Public Transport Commission (NSW) v Perry

In an action tried in the Supreme Court of New South Wales with a jury, an application for a verdict for the defendant by direction was refused and a verdict for the plaintiff for $90,000 was returned by the jury. An appeal to the Court of Appeal Division of the Supreme Court was dismissed.

In this appeal, the appellant does not seek a new trial of the action but presses for the allowance of the appeal and the entry of a verdict in its favour on the footing that, in the circumstances most favourable to the respondent which the jury could find, there was no liability in the appellant for the respondent's injuries.

Notwithstanding this attitude of the appellant, I have fully examined the summing up of the learned trial judge to ascertain precisely the basis upon which the matter was left to the jury. I have also examined the whole of the evidence which was placed before the jury in relation to the occurrence.

Although, as will appear, I am of opinion that negligence in the driving of the train would not attract to the appellant liability for the respondent's injuries, it is proper, in my opinion, to set out some parts of the evidence of the driver, being the only direct evidence relating to the manner in which the train was driven and controlled.

The driver is reported in the evidence as having said that:

Approaching the other signal, at least the Killara end of Lindfield platform, approximately 60 feet from the signal my view of the platform is partially obstructed by this signal, and just as I am approaching the signal I see an object in the line in the distance towards the end of the platform. I have already made my application of the brakes to stop on the platform. Under normal circumstances and when I realize this is something else other than what I thought it was on the line I made the full emergency application of the brakes, and as I made the full emergency application of the brakes as much as possible under the circumstances and the train kept proceeding down I immediately, knowing that I couldn't do much better than I did, I gave the guard the signal to come forward, you know, as quickly as possible to render any assistance.

Q. You said in your evidence that you saw something on the line?

A. When I first saw this object on the line I thought it was a piece of paper.

A. Yes, I thought it was a piece of brown paper. We frequently see paper on the line - quite a lot of it.

Q. Can you say with any certainty where it was that you changed your mind about it being a piece of paper?

His Honour: Would you find out where he first thought it was a piece of brown paper?

Mr. Jenkins: Q. Where was your train when you first thought it was a piece of paper?

A. As soon as I got a clear view of that signal and the platform I got this object in my vision on the line.

Q. You say as soon as you got a clear view of the platform? His Honour has suggested we might clear this up. Was your attention drawn to the object before the signal, at the signal, or where would you say?

Q. Where was the train when you decided or felt or came to the conclusion this was not a piece of paper but it was a body?

A. I immediately applied the brakes to the fullest emergency position.

In cross-examination he said: Q. You can get children and animals straying on to the line?

A. Very few animals, apart from dogs. Not in the metropolitan areas.

Q. They are the sorts of things you are warned to be on the alert against?

Q. And that is something you are warned constantly to be on the alert against, isn't it?

Q. Indeed there is provision, is there not, at some stations for the station staff to walk across the lines?

Q. From the moment you leave Killara Station it is dead straight, isn't it, all the way to Lindfield?

Q. You can see Lindfield Station from the moment you have left Killara Station?

A. Coming into the signal area before you get a full view of the platform.

Q. You can see all of the line running along the platform, from about halfway from Killara Station, can't you?

A. No, I would say 60 to 80 yards on the Killara side of the signal I can see the full view of the platform.

Q. That is somewhere between 250 and 300 yards from the commencement of the platform you can see the full line ahead?

Q. From about 300 yards before you get to the platform you would be in a position to see the line as it goes alongside the platform?

A. At a rough estimate it would be that, I suppose.

Q. So that at that point you saw something on the line which should not have been there?

Q. That something could have been anything, couldn't it?

A. To me it look like a large piece of paper. We see a lot of paper on the lines blowing about.

Q. That was the moment, was it not, according to your training and experience when you should have anticipated an emergency, wasn't it?

Q. But you did not act straight away, did you? You kept on going?

A. Only momentarily. At that distance I could not realise what it was. I thought it was paper. When I saw it was not paper I applied the emergency brake.

Q. It does not matter what it was. It was something that gave you notice of an emergency?

A. We don't always stop trains when we see something on the line which we think is paper. We would never get to our destination. At that distance, as soon as I realised it was a woman on the line I immediately applied the emergency brake.

Q. As you approached this woman before the impact you could see her quite clearly?

Q. You could see, could you not, that far from being a piece of brown paper it was a woman dressed in a bright white and purple dress?

A. I didn't take much notice of the colour at all. All I was concerned about was trying to stop that train.

The driver remained unshaken throughout a long cross-examination of which I have reproduced only a very small part. There was, in my opinion, no basis whatever on which the driver could be disbelieved: nor was there, in my opinion, any material upon which it could have been concluded that he saw the respondent on the line at an earlier point of time than that of which he gave evidence or, if it be material, that he ought to have seen the respondent as a human being before the time at which he said he did so. Further, there was no evidence to contradict his evidence as to the view he had from his position in the driver's cabin of a fast moving train: this I say, notwithstanding the various photographs put in evidence. They do not represent what was or would necessarily be seen by the driver of a moving train at any particular and relevant moment of time.

If it had been possible to find that the driver knew of the respondent's presence on the line at the time he saw what he concluded was paper on the line, the jury might properly have concluded that an emergency application of the brakes at that point of time would have brought the train to a halt before it reached the point where the respondent was. However, because of the views I have formed as to the fate of this appeal, I do not pause to examine closely the evidence in this respect so as to resolve whether the evidence would have supported that view.

In support of a view that the driver was negligent in not applying his emergency brakes so soon as he saw what he thought was paper on the line, reliance was placed on the concessions of the driver that it was necessary to be on the lookout for persons as well as things upon the line: and, in particular, his statement that people fall "quite a lot" on the lines. It is worth remarking that the statement was not that people quite often fall off stations on to the railway track. It was a general statement that included the falling of persons from moving trains or between platforms and moving trains. But whatever the full impact of these concessions, they can have, in my opinion, no bearing upon the present case. In the first place, a railway system, perhaps particularly such a system in a densely populated metropolitan area, cannot be conducted on the footing that the trains must travel at a speed and under such restraint that if at any time a person should fall upon a line, whether from a moving train or from a station platform, the train can be halted without injury to the fallen person. Nor could it be concluded that, because of the frequency with which people fall on to the railway track, any object seen on the rails must be treated as a human being: or even suspected to be one: and action thereupon taken as if, in fact, the object were a human being. Nor do these concessions warrant the conclusion that this driver was not keeping a proper lookout. They do not furnish any material, in my opinion, on which it could properly be said that the driver in this case was reckless in what he did or did not do, nor even, in my opinion, that he was lacking in reasonable care in his management of the train. There is, in my opinion, no evidence from which it could be inferred that the driver was not keeping a proper lookout.

I might mention here that, according to some calculations based on various pieces of evidence as to distances between described points on or adjacent to the railway line, and on an assumed speed of the train at or about these points, it was said to have been possible to conclude that the train could have been brought to a halt at a point northward of the position where the respondent lay on the line and thus have avoided injury to her, had the emergency brake been fully applied at the time the driver said he realized that a human being was on the railway track. But, in my opinion, the appearance of exactitude which these calculations give is quite spurious. They do not, in my opinion, warrant the conclusion sought to be said to result from them. They lack reality in relation to such a mobile situation constituted by this moving and loaded train on a down gradient in charge of its driver, particularly bearing in mind that the effectiveness of the braking system depended on the contact of metal wheels with metal rails. These calculations would be, in my opinion, an inappropriate basis on which to allow a jury to disbelieve the evidence of the driver and to infer negligence in him, let alone reckless behaviour. Further, even if the driver's evidence were not accepted, these calculations would not, in my opinion, present evidence on which a jury could reasonably hold that the driver did not take the earliest opportunity to apply the emergency brakes of the train.

However, though I could not accept the conclusion sought to be drawn from these calculations as warranting any relevant conclusion, I am content to decide the appeal on the footing that, had the driver become aware that the respondent was on the railway track at the time he saw what he thought was a piece of paper, the accident could have been avoided by the application at that point of time of the emergency braking system of the train.

The case has been dealt with throughout on the footing that the driver was under a general duty of care to the respondent: that, in the language of Donoghue v. Stevenson [7] , she was in this respect, without qualification, his "neighbour". The particular duty of care was said to be to keep a proper lookout. It was this duty which was said to have been breached. This approach, in my opinion, was fundamentally erroneous.

The most important and indeed basic fact in this case is that the respondent was on the appellant's land when the occurrence occurred. The only relevant duty on the part of the appellant's driver towards the respondent derived from, and could only derive from, the occupancy by the appellant of the land on which the railway was conducted and the respondent's presence there. Both the trial judge and the members of the Court of Appeal rejected the view that the respondent was a trespasser on the land. But it was not said by that Court, as in my opinion it could not be said, that the respondent was either a licensee or an invitee of the appellant at the place on the railway track where she lay. I shall say more on this question a little later. In the view of the Court of Appeal, the respondent did not fall within any of the established categories of relationship to the occupier of the land and therefore a general duty to keep a proper lookout devolved upon the appellant's driver.

Hutley J.A., having earlier decided in his reasons for disallowing the appellant's appeal that the respondent was not a trespasser on the railway track, said:

The real difficulty is how to fit a person who is neither a trespasser, licensee nor invitee into the structure of occupier's duties as fixed by the judgment of Willes J. in Indermaur v. Dames [1] . The categories cannot in my opinion be used to control the existence of liability in the sense that every person who happens to be on land occupied by another has to be either a trespasser, licensee or invitee. The difficulty of fitting every case into one of the three categories was discussed by the High Court in Aiken v. Kingborough Corporation [1a] per Latham C.J. and Dixon J.

