier of land. However convenient it may have been to effect this transference of the restricted liability of the occupier of land to cases not involving the occupation of land I doubt whether there was any logical justification for doing so. But accepting for present purposes that this transference has properly been made, the application of these categories of users of such structures has been confined, as it seems to me, to cases in which the injuries in respect of which damages are sought have been due to the state or condition of the structure. Here the distinction between such injuries and those which are caused by the manner of operation of something connected to or used with or upon the structure is in my opinion valid. Consequently the extension of the doctrine developed in connexion with the liability of an occupier of land to govern the liability of the "occupier" of a structure not forming part of the land, or not controlled by the occupier of land may be confined to the case of injuries caused by the condition of the structure itself. Thus the distinction to which I earlier referred as unavailable in the determination of the liability of an occupier of land for injuries received by a person coming upon it, in my opinion, may be critical in relation to injuries received by a person using a structure not forming part of land. (at p9)

19. In my opinion, the most significant fact in the present case is that the respondent by means of uninsulated conductors brought electricity at a lethal voltage to a point on the pole no more than sixteen feet from the level of the land surrounding the pole. The rising surface of the land on one side of the pole might be mentioned as an added circumstance. But I do not found any conclusion in whole or in part upon that fact. It was this act of bringing such electricity to a point proximate to human beings rather than the placement, construction or condition of the pole which caused the appellant's injuries. Even the condition of the cladding, though indicative of the lack of a proper safeguard, was not itself causative of those injuries. (at p9)

20. The pole itself was placed in an area to which people could resort without breach of the public law or of private right. So far from denying access to the point at which the electricity could flow or was flowing, the respondent in a real sense had provided a means whereby the uninsulated conductors might be reached. Use of such means of access could be fatal to adult and juvenile alike. The responsibility for the accident in this case was, in my opinion, that of a person who brings a dangerous substance into proximity of members of the public. The relevant relationship of the parties was that of an operator of a commercial undertaking involving the employment of electricity and a member of the public. The obligation of the respondent, in my opinion, was to take reasonable steps to deny to the public access to the uninsulated conductors. (at p10)

21. As I have indicated, in this case the appellant's injuries did not in reality result from any state or condition of the pole. They resulted from the manner in which the respondent conducted the electricity operations, albeit by the use, amongst other things, of the pole in the condition in which it was. That is to say, the relationship of "occupier" of the pole and "trespasser" thereon was not a relationship relevant to liability. It was not as an "occupier" of the pole in relation to injuries caused by its condition that the respondent, in my opinion, should be held responsible for the appellant's injuries. (at p10)

22. The present is a situation in which the question of duty and liability for damages can be determined as one question, namely, was the possibility of some person, not authorized to do so, climbing this pole to his own injury by contact with the uninsulated conductors reasonably foreseeable by the respondent. (at p10)

23. There was ample evidence on which a jury could conclude that the respondent ought to have foreseen such a possibility and ought to have taken the simple and obvious step of the nature of which it was aware, to deny access to the uninsulated wires charged with electricity. (at p10)

24. In my opinion, this case is governed by the Court's decision in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 : indeed, in my opinion, its facts are stronger in supporting liability than were the facts in that case. (at p10)

25. I think I have so far made it clear that, in my opinion, the decision of the Privy Council in Quinlan's Case (1964) AC 1054 has no direct bearing on the resolution of this case. That was a case in which the actual relationship of the parties, as their Lordships regarded it, was that of an occupier of land towards a person coming thereon - as it happened, trespassing thereon. Robert Addie & Sons (Colleries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 was a like case, or at any rate, was so regarded by their Lordships. But the reasons given in Quinlan's Case (2) do not contain matter which does bear on the decision of the instant case. Their Lordships confined their decision to the case where the relevant relationship of the parties was that of occupier, in that case of land, and persons coming thereon as trespassers. By relevant relationship, I take their Lordships to mean, the existing relationship out of which liability for injuries received is claimed or found to arise. In the light of that circumstance, their Lordships approved the decision of this Court in Thompson v. Bankstown Corporation (1). That is to say they accepted the view that in that case the relevant relationship was not that of occupier and trespasser. Their Lordships' reference to the passage in the judgment of Sir Frank Kitto is emphatic of this situation. It now seems to me that however the members of this Court may have expressed themselves in judgment in that case, the liability of the defendant council supported by their Lordships needs to be placed upon a general obligation to take due care: the pole was carrying wires charged with electricity at a harmful voltage: the possibility of a youth climbing or reaching up upon it, without authority, ought to have been foreseen and reasonable steps taken to ensure that, if one did, he would not be harmed by the electricity passing through the wires supported by the pole. Nothing in the condition of the pole, even if it had been regarded as relevantly in the occupation of the defendant, caused the injuries. It was the want of maintenance in the operation of carrying electricity in the conductors by means of the pole which caused the harm to the plaintiff. Thus, Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 is an authority for the proposition that a person bringing such a substance as electricity into proximity of the public owes a duty to take care by the adoption of reasonable steps or methods that it does not harm those whom it ought to forsee might otherwise come into contact with it. Of course, in determining what ought to have been foreseen, as well as in deciding what steps ought to have been taken or omitted in the particular case, the right, or absence of right of the injured person to have been at the place where he was injured, or at the point from which his injuries stemmed, would be material factors. Though the rigid categories of invitee, licensee and trespasser may not be applicable as such there must remain a quantitative element both in the extent of the foreseeability and of the reasonable steps required to fulful any resultant duty arising from the circumstances in which the injured person came upon the scene. (at p11)

26. There was, in my opinion, evidence in this case to support the conclusion that the respondent ought to have foreseen the possibility that young persons might climb the pole and come into contact with the electrically charged wires with consequential injury and that reasonable steps had not been taken to deny access to those wires. I have no need to repeat in that respect the brief summary of the facts which I attempted earlier. (at p12)

27. There remains what to my mind is a difficult question, namely, whether this Court is justified in acting on the footing that the jury have found those facts or whether on the other hand, it should send the matter for a new trial to permit of such facts being ascertained. (at p12)

28. The jury answered in the affirmative the second question asked of them by the trial judge. There was, in my opinion, evidence on which they could so find. The action of the appellant involved the use of the pole and its cladding as a means of access to an area proximate to the uninsulated conductors. To say that such an action was so probable as to be expected seems to me necessarily to involve the proposition that such an action was foreseeable. It could scarce be doubted that if that action was foreseeable, so was the possibility of injury by contact with the conductors. Thus, if I may divide the question of liability into duty and breach, the basis for a duty of care was found by the jury, though in truth, they had no specific instruction on the point. (at p12)

29. Then did they find facts which established a breach of that duty? They had ample evidence of such facts. Subsequent alterations to the cladding indicated what could have been done. The respondent's adoption of the standards of the Standards Association and the evidence of the expert engineer called on behalf of the appellant clearly showed what was reasonable in the circumstances. Even if there was insufficient evidence to warrant a finding of reckless or wanton disregard for the plaintiff's safety, a matter on which I find it unnecessary to express any conclusion, there was material on which the jury could find that there was a lack of care which went beyond mere negligence. The respondent, as I have said, was dealing with a lethal substance. The presence of children was probable. So far from providing any safeguard, a means of access was available. This situation could be said to evidence more than a mere failure to take due care. Such a finding may be taken to embrace a finding that there was a lack of due care on the part of the respondent. The jury negatived contributory negligence. (at p12)

30. After consideration, during which I confess to some fluctuation of mind, I have come to think that there is no need for a new trial and that, notwithstanding the lack of appropriate direction, the findings of the jury should be taken as necessarily involving findings of those facts which, upon the principles illustrated by the decision in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 , would make the respondent liable for the damages at which they assessed the appellant's claim in the action. (at p13)

31. Accordingly, I would allow the appeal and restore the jury's verdict. (at p13)

MENZIES J. In an action in the Supreme Court of Tasmania, heard by a judge and jury (1969) 25 LGRA 71 , the plaintiff, an infant, was awarded $15,000 damages for injuries which he sustained through touching high voltage transmission lines after climbing a pole from which the lines were suspended. The pole and the lines were the property of the defendant Commission which was entirely responsible for their situation and condition. The Full Court, upon appeal, set aside the verdict and judgment in favour of the plaintiff (1970) 25 LGRA 82 . This appeal is from that decision of the Full Court, and the critical matter to be decided is, to my mind, whether the Commission owed the plaintiff the simple duty of taking reasonable care for his safety. (at p13)

2. The competing contentions were (a) that of the respondent, viz. that the only duty owed by the Commission to the plaintiff, who was a trespasser upon the pole, was not to injure him wilfully (Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054 ) and (b) that of the appellant, viz. that the duty owed by the Commission to the plaintiff was not that of an occupier of premises to a trespasser but the duty of care owed by an undertaker maintaining a highly dangerous electrical transmission system over the land of another to which the plaintiff and other children resorted (Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 ). (at p13)

3. As I have said, the pole and the lines were the property of the Commission and were erected and maintained upon the land of another by virtue of what is called a wayleave agreement. That land was a piece of bushland in Lindisfarne to which people of the neighbourhood, including children, were accustomed to resort without let or hindrance by the owner. The lowest point on the pole carrying exposed wires was sixteen feet above the ground. The pole was of steel and concrete. Its base was surrounded by a sheet-metal guard six feet eight inches high. Although the guard was obviously directed to preventing unauthorized people from climbing the pole, it was not an effective means of prevention. The plaintiff himself, a boy of about eleven, had, in company with other boys, climbed the pole on three occasions using, it seems, different methods to surmount the guard. On the occasion when he was injured what was done was to rest a log from high ground near the base of the pole to the top of the guard and to crawl up the log on to the guard. From that point there was no difficulty in climbing up the pole by taking advantage of projections from it. The evidence was that the plaintiff, on the occasion in question, climbed the pole to investigate a spider's nest which had been discovered previously, and, upon finding that it was empty, had climbed higher to look for the spider and in so doing come into contact with the exposed wires through which he received a serious shock. (at p14)

4. The questions were submitted by the learned trial judge to, and were answered by, the jury as follows:

"1. Was the Hydro-Electric Commission installation

constituted

an 'allurement' to children using the area?

Yes.

2. If Yes to 1 was the action of the child plaintiff in climbing

the installation an occurrence of so high a probability

that it was to be expected or anticipated by the

Commission?

Yes.

3. If Yes to Questions 1 and 2, was the Commission in

failing to take further and better precautions than it

did to prevent such an occurrence guilty of a lack of

care which went beyond mere negligence and amounted

to a reckless or wanton disregard for the plaintiff's

safety? Yes.

