Public Transport Commission (NSW) v Perry - [1977] HCA 32 - HCA 1977 case summary — Zoe

CTHHCA

Public Transport Commission (NSW) v Perry

[1977] HCA 32

High Court of Australia|1977-06-22|Before: Jacobs JJ

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Court

High Court of Australia

Decision date

1977-06-22

Before

Jacobs JJ

Source

Original judgment source is linked above.

Judgment (163 paragraphs)

[1]

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Public Transport Commission (NSW) v Perry [1977] HCA 32

[2]

The basic facts relevant to the resolution of this appeal are that an electric train in the service of the appellant was being driven upon the appellant's property between two stations on the northern suburbs line of the appellant's electric railway system in the Sydney metropolitan area. It had left Killara, the more northerly station, and was proceeding towards the city, the next station being Lindfield station at which it was scheduled to stop. On a platform of that station there were passengers waiting to be uplifted for carriage to Sydney. Amongst them was the respondent. Whilst awaiting the arrival of the train, she was subject to some form of epileptic attack which rendered her unconscious. She was then standing at a point proximate to the edge of the platform from which, in that state, she fell on to the railway track, straddling the lines or at least one of them. This happened when the train had left Killara station and was on its way to Lindfield station which was at a lower altitude than the former. Throughout, the train was being driven at the speed at which such trains usually travel between those stations. When the train reached the point appropriate to such a course, the driver duly applied the service brake which would have brought the train into Lindfield station at a speed appropriate for stopping there. The direct evidence of the driver was that he looked forward down the line towards the next station. When he closely approached the "accept signal" for Lindfield station, though there was a slight bend in the line, his view forward allowed him to see the place where the respondent lay on the railway track. Whilst thus looking, he said that he saw what appeared to him to be some paper on the line in the area of the station. The presence of the paper on the line created no hazard and in itself, in my opinion, could not reasonably be held to call for any further action on the part of the driver, beyond the application of the service brake which, in fact, was already in operation. A very - indeed an extremely - short time thereafter, according to the evidence, the driver realized, as he had a closer view, that the object on the line was a human being. He said that he then immediately applied his brakes to their full extent by operating the emergency braking mechanism. There was clearly nothing else he could then have done to avoid injury to the person on the line. However, this application of the brakes did not bring the train to a halt before it reached the point where the respondent lay. It almost did so, but when it reached her it continued for a short distance in the course of which it caused her serious injury. According to her own evidence, the respondent remained unconscious at least until she was struck by the train.

[66]

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.

[69]

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.

[89]

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.

[90]

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.

[104]

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.

[108]

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] :

[109]

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.

[155]

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.

[162]

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.