The situation of the plaintiff (respondent) being outside the established categories, what is then the duty, if any, owed by the defendant (appellant) to her?

and later: It is, however, foreseeable that there will be obstacles on the track for which the driver has to be on the look out in the interests of the safety of the train. He has to maintain a continuous watch to ensure that such obstacles do not endanger his train and passengers. Where an obstacle on the track is not a trespasser, and is human, why should not that person be entitled to be the beneficiary of that duty? In other words, why should not such a person be entitled to the benefit of the driver's attention for obstacles, and if he fails to give proper attention have a right of action. No reason was given to the court except the submission that the plaintiff was a trespasser, a view which I consider unsound. Common humanity, to which even a trespasser is entitled, would appear to require this right. 1. (1866) L.R. 1 C.P. 274, at p. 288. 2. (1939) 62 C.L.R. 179, at pp. 190-191, 205.

Glass J.A., having also decided that the respondent was not a trespasser, said:

It was open to the jury to find, basing itself upon evidence specifically directed to the subject and upon its own common knowledge, that passengers may come from the platform on to the lines as a result of falling, slipping, tripping or being pushed. On most occasions such movements would be involuntary and on some occasions the result of inadvertent folly. It was also proved that employees of the defendant might be voluntarily on the railway lines for completely lawful reasons. That persons might find themselves on the railway track adjoining the platform for a variety of proper reasons was well within the scope of the reasonable foresight of a driver of a suburban train. It followed that the plaintiff was a member of a class of persons which was foreseeably exposed to the risk of injury if the train driver failed to avoid careless acts and omissions in the driving of the train. By virtue of this circumstance the driver owed a duty of care to the plaintiff for breach of which the defendant was vicariously responsible.

Samuels J.A., having said that he did not see any foundation for a finding that the respondent was a trespasser, said:

Since she was not a trespasser, the duty owed to her was to take reasonable care to avoid injuring her as she lay on the track: Commissioner for Railways v. McDermott [2] . 1. [1967] 1 A.C. 169, at pp. 186-187.

These views, as did the attitude of the trial judge, spring from what, in my respectful opinion, is a failure to appreciate the deep significance for this case of the decision of the Privy Council in Southern Portland Cement Ltd. v. Cooper (Cooper's Case) [3] . In that litigation, this Court, bound by the unqualified view of the Privy Council in Commissioner for Railways v. Quinlan (Quinlan's Case) [4] , based largely on the decision of the House of Lords in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [5] , but building on some remarks made in their Lordships' reasons in Quinlan's Case, felt itself able to found liability in the defendant upon a relationship springing out of the nature of the situation created by the defendant involving the proximity of electricity at a lethal voltage to children of whose possible presence the defendant must have been taken to be aware. This conclusion was drawn notwithstanding the fact that the defendant was the occupier of the land and that the children had no legal right to be present on or at the particular place.

1. (1973) 129 C.L.R. 295; [1974] A.C. 623. 2. [1964] A.C. 1054. 3. [1929] A.C. 358.

Upon appeal to the Privy Council from the decision of this Court, their Lordships, to an extent qualifying the views expressed in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [5] and in their decision in Quinlan's Case [4] , held that a particular duty in the circumstances of the case, substantially the same as that found by this Court, was laid on the defendant as occupier towards the plaintiff who was accepted as a trespasser. But this Court's reasons for its conclusion were not sustained or indorsed by their Lordships. The Board, having the ability thus to qualify earlier decisions, was content to sustain the result at which this Court had arrived without resort to any relationship other than that of occupier and trespasser: and, indeed, as I think, in denial of the possibility of any other relevant relationship.

The transcendent importance of their Lordships' decision for the resolution of the instant case is that their Lordships affirmed that if injury occurs to a person present on the property in the occupation of the defendant, any duty of the defendant towards that person must spring out of one of the established relationships which may exist between that person and the defendant as occupier even when mechanical operations are conducted on that property by the occupier. Their Lordships appear to have accepted the view of the House of Lords in Herrington v. British Railways Board [6] denying validity to the endeavour of the Court of Appeal in Videan v. British Transport Commission [7] to create a general duty of care where the occupier maintains or operates on the land machinery or other sources of potential injury to humans.

Their Lordships' qualification of earlier decisions, by somewhat enlarging the duty of the occupier towards a trespasser in certain respects, has no relevance to the present case. We are not here dealing with a situation comparable to that with which their Lordships were dealing in Cooper's Case [8] . The qualification of their Lordships of the formerly held view of the extent of the duty of an occupier to a trespasser may no doubt in future be of considerable consequence, if not indeed definitive, in circumstances akin to those which obtained in Thompson v. Bankstown Corporation [9] and Munnings v. Hydro-Electric Commission [10] . Here, we are dealing with a railway line and railway service upon the appellant's land and an intending passenger coming upon a railway platform to board a train. The conditions of the appellant's premises exhibit no features unknown to the passenger and no features of inherent danger to her in her use of the appellant's premises for their intended purposes.

1. (1973) 129 C.L.R. 295; [1974] A.C. 623. 2. (1953) 87 C.L.R. 619. 3. (1971) 125 C.L.R. 1.

Before going further in stating the consequences of their Lordships' decision in Cooper's Case [11] , I should say something as to the reasons for decision in Commissioner for Railways v. McDermott [12] . The injured person in that case was lawfully upon the railway crossing. Her position was contrasted with that of a trespasser [13] . The crossing was inadequately maintained. Its condition was conducive to the falling of persons upon it in the path of oncoming trains, which would approach round a curve in the line and into the crossing. The plaintiff being, as was held, at least a licensee on the crossing, the defendant was thus in breach of its duty as an occupier to her. That duty in relation to the crossing, upon which the injured person lawfully was, was stated to be one of "taking all reasonable precautions" to reduce to a minimum the danger of injury to the person "lawfully using the crossing" [14] .

1. (1973) 129 C.L.R. 295; [1974] A.C. 623. 2. [1967] 1 A.C. 169. 3. [1967] 1 A.C., at p. 190. 4. [1967] 1 A.C., at p. 189.

This was the decision in the case. But some statements were made which might be thought to lend encouragement to the view that concurrently with the duty of an occupier there could be a general duty of care. The precise extent of these statements is, with due respect to their Lordships, anything but clear. Indeed, one may suspect that the reasons for judgment exhibit a tendency to regard the crossing as a public thoroughfare attracting duties appropriate to such a place [14] . It seems to me that par. (3) of the headnote in the report of the case takes too much from what was said at pp. 187-189, and any reference to a general duty of care was unnecessary to the decision of the case. Their Lordships were content to distinguish Quinlan's Case [15] on the footing that it dealt with a trespasser. But no examination of that case is reflected in the judgment. The impossibility of finding concurrent duties, that of occupier and that of the general duty of care applicable in a public place is apparent from their Lordships' reasons in Quinlan's Case. Equally, a caveat against imputing to an occupier a general duty of care in respect of his occupation of property can be perceived in those reasons. There was clearly no intention on the part of those participating in Commissioner for Railways v. McDermott [16] of overruling Quinlan's Case [15] in any respect. Consequently, that case must be explained so as to make its reasoning consistent with Quinlan's Case. This is even more necessary since their Lordships, having taken in hand in Cooper's Case [17] an examination of Quinlan's Case, have affirmed its insistence upon the singularity of the duties of an occupier and its denial of the possibility of a concurrent general duty of care. The felicitous phrase of their Lordships in Commissioner of Railways v. McDermott, "occupation of premises is a ground of liability and is not a ground of exemption from liability" [18] , in my opinion adds nothing to the jurisprudence of the liability of an occupier to those who come upon the property. As the event of which complaint is made has happened on the occupier's property, it goes without saying that the source of any liability in the occupier is the occupation and therefore the control of the property. It is indisputable that the liability which is thus derived is not the same as the liability of an occupier to which persons resort as of common right. It is also beyond question that the liability of the occupier is dependent upon the relationship to the injured person and that that liability is a restricted liability however much room there may be for argument in particular cases as to its precise extent. The words I have quoted cannot be read as denying any of these propositions or as meaning that the occupier has or might have a general duty of care unrestricted as in Donoghue v. Stevenson [19] and concurrent with the duty as an occupier. In reality, the phrase, as I have said, adds little and indeed does not illumine the subject.

1. [1967] 1 A.C., at p. 189. 2. [1964] A.C. 1054. 3. [1967] 1 A.C. 169. 4. [1964] A.C. 1054. 5. (1973) 129 C.L.R. 295; [1974] A.C. 623. 6. [1967] 1 A.C., at p. 186. 7. [1932] A.C. 562.