In the event of a negative answer to any of the foregoing

questions, no further questions need be answered. In the

event however of an affirmative answer to all three of those

questions, the following further questions will be answered: -

4. At what figure do you assess the infant plaintiff's

damages? $15,000.

5. Was the infant plaintiff guilty of an unreasonable lack

of care for his own safety? No.

6. If Yes to Question 5, indicate the degree of responsibility

(expressed as a percentage) which you think he should

bear for his damage. No answer.

7. At what figure do you find the damages suffered by the

second plaintiff? $5,200.

8. Should such damages as you award under Question 7 be

regarded as the result wholly or partly of the fault of the

second-named plaintiff? If Yes, indicate by a

percentage

your view as to his share of the responsibility.

No." (at p15)

5. It is apparent, I think, that the foregoing questions were framed upon the footing that if the Commission were liable to the plaintiff, it was upon the footing that the relationship between the Commission and the plaintiff being that of occupier of and trespasser upon premises, the Commission had recklessly or wantonly disregarded the boy's safety. (at p15)

6. If the foregoing were the only basis upon which the Commission owed the plaintiff some duty I would agree with the Full Court that the action should have failed and I say no more about it. (at p15)

7. This case, however, is not a case such as I understood Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274 , to have been, viz. where the appellate court was asked to support a verdict upon a ground of liability other than that upon which the case had been tried without findings of the jury in relation to questions of fact which would have had to be answered favourably to the plaintiff to support a verdict upon a more onerous ground of liability than that upon which the plaintiff had succeeded at the trial. (at p15)

8. Here there are findings that the Commission had been guilty of a reckless and wanton disregard for the plaintiff's safety which would certainly support a finding of negligence if that were to be regarded as the relevant matter. If, therefore, the true duty owed by the Commission to the plaintiff was to take reasonable care for his safety, the findings made do support a verdict in favour of the plaintiff. (at p15)

9. The critical question is, therefore, whether the case is one governed by the law relating to occupiers of land and premises thereon or whether it is one governed by the general law of negligence. If it be the former, Quinlan's Case (1964) AC 1054 does, I think, establish that there is no room for the application of the general law of negligence. There the Privy Council decided that a person who is a trespasser is not entitled as against the occupier of the land on which he is a trespasser to the protection of a duty to take reasonable care for his safety. In such a case the law fixing the more confined duty of an occupier of land to a trespasser is both exclusive and exhaustive. (at p15)

10. Is then the law established and applied in Quinlan's Case (1964) AC 1054 to a trespasser upon land of the defendant the law applicable to a plaintiff who was not a trespasser on the land upon which the pole was erected but who did climb the pole without any authority express or implied from the Commission and in doing so put himself in a situation of obvious danger? (at p15)

11. The special and complicated rules which have been developed defining the obligations of occupiers of land to those coming upon land under contract, as invitees, as licensees or as trespassers have been extended - as has sometimes been said - to apply to structures upon land and even to movables. Thus, in his book The Law of Torts, 3rd ed. (1965), Professor Fleming has written, at pp.407- 408, as follows:

"Although the special duties, now under discussion, were

originally formulated with reference to the occupation of

landed property and have frequently been explained as

originating in a desire to shield landowners from the onerous

obligations of care postulated by the general law of negligence,

in recognition of the economic importance and social

desirability

of the free use and exploitation of land, the same

principles have, by analogy, been extended to persons in

possession or control of chattels-structures on land, such as

ladders or scaffolding, and even movables, like ships and

motor cars of which the plaintiff has been permitted to make

use. Thus, the present pattern of liability is being applied

to all situations where the defective condition of any structure,

movable or immovable, in the occupation or control of the

defendant, causes personal injury to anyone entering upon it.

If a passenger in a motor car is hurt as the result of its neglected

condition, the driver's liability is ascertained by reference to

the 'occupancy' duty he owes to a person of the plaintiff's

class, which will vary according to whether he is a fare-paying

or gratuitous passenger. If, however, the accident is caused

by negligent driving, his status becomes irrelevant, because a

uniform standard of care is owed to all persons alike who are

injured as the result of a dangerous activity." (at p16)

12. I would not question the extension of the rules - if it be an extension - to fixtures upon the land of an occupier. Nor is it in doubt that a ship is to be regarded as "premises" for the purposes of the special rules: Swinton v. The China Mutual Steam Navigation Co. Ltd. [1951] HCA 54; (1951) 83 CLR 553 . Furthermore, it may well be that these special rules have sometimes been applied by analogy to some movables. Nevertheless I am not convinced that these special rules do apply of their own force except in a case where a defendant was, at the relevant time, the occupier of premises upon which the plaintiff was injured. I take the same view as was, I think, adopted by the majority of the House of Lords in Excelsior Wire Rope Co. Ltd. v. Callan (1930) AC 404 . There Lord Atkin said (1930) AC, at pp 412, 413 :

"My Lords, in cases of a similar kind questions have arisen

in respect to the duty owed by owners of property or occupiers

of property in relation to dangers which exist upon that

property, whether they are dangers inherent to the nature

of the soil, or whether they are the result of an interference

with it by the owner or occupier either by placing machinery

upon it or otherwise. There has arisen in respect to the

duties of owners and occupiers of land an elaborate series of

decisions which have involved the consideration of the precise

difference between invitees of the occupiers, licensees of the

occupiers, or trespassers upon the land. In my view, in this

case none of those questions is relevant, and that particular

branch of the law which deals with the obligations of occupiers

of land towards those persons who come upon the land is not

at issue at all in this particular case. The defendants in this

case were not occupiers of the land in question.

. . . . .

In those circumstances, my Lords, the only question that

appears to me to arise is: What was the obligation on the

owners of this hauling machinery to persons who might be

endangered by its use? When once the facts which have

been stated by my noble and learned friend on the Woolsack

have been ascertained, the question of the duty is indisputable.

There was a swarm of children frequenting the spot where this

machine was used, and frequenting it to the knowledge of the

owners of the machine, and it appears to me that they owed a

duty to these children to take reasonable precautions to see

that the children were not injured by the occasional use to

which the owners put that dangerous machine."

Lord Warrington of Clyffe was as explicit as was Lord Atkin and it appears to me that Lord Buckmaster took the same view. Viscount Dunedin differed. (at p17)

13. Accordingly, I do not think that this case can be disposed of simply by dubbing the plaintiff "trespasser" and applying Quinlan's Case (1964) AC 1054 as if the Commission were the occupier of the land on which its pole was erected and over which its power lines ran. The case is rather one such as Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 where the High Court decided that a boy standing on a bicycle against a pole carrying high tension wires belonging to the Corporation's electricity undertaking was entitled to succeed for breach of a duty to take reasonable care because the pole which had been erected in a public highway had attached to it a defective earth wire, notwithstanding that, at the actual moment when he was burned by the current, the boy could have been regarded as a trespasser on the pole or the wire. In approving this decision their Lordships, in Quinlan's Case (1964) AC, at p 1080 , said:

"Their Lordships have no doubt that Thompson's Case

[1953] HCA 5; (1953) 87 CLR 619,

was correctly decided. It was 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 electrical

transmission

system in a defective condition." (at p18)

14. In Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , as I have said, the pole was erected in a public highway and it had attached to it a defective earth wire. Here the pole was in a place of public resort, by toleration rather than by right, and the pole was defective only as the jury, in effect, found because it would both attract children and expose any child who climbed upon it to extreme danger. In my opinion these differences afford no ground for distinguishing Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 . It is not for this Court to re-try the facts. It may be, had it been my responsibility, that I would not have held that the Commission was negligent in maintaining the pole as it was, but I cannot go so far as to say that there was no evidence to support the finding of negligence implicit in the answers to questions 1, 2 and 3. (at p18)

15. In these circumstances I consider that the appeal must be allowed and the verdict and judgment for the plaintiff restored. (at p18)

WINDEYER J. Glenn Clyde Munnings, the first-named appellant, is an infant. By his father as his next friend he sued the respondent, the Hydro-Electric Commission of Tasmania (which I shall hereinafter refer to as the Commission or the defendant), claiming damages for personal injuries. (at p18)

2. The Commission is a body corporate created by the Hydro-Electric Commission Act 1944 (Tas.) - hereinafter called the Act - to generate electricity and supply it to consumers in Tasmania. For that purpose it is empowered to construct and control works of all kinds. (at p18)

3. The infant plaintiff's father, the second-named appellant, was also himself a plaintiff, claiming to recover from the defendant expenses that he had incurred for the medical treatment of his son. His cause of action depends upon the claim that the son's injuries were tortiously caused by the defendant. His case therefore turns entirely upon the success or failure of the case of his son, whom I shall therefore for convenience call the plaintiff. (at p18)

4. The primary facts are not in dispute. The accident happened on 23rd January 1967 when the plaintiff was eleven years old. He climbed a standard constructed of metal and concrete which has been conveniently referred to as a pole. It carried high voltage electric transmission cables. The plaintiff came in contact with a live conductor and was seriously hurt. The pole stood in vacant land on the edge of building development at Lindisfarne, an outer suburb of Hobart. This land was at the time of the accident and had been for some time unfenced waste land with bushland adjoining. It was on one side of a street, on the other side of which there were dwellings. Children of the neighbourhood, including the plaintiff, were accustomed to play on the land without any let or hindrance from anybody. About a hundred yards in from the street there was a line of poles from which cables carrying high voltage electricity were suspended overhead. These poles and wires had been put there by the Commission when the land was vacant. The pole where the accident occurred was the last of the line. From it the electric current was carried to the ground at the base of the pole by insulated conductors, and thence conducted underground to a sub-station in the neighbourhood, to be there transformed to a voltage suitable for domestic use. (at p19)

5. Section 53 of the Act expressly recognizes that the Commission is liable for injuries caused by its neglect or default. The essence of the plaintiff's case is an allegation that the Commission negligently failed to prevent or deter unauthorized persons from climbing this terminal pole. In support of this it was proved for the plaintiff that the defendant was a member of the Electricity Supply Association of Australia, a body to which electricity supply authorities throughout Australia belong, as appears from the list of members prefaced to the Association's "Code of Practice for Overhead Line Construction" that was tendered. The Commission had accepted and adopted the relevant "recommended practices for the safe and economical design of overhead lines", as shewn in this "code". It had done so by requiring sub-contractors from it to comply with the relevant provision, which is as follows:

"Prevention of Unauthorised Climbing

19. No pole for an overhead line should have any

projection

or device capable of providing a foothold within ten

feet of the ground measured vertically, provided that a

collapsible ladder may be permanently attached to a pole

within ten feet of the ground if, when not in use, it is kept

closed and locked.

Suitable guards should be provided, if considered necessary,

to prevent unauthorised climbing of poles and other supports

for an overhead line."

