Thompson v Bankstown Municipal Council

Thompson v Bankstown Municipal Council - [1953] HCA 5 - HCA 1953 case summary — Zoe

[11]

We recognize the strength of the considerations to which Owen J. refers for the view that in relation to the pole the plaintiff should be considered a trespasser and therefore unable to complain of an injury due to the want of care of the defendant, regarded as the possessor or occupier of the pole, for its condition as a structure upon which people might come. The result is to assimilate the case to such cases as Hardy v. Central London Railway Co. [1] , and Adams v. Naylor [2] , as decided by Mackinnon L.J. and Morton J. in the Court of Appeal, to mention two and perhaps the most striking examples among the now not inconsiderable number of English decisions upon the subject of the duty of occupiers of premises to children coming upon them without invitation or express licence. Cases which the defendant might claim more closely resemble this in their facts have been decided by the Supreme Court of the United States and the Court of Appeal of Northern Ireland. In New York, New Haven, & Hartford Railroad Co. v. Fruchter [3] , a boy eight years of age was, on the same ground, denied recovery from injuries received by touching a live electric wire elevated upon a structure up which he had climbed in quest of a bird's nest. The structure consisted of the top girder or beam of a bridge over a railway in New York, about six feet above which was carried the live wire on a cross arm supported by a strut. The girder was twenty-three feet above the roadway forming the surface of the bridge and was itself supported by latticed steel uprights up which the child climbed. Failing to find, or deserting the search for, the nest the boy proceeded from the topmost girder to clamber up the strut in an attempt to catch a bird he saw on the electrified wire, which he touched. The entire superstructure was under the care and management of the defendant railroad company, which made efforts to stop children climbing, as they repeatedly tried to do, the lattice uprights, and displayed warnings that the wires were alive and dangerous. The Supreme Court treated the case as falling within the principle expressed by Holmes J. in United Zinc & Chemical Co. v. Britt [4] , then recently decided, in a passage that has since been often cited. It is enough to repeat the governing sentence - "There can be no general duty on the part of a landowner to keep his land safe for children, or even free from hidden dangers, if he has not, directly or by implication, invited or licensed them to come there" [5] .

[16]

After full consideration we have come to the conclusion that this is not a case to be dealt with as depending upon the duties of a person in control or occupation of a "structure" or "premises" towards a person coming upon them. The law which, in our opinion, should be applied to such a case as this is that which imposes a duty of care upon those carrying on in the exercise of statutory powers an undertaking involving the employment of a highly dangerous agency. No doubt the question still is whether the plaintiff qualified as a person entitled to recover for the consequences to him of a failure to take proper care in the use and control of the dangerous agency and this may depend upon the definition of the duty, or of the measure of care. But the distinction upon which we think this case turns does not for that reason lose importance. The point is that the defendant's responsibility to the plaintiff does not depend on the defendant's control or "occupation" of the pole or the character the plaintiff assumed in reference to the pole when he placed the bicycle against it, leant his body upon it and put his arms round it or, if that be what he did, when he grasped the wire. It is a mistake to treat the question as if it was: did the plaintiff's touching of the post, his propping the bicycle and leaning his body upon it, putting his arms against it, constitute a "trespass" so that if he had damaged the pole, he might have been liable for the damage? A man or child may be infringing upon another's possession of land or goods at the time he is injured and it will be no bar to his recovery, if otherwise he can make out the constituent elements of a cause of action. That is shown, if proof were needed, by Excelsior Wire Rope Co. Ltd. v. Callan [1] ; Mourton v. Poulter [2] ; and Buckland v. Guildford Gas Light & Coke Co. [3] . Indeed it is logically possible to add Glasgow Corporation v. Taylor [4] ; for the child there, when she plucked the fatal berries from the belladonna shrub, committed a technical trespass, according at all events to the English common law. "The child had no right to pluck the berries, but the corporation had no right to tempt the child to its death or to expose it to temptation regardless of consequences": per Lord Sumner [5] . It is not a question whether a trespass by the plaintiff took place at the time of or even as part of the occasion of his injury. The question is whether the breach of duty of which he complains is one which arises out of the defendant's occupation or control of property, of "premises" or a "structure". If that be the case, then it is true that he will look in vain for a duty of care towards him as to the state or condition of the "premises" or "structure" when the character in which he comes into the area of the occupation or control giving rise to the duty is that of a trespasser. But it appears to us to be an artificial and unreal view of the situation in the present case to treat it as depending on the extent of the defendant's duty arising from the possession of the pole.