In Quinlan's Case [20] , their Lordships examined a number of authorities, including Thompson v. Bankstown Corporation [21] . In that case, there appeared in the reasons for judgment of Kitto J. the following passage [22] :

The respondent's contention appears to assume that the rule of law which defines the limits of the duty owed by an occupier to a trespasser goes so far as to provide the occupier with an effective answer to any assertion by the trespasser that during the period of the trespass the occupier owed him a duty of care. The assumption is unwarrented, for the rule is concerned only with the incidents which the law attaches to the specific relation of occupier and trespasser. It demands, as Lord Uthwatt said in Read v. J. Lyons & Co. Ltd. [23] , a standard of conduct which a reasonably-minded occupier with due regard to his own interests might well agree to be fair and a trespasser might in a civilized community reasonably expect. It would be a misconception of the rule to regard it as precluding the application of the general principle of M'Alister (or Donoghue) v. Stevenson [24] , to a case where an occupier, in addition to being an occupier, stands in some other relation to a trespasser so that the latter is not only a trespasser but is also the occupier's neighbour, in Lord Atkin's sense of the word: see Transport Commissioners (N.S.W.) v. Barton [25] . Their Lordships appear to have read this passage as suggesting that a general duty of care could co-exist with the limited duty of an occupier. So reading Kitto J.'s reasons, their Lordships said [26] : their Lordships cannot find any line of reasoning by which the limited duty that an occupier owes a trespasser can co-exist with the wider general duty of care appropriate to the Donoghue v. Stevenson [24] formula: and, if the relation of occupier and trespasser is to be displaced by "some other relation", as may happen, the grounds upon which that displacement can be held to occur must admit of reasonably precise definition, otherwise the task of charging juries as to what a law requires or allows will become virtually incapable of formulation. In Munnings v. Hydro-Electric Commission [27] I expressed the view that in the light of these reasons in Quinlan's Case [28] , their Lordships accepted the view that in Thompson v. Bankstown Corporation [29] the relevant relationship was not that of occupier and trespasser. This Court in Munnings v. Hydro-Electric Commission [30] took the view that the relevant relationship between plaintiff and defendant was not that of occupier and trespasser. Neither the decision nor any statement in Commissioner for Railways v. McDermott [31] affords any warrant for the view that a general duty of care can co-exist with the duty of an occupier. As I have indicated, the rejection in Herrington v. British Railways Board [32] of the view of the Court of Appeal in Videan v. British Transport Commission [33] as to a general duty of care underlines the unacceptability of any such concept. 1. [1964] A.C. 1054. 2. (1953) 87 C.L.R. 619. 3. (1953) 87 C.L.R., at pp. 642-643. 4. [1947] A.C. 156, at p. 185. 5. [1932] A.C. 562. 6. (1933) 49 C.L.R. 114, at pp. 122, 127 et seq. 7. [1964] A.C., at p. 1081. 8. [1932] A.C. 562. 9. (1971) 125 C.L.R., at p. 11. 10. [1964] A.C. 1054. 11. (1953) 87 C.L.R. 619. 12. (1971) 125 C.L.R. 1. 13. [1967] 1 A.C. 169. 14. [1972] A.C. 877. 15. [1963] 2 Q.B. 650.

To make the reasons in Commissioner for Railways v. McDermott [31] conformable to the reasoning in Quinlan's Case [28] and in Cooper's Case [34] , the basis of the case must be confined, as I have earlier expressed it, in those reasons. Any reported decisions which might appear to support the possibility of concurrent duties upon the occupier, one as under the categories as set out in Indermaur v. Dames [35] , and the other the general duty of care as in Donoghue v. Stevenson [36] , cannot stand, in my opinion, against the authoritative pronouncements to the contrary in Quinlan's Case and in Cooper's Case. Cases in which an employer has been held liable to his employees do not, in my opinion, bear on the question arising in this case. If these reported decisions are in any sense supportable, it must be under some particular circumstances not present or paralleled in this case.

1. [1967] 1 A.C. 169. 2. [1964] A.C. 1054. 3. (1973) 129 C.L.R. 295; [1974] A.C. 623. 4. (1866) L.R. 1 C.P. 274. 5. [1932] A.C. 562.

Reference has been made to the decision of the House of Lords in Dublin, Wicklow and Wexford Railway Co. v. Slattery [37] . The only question in that case before their Lordships was whether, because of the limited nature of the appeal to the Court of Exchequer Chamber, a verdict for the defendants ought to have been directed when a rule nisi to set aside a verdict for the plaintiff was discharged. Lord Cairns L.C. said [38] :

Thereupon the appellants appealed to the Court of Exchequer Chamber. The appeal could not, according to the practice, raise again the question whether the verdict was against evidence or the weight of evidence: it only raised the question whether the verdict should be entered for the defendants. On this point the Judges in the Exchequer Chamber in Ireland were equally divided, and the verdict for the plaintiff was therefore directed to stand.

It is this question, and this only, namely, whether the verdict should be entered for the appellants, the defendants in the action, which comes before your Lordships by way of appeal.

No questions relevant to the matters in issue in this case were raised in debate. But, in any case, it would appear that the plaintiff in that case was an invitee in crossing the railtrack, that being a necessary path to the ticket office where the intention was to purchase a rail ticket. 1. (1878) 3 App. Cas. 1155. 2. (1878) 3 App. Cas., at p. 1162.

Also, in Thatcher v. Great Western Railway Co. [39] and in Caterson v. Commissioner for Railways [40] , the plaintiff was an invitee on the station platform, or in the railway carriage, attending as he was persons thereon or therein as travellers on the defendant's train.

1. (1893) 10 T.L.R. 13. 2. (1973) 128 C.L.R. 99.

Here, it cannot be contended, in my opinion, that it was in any other capacity than that of an occupier that any duty towards the respondent devolved upon the appellant. No such circumstances are present in this case as existed in Thompson v. Bankstown Corporation [41] ; Munnings v. Hydro-Electric Commission [42] or, as this Court saw the case, in Cooper v. Southern Portland Cement Ltd. [43] . No ground whatever exists, in my opinion, for finding or constructing any other relevant relationship. In particular, the presence of the respondent's body on the railway track did not, in my opinion, raise any "displacing relationship". The duty of the appellant remained that of an occupier towards a person present on the occupied property.

1. (1953) 87 C.L.R. 619. 2. (1971) 125 C.L.R. 1. 3. (1972) 128 C.L.R. 427.

There is thus, in my opinion, no escape from a decision as to the legal relationship of the respondent when upon the railway line to the appellant as occupier of the line. Upon the resolution of that question, the nature and extent of the appellant's duty will depend. So to approach the matter is in no sense to seek to treat the appellant's occupation of the line as a ground of exemption from liability. It is to give effect to the obligations which properly fall upon the appellant and to the responsibility which it assumes by reason of its occupation of the railway line.

So far as presently relevant, therefore, the result of their Lordships' decision in Cooper's Case [44] is that where injury befalls a person on land occupied by another, any duty owed by the owner or occupier to the injured person in respect of his injuries must be found, and exclusively found, in the legal relationship of the injured person to the occupier. Their Lordships in Cooper's Case adverted to the reason for confining the duties of the occupier within the traditional categories. They said [45] :

The rights and interests of the occupier must have full consideration. No unreasonable burden must be put on him. With regard to dangers which have arisen on his land without his knowledge he can have no obligation to make inquiries or inspection. With regard to dangers of which he has knowledge but which he did not create he cannot be required to incur what for him would be large expense. 1. (1973) 129 C.L.R. 295; [1974] A.C. 623. 2. (1973) 129 C.L.R., at p. 308; [1974] A.C., at p. 644.

The lines between contractual right, invitation and licence are no doubt at times difficult to draw and become blurred in application to unusual situations. But, in totality, these categories of relationship serve to distinguish between those persons towards whom the occupier by his acts, or by the pursuit of his interests, accepts a degree of responsibility and those persons who do not come upon the relevant part of the property by his persuasion, or by permission, in either case expressly or impliedly extended or given. In this case, we are not really concerned to distinguish between an invitee or a licensee: we are concerned with deciding whether the presence of the respondent on the railway track was "courted" by the appellant by its acts or its pursuit of its interests or whether, on the other hand, that presence of the respondent was, so far as the appellant is concerned, forced upon it without its encouragement or persuasion.

I now return to the consequences of Cooper's Case [44] . That decision, following Quinlan's Case [46] in this respect, leaves no room in the case of an occupier for any general duty of care such as is owed to a neighbour in a public place, even though machinery brought upon or used upon the property or other activity of the occupier there is the cause of the injuries sustained. Here, no contractual right is or, in my opinion, could be asserted. I shall later say something on the question whether the respondent could be held to be an invitee or licensee at the relevant place and time. The nature of the duty owed respectively to an invitee and a licensee is well settled.

1. (1973) 129 C.L.R. 295; [1974] A.C. 623. 2. [1964] A.C. 1054.

In relation to a trespasser, their Lordships said [47] :

The fundamental difference between the relationship of occupier and trespasser and other relationships which give rise to a duty of care is that the occupier's relationship with a trespasser is forced on him against his will, whereas other relationships are generally undertaken voluntarily. So it cannot be said in this case that a man ought not to enter into a relationship with others unless he has the ability and resources necessary for the proper performance of the duties which that relationship entails. and [48] : "But in applying that passage" [scil., of Lord Atkin's speech in Donoghue v. Stevenson [49] ] "to trespassers it must be remembered that the neighbourhood relationship has been forced on the occupier by the trespasser and it would therefore be unjust to subject him to the full obligations resulting from it in the ordinary way." 1. (1973) 129 C.L.R., at p. 307; [1974] A.C., at p. 642. 2. (1973) 129 C.L.R., at p. 308; [1974] A.C., at pp. 643-644. 3. [1932] A.C., at p. 580.

Their Lordships' decision means, in my opinion, in this case that unless the respondent could establish the appellant's licence or invitation to be upon the railway track, the only duty which was owed by the appellant to the respondent was that which would be appropriate in the circumstances to a trespasser. It is the relationship to the occupier which it, the occupier has created, expressly or by implication, which imports the duty towards a licensee or an invitee. The invitation or licence makes their presence on the land lawful so far as the occupier is concerned. The occupier's duty to the person who does not fall within either of those categories is the duty spoken of in relationship to a trespasser, a person without legal right (including in that description, for present purposes, an invitation or mere licence) deriving from the occupier to be where he or she was when injury befell.