The importance of this rule is that it indicates that unauthorized climbing is probable enough to make precautions against it desirable, and that it prescribes precautions that are reasonable for the purpose. (at p20)

6. The pole that the plaintiff climbed did not comply with this recommendation. At its base it was surrounded by a square sheet-metal covering, standing out a few inches from the pole. This casing extended upwards to a height six feet eight inches above ground level. It appears clearly enough from the photograph tendered that it was designed to encase the lower part of the cables that led the current from overhead to beneath the ground. One witness, a police constable, described it as the cable guard. Clearly its purpose was to protect the installation, not to protect people by preventing their climbing. Far from preventing climbing, it facilitated it. The top of it formed a projection from all four sides of the pole wide enough to provide an easy foothold: and this was well within ten feet of the ground - the very thing that the code said should not be. Furthermore there were projecting bolt heads through one side of the metal casing; and above it there were wooden cleats which could be used like the rungs of a ladder. The lowest live and uninsulated cable was sixteen feet from the ground. (at p20)

7. Mr. Beresford, a highly qualified and widely experienced electrical engineer, gave evidence. He had seen the pole after the accident. He described it and said that in his opinion adequate steps had not been taken to prevent climbing by inexperienced and unauthorized people in that it did not comply with the recommendations of the code. He emphasized the need for care lest unauthorized persons should gain access to any high voltage installations or equipment such as this terminal pole. He had himself been able to get on top of the metal casing by simply putting one foot on a projecting bolt, grasping the top of the metal and pulling himself up. He said that this pole was a departure not only from recommended practice but also apparently from the Commission's own practice as shewn by the very next pole in the line on which the only footholds were projecting bolts all more than ten feet above ground level. (at p20)

8. The accident occurred on the third occasion, all within about a fortnight, on which the plaintiff had climbed this pole. The first time he had simply pulled himself up on to the top of the metal casing by standing on a small peg a few inches high that stood in the ground at the base of the pole, being apparently part of the fixture. A companion, another boy of about the same age who was with him, was unable to get up in this way. The plaintiff descended again. There was, it seems, no reason for his climb except the natural way of boys to climb climbable things. Some days later the plaintiff with the same companion was playing in the area again. They visited the pole again. This time they both got on top of the metal casing. They did so by leaning a small piece of a log that they found in the bush against the top of the metal. When they were on top of the metal guard the plaintiff noticed a spider which ran up the pole into an empty bolt hole. They looked in the hole and saw cobwebs and what they took to be spiders' eggs there. Their climb was simply an adventure with no particular purpose. It was again without mishap. They both said in evidence that they were not aware of danger in climbing this post. They had both seen workmen go up it. They went there again a week or so later. This time they went with a boyish interest in spiders in mind. They got up the pole in the same way as before. The spiders' hole was empty. They went further up. The plaintiff apparently reached what was called the first cross bar. He, it was said, was preparing to descend, pursuant to a message that he was wanted at home brought by a younger brother, when some part of his body came in contact with a high voltage conductor and he fell to the ground very badly burnt. (at p21)

9. The plaintiff sued the Commission for negligence. Of that there was evidence enough. A hundred and fifteen years ago Alderson B. said that "negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do" (Blyth v. Birmingham Waterworks Co. [1856] EngR 223; (1856) 11 Ex 781, at p 784 (156 ER 1047, at p 1049) ). The avalanche of cases since then has not buried that simple statement: and nothing that has been said in them has bettered it. Clearly a jury could find in this case that the Commission had failed to act as a reasonable and prudent supplier of electricity would. But for the plaintiff to succeed he had to prove more than that the defendant was negligent. He must establish that this negligence caused the harm that he suffered. He must shew too that he was in law a person entitled to complain and seek redress for this harm - that is to say, expressed in current conceptual terms, that he was a person to whom the Commission owed a duty of care. This the Commission denied. It said he was a trespasser. The proceedings in the case have turned mainly on questions of law relating to what is commonly called occupier's liability. (at p21)

10. Was the Commission, by reason of the pole being its property, an occupier of land on which the plaintiff was an intruder? That question, fundamental in the argument, is not answered by an examination of proprietary rights and interests; for, as Lord Diplock, then Diplock L.J., said in the Court of Appeal in Wheat v. E. Lacon & Co. Ltd. (1966) 1 QB 335, at p 367 , "'occupiers' liability' is part of the general common law of negligence, not of the law of property". And in that case, on appeal in the House of Lords [1966] UKHL 1; (1966) AC 552, at p 577 , Lord Denning described the term "occupier's liability" as "simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises". His Lordship was not in that case concerned with persons coming upon the premises unlawfully, that is as trespassers; for to them an occupier, considered simply as occupier, has no duty of care. Lord Pearson said (1966) AC, at p 589 that "the foundation of occupier's liability is occupational control, that is control associated with and arising from presence in and use of or activity in the premises". But proprietary rights and title, although not decisive, are not entirely irrelevant. The pole stood on land that was privately owned but unused by the owner. The Commission's poles and transmission line were there by virtue of what was described as a "wayleave agreement" dated 26th October 1964. The wayleave agreement was I assume entered into by the Commission pursuant to s. 47 of the Act, read having regard to the definitions in s. 2 of "wayleave contract" and "wayleave easement". A wayleave originally meant a form of easement of way, usually for the carriage of the produce of a mine. The use of the word in connexion with the transmission of electric energy seems to originate in the sidenote to s. 22 of the Electricity Supply Act, 1919 (U.K.). That is the first place that I have noticed it. It is a statutory right, having some of the qualities of an easement, described in the article "Easements" in Halsbury's Laws of England, 3rd ed., vol. 12, p. 524, as an anomalous right in alieno solo. In a narrow and technical sense it does involve occupation of land; for a pole occupies the small segment of the earth's surface on which it stands or the hole in which it is planted, and overhead wires crossing land occupy part of an hereditament, the landowner's estate extending upwards to the sky. In that sense the owner of overhead electric wires and poles is an occupier of land: Electric Telegraph Co. v. Overseers of Salford [1855] EngR 552; (1855) 11 Ex 181 (156 ER 795) . But, as Lindley L.J. observed in Lancashire Telephone Co. v. Overseers of Manchester (1884) 14 QBD 267, at p 272 , that does not mean that the owner of overhead electric wires occupies land in the ordinary sense. And since Wheat v. E. Lacon & Co. Ltd. [1966] UKHL 1; (1966) 1 QB 335; (1966) AC 552 , it has been well established that the use of the word "occupier" in rating law does not help to determine who is an occupier for the purposes of the law of occupier's liability. It was not suggested that the Commission by planting posts upon the land had made them or the attached wires part of the realty. They remained the property of the Commission and in its control. That flows from provisions of the Act, including s. 56. (at p23)

11. There is no doubt that in climbing the pole the plaintiff was a wrongdoer. He was liable to a penalty for breach of By-law 28 of the Hydro-Electric Commission By-laws 1966, which provides that "no person shall climb a post, standard, or pole carrying an electric wire". But that would not absolve the Commission from any duty of care that it had for him: Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438 : and it was not suggested that it did. The Commission relied simply on the fact that he was in law engaged in a trespass. That he was. But is it an end of his case? I think not, for three main reasons. One is that I gravely doubt whether the rules that deny a right of action for negligence to a trespasser on land are applicable to trespasses of other kinds. Another is that I think they are not applicable in the case of a negligent omission to deter, by warning or impediments, unauthorized persons from coming to a place where the defendant has a dangerous thing. The third is that, even in cases where the only relevant relationship is that of land occupiers and intruder, the law distinguishes among intruders: and in cases of children who trespass the rigor of the law is tempered to them. I shall deal with each of these matters in turn; but first I would consider for a moment the origin of, and the justification that is asserted for, an occupier's immunity from actions of negligence by trespassers. (at p23)

12. Two theories have been advanced. One is that a man is not to be heard to complain if he comes to harm because he has gone where he had no right to go. This is a plausible explanation. But it is not a logically consistent or intellectually satisfying justification when a person who comes to harm when trespassing on the land of one man is allowed to recover damages from another man who actually created the danger there, as in Buckland v. Guildford Gas Light and Coke Co. (1949) 1 KB 410 ; or when the person denied a remedy because he was a trespasser was a traveller who had mistaken his was in the dark, as in the Scots case of Prentice v. Assets Co. Ltd. (1890) 17 R 484 (SC) ; or was a two years' old toddler, unable to know what trespassing meant, who strayed into danger, as in Videan v. British Transport Commission (1963) 2 QB 650 ; or was a policeman who entered premises, without a warrant but to see that all was well, and fell into an unfenced pit: Great Central Railway Co. v. Bates (1921) 3 KB 578 . (at p24)

13. The other explanation of the land occupier's immunity from actions by trespassers is that it stems from the special regard that the common law has had for the tenure of land from feudal times until recent days. The exemption that the law gives a landholder from actions by trespassers is then seen as a survival from times when he could with impunity have set spring guns and man-traps. In Professor Prosser's learned work on the Law of Torts, as it prevails in the United States of America, this passage appears (at p. 367):

"While it is often said that the trespasser assumes the

risk of injury, this is rather a way of describing the rule and

its effect than of accounting for it, since he is quite usually

unaware of any risk at all. The true explanation seems to be

merely that, in a civilization based on private ownership, it is

considered a socially desirable policy to allow a man to use his

own land in his own way, without the burden of watching for

and protecting those who come there without permission or

right." (at p24)

14. The rule of our law is that an occupier of land is not to be held liable in an action for negligence for harm that a trespasser comes to there, unless being aware of the trespasser's presence there, or at least knowing that it was "very probable", or "extremely likely" he acted with reckless disregard for his safety. That has been firmly stated for us by the Privy Council in Quinlan's Case (1964) AC 1054 . But before coming to what was there said, around which so much of the argument in this case has revolved, I turn to ask myself whether the question that there arose has any bearing on the question in this case. (at p24)

15. Strictly speaking, the subject of a trespass to land must be real and corporeal property. Climbing the pole, which was not part of the realty, was not in a technical sense an entry upon a close. But the rule that trespassers come upon premises at their own risk has not been so confined. Regardless of its origin in the rights of landholders, it has been taken to apply to persons who without authority come upon structures of various kinds not all fixtures on the land, even including it seems vehicles. Doubtless an occupier's immunity from actions by trespassers covers the whole of his premises, including all buildings and other structures there. But to apply it to a pole owned by one person which is standing on another person's land, and call the owner of the pole an occupier seems to me to be a far-fetched and doctrinaire reliance upon a concept that is really alien to the situation. I do not mean to say that climbing the pole was not a trespass. The word "trespass" has a far wider meaning in law than trespass to land. But the argument for the defendant Commission sought, I thought, to assimilate far too closely, on technical grounds and by merely linguistic similarities, the climbing of the pole with an intrusion upon a land occupier's land. For that reason alone, I cannot accept the contention that the decision of the Privy Council in Quinlan's Case (1964) AC 1054 ends this case. However, because so much was said about it, I turn to make a few remarks upon that decision. (at p25)