[19]

The dangers created by the vertical wire, whatever its exact height, were marked and manifest. To allow it to hang unearthed, insecurely attached to the pole, in contact or liable at any time to come in contact with the high tension wire, exhibited a gross lack of care. Whether it did injury or not depended not on the safety of the system but on the chances of a person, or a thing, capable of acting as conductor, coming in contact with it. On that its height from the ground had some bearing of course. But that is all. This is no case of injury through contact with a properly insulated transmission brought about by the plaintiff's own act in climbing up an installation and bringing himself within reach of it. It is the case of an injury through discharge of electricity made possible through the defendant's neglect of due precautions and allowing his system to be in an improper and dangerous condition. That is the basis of the defendant's liability. The true question, as we think, is whether the plaintiff acting as he did falls within the scope of the defendant's duty of care. In a passage in his opinion in Bourhill v. Young [1] , Lord Macmillan says "The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed." This passage was cited and used as the test by Lord Thankerton and by Lord Macmillan himself in Glasgow Corporation v. Muir [2] . Lord Macmillan's phrase "the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed", has, as the opinions in the two cases seem to show, no meaning very different from Lord Atkin's description in M'Alister (or Donoghue) v. Stevenson [3] , viz. "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".

[22]

The vertical wire ran down the pole conveying or capable of conveying a lethal voltage to whomsoever might come in contact with it. The pole was not under the actual control of the defendant. It stood in a highway open to all and it was but one of the public objects or features forming the locality to which all had access. The neglect of the defendant left to chance the condition, height and capacity for harm of the wire. Among the public who might be exposed to whatever danger it brought, or to whose actions the pole and wire might be exposed, were of course children of every age. Lord Atkinson in Cooke v. Midland Great Western Railway of Ireland [1] , said: "The authorities from Lynch v. Nurdin [2] downwards establish, it would appear to me, first, that every person must be taken to know that young children and boys are of a very inquisitive and frequently mischievous disposition, and are likely to meddle with whatever happens to come within their reach; secondly, that public streets, roads, and public places may not unlikely be frequented by children of tender years and boys of this character;". Nothing that has been said concerning Cooke's Case [3] deprives this dictum of its weight or inherent cogency. To it may be safely added two statements of Lord Sumner: "Children acting in the wantonness of infancy and adults acting on the impulse of personal peril may be and often are only links in a chain of causation extending from such initial negligence to the subsequent injury. No doubt each intervener is a causa sine qua non, but unless the intervention is a fresh, independent cause, the person guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such interventions and to have foreseen that if they occurred the result would be that his negligence would lead to mischief.": Latham v. R. Johnson & Nephew Ltd. [4] . "Where a question as to the care to be used arises between persons using as of right the place, where they respectively act, infancy as such is no more a status conferring right, or a root of title imposing obligations on others to respect it, than infirmity or imbecility; but a measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others, who know of or ought to anticipate the presence of such persons within the scope and hazard of their own operations" (Glasgow Corporation v. Taylor [5] ).