No substantial attempt was made in the argument of this case to establish that the respondent was an invitee or even a licensee on the railway track. No doubt the failure to establish the child as a licensee in Videan v. British Transport Commission [50] was a considerable discouragement to such an attempt. Clearly, the respondent was an invitee upon the platform for the purpose of boarding a train. The invitation to the respondent to be upon the appellant's property extended no further relevantly, in my opinion, than the confines of the railway platform: and, of course, to the train when entered and to the platform of the traveller's destination. The invitation was not express. It cannot, in my opinion, be enlarged beyond the purposes for which it was impliedly extended to the respondent: in my opinion, it did not extend to the area of the railway track. The respondent cannot properly be regarded, in my opinion, as invited generally into the appellant's property. It could not properly be said, in my opinion, that the respondent had the appellant's invitation or licence to walk upon the track. A school boy on the platform whose school case dropped from his hand without fault on his part to the railway line would have no invitation or licence derived from the appellant to descend to the track to recover it. The invitation to him as an intending passenger would not include an invitation or licence in such circumstances to be on the railway track. I cannot think that the invitation to the would-be passenger included by implication a statement "should you faint and fall upon the line, you are invited, or you have my permission to be, and whilst unconscious to remain, there". The implication of such an invitation or licence is neither reasonable nor in accordance with reality. Nor can I think that, because the respondent was properly upon the platform and able to stand near the edge of it, she had the appellant's invitation or permission, if she should over-balance, to be on the railway track. Further, an attempt to imply such an invitation or licence in order to create a duty in the appellant towards the respondent whilst on the railway line is not consonant, in my opinion, with the emphasis which has been placed upon the situation of the occupier. It would represent, in my opinion, a failure to give proper weight to the circumstance that, in truth, the respondent's presence on the railway track was, in the language of their Lordships, "forced" upon the appellant and not in any sense courted by it by its invitation or licence.

The trial judge and the Court of Appeal Division were of opinion that the respondent was not a trespasser at the relevant time. They founded this opinion upon the undoubted circumstance that the respondent could not have been sued in trespass by the appellant for having fallen or having remained unconscious upon the railway track. But that circumstance is no foundation, in my opinion, for the conclusion that the appellant in the circumstances owed the respondent any duty other than that owed to a trespasser. Perhaps the designation of "trespasser" has tended to obscure the real question in the case. As I have said, the source and extent of any duty to a person on the land of another is the occupancy of the land, and the legal relationship of the injured person to the occupier. If the occupier has not created expressly, or by necessary implication, a right based on contract, invitation or licence to be at the particular place upon the land, the injured person is without any standing upon which to found any duty higher than that owed to a trespasser. Such a person is without legal right or occasion to be at the particular place on the invitation or permission of the occupier and is properly styled a trespasser, whether or not a cause of action in trespass is available to the occupier. It is trespass to be on the land of another without legal right, invitation or permission. It may not be actionable trespass because of attendant circumstances. The defendant may have a defence in the involuntary nature of the action which is said to be the trespass. All that the cases, to which reference is made in the reasons for judgment of the members of the Court of Appeal Division, decide is that actionable trespass requires volition on the part of the trespasser. I have already pointed out that in Commissioner of Railways v. McDermott [51] , the respondent was lawfully on the crossing. None of the cases have decided that the "involuntary trespasser" has a legal right, invitation or licence to do that which is said to be a trespass. The important thing for present purposes is the absence of legal right, invitation or licence stemming from the appellant. Thus, if the respondent were neither licensee nor invitee on the railway track, she lacked any relevant legal right to be there. It is nothing to the point, in my opinion, that she came there involuntarily. Had she been pushed from the platform, she would not have thereby obtained a right to be on the rails derived from the appellant. The person who pushed her could not confer upon her any relevant right against the appellant by invitation or licence. Equally, she could not attract to herself any such right to be upon the railway track from the circumstance that she was unconscious when she fell from the platform. Thus, however the respondent is described, the appellant, in my opinion, came under no greater duty to her than the duty owed to a person having no legal right derived from contract, invitation or licence to be upon the land at the particular place where injury was suffered.

There then remains the question of the nature of that duty. Several paragraphs from Cooper's Case [52] might here be cited in relation to the duty owed to the person present on the occupier's land without legal right, invitation or licence. Their Lordships said [53] :

Their Lordships are breaking no new ground in holding that the nature and extent of an occupier's duty to a trespasser must be based on considerations of humanity. As long ago as 1820 in Ilott v. Wilkes [54] , a case dealing with injury to a trespasser by a spring gun, Best J. said [55] : "the law of England will not sanction what is inconsistent with humanity". In Grand Trunk Railway Co. of Canada v. Barnett [56] , the judgment of the Board refers to "wilful or reckless disregard of ordinary humanity rather than mere absence of reasonable care". Their Lordships indorsed [57] Lord Pearson's view in Herrington v. British Railways Board when he said [58] : I think the word "reckless" in the context does not mean grossly negligent but means that there must be a conscious disregard of the consequences - in effect deciding not to bother about the consequences. Thus a subjective, mental element, a sort of mens rea, is required as a condition of liability. and adopted [59] the words of Lord Uthwatt in Read v. J. Lyons & Co. Ltd. [60] : there is demanded of him a standard of conduct no higher than what a reasonably minded occupier of land, with due regard to his own interests, might well agree to be fair and no lower than a trespasser, might in a civilised community reasonably expect. 1. (1973) 129 C.L.R. 295; [1964] A.C. 623. 2. (1973) 129 C.L.R., at p. 307; [1974] A.C., at pp. 642-643. 3. (1820) 3 B. & Ald. 304 [106 E.R. 674]. 4. (1820) 3 B. & Ald., at p. 319 [106 E.R., at p. 680]. 5. [1911] A.C. 361, at p. 370. 6. (1973) 129 C.L.R., at p. 306; [1974] A.C., at p. 642. 7. [1972] A.C., at p. 928. 8. (1973) 129 C.L.R., at p. 309; [1974] A.C., at pp. 644-645. 9. [1947] A.C. 156, at p. 185.

As the respondent was, in my opinion, neither invitee nor licensee at the place on the railway track where she lay, the duty appropriate to the instant circumstance was, in my opinion, a duty not to be reckless to the point of inhumanity towards the person known to be at the particular place upon the land or, to add what seems to me might in some circumstances be a grey and indefinite area not presently relevant, a person whose presence at the particular place is "as good as known". Here, it could not properly be said, in my opinion, that the driver relevantly knew, or even as good as knew, of the respondent's presence on the line before the time at which he says he recognized that what he had seen was a human being. But, even if it could be said that he knew, or as good as knew, of her presence at any earlier time, having regard to what I am about to say, that earlier knowledge would make no difference, in my opinion, to the result of the case. It could not properly be said that, in not applying the emergency brakes at that earlier point of time, he was reckless to the point of inhumanity, however negligent it might have been not to have done so.

Earlier I discussed some aspects of the evidence in this case from the point of view of negligence though, as I think, there was no general duty of care operating in the case. It is quite plain from that discussion that, in my opinion, it could not be concluded that the driver of the train was reckless or lacking in humanity or accorded the respondent less than a trespasser might fairly and reasonably expect in a civilized community. No doubt the respondent could not be said to be at fault in being overcome by the epileptic attack: that, however, is no basis for implying any right by invitation or licence to her to be upon the railway track. But equally the driver, presented with her presence on the railway track, could not be said to be in breach of the occupier's duty to the respondent.

Being of this view I have no need to discuss whether, even if the respondent could be said to be an invitee or licensee on the railway track, the appellant was in breach of duty towards her. But I should remark, firstly, that the respondent did not sue as invitee or licensee. The action was based on a breach of a general duty of care. Secondly, whether invitee or licensee, a general duty of care was not owed to the respondent by the plaintiff. The nature of these duties to invitee or licensee is well settled. It is enough to say that I would see considerable difficulty in saying in this case, on the view I have taken of the permissible findings of fact, that the driver was in breach of any such duty.

In my opinion, the trial judge ought to have taken the case from the jury on the footing that the only duty owed by the appellant to the respondent was the duty which an occupier of property has towards a person who has no legal right or licence to be at the particular place on the property where the injury occurred: and that there was no material on which the jury could find that the appellant was in breach of that duty.

I find no need to examine in any detail the reasons for judgment of the Court of Appeal Division of the Supreme Court. It sufficiently appears from what I have written that the quotations from these reasons which I have made are, in my opinion, insupportable upon a proper understanding and application of the decision in Cooper's Case [61] and of the nature of the trespasser as one who has no legal right, invitation or licence vis-à-vis the occupier to be upon the relevant part of the property, whether or not the trespass is actionable.

The appeal, in my opinion, should be allowed and orders made which would cause judgment to be entered in the action for the defendant.

On the morning of the 14th February 1972, at about 8.15, Mrs. Perry, the respondent, went to the railway station at Lindfield, a northern suburb of Sydney with the intention of catching a southbound train to Chatswood. She held a weekly ticket entitling her to travel by train. She was standing on the platform, waiting for a train to arrive, when suddenly, and without warning, she collapsed and fell unconscious on to the railway line. She had suffered an epileptic, or epileptiform, attack. There was evidence from which it might have been concluded that she was about 125 ft from the northern end of the platform when she fell, although the distance could have been less. A train was approaching from the north. There were some other people on the platform. One of them, Mr. O'Donnell, saw the respondent on the line, and the approaching train, and ran along the edge of the platform for a distance of sixty to eighty yards waving his hand and his briefcase, hoping to attract the attention of the driver of the train. The train did slow down, but not soon enough. It struck the respondent and caused her serious injuries.

When the train was about 300 yards to the north of the platform, the driver saw that something was on the line. From that point he had an uninterrupted view of the platform. He had already started to apply his brakes, for the purpose of making a normal stop at the Lindfield station, but the train was still travelling at about forty m.p.h. He thought that the object on the line was a large piece of brown paper. In fact the respondent was wearing a white dress with purple stripes. He did not see Mr. O'Donnell running down the platform. He knew that people did fall on to railway lines - quite a lot, he said - and he had been warned to be on the alert against such a possibility. However when he first saw the object on the line he made no further application of his brakes. He travelled for some distance, which he estimated to be about a hundred yards, before he realized that what he could see on the line was a person. He then applied the emergency brakes. He said that after the train hit the respondent it went for about a car length before it stopped. A car length is about sixty-three ft. However other witnesses said that the train stopped within a few feet after striking the respondent.