16. It is a decision that has provoked critical, indeed disparaging comment in several parts of the common law world. The Court of Appeal in England has pointedly declined to be bound by it. But we are not at liberty to do that. As a strongly expressed reiteration of a rigid rule, the judgment of the Privy Council has been seen by many commentators as arresting the growth of the common law, which was proceeding, in accordance with traditional principles and methods, to meet the needs of men in modern times. The decision is binding upon courts in Australia. Therefore we, accepting our heritage of the common law of England, must not seek to subordinate the categorical rules of occupier's liability to the general and more generous doctrines of the law of negligence and of a common duty of care based on foreseeability of harm. For Australia as a whole that must now await the tardy action of seven Parliaments. Since Quinlan's Case (1964) AC 1054 and McDermott's Case (Commissioner for Railways v. McDermott (1967) 1 AC 169; 40 ALJR 1 ) invitees and licensees as well as trespassers must remain with us, each entitled to his own particular degree of care as formulated by Willes J. in 1866. Those who came upon premises must first explain in what capacity they came if they seek redress for harm that there befell them. The trend of judicial authority that I noticed in what I wrote in Voli v. Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74, at pp 88-89; 9 LGRA 1, at pp 9-10 has now been stopped short by the Privy Council. That I do not for a moment dispute. But it does mean that the arresting decision must keep its proper place. Whether or not the misgivings and dissents that have been expressed about it be justified, I do not pause to consider. The literature on the subject is now voluminous. I have no desire to add to it. I find no difficulty myself in the rule that their Lordships laid down in cases which in their essential facts are similar to the one that was before them. I do find some difficulty in knowing what exactly are the limits of some qualifications that they recognized of the universality of that rule. I need not elaborate that here as I understand that the case of Herrington v. British Railways Board (1971) 2 QB 107; (1971) 2 WLR 477 is to go to the House of Lords. I take the liberty of saying only that the powerful judgments in the Court of Appeal in that case would be encouraging indeed if we were as unfettered as their Lordships there were. It is significant that Quinlan's Case (1964) AC 1054 has precipitated proposals by bodies concerned with law reform in New South Wales, in Alberta in Canada and in New Zealand, for the alteration by the Parliaments of the rule that the Privy Council has laid down. I have read something of these proposals, including the suggestive report on Occupiers' Liability by the Institute of Law Research and Reform of the University of Alberta and the thought-provoking review by Professor Alexander in the Alberta Law Review, vol. 9 (1971), pp. 89-102. As our task is simply to ascertain and apply the law as it is, it would be improper to discuss here the varying proposals that have been made for legislation to amend the law. I may however be allowed perhaps to say that I understand that the Occupiers Liability (Scotland) Act, 1960 has proved satisfactory, and to echo for Australia the hope that Davies L.J. expressed in Herrington's Case (1971) 2 QB, at p 128; (1971) 2 WLR, at p 490 , for England that our law may be brought into line with the law of Scotland. Trespassers are not there excluded from the duty of reasonable care that, in all the circumstances, the occupier of premises is required to have for persons entering thereon. (at p26)

17. The only comment that I permit myself to make on Quinlan's Case (1964) AC 1054 is that, accepting all that their Lordships said as to the law, some observations they made as to the facts of that case ought not to be regarded as dogmas governing conduct in other circumstances. The plaintiff there was a trespasser on a railway level crossing. It was a private crossing, that is a private right of way. The plaintiff was not a licensee of the owner of the dominant tenement; and he was not using the crossing for the purpose for which it was created. He was thus a trespasser on the servient tenement, the railway land: see Milner's Safe Co. Ltd. v. Great Northern and City Railway Co. (1907) 1 Ch 208 . Had he been a person having a right to use the private way, he would not have done so as either an invitee or licensee, as Lord Denning M.R. explained in Greenhalgh v. British Railways Board (1969) 2 QB 286, at p 293 . But he would at any rate have been entitled to reasonable care, and that would seem to require a warning whistle from the train. Doctor Goodhart expressed that view in his powerful article "An Adult Trespasser on Railway Lines" in the Law Quarterly Review, vol. 80, at p. 561. I see no answer to it unless it be that the driver of a vehicle lawfully using a private level crossing over a railway always does so at his own risk. There are cases that perhaps suggest that that may be so: see Hazell v. British Transport Commission (1958) 1 WLR 169; (1958) 1 All ER 116 and cases there referred to. But I doubt it as a general proposition and I certainly do not think that a casual remark in the judgment in Quinlan's Case (1964) AC, at p 1085 -"It is very difficult to think that a whistle correctly timed can itself make the difference" - can be taken in Australia, especially in country places, as any warrant for a train not whistling as it approaches a level crossing, public or private, that is not visible to the train driver from a distance. I am troubled too by the statement (1964) AC, at p 1087 that it was not even probable that a truck carrying a load of tiles would be on the road at 5.20 a.m. "more than two hours before the working day began". It was midsummer. No one living in the outskirts of Sydney today would be surprised that loaded vehicles travel in the early hours of the morning, often in the hours of darkness. And the delivery of building materials at a building site before the work of building begins for the day is surely not unusual? I say that only because their Lordships said that "the reason for the respondent's early start does not seem to have been investigated at the trial but weight would have to be given to it in any measurement of a rate of probability". I appreciate the difficulty of measuring "a rate of probability". Juries must in future be directed to decide whether the presence of a trespasser upon land was extremely probable or only reasonably foreseeable; and then to say whether the defendant acted with reckless disregard of his safety. It would I think be unfortunate if they are to be told that for this they must necessarily know and consider what reason a particular plaintiff trespasser had for trespassing when he did. However, as I see it, this is not a case in which the probability of a boy climbing the pole had to be measured or his reason for climbing needed to be known. The incursions from the law into the facts that their Lordships made do not, to my mind, make the rule of law that they laid down difficult to apply in a case in which it is applicable. But I have come to the conclusion that it really has no application to the present case, for I do not regard this case as depending upon the limited duty that an occupier of land owes to a trespasser. Adopting the distinction made and the verbiage used by Dixon C.J. and Williams J. at the commencement of their judgment in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619, at p 623 , the category of the law of torts that the facts of this case make relevant is, I consider, "the general law of negligence" related to "the duty of exercising a high standard of care falling upon those controlling an extremely dangerous agency, such as electricity of a lethal voltage". Expressing myself as I did in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274, at p 321 , the facts can attract a category of the law of torts and a concept of duty transcending the special rules concerning the duties of occupiers to entrants. That I still think is sound doctrine even in the case of trespass to land. I venture to repeat here, without any recantation or repentance, a passage from what I then wrote (1960) 104 CLR, at p 317 :

"The formulary rules really do no more than state what the

law has determined a reasonable man must do to discharge a

duty of care arising in particular circumstances. And they

are decisive only in cases where the plaintiff's case is founded

upon the duty of the defendant as occupier for the safety of

his premises. A plaintiff who can rely on a duty of care

arising in particular circumstances is not to be defeated merely

because the defendant is the occupier of the land on which he

came to harm. His presence upon the land and the

circumstances

in which he came there may be merely elements in a

total situation from which a duty of care arises, and not the

foundation of the defendant's duty of care."

I add to that a remark of the learned editors of the last, the eighth, edition of Winfield on Tort, p. 198:

"Can it not be said that so long as the defendant's liability,

if any, can be attributed only to his duty as occupier, then the

very limited duty of Addie's Case

[1929] UKHL 3; (1929) AC 358

is bound to govern a claim

by a trespasser; but if there are other elements in the case

which are capable of giving rise to a duty of care, then the

fact that the plaintiff is a trespasser is only one of the many

factors though no doubt an important one - which must be

taken into account in deciding whether or not there has been

the breach of a duty owing to him."

I would answer that in my opinion it can be rightly so said. (at p28)

18. As I understand the evidence, the duty of care that the Commission owed to the plaintiff was not a duty to have its pole safe for trespassers. It was a duty which arose from the very fact that it was dangerous to trespassers. High voltage electricity is a highly dangerous thing. To bring such a dangerous thing to a locality frequented by members of the public imposed a duty of care. That duty could be discharged by putting live wires beyond easy reach and not enabling unauthorized persons to come to them. It is I consider no answer to a failure to keep a dangerous thing away from a person to say that he meddled with it wrongfully. I see no need to elaborate that. Two illustrations will suffice. One is Glasgow Corporation v. Taylor (1922) 1 AC 44 , the well-known poisonous berries case. There one of the pursuer's condescendences averred that the defenders did not take any precautions to warn children of the danger of picking the berries or to prevent them from doing so. Lord Sumner said (1922) 1 AC, at p 64 :

". . . the child had a right to be in the part of the park where

the defenders had a right to grow their bush, and the law has

to place the exercise of each of these two rights in a just relation

to that of the other. The child had no right to pluck the

berries, but the corporation had no right to tempt the child

to its death or to expose it to temptation regardless of

consequences.

The question is therefore one of the relative

duties of care between the corporation and the child, when

each was exercising a right and neither right was, as such,

subordinated to the other." (at p29)

19. The other illustration, and one which because of its facts is closely in point, is Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619. It is noteworthy that in Quinlan's Case the Privy Council expressly approved the decision in that case. Their Lordships said that (1964) AC, at p 1080 :

"It was one of those (cases) 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."