[41]

The decision in Harrold v. Watney [7] was founded upon the principle laid down in Lynch v. Nurdin [3] . Lord Atkinson in Glasgow Corporation v. Taylor [1] , again referred to the latter case which he said turned on negligence. His Lordship said: "It was held that the defendant was liable in an action on the case, though the plaintiff was a trespasser, not upon the street, where he had a right to be, but upon the tempting thing the defendant had left unguarded in the street - the cart." The same principle was applied in that case. Lord Atkinson said [2] : "It would appear to me that every word of this passage of Lord Denman's judgment applies to the present case. The child in the present case was of right in the gardens, as the child in that case was of right in the public street. The defendants planted and maintained in the garden, near the playground, which children, like the deceased, frequented, a shrub bearing, to their knowledge, berries in appearance alluring and tempting to children, apparently harmless, but deadly poisonous. The deceased child yielded to the temptation which was presented to him. The defenders, if the averments of the condescendences be true knew of the nature, character, and strength of the temptation, and the dangerous, possibly deadly, result of yielding to it. The deceased child did not know, and could not reasonably have discovered, this latter fact. If one of the servants of the defenders had left unattended in this garden a cart and horse, and the deceased, yielding to temptation, had got into it, had fallen from it, and been killed, his father could have recovered according to the principle of the decision in Lynch v. Nurdin [3] . I utterly fail to see on what ground he is not equally entitled to recover in the present case." Lord Atkinson then cited from the judgment of Cockburn C.J. in Clark v. Chambers [4] , a passage which is of great importance in the present case. Lord Shaw in Glasgow Corporation v. Taylor [5] , pointed out that there was no trespass because the child had a right to be in the garden. Lord Sumner in the course of his judgment said [6] : "The position, therefore, I take to be, that the child had a right to be in the part of the park where the defenders had a right to grow their bush, and the law has to place the exercise of each of these two rights in a just relation to that of the other. The child had no right to pluck the berries, but the corporation had no right to tempt the child to its death or to expose it to temptation regardless of consequences. The question is therefore one of the relative duties of care between the corporation and the child, when each was exercising a right and neither right was, as such, subordinated to the other. Nothing, I think, turns on the fact that the corporation's right arose out of ownership of the soil and the child's did not. It would have made no difference in Lynch v. Nurdin [1] if the cart had belonged to the road authority and the careless carter had been its servant, or if the soil of the road had belonged to the infant and the cart had been there in the exercise of a public right of way."

[62]

The pole stood in a public road which was vested in fee simple in the respondent by virtue of the Local Government Act, 1919-1949 N.S.W., s. 232. It was one of a series of poles which carried high-voltage transmission lines forming part of an electricity supply system conducted by the respondent under the power conferred by ss. 417, 418 and 525 of the same Act. The pole therefore belonged to the respondent. The appellant in attempting to climb it was guilty of a trespass, for his rights as a member of the public with respect to the road did not extend to climbing electricity supply poles. The fact that the appellant sustained his injuries while engaged in thus committing a trespass is relied upon by the respondent as a sufficient reason for denying to the appellant any cause of action for negligence. The argument is that if a man enters upon the land of another without authority he must take the land as he finds it. With respect to the condition of the premises the occupier owes the trespasser no duty of care; his duty is only to abstain from acting with a deliberate intention of harming him. Even with respect to his own positive acts done on the land the occupier is under no obligation to take care for a trespasser of whose presence he is unaware. Authority for these propositions may be found in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1] ; Transport Commissioners of New South Wales v. Barton [2] ; and Edwards v. Railway Executive [3] . It is said, and truly, that the respondent had no knowledge of the appellant's presence on the pole, and therefore his presence there did not cast upon the respondent any duty of care. Moreover, since there is no ground for attributing to the respondent any knowledge of the existence of such an attractive object as a bird's nest on the pole, it was not open to the jury to find that the respondent knowingly left the pole in a state so alluring to a boy as to imply an invitation to the appellant to climb it. Accordingly the case is not within the principle exemplified by Cooke v. Great Western Railway Co. of Ireland [4] , as explained in Latham v. R. Johnson & Nephew Ltd. [5] ; Glasgow Corporation v. Taylor [6] ; and Liddle v. Yorkshire (North Riding) County Council [7] ; cf. Edwards v. Railway Executive [2] . We are asked to hold, as the learned judges of the Supreme Court felt themselves constrained to hold, that these considerations disentitle the appellant to retain his verdict.