There was evidence that if the train were travelling on that line at forty m.p.h., and the emergency brakes were applied, the train, if laden, would stop within a distance of 870 feet, and, if empty, would stop in about 660 feet. It was peak hour, so the train might have been expected to be fairly full.

The respondent brought an action against the appellant, the Public Transport Commission of New South Wales, for damages for the personal injuries which she sustained in the accident. She pleaded that she had been injured by the negligence of the appellant, its servants and agents. The learned trial judge directed the jury that the appellant, through the driver of its train, was required to keep a proper lookout and to take all reasonable steps to bring the train to a stop upon the happening of any emergency which a proper lookout would reveal. The jury returned a verdict for the respondent for $90,000. An appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed.

The appellant now contends that it did not owe to the respondent a duty to take reasonable care for her safety. The respondent was, so the appellant submits, a trespasser on the railway line, and the appellant's only duty to her was that which an occupier of land owes to a person who has trespassed on that land. It is further submitted that in the circumstances the appellant was under no duty to the respondent until the driver of the train had actual knowledge that she was on the railway line, i.e., until he had identified the object on the line as a person. As soon as the driver became aware that what he had seen on the line was a person and not a piece of paper, he did all he could to stop the train. Therefore, the submission concludes, the appellant was not in breach of its duty to the respondent.

The special rules which the common law has evolved to govern the liability of an occupier of premises to a person who sustains injury while on those premises do not in every case state exhaustively the nature of the occupier's duty to the person who has come on to his premises. The relationship between the parties may be such as to give rise to a duty upon the occupier to take reasonable care for the safety of the other person. If the relationship between the parties imposes upon the occupier this general duty of care, which may be higher than that which he owes in his capacity as occupier, the fact that he is an occupier does not relieve him of the higher duty. The two duties exist concurrently. The statement made in Commissioner for Railways v. McDermott [62] , and repeated in Herrington v. British Railways Board [63] , that "occupation of premises is a ground of liability and is not a ground of exemption from liability" is incontestably correct, at least so far as persons lawfully on the premises are concerned. The books are full of cases in which workmen have successfully sued their employers for damages for injuries sustained on the employer's premises, and in which the liability of the employer has been based, not on the fact that he was in occupation and control of the premises, but upon a breach of the general duty of care. Similarly there are many cases in which a company or authority operating a railway has been held liable for damages for injuries caused by its negligence, although the injured person was on railway property when the injuries were sustained. I need not refer in detail to the cases in which the occupier of railway premises has been held liable when passengers have tripped or slipped on railway platforms; in some of those cases the liability of the defendant was based on a breach of the duty owed by an occupier, but in others it was based on a breach of the general duty of care. By way of example, perhaps unnecessary, of the point I am making I would refer to three cases which concerned persons who were not passengers. In Dublin Wicklow, and Wexford Railway Co. v. Slattery [64] the man in respect of whose death the action was brought was run down while crossing a railway line for the purpose of buying a ticket for his cousin who intended to travel on the railway. None of the distinguished law lords who debated the issues in that important case thought it necessary to inquire whether the deceased was an invitee or a licensee of the railway company; liability was based on negligence. Much more recently, in Caterson v. Commissioner for Railways [65] this Court upheld a verdict given in favour of a plaintiff who had carried his friend's luggage into a railway carriage and who had jumped off the train when, without warning, it had begun to move. It was not regarded as material to consider whether or not the plaintiff had bought a platform ticket, for again it was the general duty of care that was held to have been broken. In Thatcher v. Great Western Railway Co. [66] where a person standing on a platform after seeing off his friends was struck by an open door on the train, it was argued that the duty of the railway company was only that which is owed by an occupier to a licensee. However the Court of Appeal rejected this contention and held that the railway company owed the plaintiff a duty to take reasonable care for his safety.

1. [1967] 1 A.C. 169, at p. 186. 2. [1972] A.C. 877, at pp. 913, 929. 3. (1878) 3 App. Cas. 1155. 4. (1973) 128 C.L.R. 99. 5. (1893) 10 T.L.R. 13.

It may be taken as settled that in appropriate circumstances a person who has lawfully come on to premises occupied by the defendant can recover damages for injuries sustained by reason of the negligence of the defendant, i.e., for breach of the duty defined in Donoghue v. Stevenson [67] . In other words the occupier may owe to a person lawfully on his land a general duty of care in addition to the special duty which is owed by an occupier to an invitee or a licensee. I need not consider whether an occupier may similarly owe concurrent duties to a trespasser. The decision in Commissioner for Railways v. Quinlan [68] and dicta in the judgment of their Lordships in Southern Portland Cement Ltd. v. Cooper [69] may be thought to favour the view that an occupier owes a trespasser only that duty of ordinary humanity which was expounded and explained in Herrington v. British Railways Board [70] . Earlier decisions of this Court support the conclusion that two parallel duties may exist. However, this question need not be decided in the present case. In my opinion, for reasons I am about to give, the respondent was not a trespasser.

1. [1932] A.C. 562. 2. [1964] A.C. 1054. 3. (1973) 129 C.L.R., at p. 309; [1974] A.C., at p. 645. 4. [1972] A.C. 877.

On behalf of the appellant it is said that the respondent had neither right nor permission to be on the railway line and that she was therefore a trespasser upon it. With all respect I regard this as too narrow and artificial a view. At the outset it may be remarked that the presence of the respondent upon the appellant's railway line was not a legal wrong committed by the respondent against the appellant. Since the respondent had got on to the line involuntarily her presence there gave the appellant no right of action. It has been established for centuries that a defendant does not commit an actionable trespass by going on to the plaintiff's land involuntarily: Smith v. Stone [71] . If a trespasser, within the meaning of the rules as to the liability of an occupier, is a person whose presence on the land is a legal wrong (as some remarks of Lord Diplock inHerrington v. British Railways Board [72] would suggest) the respondent was clearly not a trespasser. However I doubt whether it is right to say that a person can never be regarded as a trespasser, for the purpose of the rules governing an occupier's liability, if his presence on the premises came about involuntarily. It would seem to me that it would be unfairly burdensome to an occupier to hold that persons who have come on to his premises without his permission, and in circumstances in which he could not be expected reasonably to foresee their presence, are entitled to expect that care for their safety which is owed to invitees or licensees, if they have come on to the premises involuntarily, for example, by falling from an adjoining tree, or by landing in a crashed aircraft, or by being thrown there by hoodlums. But that question does not arise in the present case, where the respondent came on to the premises of the appellant quite lawfully, with the permission of the appellant. She could then become a trespasser only if she went outside the scope of her permission. The relevant principle was stated by Lord Atkin in Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. as follows [3] :

In my opinion this duty to an invitee only extends so long as and so far as the invitee is making what can reasonably be contemplated as an ordinary and reasonable use of the premises by the invitee for the purposes for which he has been invited. He is not invited to use any part of the premises for purposes which he knows are wrongfully dangerous and constitute an improper use. As Scrutton L.J. has pointedly said: "When you invite a person into your house to use the staircase you do not invite him to slide down the banisters" (The Carlgarth [4] ). So far as he sets foot on so much of the premsises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly. In my opinion a person who is lawfully upon premises, and is using the premises in an ordinary and reasonable way, becomes a trespasser only if he goes voluntarily on to a part of the premises to which the invitation does not extend: if he falls, or is pushed, on to a forbidden area he does not thereby become a trespasser. This view is strongly supported by Commissioner for Railways v. McDermott [5] . In that case it was submitted that the plaintiff was a trespasser, being on the railway track and away from the level crossing. Their Lordships rejected this contention, because there was evidence from which the jury could have inferred that the plaintiff stumbled and fell onto the track, and that she was not deliberately or negligently trespassing there [6] . Further support for the conclusion which I have reached is to be found in Braithwaite v. South Durham Steel Co. Ltd. [7] . In that case the plaintiff, in accordance with the proper and settled practice, was walking along a narrow walkway adjacent to a railway track in the occupation of the British Transport Commission. Part of the walkway was also occupied by the Commission, but the plaintiff had an implied licence to use it. A train was travelling silently along the line, and the driver shouted to warn the plaintiff of the danger. The plaintiff turned to ascertain the reason for the shout and in so doing inadvertently put his foot or body a few inches on or over the sleepers to which the Commission's implied licence did not extend and he was struck by the approaching train and injured. It was held that the guard had failed to keep a proper look-out, that the Commission was negligent, and that the plaintiff's involuntary encroachment outside the licensed area, caused by the negligence of the Commission, did not constitute him a trespasser. Edmund Davies J. said [8] : It affronts common sense that licensors, having by their negligence caused a licensee to take a startled and unpremeditated step of a few inches outside the licensed area, should thereafter be entitled to say that if any portion of the plaintiff's anatomy was outside the licensed area he must be regarded as a trespasser to whom no duty was owed other than that of refraining from harming deliberately or recklessly. None of the cases cited to me warrant what in my judgment would be a wholly artificial approach to the facts of this case 1. (1647) Style 65 [ 82 E.R. 533]. 2. [1972] A.C., at p. 943. 3. [1936] A.C. 65, at p. 69. 4. [1927] P. 93, 110. 5. [1967] 1 A.C. 169. 6. [1967] 1 A.C., at p. 184. 7. [1958] 1 W.L.R. 986; [1958] 3 All E.R. 161. 8. [1958] 1 W.L.R., at p. 991; [1958] 3 All E.R., at p. 165.