Every word of that is applicable to this case. It was urged that it is distinguishable. There the defective condition was the result of a defect that had developed, bringing a live wire within reach of a boy standing on a bicycle; whereas here the pole was defectively constructed from the outset, as it did not comply with reasonable safety precautions to prevent climbing. But I am unable to think that anything turns on whether a danger arises from negligence in maintenance or negligence in design. The Privy Council did express disapproval of a particular passage in the judgment of Kitto J. in Thompson's Case (1953) 87 CLR 619 . That, however, does not detract from the relevance for the present case of the decision of this Court in that case. And I must add, with all respect to their Lordships, that I think that what Kitto J. said has, as I read it, been misunderstood. I take the same view as that which the Chief Justice expressed in the course of the argument in this case. If a plaintiff's claim is founded solely on the duty of care that an occupier of land owes to persons coming there, then if the plaintiff be a trespasser his rights are governed by the principles stated in Quinlan's Case (1964) AC 1054 . But that, as their Lordships said (1964) AC, at p 1074 , is "so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured". As I read what Kitto J. said in the passage that their Lordships discount, his Honour was explaining why in some circumstances there could be, as he expressed it (1953) 87 CLR, at p 643 , "another relation between the parties giving rise to such a duty of care that the jury could properly find a breach of it to have been a cause of the . . . injuries". That seems to me to say only that there can be cases in which, using their Lordships' phrases, a court can for sufficient reason say that "the relation of occupier and trespasser does not bear upon the situation of the parties", that it is not in the circumstances a "relevant description of their relationship". (at p30)

20. The duty here as I see it was, as I have said, not a duty to an entrant upon premises, but a duty to take reasonable measures to prevent or deter unauthorized persons from climbing the pole. It is enough to quote once again what Lord Macmillan said in Bourhill v. Young [1942] UKHL 5; (1943) AC 92, at p 104 :

"The duty to take care is the duty to avoid doing or omitting

to do anything the doing or omitting to do which may have as

its reasonable and probable consequence injury to others, and

the duty is owed to those to whom injury may reasonably and

probably be anticipated if the duty is not observed."

In their judgment in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , Dixon C.J. and Williams J. quoted that, observing that it accorded with Lord Atkin's earlier famous description of a person who is a "neighbour". There is today no justification for restricting its application unless in a particular situation the law commands that some other rule be applied. Lord Reid, in a most apposite passage in the recent case of Dorset Yacht Co. v. Home Office [1970] UKHL 2; (1970) AC 1004, at pp 1026-1027 , said:

"About the beginning of this century most eminent

lawyers thought that there were a number of separate torts

involving negligence, each with its own rules, and they were

most unwilling to add more.

. . . . . . . . .

In later years there has been a steady trend towards

regarding the law of negligence as depending on principle so

that, when a new point emerges, one should ask not whether

it is covered by authority but whether recognized principles

apply to it. Donoghue v. Stevenson

[1931] UKHL 3; (1932) AC 562

may be regarded as a

milestone, and the well-known passage in Lord Atkin's speech

should I think be regarded as a statement of principle. It is

not to be treated as if it were a statutory definition. It will

require qualification in new circumstances. But I think

that the time has come when we can and should say that it

ought to apply unless there is some justification or valid

explanation for its exclusion." (at p31)

21. I think that it was open to a jury to find a verdict for the plaintiff. But the case comes to us as an appeal from the judgment of the Full Court of the Supreme Court (Crawford, Neasey and Chambers JJ.) (1970) 25 LGRA 82 reversing the judgment for the plaintiff given at the trial of the action before Crisp J. and a jury (1969) 25 LGRA 63 . I therefore go now to the course that the proceedings took and the manner in which the question before us has arisen. (at p31)

22. The pleadings were not well framed to tender with precision issues of fact or of law. The learned trial judge strongly criticized them. The plaintiff's statement of claim, in its original form, alleged that the defendant had a duty to take reasonable care to prevent members of the public making accidental contact with live conductors attached to power poles erected in places where members of the public might be expected to be. Then, under a heading "particulars of negligence", there were allegations of failures to erect guards to prevent persons climbing the particular pole and to erect notices warning of the danger of high voltage electricity. There was no allegation that the pole was so constructed that climbing it was easy: but, after some extensive amendments, that appeared in effect under the curious heading "particulars of allurement". The Commission's defence as filed did not assert that the plaintiff was a trespasser, except as supporting an allegation of contributory negligence. The learned trial judge described these pleadings as "lax and inartistic documents". However, he said that their deficiencies did not at all handicap the parties in their presentations of their cases as the trial proceeded. (at p32)

23. The plaintiff himself and witnesses called for him gave evidence of the facts that I have outlined. Then, at the close of the plaintiff's case, counsel for the defendant submitted to his Honour that there was no case for the defendant to answer. Argument ensued in the absence of the jury. The argument proceeded on the basis that the case was one of an occupier's liability to a trespasser upon his premises, and that it turned on doctrines concerning trespassing children and allurements. His Honour, having given consideration to the matter overnight, delivered next day a judgment in which he surveyed the facts and analysed the case law appertaining to the matter as it had been presented by counsel in argument. He said that he would leave the case to the jury instructing them as to the duty of an occupier to trespassing children, and telling them that this depended upon the pole being an allurement for children, and that to succeed the plaintiff must establish a neglect by the defendant of precautions amounting to a reckless or wanton disregard for his safety. (at p32)

24. The defendant did not call any evidence. His Honour summed up the case to the jury carefully, and at considerable length, instructing them in the way that he had said he would. He then submitted certain written questions for their consideration. These questions, he said, arose out of long discussions between counsel and himself. Although formulated by his Honour after these discussions, the actual wording of the questions was not it seems expressly agreed to by counsel. The first three questions - the critical ones - were as follows:

1. Whether the Hydro-Electric Commission installation

constituted

an "allurement" to children using the area.

2. If Yes was the action of the child plaintiff in climbing the

installation an occurrence of so high a probability that it

was to be expected or anticipated by the Commission?

3. If Yes to Questions 1 and 2, was the Commission in failing

to take further and better precautions than it did to prevent

such an occurrence guilty of a lack of care which went

beyond mere negligence and amounted to a reckless or

wanton disregard for the plaintiff's safety? (at p32)

25. The jury answered each of these questions "Yes". In answer to other questions they assessed the plaintiff's damages at $15,000, those of his father as $5,200; and expressly found that the plaintiff had not been guilty of any unreasonable lack of care for his own safety and that there had been no fault on the part of his father. (at p33)

26. The jury having returned their answers, counsel for the plaintiffs moved that judgment be entered accordingly. Counsel for the defendant moved for judgment for the defendant, urging that there was no evidence to support the jury's answers. Some fundamental questions of procedure arose at this point. His Honour reserved his decision. When he delivered it he made an interesting examination of the law concerning a motion in arrest of judgment after a jury's verdict. At common law such a motion, made by an unsuccessful defendant, differed from a motion for judgment non obstante veredicto by an unsuccessful plaintiff. It could, as I understand some old history, only be made with respect to substantial objections apparent on the record: see Stephen on Pleading, 7th ed. p. 93. In this case his Honour, rightly I respectfully say, came to the conclusion that, although there had been no express leave reserved, he could entertain the motion. But he refused it and ordered that judgment be entered in accordance with the verdict of the jury. (at p33)

27. The case went on appeal to the Full Court of the Supreme Court, the defendant contending that it was entitled to judgment on the ground that the case ought never to have gone to the jury. The matter was dealt with by their Honours in the Full Court (1970) 25 LGRA 82 on the assumption that the law applicable was that relating to the liability of the occupier of premises to a trespassing child. That was the way in which the case had been argued at the trial. Parties are, in general, bound on an appeal by the way in which they conducted the case at the trial. But this does not mean that facts are to be forced into a wrong legal mould. Moreover it is note-worthy that the questions his Honour submitted to the jury quite rightly in my view took the plaintiff's climbing the Commission's installation to be the essential "occurrence" and the issue of negligence as related to a failure "to take further and better precautions . . . to prevent such an occurrence". That is to say the issue was taken to be not lack of care for a trespasser upon premises, but a failure to prevent his trespassing upon a place of danger. (at p33)

28. Their Honours in the Full Court, in separate judgments, all reached the same conclusion. Although they were not entirely unanimous in their reasoning, they held that there was no evidence to support the answers that the jury gave, or all of them. They ordered that the judgment for the plaintiff be set aside and judgment entered for the defendant. The plaintiff had, they considered, come as a trespasser on to the pole and had then gone further up it to a place of danger. Their judgments are replete with citations of cases and with quotations from earlier judgments, some of them in cases in which the facts were far different from those of this case. I feel impelled to add a quotation from Lord Porter's speech in London Graving Dock Co. Ltd. v. Horton (1951) AC 737, at p 748 , where his Lordship said:

" . . . it may be well to bear in mind that not every passing

expression of a judge, however eminent, can be treated as an

ex cathedra statement. It must be read in its context and

the most that can be expected is that it should be accurate

enough for the matter in hand."

If I saw the matter as their Honours did, I have no doubt that I would find what they said not only instructive but persuasive. However, because I do not see this case as lying in the field of law in which they placed it, I do not think it necessary to plough through that field, which has been so much tilled in judgments and academic writings. (at p34)

29. The most significant matter in the case is the jury's answer to the third question submitted to them. It is a finding that, in failing to take further and better precautions to prevent children climbing the pole, the Commission was guilty of a want of care that went beyond mere negligence to the extent that it shewed a reckless and wanton lack of care. Let it be assumed that the evidence could not support a finding of such grossly culpable conduct, still the jury's answer clearly pre-supposed negligence, and of that there was certainly evidence. And their answer must have involved also a finding that, whether or not it was properly called reckless or wanton, this negligence was an effective cause of the plaintiff's being hurt. It is true that on the occasion when he was hurt he and his companion had used a piece of wood to facilitate the beginning of their climb. They had rested one end of the wood against the top of the metal guard, where it formed an illegitimate projection from the pole within ten feet of the ground, providing both a foothold for climbers and a place on which they could prop the wood. The jury's answers thus involved a finding of negligence causing harm of a foreseeable kind; and that I consider was enough to support a judgment for the plaintiff. That makes it unnecessary for me to go further. Nevertheless, although I do not think that the relationship of land occupier and trespasser provided the measure of the defendant's duty, as that has heretofore been taken to be a dominant factor, some further words may not be amiss. (at p35)

