Schiller v Mulgrave Shire Council [1972] HCA 60;

Schiller v Mulgrave Shire Council [1972] HCA 60; - HCA 1972 case summary — Zoe

[23]

8. The learned trial judge held, in my opinion correctly, that the appellant in common with other members of the public had a right to resort to the land. In my opinion that right entitled him to be upon that part of the reserve where he was injured. It is not in dispute that that place was within the boundaries of the reserve. I am of opinion also that for the purpose of the law relating to the duty that an occupier of land has towards persons coming onto the land, the respondent was the occupier of the whole of the reserve. The learned judge decided that the respondent had assumed control of only part of the reserve, which did not include the place where the appellant was injured and that it was only in respect of that part of the land upon which it had exercised control in fact, by performing work on it, that the respondent could be found to be "in the position of an occupier or something akin to it". (1972) Qd R 140 at p 147 . Accordingly, his Honour concluded that there was no relationship between the appellant and the respondent entitling the former to sue the latter for a breach of a duty of care. With respect I am of opinion that in this his Honour was in error. By force of the Order in Council and the provisions of the Acts, the respondent was placed in control of the whole area. It was not merely given authority to take control, if it wished to do so, of the area of of such part of it as it might select. In this respect its position was different from that in which, according to the view of Latham C.J. in Burrum Corporation v. Richardson [1939] HCA 30; (1939) 62 CLR 214, at p 223 , the appellant in that case was placed by the statute and the proclamation, which had authorized it to assume the management and control of the reserve but had not vested in it that control. The control by a statutory body of premises used by the public constitutes, in my opinion, the "occupation" of them by that body. It was said in Commissioner for Railways v. McDermott (1967) 1 AC 169, at p 186 , that an occupier of private land may incur liability towards persons permitted or invited to come onto the land, for the reason that his occupation gives him control over and knowledge of the state of the premises and it is right that he should have some degree of responsibility for the safety of persons entering his premises with his permission. In Burrum Corporation v. Richardson Latham C.J. said (1939) 62 CLR, at p 228 that the liability of an occupier really depends upon his control and management which create duties, varying in degree, to persons coming upon and using the premises. When land to be used for public purposes is placed under the control of a statutory body then, whether the measure of its duty to persons using the land is or is not identical with that of an occupier of private land, the fact that it has control and that it alone has the means of securing the users of the land against injury provides a basis for holding that a duty of care is cast upon it: see Aiken v. Kingborough Corporation [1939] HCA 20; (1939) 62 CLR 179, at pp 203-206 . (at p124)

[24]

9. In Burrum Corporation v. Richardson [1939] HCA 30; (1939) 62 CLR 214 , this Court was equally divided in its opinion as to the result of the appeal. The case was concerned with fatal accidents caused by negligence in carrying out work on an electric lighting system at a bathing enclosure. The question whether the appellant Council had the control of the enclosure had been left to the jury as a question of fact and had been answered in the affirmative. In the judgments in this Court it was considered that it was necessary to determine whether that finding could stand, in order to determine whether the Council had any legal liability for the unsafe condition in which the enclosure had been left by workmen who had carried out the work on the electric light system. But the reasons why it was necessary in that case to consider whether the Council had assumed control in fact of the bathing enclosure have no application to the present case. I have referred to the opinion of Latham C.J. that the Council had not been given the control of the reserve but had merely been authorized to take control of it. In addition to that circumstance, the fact was that the structure by which the bathing enclosure was formed was not in existence when the proclamation was made. It was constructed afterwards, not by the Council or by its authority, but by local residents. It appears that neither the Council nor anyone else could have erected the enclosure without first obtaining an approval required by statute. The local residents sought and obtained such approval (1939) 62 CLR, at p 225 and they afterwards erected and maintained the enclosure. In my opinion, the judgments in that case provide no support for the view that in the present case the respondent was not the "occupier" of the part of the reserve where the accident occurred. I am of opinion that it was the occupier of the whole of the reserve and, accordingly, in my opinion, it cannot deny that it owed some duty of care to a member of the public who having come onto the reserve went to the place where the appellant met with his accident. (at p125)

[30]