That case is distinguishable from the present, because there the involuntary encroachment was caused by the defendant's negligence, but the decision supports the view that the fact that the plaintiff has no permission to be on the part of the premises where he in fact is found does not necessarily make him a trespasser if he got there involuntarily.

In the present case the respondent was making a reasonable and proper use of part of the railway premises where she was entitled to be - she was standing upon the platform waiting for the train to arrive. Her involuntary fall on to another part of the premises in the occupation of the appellant did not make her a trespasser. It did not exempt the appellant from its duty to take reasonable care for her safety.

The matter may be summed up as follows. A carrier by rail owes a duty to take reasonable care for the safety of a passenger, whether the passenger is in the course of being carried or is standing on a platform waiting for an approaching train. The carrier is not absolved from that duty because the passenger becomes ill and collapses, whether she falls upon the platform or falls off it on to the railway line where she would otherwise have no right to be. In the present case the learned trial judge was quite right in directing the jury that the appellant was under a duty to take reasonable care for the safety of the respondent.

The final question is whether there was evidence on which it was open to the jury to find that the appellant was negligent. The case was very much on the borderline and a jury could well have decided it either way. Nevertheless there was in my opinion evidence to sustain the verdict. I need hardly repeat that the obligation that lay upon the appellant was no more than to take reasonable care. The appellant was not obliged to bring its trains to a halt before they reached every station for fear that a passenger might fall in their path. But the appellant's drivers were bound to keep a proper look-out and to take reasonable steps to stop the train if they in fact saw someone on the line. It was open to the jury to conclude that the driver had not kept a proper look-out. The fact that he mistook the respondent, in her white dress with purple stripes, for a piece of brown paper and that he did not see Mr. O'Donnell running and waving his briefcase, could have been given weight in reaching that conclusion. It was further open to the jury, on the facts that I have outlined, including the estimates of the speed and position of the train and of the distance within which it could have been stopped, to conclude that if the driver had kept a proper look-out, he would have seen and recognized the danger in time to bring the train to a halt before it reached the respondent.

The decision of the Court of Appeal was in my opinion correct and the appeal should be dismissed.

On the morning of 14th February 1972 Mrs. Perry was standing on the platform at Lindfield railway station on Sydney's north shore line waiting for a south-bound train to take her to work at Chatswood. She suddenly collapsed and fell unconscious on to the rails. Soon afterwards, and before any of the other passengers waiting on the platform were able to go to her assistance, the train she had been waiting for arrived and, despite emergency braking, struck her as she lay on the line.

She was seriously injured and sued in negligence; the case was heard in the Supreme Court and, after extensive evidence from a number of witnesses including the train driver and guard, a number of eye-witnesses and two expert witnesses, the jury of four, by statutory majority, found for Mrs. Perry and awarded her substantial damages.

At the close of evidence counsel for the defendant, the Public Transport Commission, had sought a direction that judgment be entered for the defendant upon the grounds that there was no evidence of negligence on its part and that the only duty owed to Mrs. Perry was that owed to a trespasser. The learned trial judge, in rejecting this application, said that he did not regard Mrs. Perry's involuntary presence upon the track as that of a trespasser; she was owed the same duty of care when lying unconscious on the track as when waiting on the platform, the defendant must take reasonable measures to prevent risk of foreseeable and preventable injury. The issue for the jury, said his Honour, was whether the train driver was keeping a proper lookout for emergency situations such as that precipitated by Mrs. Perry's fall from the platform.

His Honour then charged the jury that the Commission's duty, through its driver, was to keep a proper lookout and to take all reasonable steps to stop the train in the event of an emergency; if any breach of that duty was a cause of Mrs. Perry's injuries she was entitled to damages. There then followed a most careful examination of the evidence, to which no exception was taken, and the jury thereafter returned its majority verdict for Mrs. Perry.

The Commission's appeal to the New South Wales Court of Appeal was unsuccessful and it now appeals to this Court. On neither occasion has the Commission sought a new trial; instead it has contended that judgment should be entered in its favour, there being no evidence capable of supporting the jury's finding of fault; Mrs. Perry, once she fell from the platform, was, so it was said, in the position of a mere trespasser so far as concerned the Commission.

Were the doctrine enunciated in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [9] still operating in its full vigour, to categorize Mrs. Perry as a trespasser might well have sufficed to acquit the Commission of liability as occupier of railway property. The evidence disclosed neither malice nor such recklessness as would be "tantamount to malicious acting" (per Viscount Dunedin [10] ) and in their absence that doctrine would allow no trespasser to recover. But this is no longer so. In Commissioner for Railways v. Quinlan [11] , Herrington v. British Railways Board [12] and Southern Portland Cement Ltd. v. Cooper [13] the duty of occupiers to trespassers has been subjected to intensive re-examination and whatever uncertainties remain it is at least clear that malice and recklessness no longer mark out the boundaries of that duty. Instead "the nature and extent of an occupier's duty to a trespasser must be based on considerations of humanity" (Cooper's Case [14] ) and an "all-embracing" consideration of the facts is required to identify those trespassers to whom that duty may be owed; factors such as the degree of likelihood of the coming of trespassers and the extent of the risks they will then run from hidden or unexpected dangers are to be weighed against detriments to the occupier involved in taking steps to safeguard them (Cooper's Case [15] ).

1. [1929] A.C. 358. 2. [1929] A.C., at p. 377. 3. [1964] A.C. 1054. 4. [1972] A.C. 877. 5. (1973) 129 C.L.R. 295; [1974] A.C. 623. 6. (1973) 129 C.L.R., at p. 307; [1974] A.C., at pp. 642-643. 7. (1973) 129 C.L.R., at pp. 308-309; [1974] A.C., at p. 644.

However, in the present case, both trial judge and jury and the Court of Appeal have alike treated Mrs. Perry as no trespasser. Whether they are right in doing so must form the first subject of inquiry. I may say that argument and discussion in this case has concentrated upon the status of trespasser and that of invitee; any contractual right of entry has been ignored and for the purposes of this judgment I conform to this approach.

Mrs. Perry entered Lindfield railway station at the Commission's invitation and as she stood on the platform awaiting the arrival of her train she was owed by the Commission no lower duty than it owed to any invitee. But that duty was not confined to perils of the premises. If the Commission, in the person of one of its porters, had knocked her down while carelessly conveying luggage along the platform in a trolley it would have been liable to her in negligence without need for any inquiry as to the state or condition of the platform. As was said by the distinguished members of the Court of Queens Bench in Tebbutt v. Bristol and Exeter Railway Co. [16] in upholding the plaintiff's appeal:

It was contended that, assuming this to have been an act of negligence on the part of the porter, for which the defendants would have been responsible to a passenger by their own line, yet that the company were not responsible to the plaintiff, inasmuch as he was neither a passenger of theirs, nor a person who was on their premises on any business in which they were interested, but was a mere licensee using the platform for his own convenience.

It is unnecessary to consider what would have been the rights of the parties if the plaintiff's complaint had reference merely to the state and condition of the platform upon which he was allowed to enter. What he complains of is an act of misfeasance done by a servant of the defendants in the course of his employment - the doing carelessly what the servant was employed to do, and which caused damage to the plaintiff.

In Quinlan's Case it was said [17] , citing Gallagher v. Humphrey [18] , that, had the plaintiff been a licensee and not a trespasser, while he would have had to take the level crossing there in question as he found it, he would nevertheless "presumably" have been "entitled to complain of any positive act of negligence on the part of the railway staff". In Commissioner for Railways v. McDermott [19] , that passage was seen as a recognition "that the duty arising from the relationship of occupier and licensee did not exclude any duty which might arise from other features of the situation". It was to such a duty that Cockburn C.J. gave effect when, in Gallagher v. Humphrey [20] he spoke of negligence "superadded" to any particular state of the premises, a licensee being obliged, without complaint, to take the premises as he finds it but having a cause of action in negligence for superadded negligence unconnected with the state of the premises. Almost one hundred years later the Board, speaking through Lord Somervell of Harrow, said, of the postulated case of an occupier negligently driving a motor-car into a licensee, "the principle that the licensee must take the land as he finds it would clearly have no application" (Perkowski v. Wellington Corporation [21] ).

1. [1964] A.C., at pp. 1082-1083. 2. (1862) 6 L.T. (N.S.) 684. 3. [1967] 1 A.C. 169, at p. 190. 4. (1862) 6 L.T. (N.S.), at p. 685. 5. [1959] A.C. 53, at p. 67.

An invitee or licensee who enters upon the property of another does not thereby forfeit the benefit of having owed to him, by those who are in a state of proximity to him and should foresee the consequences which their conduct may have upon him, the neighbourly duty to take reasonable care for his safety. He remains entitled once on the premises, as he was off them, to have this duty performed by those with whom he is in the necessary relationship of proximity. To a lawful entrant the occupier will normally owe such a duty, the entry involving the requisite degree of proximity.

Overlaid upon this situation will be the more specific right-duty relationship, dependent upon the status of occupier of premises and of lawful entrant upon them and concerned in particular with structural hazards which the state of the premises may represent. This duty, arising from the presence of a sufficient degree of control by the occupier over his premises (Wheat v. E. Lacon & Co. Ltd., per Lord Denning [22] ) is no exception from but is rather a special and limited manifestation of the general duty of care which proximity imposes (McDermott's Case) [1] ; the result is that there are, in the case of a lawful entrant upon premises, "two duties of care existing concurrently, neither displacing the other" [2] .

1. [1966] A.C. 552, at p. 577. 2. [1967] 1 A.C., at p. 186. 3. [1967] 1 A.C., at p. 187.