30. The case has been debated upon the assumption that it should be decided by reference to established doctrine measuring the duty of an occupier of premises to a child trespassing there. On that basis the first question submitted to the jury was: was the pole an "allurement" in the sense that that word has come to have in this context? It seems to me that it was open to the jury to say that it was. Barrowclough C.J. said in Napier v. Ryan (1954) NZLR 1234, at p 1240 : "The word 'allurement' has been given a sanctity which I think it scarcely deserves. Its meaning has been variously interpreted." If words be used in their proper sense a lure is something designed to attract or entice a person, or an animal, to come to a place. A person who puts an allurement in his premises, to the intent that it will entice people there, cannot, if his plan succeeds, says that they came against his will and as trespassers. By deliberately alluring them, whether for good or ill, he invites them. And so, by a transference of the idea, if a man puts an object calculated to allure children to come to a particular place, his land, his building, or his vehicle, when they respond to the allurement it is imputed that they come by his permission. That is the sense in which in Cardy's Case (1960) 104 CLR, at p 326 I said that "an allurement", when the word is used in connexion with children who intrude upon a place, has been held to import a fictional licence. That harks back to the commonsense statement of Lord Denman C.J. in Lynch v. Nurdin (1841) 1 QB 29, at pp 38-39 [1841] EngR 52; (113 ER 1041, at p 1044) that if a child be tempted to a place, the child is not to be reproached with yielding to the temptation. A thing that is alluring to a child can have another bearing on liability for negligence, for its very nature may make it foreseeable that it will in fact attract. In the United States the allurement of railway turntables for children was noticed by the law as early as 1873: Sioux City and Pacific Railroad Co. v. Stout [1873] USSC 136; (1874) 17 Wall 657; 21 Law Ed 745 . The attractiveness of turntables for children has continued since then to produce leading cases in many jurisdictions where the common law prevails, at least until Matheson v. Attorney-General (N.Z.) (1956) NZLR 849 . Indeed all sorts of allurement cases concerning children were in the United States at one time called generically "turntable cases". Today they are commonly known by the odd term "attractive nuisances". The American doctrines about trespassing children are very well explained by Professor Prosser in his Law of Torts, pp. 372-385, and in the Restatement of the Law of Torts, 2nd ed., s. 339. The notion of allurements has led to some rather surprising decisions in England as to what is or is not an allurement. But, as Barrowclough C.J. remarked in the case that I have mentioned, the question is really one for the jury. In America there have been refinements making what would seem to be a question of fact into a question for the court. At what age is a child to be treated as immune from allurement? That has proved a prolific question which has produced some strange answers. I do not know whether these really depend upon an assumption that lures are only powerful for the very young, or on a greater awareness of dangers and risks that comes as a child grows older. In one case in Canada the judge held that the concept of allurement had no application for children over seven years of age: McEwen v. Canadian National Railways and Imperial Oil Ltd. (1961) 34 DLR (2d) 743 . But all such arbitrary and rigid distinctions seem out of place in the law of negligence for, as Lord Wright said in Bourhill v. Young (1943) AC, at p 107 , "negligence is a fluid principle, which has to be applied to the most diverse conditions and problems of human life". Cases about allurements and imputed licences in children's cases are really I think a by-product by reaction from the rigidity and severity of the common law denying trespassers a right of action. In children's cases the general concept of the law of negligence, based on reasonably foreseeable harm, has been allowed to override the disabilities that adult trespassers suffer. (at p36)

31. In Quinlan's Case (1964) AC 1054 the continuing vitality and relevance of the concept of allurement was recognized as a separate chapter in the law. It, their Lordships said, justified the decision in Cardy's Case [1960] HCA 45; (1960) 104 CLR 274 , where the plaintiff was a boy fourteen years old: "The circumstances", they said (1964) AC, at p 1083 , "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". It is significant that in the present case Crisp J., in giving his decision on the motion in arrest of judgment (1969) 25 LGRA 63, at p 70 , said that counsel had not attacked the finding that the pole was an "allurement". That is readily understandable. The very reason why the Electricity Supply Association's code makes provision for the prevention of unauthorized climbing must be that it was foreseen that this might occur: and, if a pole that is readily climbable is placed where boys are accustomed to forgather it could be regarded by a jury as a temptation to them to climb. But I do not wish, by pursuing "allurement", to be lured back into the field of occupier's liability. As I have said, I do not see this case as lying in that field. Although I am not satisfied that there was any material on which to found the third question submitted to the jury or to justify their answer, that answer means that they found that the Commission was negligent: that was a finding that was open on the evidence: and in the view that I take, and which I have sought to explain, it was enough to found a judgment for the plaintiff. (at p37)

32. I would allow the appeal and restore the judgment given at the trial. (at p37)

WALSH J. I need not set out the facts which are stated in other judgments. I have not found it easy to decide whether the only duty owed by the respondent to the appellant Glenn Clyde Munnings (to whom alone I shall refer as the appellant although his father was a co-plaintiff in the action) was that which an occupier of premises owes to a trespasser upon them, or whether there was a duty to take reasonable care to eliminate, or to reduce, the risks of foreseeable injury which might be caused by the respondent's acts of erecting and maintaining dangerous high voltage wires above land to which members of the public, and particulary children, were accustomed to resort without hindrance. I think that it is on the answer to that question that the decision of this appeal must depend. (at p37)

2. In Robert Addie and Sons (Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358 the stringent rules which place a very narrow limit upon the duty owed by an occupier of land to trespassers were applied in their full rigour to children. In Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054 , which was not a case in which a child was plaintiff, their Lordships made some observations (1964) AC, at p 1083 which place the "children's cases" in a special situation, in which "allurement" can be sometimes a decisive feature, not on the ground that where it exists the child may be found to be a licensee, but because allurement is something which "imposes by itself a measure of responsibility". Although it may not be possible to describe a child as a licensee, he may yet obtain "the legal remedy that is felt to be" his "due". These observations were prompted by a consideration by their Lordships of the case of Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274 . They were not directly relevant to the case then before their Lordships, who did not define the circumstances in which there will be a liability upon an occupier for an injury to a child, but not for an injury to an adult. They did proceed (1964) AC, at p 1084 to state that, in the case of children, the formula laid down in Addie's Case [1929] UKHL 3; (1929) AC 358 will "not preclude full weight being given to any reckless lack of care involved in allowing things naturally dangerous to them to be accessible in their vicinity". For reasons which will appear, I do not think I need decide in this case whether the interpretation and application of the observations in Quinlan's Case (1964) AC 1054 , adopted by Gillard J. in Victorian Railways Commissioners v. Seal [1966] VicRp 16; (1966) VR 107 and followed by Crisp J. at the trial in the present case, were in all respects correct. In the Full Court of the Supreme Court of Tasmania their Honours were not in agreement on that question. But they were unanimous in holding that the occupier-trespasser duty was the only relevant duty and that the evidence could not support a finding that there had been a breach of that duty. If that be accepted, it does not matter whether or not there was error in the summing-up, for the respondent must succeed. If, on the other hand, it appears that there was evidence upon which it should be held that there was a duty owed by the respondent to the appellant to take reasonable care to protect him from being injured through contact with the high voltage wires and evidence to support a finding that the respondent was in breach of that duty, the judgment for the respondent entered by the Full Court must be set aside. The question will then arise whether the verdict and judgment obtained by the appellant at the trial should be restored or there should be a new trial of the action. (at p38)

3. As Crisp J. said, the pleadings were not satisfactory. But although the claim now made on behalf of the appellant as to the nature of the duty owed to him was not stated very clearly in his pleadings, I think that it was included in them and that even if not put in the forefront of his case, it was not abandoned at the trial or in the hearing of the appeal to the Full Court. (at p38)

4. I have reached the conclusion that the respondent could properly be found on the evidence to have incurred a liability to the appellant based upon a duty other than that owed by an occupier of premises to a trespasser upon them. I am conscious of the force of the reasons which brought their Honours in the Supreme Court to a different conclusion. I think that the principle laid down in Quinlan's Case (1964) AC, at p 1074 that the accepted formulation of an occupier's duty to a trespasser is to be taken as an exclusive or comprehensive definition of the duty, ought not to be whittled away by a practice of discovering too readily and on meagre grounds some other relationship between the parties, upon which to erect a different duty. In Quinlan's Case (1964) AC 1054 their Lordships were emphatic in rejecting the notion that a trespasser could be christened "a neighbour" for the purpose of making applicable to him the principles of Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 . Yet it is equally important to bear in mind that in the reasons in Quinlan's Case, the statement (1964) AC, at p 1074 that the occupier's duty must be confined within the accepted formulation, is made subject to "an important qualification", namely, that it is so limited "so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured". Their Lordships described (1964) AC, at p 1080 the case of Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 , which they said had been correctly decided, as one of those cases "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". (at p39)

5. It is necessary, therefore, to determine whether or not there is "sufficient reason" in the present case for such a view of the relevant relationship between the parties. In my opinion their Honours in the Supreme Court of Tasmania were right in thinking that Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 does not necessarily conclude the present case in the appellant's favour on this question. There are differences between the two cases which need to be examined before a decision can be made that in both the same conclusion should be reached. Indeed in the joint judgment of Dixon C.J. and Williams J. in Thompson's Case, (1953) 87 CLR, at pp 629-630 , language is used which appears to indicate that their Honours might have taken a different view if they had had the facts of the present case before them. They said:

"This is no case of injury through contact with a properly

insulated transmission brought about by the plaintiff's own

act in climbing up an installation and bringing himself

within reach of it."

Nevertheless I am of opinion that the differences between this case and Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , are not such that a different conclusion should be reached. In that case a loose wire was dangling down and it came closer to the ground than were the wires which in this case were a source of danger. Yet it was higher than the level which was within the unaided reach of children. It does not seem to me to matter in principle whether the danger existed because of the position and the accessibility of the wires themselves as originally installed, or because of a wire having become loose. Again, some importance was attached in Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 to the fact that the plaintiff was on a highway where he had a right to be and where the pole stood. But I do not think that in principle that case differs materially in this respect from the present case. I think it must be taken that as between himself and the respondent the appellant had a right to be on the land upon which the respondent's pole stood. It was not the respondent's land. The appellant must be taken to have had at least the tacit permission of its owners to resort to it. In this respect this case and Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 are both different, in a way which I think is important, from those cases in which a person has gone as a trespasser on to land occupied by the defendant and then has suffered injury by entering upon or interfering with some structure which the defendant has placed upon his own land. (at p40)

6. If the opinion expressed by Lord Atkin in Excelsior Wire Rope Co. Ltd. v. Callan (1930) AC 404, at pp 412-413 should be followed, the fact that the respondent in the present case was not the owner or occupier of the land where the pole was erected would be sufficient to take the case outside the operation of the rules of law which govern the obligations of occupiers of land to those who come upon it. But I do not think that the decision in that case can be regarded as a definite authority for Lord Atkin's view, which was contrary to that stated by Viscount Dunedin in the same case (1930) AC, at p 411 . I think that the point is one which has not yet been settled. In the present case it need not be resolved. I shall assume that the "occupier" of a structure placed upon the land of another may be in some cases under no other duty in relation to it than that which is imposed upon an occupier of land towards persons who come on to the land. On that assumption, it is still necessary to consider whether or not in the present case it is a relationship of occupier and trespasser that is relevant. When an injury is suffered because of some dangerous structure or thing under the control of the defendant, to which access is obtained by the plaintiff without any trespass upon land occupied by the defendant, then although there may be a trespass in relation to the structure or thing itself, I think it is easier to reach a conclusion that the relationship of occupier and trespasser is not that by which the rights and duties of the parties are to be determined. Whether or not that conclusion should be reached must depend upon a consideration of all the circumstances. But in a case in which the injured person has come, without trespassing upon the defendant's land, to the place where a dangerous thing has been brought by a defendant who has not made it inaccessible, I think that conclusion may be reached more readily than in a case in which the injured person has trespassed upon the defendant's land in order to come to the place where he is injured. (at p41)