15. In Barr v. Manly Municipal Council (1967) 70 SR (NSW) 119 , I had occasion to examine the meaning and effect of the rule thus formulated by Dixon J. I will not repeat what I wrote then. But in relation the problem now before this Court, I make two observations concerning that formulation of the measure of the duty. My reasons for these observations will become apparent after I have stated later herein my conclusions upon the facts of this case. The first observation is that if the rule stated by Dixon J. makes the obligation of a public authority in control of premises used for public purposes less onerous in one respect than that of an occupier to an invitee, in that the former cannot be, but the latter may be, liable for injury arising from a danger which is "not apparent" (as to which see Barr's Case (1967) 70 SR (NSW), at p 126 ), this difference is not in my opinion of any importance in this case. The second observation is that in my opinion it does not matter upon the facts of this case whether the members of the Court who constituted the majority in Barr's Case (1967) 70 SR (NSW) 119 were right or wrong in their interpretation of the quoted statement of Dixon J. and in their decision that the local authority could not be held liable for an injury arising from a danger unless it knew or ought to have known of that danger. In my opinion we ought not to go further in this case in defining the measure of duty owed by public authorities to persons entering upon land devoted to public purposes than is necessary in order to decide the appeal. If a definition of that duty had to be made, the choice would appear to lie between asserting that it is the same as that owed to an invitee and adopting rules as to the measure of the duty not identical with those applicable in relation to any of the recognized categories of entrants upon land. If it were thought proper to take the latter course, it would be necessary to decide whether to adopt without modification or elaboration the statement of Dixon J. quoted above or to make a new formulation, which would embody such variations from the duty owed by an occupier to an invitee as appeared appropriate to the exercise of a public right and which would seek to remove such doubts and difficulties as were considered, by Lathan C.J. in Burrum Corporation v. Richardson (1939) 62 CLR, at pp 229-230 , and by the Supreme Court of New South Wales in Barr's Case (1967) 70 SR (NSW) 119 , to arise in relation to the statement made by Dixon J. I should be disposed myself to adopt the rule that the measure of the relevant duty is the same as that of the duty owed to an invitee. Whilst it may be (see (1939) 62 CLR, at p 209 ) that the considerations giving rise to the particular measure of duty in each case are somewhat different, I am inclined to the view that it is better not to add further complexity to a branch of the law in which there are already many refinements and distinctions. However, upon my view of the facts of this case, the questions just discussed need not be decided. I think that if it should be held that the relevant duty is not identical with that owed to an invitee, it ought not to be defined as being less onerous in any respect, with the possible exception to which I have already referred and, in the circumstances of this case, it is of no consequence whether that exception is or is not recognized. (at p128)

[33]

18. In considering whether the appellant suffered injuries as a result of a breach of the duty that would be owed by an occupier to an invitee, the first question is whether the injury arose from an unusual danger on the land. No doubt there was nothing unusual in the presence of a dead tree in a rain forest. But the relevant danger was, in my opinion, that the tree which stood sufficiently close to a track used by a significant number of people might fall suddenly even in calm weather conditions. The learned judge accepted the evidence of the witness Mr. Volck as to the instability of forest timber once it dies and as to the fact that dead trees in that type of country are a danger to people in their vicinity. He found that the respondent, through its servants or agents, knew or ought to have known of those facts. The witness Volck explained why a dead tree in that area was likely to fall. In the wet season the invasion of the tree by fungi is most active. Then in the dry season the wood dries out and becomes ready to absorb moisture when the wet season comes again. By repetition of these cycles the wood may become spongy and the roots may rot right back to the base of the tree. Such a tree will fall over simply because it cannot support its own weight. The evidence did not explore very fully the question of the degree to which, in respect of a tendency to die and to fall suddenly, trees in a rain forest differ from trees in other places with a much lower average rainfall. But I think that the evidence of Mr. Volck was sufficient to show that in the former case the processes of decay in the trees and their tendency to fall without the impact of wind are markedly different from what may be regarded as the more usual characteristics of trees, with which most tourists would be familiar. For the class of persons of whom the appellant was one, that is, tourists from places beyond the northern rain forest areas of very high rainfall with which Mr. Volck was familiar, I think that the presence of a dead tree in the vicinity of the track constituted an unusual danger. (at p130)

[34]

19. In my opinion the danger was one that was known or ought to have been known, through its servants, to the respondent. It was found by the trial judge that the respondent knew or ought to have known that in that type of country dead trees were a danger to people who might be in their vicinity. In my opinion that finding should be accepted. The respondent must be taken to have had knowledge through its servants of the characteristics of trees in that area. The two servants who carried out work in and around the cleared space and who gave evidence had lived all their lives in that locality. But it is necessary to consider also whether the respondent, through its servants, knew or ought to have known, prior to the accident, that in the vicinity of the track below the Boulders there was or were one or more dead or dying trees. There is no direct evidence that any servant had knowledge of that fact. Nevertheless I think that it may properly be found upon the evidence that if one of the respondent's servants had walked along the track below the Boulders to look for any dead or dying trees standing close enough to the track to fall across it, he would have been able to see the tree that did fall and injure the plaintiff and he would have been able, without leaving the track, to see that it was a dead tree and he would not have needed to go close to it to look for the fungus or the rotten patches around its base, which were described by Volck as signs by which a tree which still has green leaves upon it may be recognized as a dying tree. The respondent sought to establish that from the track the tree would have been so obscured by the forest growth that it would not have been possible to see that it was dead and it was suggested that, even upon an inspection from a place closer to the tree, it would not have been observed that it was dead. But having considered all the evidence, including the photographs of the tree and of the growth in its vicinity, I reach the conclusion that it would have been visible and would have been seen to be bare. Mr. Leumann, a foreman employed by the respondent, said that if you walked along the track and looked for dead trees you could probably see "a real dead tree" within thirty or forty feet of the track. I think that other evidence shows, notwithstanding the contrary impression first formed by the witness Schlobohm, that the tree that fell on the appellant was "a real dead tree". (at p130)

At a glance

Court

Decision date

Before

Source

Judgment (56 paragraphs)

Schiller v Mulgrave Shire Council [1972] HCA 60; (1972) 129 CLR 116 (24 November 1972)

Parties

Cases Cited (3)