So it is that it has repeatedly been said that the occupation of premises provides no exemption from liability but is, rather, a ground for liability (Quinlan's Case [3] ; Videan v. British Transport Commission, per Pearson L.J. [4] ; McDermott's Case [5] ). In Herrington's Case Lord Morris described the contrary view as "heresy" [6] and Lord Wilberforce remarked that it "has been refuted more than once" [7] . His Lordship there described "the correct conception" as that stated by Viscount Radcliffe in Quinlan's Case [1] that the Addie [2] rules were "expressive of certain consequences as regards proximity and foreseeability" flowing from the relationship of occupier and invitee or licensee, the law then being able to "take into account other relevant factors, if they exist, which bear upon these matters of foresight and prudence".

1. [1964] A.C., at p. 1072. 2. [1963] 2 Q.B. 650, at p. 677. 3. [1967] 1 A.C., at pp. 186-187. 4. [1972] A.C., at p. 907. 5. [1972] A.C., at p. 913. 6. [1964] A.C., at p. 1072. 7. [1929] A.C. 358.

The lawful entrant upon the property of another thus suffers no loss of the right to have reasonable care taken for his safety. Those upon whom that duty is imposed and against whom that right is enforceable comprise a class the membership of which depends upon proximity and foreseeability, factors which in the case of an occupier will also impose upon him the special duty of care which accompanies control of premises. The interests of the entrant will then usually be adequately served by observance of the Addie rules, but if there intrudes superadded negligence on the occupier's part which, had it occurred off the premises, would have attracted liability to him it will do so none the less because occurring on the premises.

The case of the unlawful entrant is a distinct one. If his entry be by stealth and unanticipated, entry alone will not cast any duty of care whatever upon the occupier. His arrival on the premises not being authorized, known or anticipated no duty in respect of the state of the premises will arise upon entry and he will in no sense be any "neighbour" of the occupier. Once his presence is known the position changes and a duty, which has been described as one of common humanity, is cast upon the occupier. In the view which I take of this case the precise ambit of that duty need not concern me. In Cooper's Case [3] their Lordships have sought to re-examine and restate its basis and its content. I add only this, that the really difficult area in the case of unlawful entrants arises not in relation to the acts or omissions of occupiers who know of their presence but in relation to what, if anything, should be done by an occupier, in advance of that knowledge, so as to prevent or reduce the risk of harm to any such entrant who may in the future appear on the premises. It is in the realm of precautions against the as-yet-unidentified entrant that difficult questions of degrees of reasonable anticipation arise, coupled as they necessarily are with fears of unduly burdening occupiers for the benefit of future trespassers.

I have said that I do not regard myself as concerned in this case with any question of the duties owed by an occupier to a trespasser. Mrs. Perry's precise status as she lay unconscious on the line I view as irrelevant; that involuntary physical movement from platform to railway line which was the consequence of Mrs. Perry's fall was not antecedent to, and did not affect the setting in which there arose, the duty for breach of which she sues. That movement was no more than a circumstance to which that pre-existing duty applied. The duty was one owed to her as she stood upon the station platform. It was a duty by the Commission to intending passengers to take reasonable care for their safety, not merely in relation to the premises but in relation also to the operation of the Commission's trains.

It follows that I regard as correct the learned trial judge's charge to the jury, directing their attention to the questions of the keeping of a proper lookout and of the prompt taking of steps to bring the train to a stop should the maintenance of such a lookout reveal the existence of an emergency on the line ahead.

Mrs. Perry was a person lawfully upon the Commission's premises; within those premises the Commission was conducting an activity, the running of trains at speed along tracks, which was capable of causing injury or death to any who might come into physical contact with the moving trains; add to that the fact, attested to in evidence, that people fall onto tracks "quite a lot", that being something that train drivers are warned constantly to be on the alert against; add also the fact that it is precisely alongside station platforms that the Commission's tracks are necessarily situated in close proximity to people congregated above those tracks, tracks which lie at their feet and from which they cannot be fenced off. These circumstances, viewed in the context of a general duty of care for Mrs. Perry's safety, were in my view ample to entitle the jury to conclude that if there was any failure on the part of the train driver to keep a proper lookout that would constitute a breach of the Commission's general duty of care owed to her which, if it were a cause of Mrs. Perry's injuries, would render it liable in damages.

This view of the facts accords well enough with common community experience. Rail transportation has been a feature of our society for more than one hundred and twenty years and the fall from the platform, like the level crossing accident, is one of the classic hazards which every child is warned of and of which no railway authority can be unaware.

In McDermott's Case [4] the duty found to have been breached was not that arising out of the Commission's occupation of the railway line. It depended rather upon "the inherently dangerous activity of running express trains through a level crossing which was lawfully and necessarily used" by a variety of persons [5] . Lord Gardiner L.C. there said that such an activity was likely to cause serious accidents unless carried out with all reasonable care and that therefore there was a duty to use all reasonable care. The like duty arises in the present case although what will satisfy that duty will, of course, differ.

1. [1967] 1 A.C. 169. 2. [1967] 1 A.C., at p. 187.

The steps which the Commission should take in observance of its duty of care must, no doubt, be judged in the light of relative infrequency of occurrence of a particular emergency and of relative gravity of harm which is likely to ensue. The ease with which precautions may be taken must also be significant and may well be conclusive when the precaution, for want of which the emergency proves fatal, is one which, quite apart from the particular emergency, ought to have been observed in any event. Such is very much the case when the keeping of a proper lookout is in question.

What the Commission must do to satisfy its duty will depend upon what may reasonably be expected of it in all the circumstances. It would, for example, be unreasonable to require it to run its trains at such a low speed as to enable them to stop immediately should persons suddenly fall directly in front of a train. But it is quite another thing to require only that those who drive trains should keep a proper lookout on the track ahead, something which is no doubt in any event essential for the safety of the train and its passengers. I regard the Commission as owing to Mrs. Perry that duty of keeping a proper lookout, owed to her as much as it is to passengers actually in transit on trains.

In the view I take it is nothing to the point that the invitation extended by the Commission to Mrs. Perry to enter the station premises was one suitably limited in terms of area and which did not extend to the tracks alongside the railway platform. It may readily enough be conceded that Mrs. Perry was not invited to lie upon the tracks any more than an intending passenger awaiting a Sydney ferry is invited to plunge into the waters of Circular Quay. But nothing follows from this lack of invitation. The special duty of care owed by an occupier of premises in relation to hazardous structures is well suited to the application of this notion of a sharply defined and limited area of invitation or of licence. Not so, however, the underlying and more general duty of care, whose existence and scope at any particular time and place will depend upon proximity and foreseeability. Such a duty neither owes its origin to the existence of particular premises nor is its content to be measured by the extent of any invitation to enter premises; with premises it has no necessary connexion whatever. It will continue to be owed by the Commission so long as the person entitled to its protection continues within a neighbourly relationship to the Commission. Mrs. Perry's fall onto the tracks did not sever that relationship and led to no termination of the Commission's duty towards her but was, rather, the first step in the creation of a situation of emergency and of peril, the harmful effects of which the Commission was obliged to take reasonable steps to avert.

An examination of the evidence, much of it conflicting, leaves me in no doubt but that it was open to the jury, so directed, to bring in a verdict for Mrs. Perry. The jury had to consider whether or not the driver had kept a proper lookout and, if he had, whether he had acted with all reasonable care for the safety of Mrs. Perry once he had perceived, as a result of that lookout, the emergency created by her position on the track. There was evidence which the jury might accept and which would lead it to answer each of these questions adversely to the Commission, just as there was a body of evidence to the contrary, also open for acceptance by the jury if it saw fit.

I do not propose to enter upon an examination of the evidence. This has been undertaken in considerable detail in the course of the several judgments in the Court of Appeal and with those analyses I agree. I do, however, make one observation. This is that exceptional case which, although concerned with questions of speed and distance of a moving vehicle, may, on a view of the evidence open to the jury, readily be resolved without the aid of calculations based upon possibly erroneous assumptions. It was open to the jury to conclude that the train had almost come to a halt when it struck Mrs. Perry, that she was carried forward only a matter of a few feet before the train stopped. It must follow that had the train's full braking capacity been applied very slightly earlier than it was Mrs. Perry would have escaped injury. This conclusion being open to the jury and there also being evidence, referred to in the learned trial judge's charge, from which the jury might have concluded either that a better lookout ought to have been maintained or that more prompt emergency braking ought to have been applied, or that there were failures in both these respects, it follows that the jury's verdict was well capable of being supported upon a view of the evidence properly open to it.

On the morning of 14th February 1972 the respondent, having purchased a weekly train ticket, was standing on the railway station at Lindfield, a suburb on the Sydney north shore, waiting for a train to take her to Chatswood, that is to say, south towards the city. She took up a position about 125 ft from the northern end of the platform. She had some form of fit or seizure which caused her to become unconscious and she fell on to the railway line with her legs over one of the rails. Thereafter the front wheels of an electric train travelling towards the city from Killara, the next station to the north, either passed over her body or pushed her along the line. She suffered very serious injuries. She brought an action in the Supreme Court of New South Wales against the appellant claiming damages for negligence and the jury returned a verdict in her favour for $90,000. An appeal to the New South Wales Court of Appeal was dismissed.

The driver of the train had brought the train out of Killara station and travelled at about forty to forty-five m.p.h. in the direction of Lindfield station, intending that the train should stop there with the foremost carriage at the southern end of the station platform. He had already applied his service brake for the purpose of stopping the train at Lindfield station when about 300 yards from the station he observed something on the line adjacent to the Lindfield platform. By that time his speed had been reduced by about five m.p.h. At first he thought that what he saw was a piece of brown paper, but when he was about 200 yards from the Lindfield platform he recognized that the object was a human body. He gave evidence that he then immediately applied the brakes to the full emergency position but the evidence of Mr. Rooney who was on Lindfield station at the time would have entitled the jury to conclude that the full emergency application of the brakes took place much closer to the respondent than two hundred yards. The train was no doubt substantially laden with passengers, it being Monday morning in a peak hour, though it had commenced the service only two stations further up the line. The minimum stopping time for a fully laden train travelling in that place at forty-five m.p.h. was 1,090 ft and at forty m.p.h. 870 ft. Unladen the distances were 830 ft and 660 ft respectively.