7. I think it is an important feature of this case that there was evidence that the vacant land upon which the pole stood had been (in the words of Crisp J. (1969) 25 LGRA, at p 72 ) "used as a playing area without let or hindrance by the children not only of the houses fronting it but of the neighbourhood generally". His Honour said that he could not imagine any jury ever finding otherwise than that the appellant's use of the land was lawful. I think that it would be an excessive refinement of the law to treat the duty of the respondent in relation to the pole it erected on that land as being different from that which it would have had if the pole had been erected by it in a public road. In Thompson's Case (1953) 87 CLR, at p 634 McTiernan J. said that the defendant's liability "arises because it was under a duty to take reasonable care while maintaining upon a public road poles and wires for the transmission of electricity of a very dangerous voltage". In my opinion that statement applies equally to the situation of the respondent in this case. Further, I think that the duty was not limited to a duty to prevent the installation from falling into such disrepair that it would become dangerous to persons standing, or passing by, upon the land near the pole. It included a duty to take reasonable care to prevent any foreseeable injury, and that included, or could be found to include, an injury which might be suffered if a boy climbed the pole. (at p41)

8. I am of opinion therefore that upon the evidence the respondent was not entitled as a matter of law to succeed in the action. It should have been left to the jury to decide whether the respondent had failed to take reasonable care to prevent access to the high voltage wires and whether that failure was in the circumstances a breach of a duty to eliminate or to reduce the risk of foreseeable injury arising from the presence in this area of the high voltage wires, and was a cause of the accident. (at p41)

9. I am conscious of the disadvantages of ordering a new trial. But that can be avoided only if the findings made by the jury can be regarded as a satisfactory adjudication upon the issues of fact in the case. I do not think that they can be so regarded. Probably it may be said with some confidence that the jury which gave affirmative answers to the second and third questions submitted to them at the trial would have been likely to find that the respondent had been guilty of ordinary negligence. I think, however, that there is much force in the reasoning of Neasey J. in the Full Court to the effect that, as a result of the question of allurement having been put in the forefront of the jury's consideration and having been submitted as the first question, the jury might easily have thought that once that question had been answered affirmatively they would proceed almost inevitably to an inference of liability against the respondent. His Honour (1970) 25 LGRA, at p 105 thought that the jury had been directed in substance that "if they found there was an allurement the rest might well be easy". But apart from those considerations, I think there is another obstacle in the way of accepting the jury's findings as satisfactory for the purpose of establishing against the respondent that there was negligence on its part which caused the accident. In my opinion the findings that the jury made upon the second and third questions were not reasonably open upon the evidence. The second question might appear in form to be a question as to ordinary foreseeability, notwithstanding that it referred to a "high" probability. But it was intended to be and was explained to the jury as being a question as to whether there was a very high degree of probability (of which the respondent had actual or imputed knowledge) not merely of the presence in the vicinity of children, but of children climbing up the pole. The third question was whether there had been a reckless or wanton disregard for the plaintiff's safety. In my opinion the evidence was such that the jury acting reasonably could not have answered those questions adversely to the respondent. (at p42)

10. The questions which (according to my view of the case) should have been put to the jury were very different questions and I think that they could have been answered by a reasonable jury in favour of the appellant. But it is not obvious to me that any jury would certainly answer them in his favour. A jury might fail to be satisfied that the respondent had been guilty of negligence which caused the accident. I do not think it is proper to treat the respondent as bound by the findings of the jury upon different questions, notwithstanding that those findings attributed a much higher degree of culpability to the respondent, since those findings were themselves, as I think, unreasonable findings upon the questions which were submitted to the jury. (at p43)

11. In my opinion the appeal should be allowed and a new trial of the action should be ordered. (at p43)

GIBBS J. This is an appeal from a judgement (1970) 25 LGRA 82 of the Full Court of the Supreme Court of Tasmania allowing the respondent's appeal from a judgment (1969) 25 LGRA 63 of the Supreme Court entered for the infant appellant Glenn Clyde Munnings for $15,000 and for the second-named appellant Clyde Francis Munnings for $5,200 as damages assessed by the verdict of a jury. The damages awarded to the infant appellant were in respect of personal injuries suffered by him on or about 23rd January 1967 when he climbed an electric power pole and accidentally came into contact with, or made an arc with, a transmission line carrying electricity of high voltage. He was then aged eleven years and climbed the pole in the hope of finding a spider which he had previously seen on the pole. The second appellant was awarded damages representing medical expenses incurred in respect of the infant appellant's injuries. Since it is unnecessary to discuss separately the position of the second appellant, I shall for convenience refer to the infant appellant as "the plaintiff". (at p43)

2. The pole had been erected near Lindisfarne on vacant land which was described by the learned primary judge in the following words (2):

"It is cleared and drops down from the street to a gully

with a dry creek bed, then it rises on the other side sharply,

into scrub and light timber."

The land was not far from a built-up area, and the evidence shows that it was an attractive place for children to play and that children frequently played there, both before and after the pole was erected. The land was not fenced; its owner was not identified, but, whoever he was, he raised no objection to this use of the land. The pole was constructed and maintained on the land by the respondent Hydro-Electric Commission ("the Commission") pursuant to permission given by a wayleave agreement dated 26th October 1964. The evidence left it doubtful how long before the accident the pole was erected. It seems to have been common ground at the trial that the Commission was the occupier of the land on which the pole actually stood, but clearly the Commission had no rights of occupancy over the rest of the land. (at p43)

3. The lowest live wire attached to the pole was sixteen feet from the ground. Round the base of the pole was a sheet-metal guard six feed eight inches high. Above the guard were projecting cleats which offered a handhold or foothold to a person climbing the pole. The guard was not an effective one; for one reason, there were wooden pegs at the base of the guard on which an agile boy could stand and from which he could pull himself up by the top of the guard; for another reason, the proximity of the pole to the side of the ridge which rose sharply above the gully made it possible to rest one end of a log of wood on the top of the guard and thus to form a bridge from the ground to the pole. The plaintiff had climbed the pole on two previous occasions, using first the former, and then the latter method, and on the day of the accident he again used the latter method to ascend the pole. At the trial there was expert evidence that in erecting the pole the Commission had failed to take adequate steps to prevent unauthorized climbing. Moreover, it appeared that the Commission had not complied with rule 19 of the Code of Practice for Overhead Line Construction, published by the Electricity Supply Association of Australia, of which the Commission was a member. That rule reads:

"Prevention of Unauthorised Climbing

19. No pole for an overhead line should have any

projection

or device capable of providing a foothold within ten

feet of the ground measured vertically, provided that a

collapsible ladder may be permanently attached to a pole

within ten feet of the ground if, when not in use, it is kept

closed and locked.

Suitable guards should be provided, if considered necessary,

to prevent unauthorised climbing of poles and other supports

for an overhead line."

The guard itself gave the forbidden foothold, and although it was obviously considered necessary to provide a guard, the one provided might well be regarded as unsuitable. After the accident the pole was fitted with an additional guard, which appears to have complied with the requirements of rule 19, and to have remedied the deficiencies of the previous guard. (at p44)

4. The statement of claim, as originally drawn, alleged that the plaintiff's injuries were caused by the Commission's negligence. However, the statement of claim was amended by adding further allegations and the questions ultimately left to the jury (so far as it is material to state them), and the jury's answers, were as follows:

"(1) Was the Hydro-Electric Commission installation

constituted

an 'allurement' to children using the area? Yes.

(2) If Yes to 1 was the action of the child plaintiff in climbing

the installation an occurrence of so high a probability

that it was to be expected or anticipated by the

Commission?

Yes.

(3) If Yes to Questions 1 and 2, was the Commission in

failing to take further and better precautions than it

did to prevent such an occurrence guilty of a lack of

care which went beyond mere negligence and amounted

to a reckless or wanton disregard for the plaintiff's

safety? Yes.

. . . . .

(5) Was the infant plaintiff guilty of an unreasonable lack of

care for his own safety? No." (at p45)

5. A motion in arrest of judgment was refused by the learned primary judge (1969) 25 LGRA 63 . The respondent appealed to the Full Court which accepted the view that the plaintiff was a trespasser on the Commission's pole and that, in the circumstances, the Commission was not guilty of any breach of that duty which an occupier owes to a trespasser. It accordingly allowed the appeal (1970) 25 LGRA 82 . No attack appears to have been made on the finding of the jury that the plaintiff was not guilty of contributory negligence and the correctness of this finding was not discussed either in the judgments of the Full Court or in argument before us. In this Court the appellants relied on a number of contentions but directed their arguments most strongly in support of the submission that even if the Commission was the occupier of the pole and the plaintiff was a trespasser upon it, there was, nevertheless, a special relationship between the parties which placed the Commission under a duty to take reasonable care for the plaintiff's safety. (at p45)

6. The rules of the common law which govern the liability of occupiers of premises to trespassers who sustain personal injury in the course of the trespass have been the subject of much criticism and debate, but for us they have been authoritatively expounded by the Judicial Committee in Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054 . In that case their Lordships reaffirmed the principle stated in such cases as Robert Addie and Sons (Collieries) Ltd. v. Dumbreck [1929] UKHL 3; (1929) AC 358, at p 365 that an occupier is liable for injury suffered by a trespasser

" . . . only where the injury is due to some wilful act involving

something more than the absence of reasonable care. There

must be some act done with the deliberate intention of doing

harm to the trespasser, or at least some act done with reckless

disregard of the presence of the trespasser." (at p45)

7. They held that this definition of the occupier's duty was an "exclusive or comprehensive" one (1964) AC, p 1074 and rejected the notion that an occupier owes the additional and more onerous duty of taking reasonable care in accordance with the principle in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 for the safety of a trespasser whose presence on the land ought to have been foreseen (1964) AC, at pp 1070, 1078-1084, 1086 . They rejected also the argument that the traditional common law formula is confined to the case where injury arises from the static condition of the land and held that it covers also the activities of the occupier on the land (1964) AC, at p 1075 . Their Lordships' judgment emphasizes that the occupier's liability in accordance with the traditional formula depends upon his knowledge that the trespasser was present; although it is sufficient if the occupier "as good as" knew that the other was there, because his presence was "extremely likely" or "very probable", it is not enough that it was merely possible or likely that someone would be present (1964) AC, at pp 1075-1078, 1085-1086 . (at p46)