[68]

Clearly this is not the simple case of a person trespassing upon the land of another, and suffering injury by reason of the condition in which he finds it. If the appellant had been suing for injuries inflicted on him by barbed wire or splinters which he had encountered on the pole, the principle appealed to by the respondent would doubtless determine the matter. They would also be decisive in the case suggested in the judgment of the Supreme Court, of a trespasser injured by the collapse of a decayed bough of a tree into which he had been led to climb by the sight of a bird's nest. But to approach this case as if the only relation between the parties was that of occupier and trespasser, and as if the appellant's injuries could be fairly described as resulting from the condition of the respondent's premises, would be to overlook the most significant features of the case. First it must be observed that the respondent was not only an occupier of land, and was not sued as such. The occupation of land which the respondent had was for the purpose only of the transmission of high-voltage electricity, and it was sued as having been in control of an electric power system in a highway. The appellant, moreover, was not only a trespasser, he was a member of the public, and had reached the foot of the pole while lawfully using a public highway. The respondent, but for the statutory authority which it possessed for the carrying on of its electricity undertaking, would have been liable to the appellant on the principle of Rylands v. Fletcher [1] , for any injury occasioned to him by an escape of electric current, even if the utmost care had been observed: Eastern and South African Telegraph Co. Ltd. v. Cape Town Tramways Companies Ltd. [2] . The statutory authority saves the respondent from liability on this strict basis, but it affords no protection from liability for an injury caused by negligence: Great Central Railway Co. v. Hewlett [3] ; East Suffolk Rivers Catchment Board v. Kent [1] ; Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd. [2] ; Cox Bros. (Australia) Ltd. v. Commissioner of Waterworks [3] . Now the appellant, as a member of the public using a road along which the respondent was engaged in transmitting its electric power, was one to whom injury might reasonably be foreseen as a likely consequence of any omission on the part of the respondent to take reasonable care in the management of its electricity; and, that being so, there clearly was a relation between the parties by reason of which it was the respondent's duty to take reasonable care to safeguard the appellant against the consequences of any such omission. Accordingly it seems to me that it cannot avail the respondent to point to the comparatively narrow duty which an occupier owes to a trespasser where there is no source of obligation but the relation which the trespass itself creates.

[70]

The crucial question in the case seems to me to be whether the standard of care which was reasonable in the circumstances was such that the jury could properly find the respondent guilty of a breach of its duty by failing to prevent the earth wire from being in the condition and in the place in which it was when the appellant touched it. It has been emphasized repeatedly in recent years that when a duty of care exists, the degree of care which is reasonable varies directly with the risk involved: Glasgow Corporation v. Muir [4] ; Read v. J. Lyons & Co. Ltd. [5] ; Swinton v. China Mutual Steam Navigation Co. Ltd. [6] ; and the risk involved includes both the risk of an accident happening and the risk of serious injury if an accident should occur: Paris v. Stepney Borough Council [7] . So in the present case two factors combined to affect the magnitude of the risk and to impose upon the respondent a correspondingly heavy duty of care. One was the extreme gravity of the likely consequences of any shock a person might receive from the respondent's electricity; and the other was the likelihood that the highway in the vicinity of the pole would be frequented by all manner of persons, thoughtless youths as well as circumspect adults; inquisitive, meddlesome and adventurous boys as well as less enterprising persons. It may be said, almost in the words of Lord Reid in Bolton v. Stone [8] , that the jury was entitled to consider whether the risk of damage to a member of the public in consequence of the state of the pole and of the wire running down it, at the time the appellant came on the scene, was so small that a reasonable man in the position of the respondent, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to avoid the danger; and (to apply what his Lordship went on to say), in considering that matter it would be right for the jury to take into account how substantial or how remote was the chance that a person might come into contact with the wire and receive a shock from it, as well as how serious the consequences were likely to be if a person should meet with that misfortune. Thus the jury was entitled to consider the natural propensities of boys, the accessibility of the wire, and the fact that no one would expect a wire in that position to be or to be in danger of becoming electrically charged.

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Judgment (73 paragraphs)

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