The train in fact stopped at a point between one foot and a carriage length, i.e. 62 1/2 ft, beyond the position where the respondent lay. Witnesses varied on this point, but the evidence would justify the jury in determining that if the driver had applied the brakes harder or in emergency position at a time before he positively identified the object on the line as a human body, the train could have been stopped before reaching the plaintiff; but that by the time the driver identified the object on the line it was just too late to stop the train before the front carriage of the train came in contact with the respondent's body.

The braking system was fully described in evidence by Mr. Grimshaw. Braking was ordinarily actuated by movement of the brake handle to a service position causing release of air pressure in the system with degree of braking controlled by the driver by return of the braking handle to the lap position from the service position between releases of air. Thus after one braking further brakings short of full emergency braking could be achieved by moving the brake handle again from the lap position to the service position. Emergency braking was achieved by release of air in the system at the maximum possible rate.

Upon these facts the appellant claims that there was no evidence of a breach of any duty of care owed towards the respondent at any relevant time whereby she suffered her injury. It is submitted that no duty of care was owed to a person in the position of the plaintiff until the driver positively identified the plaintiff as a human being, that at the time when the duty of care arose, that is to say, upon such identification, the driver of the train did all that he could to avert injury to the respondent, and that her injuries were not caused by any act or omission of the driver at a time when a duty of care was owed. This submission is based upon the contention that the only duty owed by the appellant to the respondent at a time causally related to the injury was the duty which may arise in certain circumstances between an occupier of land and a trespasser on the land. The appellant was the occupier of the railway line which it used for the running of its trains. The respondent, it is said, was a trespasser, even though an involuntary one. The duty, it is submitted, of an occupier to a trespasser is not deliberately to do such a person harm or not to act with lack of care for the safety of the person when that person is known or "as good as" known (see Southern Portland Cement Ltd. v. Cooper [6] ) to be present on the occupier's land. In this connexion, it is said and rightly, there is no essential difference in the duty of care which is owed between the case where an injury is caused by the condition of the occupier's premises and that where the injury is caused by the carrying on on such premises of some activity, in this case the driving of the train. It is, however, hardly possible since Southern Portland Cement Ltd. v. Cooper to limit the enunciation of duty in the way suggested. We shall return to this aspect later.

The basis of the submission presently being considered is that the respondent was properly to be categorized as a trespasser on the lines, even though an involuntary one and that the involuntariness of the trespass is of no legal significance. There is, however, an important piece of evidence which was given by the driver of the train. He was asked:

Q. And that is something you are warned constantly to be on the alert against, isn't it?

The respondent was thus invited, to use the conventional language, to be upon the railway platform beside the railway lines, and the jury could have inferred that people quite often fell on to lines from railway platforms as well as from other places.

Once the latter fact was accepted by the jury, the legal question whether, and if so what, duty of care existed fell to be determined in the light of that circumstance. If the fact was disputed, then it fell to be determined by the jury and the question of law whether and, if so, what duty of care arose required determination by the Court in the light of that determination of fact. For the purposes of this appeal, in which no new trial, but only a verdict for the appellant is sought, it must be assumed that this circumstance was established in the respondent's favour and that no question arises on the adequacy of the summing up upon this aspect.

Bearing in mind the circumstance that people quite often fell on the lines, what was the duty of care owed by the Commissioner and his servants to a person who was invited on to the station platform but fell on the lines inadvertently? Was it, as the appellant argues, only a duty to take care for the safety of such a person when it was known that he or she was on the lines? Or was it a duty to take reasonable care for the safety of a person who, having been invited to be in a position close to the lines, inadvertently fell on to the lines? We have no doubt that it was the latter. To speak of such a person as an invitee or a licensee who by exceeding his or her invitation or licence became simply a trespasser on the lines with consequent rigid definition of the duty owed is impermissibly to formalize the categories of duty. So to say is not to question the exhaustiveness of the categories as affirmed in Commissioner for Railways v. Quinlan [7] and Southern Portland Cement Ltd. v. Cooper [8] . It is simply to clothe them with the reality of particular circumstances as they newly come before the courts. There is no occasion to apply to the appellant a so-called "general" duty of care arising from the circumstance that it was reasonably foreseeable that some person or another might be in the path of the train at some time or another. Within the concept of the appellant as occupier of the land and the respondent as invitee on to one part of the land who was involuntarily upon another part of the land the duty of care can be enunciated which is applicable to the circumstances. See Southern Portland Cement Ltd. v. Cooper [9] . The significant circumstances are that the respondent was invited to be close to the lines, that her fall on to the lines was inadvertent and that people did fall on to the lines "quite a lot". In these circumstances there was a duty to take reasonable care not to cause injury to a person in the position of the appellant. It was for the jury to determine (a) whether there was a failure to keep a look-out for such a person and to take the step, when an unusual but yet unidentified object was seen on the lines, of slowing down in case it should be such a person, and (b) whether the failure was a breach of the duty of care.

1. [1964] A.C. 1054. 2. (1973) 129 C.L.R. 295; [1974] A.C. 623. 3. (1973) 129 C.L.R., at p. 300; [1974] A.C., at p. 637.

Further, even if the respondent be categorized merely as a trespasser, it does not follow that a duty of care arose only when the driver actually knew that she, a human being, was on the railway line in the path of his train. The duty of an occupier to a trespasser is higher than that in the circumstances which the jury could have found to have existed in this case. Cases such as Commissioner for Railways v. Quinlan [10] deal with the duty of care owed to persons whom the occupier may suspect will come upon the land "at some time or another" (see Southern Portland Cement Ltd. v. Cooper [11] ). The question with which we now deal is different, namely, the duty which arises when something is brought to the notice of an occupier or his servant which would lead an ordinary man to suspect that a person, albeit a trespasser, may actually be upon the land and in a position where a continuation of the occupier's activity is likely to cause death or very serious injury if the suspicion turns out to be a reality.

1. [1964] A.C., at p. 1070. 2. (1973) 129 C.L.R., at p. 303; [1974] A.C., at p. 639.

We have no doubt that there then arises a duty of care on the part of the occupier towards the person whom an ordinary man would suspect to be actually upon the land and in a situation where the activities of the occupier or his servant, if pursued, will probably kill or seriously injure that person. If a man is out shooting on his land and something comes to his notice which would ordinarily lead to a suspicion that a human being may well be actually in the line of fire, he cannot escape liability by saying "Perhaps I had reason to suspect that something which could well be a human being was actually in the line of fire but I did not know positively that what I had observed was a human being. Therefore it was not incumbent on me to alter my shooting pattern in any way nor to take any step to negative the possibility that it might be a human being in my line of fire".

If there comes to the notice of the occupier or, in this case its servant, something which would ordinarily lead to a suspicion that there may well be a person actually on the land who would be likely to suffer death or serious injury as a result of the course of conduct of the occupier or his servant if pursued, the duty arises in the occupier to take reasonable care to ascertain whether the suspicion has any foundation before he continues to pursue unaltered his course of intended conduct. The considerations of humanity referred to by their Lordships in Southern Portland Cement Ltd. v. Cooper [12] lead directly to this conclusion.

Provided that there was evidence to support the determination, it was for the jury to determine whether the circumstances in fact existed which gave rise to the legal duty and, if so, whether the duty was breached. That is to say, that it was for the jury to determine whether the circumstances would have led an ordinary man to suspect that a human being might well be upon the line in a position of danger and, if so, whether the driver acted reasonably, and, if not, whether his failure so to do was a cause of the respondent's injuries.

There was in our opinion evidence upon which the jury could on each of these inquiries reach a conclusion favourable to the respondent. The driver of the train gave evidence that he was on the look-out all the time, ready for any emergency. He agreed that an emergency was more likely to occur at a station than on the open line. He knew that quite often people fell on to lines. The driver observed something on the line when he was 300 yards from the platform of Lindfield station. He thought it looked like a large sheet of brown paper, but it was something which ought not to have been there, and it indicated to his mind the possibility of an emergency. It was something which potentially created an emergency, a hazard. It was open to the jury to conclude that in these circumstances a man in the position of the driver, knowing that people quite often fell on to the lines, would ordinarily have suspected that the object might well be a human body. The jury could then proceed to consider whether the driver of the train thereafter acted reasonably. The driver had already commenced the application of the service brake, an application sufficient to stop the train at Lindfield station. He made no stronger application of the brake until he positively identified the object as a human being. Only then did he apply the full emergency brake. This may have been at a distance of two hundred yards from the platform but the jury may have concluded that it was much closer. It appears to us that the omission of the driver which the jury could regard as showing a lack of reasonable care was his failure to do anything until he positively identified the object as a human body. Here was an object on the lines beside a railway platform at a busy time in the morning. All that the driver needed to do in order to ensure that, if it was a person who had fallen from the platform, then that person would not be injured was to apply his brake to the next stage by a further service application, so that the train would have been capable of being stopped at the northern end of or partly along the platform. As it was, the train stopped, on a finding of fact which was open to the jury, as little as one foot after hitting the body. Thus on a view of the facts which was open to the jury, a duty of care arose in law and it was for the jury to determine whether the driver ought to have taken some action at the earlier time, and whether, if action had been taken, it would have averted the injury to the respondent.

Thus, even on an assumption that the respondent was in law to be categorized as one to whom no higher duty was owed than a duty owed by an occupier towards a trespasser, the appellant does not succeed in the submission that there was no evidence of breach of that duty.