8. The rules governing an occupier's liability to the various classes of persons, including trespassers, who enter upon his property and sustain injury have not been confined to real property; they have been applied to structures fixed to land and also to movables, such as ladders, ships and motor vehicles. Even if it were thought somewhat pedantic to say that the Commission was the occupier of the small area of land in which the pole was resting, there can be little doubt that it was the occupier of the pole for the purpose of these rules or that the plaintiff, although not a trespasser upon the vacant land surrounding the pole, was a trespasser upon the pole itself. In my opinion, it could not correctly be held in the present case that the Commission had failed in the duty which an occupier owes to a trespasser within the narrow rules laid down in the Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054 . In other words, the evidence did not support the affirmative answers which the jury gave to the first, second and third questions put to them. As to the first question, the Judicial Committee in Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC, at p 1083 did recognize that an occupier who has placed a dangerous "allurement" on his land is under a measure of responsibility to a child who is attracted by it, although they did not fully discuss or explain the basis and limits of the responsibility. It is unnecessary to turn to those cases in which the question of "allurement" has been discussed for I find it impossible to regard a power transmission pole, guarded as this one was, as an "allurement" to a child of eleven within any sensible understanding of the concept. As to the second question, the evidence fell short of establishing that children, other than the plaintiff and his friend Martin Garry Randall, had previously climbed the pole or that the Commission had actual knowledge that any child had climbed it, and although it was possible or perhaps even likely that a child might climb the pole it could not be said to be "extremely likely" or "very probable". As to question 3, the finding that the Commission was guilty of a reckless or wanton disregard of the plaintiff's safety simply was not open on the evidence. To this extent I agree with the conclusions expressed in the careful judgments of the learned judges of the Full Court. (at p47)

9. However, the Judicial Committee in Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054 admitted a qualification to the general principle. They said (1964) AC, at p 1074 :

"It follows then that, so long as the relationship of occupier

and trespasser is or continues to be a relevant description of

the relationship between the person who injures or brings

about injury and the person who is injured - an important

qualification - the occupier's duty is limited in the accepted

terms."

Their Lordships regarded Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 as a case which was excepted from the general formula by this qualification, i.e., as one of those cases

" . . . 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

They said (1964) AC, at p 1080 that they had no doubt that Thompson's Case [1953] HCA 5; (1953) 87 CLR 619, was correctly decided and it becomes crucial in the present case to examine the grounds of that decision, thus firmly approved by the Judicial Committee. The facts of the case and the reasons for the decision are stated by Viscount Radcliffe in Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC, at pp 1079-1080 in the following passage:

"A boy of 13 years was horribly injured when trying to

reach a bird's nest on a pole which carried high tension wires

belonging to the corporation's electricity undertaking. The

line of poles was planted in a public highway, and the pole in

question had attached to it a defective earth wire, charged

with electricity and ending at a distance three or four feet

above the ground. The boy standing on a bicycle either

clasped the pole with his arms or caught at the wire, and so

was injured. The High Court (Webb J. dissenting) held that

it was not a case in which the relationship of occupier and

trespasser and the duty arising therefrom could be treated as

expressing the true relation between the parties at the moment

of the accident. The boy was lawfully upon the highway, and

the real cause of the accident was that the corporation was

maintaining its poles and wires for the transmission of a highly

dangerous electric current, neglecting proper precautions and

'allowing its system to be in an improper and dangerous

condition' (per Dixon C.J.,

(1953) 87 CLR, at p 630)

In those circumstances the court refused to attach significance

to the fact that at the actual moment when he was burned by

the current the boy was a trespasser on the pole or the wire.

The point was that

[1953] HCA 5; (1953) 87 CLR 619, at p 628

'the defendant's responsibility to

the plaintiff does not depend on the defendant's control or

"occupation" of the pole or the character that the plaintiff

assumed in reference to the pole when he placed his bicycle

against it, leant his body upon it and put his arms round it or,

if that be what he did, when he grasped the wire.' The case

was said to be analogous with the English decisions in Buckland

v. Guildford Gas Light & Coke Co.

(1949) 1 KB 410

and Glasgow Corporation

v. Taylor

(1922) 1 AC 44

in which latter case a child, lawfully in a public

park, had unlawfully picked poisonous berries from a shrub

belonging to the corporation. As Lord Sumner said in the

House of Lords

(1922) 1 AC, at p 64

: 'The child had no right to pluck the

berries, but the corporation had no right to tempt the child to

its death or to expose it to temptation regardless of

consequences'."

Viscount Radcliffe went on to say (1964) AC, at p 1080 that "the reason there held sufficient" (for concluding that the relation of occupier and trespasser did not bear on the situation of the parties) was that "the corporation was maintaining on and over a public place a highly dangerous electric transmission system in a defective condition". (at p48)

10. It is vital in the present case to determine whether the relevant relation between the parties was that of occupier and trespasser or, to put the matter in another way, as it was put in Thompson's Case by Dixon C.J. and Williams J. (1953) 87 CLR, at p 623 , to choose between two competing categories of the law of torts, namely that which concerns the duties of an occupier of a structure with respect to the safety of those who come upon it, and that which relates to the duty of exercising a high standard of care falling upon those controlling an extremely dangerous agency, such as electricity of a lethal voltage, and to apply one of them to the facts to the exclusion of the other. (at p48)

11. There are obvious enough points of difference between the facts of Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 and those of the present. In Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 the wire was in a dangerous and defective condition and was close to the ground (three to four feet, according to one witness and five to six feet, according to another). In the present case the wire, although dangerous to one who touched it, was not in a defective condition and it was sixteen feet from the ground. More important, perhaps, is the fact that in Thompson's Case the boy did not actually climb the pole, for Dixon C.J. and Williams J. said in that case (1953) 87 CLR, at pp 629-6309:

"This is no case of injury through contact with a properly

insulated transmission brought about by the plaintiff's own

act in climbing up an installation and bringing himself within

reach of it."

However, I consider that these differences are not sufficient to distinguish the two cases in principle and that this case, like Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , is one which falls within the category which relates to the duty of exercising a high standard of care falling on those controlling an extremely dangerous agency, such as electricity of a lethal voltage, which is brought on to a public place, rather than that which concerns the duties of an occupier of premises. In this case, like Thompson's Case [1953] HCA 5; (1953) 87 CLR 619 , the pole was not surrounded by land under the control of the defendant; it stood in a place which, whatever its legal description, was in fact a public place open to all and a place where children were accustomed to play without any hindrance or dissuasion. In these circumstances, it was the duty of the Commission to take care to protect persons lawfully in the place from injury by coming into contact with the wire. (at p49)

12. It would be unprofitable to canvass the many other cases to which we were referred which were decided before Commissioner for Railways (N.S.W.) v. Quinlan (1964) AC 1054 , but brief mention may be made of those in which infant plaintiffs have sued unsuccessfully for damages for injuries sustained while climbing structures which carried electric wires. In some of those cases the facts were distinguishable from those of the present case. In Kenny v. Electricity Supply Board (1932) IR 73 a standard carrying electric wires had been erected in a private field which the public were not permitted to use, although in fact trespassers, including children, frequently used it in spite of the efforts of the owner of the field to keep them out; moreover, there was no satisfactory evidence of any precautions that could have been taken to prevent children from climbing the standard. Dean v. City of Edmonton (1965) 51 WWR 539 was a very clear case; there the place where the power pole was erected was one which children were not likely to frequent and the authority installing the pole had complied with the regulations which had been made with a view to providing protection against the climbing of power poles, and which the court regarded as adequate. Two other cases, McLaughlin v. Antrim Electricity Supply Company (1941) NI 23 and New York, New Haven & Hartford Railroad Co. v. Fruchter [1922] USSC 161; (1922) 260 US 141; 67 Law Ed 173 , are not so readily distinguishable but it appears to have been held that the rules concerning the duties of the occupier of a structure necessarily governed the decision of those cases. This, as I have said, is not so under our law if sufficient reason exists to hold that the relationship of occupier and trespasser was not the relevant one so far as the accident and injury were concerned. (at p50)

13. The question then arises in the present case whether there was evidence to support a finding that the Commission failed to discharge the duty of care cast upon it by the fact that it had brought a lethal agency into a place lawfully frequented by children. An obvious means of discharging this duty, and a means which the Commission in fact adopted, was to elevate the wire. But to elevate the wire might not be enough if it remained accessible despite its elevation. The Commission's duty would not be fully discharged unless it took reasonable steps to ensure that persons would not climb the pole and come into contact with, or make an arc with, the wire. Whether the duty would be discharged in this respect would depend on how easy the pole was to climb and on the effectiveness of the guard provided. It is a question of fact, and one upon which opinions might well differ, whether the guard provided was reasonably effective to prevent ingenious boys from surmounting it and if not whether the Commission was negligent in failing to provide a more effective guard. However, in my opinion, on the evidence it was open to a jury to find that the Commission neglected to take reasonable precautions for the safety of children frequenting the vacant land in which the pole was installed, particularly in the light of the fact that the guard used did not comply with rule 19 of the Code of Practice, which the jury might regard as indicating standards which the Commission, if it had acted reasonably, should have observed. (at p50)

14. For the reasons given I consider that the case was placed in the wrong category when it was presented to the jury. The questions which were left to the jury were framed on the assumption that the relevant relation between the parties was that of occupier and trespasser. The jury were never asked whether the Commission, which brought on to a public place wires carrying a lethal voltage of electricity, had observed its duty to take reasonable care to protect children frequenting the place from injury caused by the electricity. In this situation it is a question whether the action ought to be sent down for a new trial or whether it is right to adopt the view, regarded as appropriate in the circumstances of Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 CLR, at p 300, and at p 287 , that the jury had found not less but more than was necessary to support a judgment for the plaintiff and to order that judgment be entered accordingly. It is quite true that the findings made by the jury do logically involve the conclusion that the Commission failed to exercise reasonable care for the safety of the plaintiff, and it may therefore be said that the jury would have found a verdict for the plaintiff if the proper question had been left to them. However, I consider that we ought not to substitute for an erroneous finding of the jury a different finding, based upon a different view of the law, even if the substituted finding is in logic necessarily involved in the finding actually made, and even if it appears probable that the jury would have made it if their attention had been directed to the relevant question, particularly since the question of fact was a very open one. On the whole I consider that the proper course is to order a new trial of the action. I may add that there is much to be said for the view that a jury properly instructed ought to have found the plaintiff guilty of contributory negligence, but in the present case I place no reliance on that circumstance, since the commission did not, either before the Full Court or before us, attack the validity of the jury's answer to question 5. (at p51)

15. I would allow the appeal and vary the judgment of the Full Court by substituting for the order that judgment be entered in favour of the Commission an order that there be a new trial of the action. (at p51)

Appeal allowed with costs. Order of the Full Court of the Supreme Court of Tasmania set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.