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[1953] HCA 5
High Court of Australia
1953-03-05
Kitto JJ, Williams J
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Kitto JJ. Thompson v Bankstown Municipal Council [1953] HCA 5
ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of New South Wales discharged. In lieu thereof order that the appeal to that Court be dismissed with costs and that the verdict and judgment for the plaintiff be restored.
The difficulty in deciding this appeal arises from the possibility and perhaps the necessity of choosing between two competing categories of the law of torts and applying one of them to the facts to the exclusion of the other. One category concerns the duties of an occupier of a structure with respect to the safety of those who come upon it or within the area of the control exercised or exerciseable by the occupier. The other category forms part of the general law of negligence and relates to the duty of exercising a high standard of care falling upon those controlling an extremely dangerous agency, such as electricity of a lethal voltage.
The Full Court of the Supreme Court of New South Wales, from whom this appeal comes, has treated the case as governed by the former category and has decided that the law gives the plaintiff no right to recover. We are now called upon in our turn to say whether this conclusion is correct.
The plaintiff appellant is a boy who was born in December 1936. In the late afternoon of 22nd January 1950, he then not long having turned thirteen, the plaintiff and two other boys were passing down Auburn Road, Yagoona, in the Municipality of Bankstown. They were wheeling a bicycle. Alongside the roadway there ran some overhead electic light wires carried by poles. Into one of those poles a bird flew and the boys saw that there was a bird's nest in a hole made by the weathering and rotting of the sapwood of the pole. The boys placed the bicycle against the pole and the plaintiff climbed up on the cross bar in an attempt to reach the nest. He says that the bicycle was not very steady, he felt himself going back, he put his arms round the post and that is all he remembers. His next recollection is finding himself in hospital where he lay suffering from the most frightful injuries inflicted by electrical burns. The current was transmitted from a vertical wire. It seems that the bicycle fell and that he fell across the frame which was energized by the wire remaining in contact with the handle bars. A householder dwelling opposite witnessed the accident from his front garden, where he was at work. He managed by means of his rubber garden hose to pull the bicycle away from the boy and free it from the wire, which he tied back to the post with the hose. Another boy who had been holding the handle bars while the plaintiff climbed on to the bar of the bicycle lay unconscious on the ground a few feet away and when he recovered no memory of the accident survived in his mind. The account given of what occurred by the householder who saw it from his garden differed in some particulars from that of the plaintiff. According to this witness the plaintiff caught hold of the wire, which, at some time, had come away from the pole and stood out from it for eighteen inches at an angle. He supposed that the wire somehow became alive as it came down and hooked on the handlebars.
The vertical wire, it appears, had once formed part of an earth system or a system for taking a discharge of lightning. There had been originally a copper wire running from pole to pole at the summit and vertical wires connected with it had run down poles at intervals and had been earthed at the foot. The overhead tension wires were of 11,000 volts and with a voltage of that order the practice it is said, of maintaining earth systems is not now followed. At all events, some years ago the overhead copper wires were removed. Unfortunately the vertical wires were left on the poles or on some of them. These wires were affixed to poles by staples. How the wires were embedded in the earth at the foot of the poles does not appear. The general practice is said to be to attach the wire to a stake or piece of water piping driven into the earth about six feet and to encase the lower part of the wire in a conduit for some distance up the post by way of protection. At the pole where the boy was injured there was no conduit to be seen and the wire had come out of the ground so that the end swung free. Owing to the rotting and peeling of the sapwood the staples had fallen out and loosened, so that higher up too the wire seemed to wave or loop out. Two different estimates were given of the height from the ground before the accident of the end of the wire sticking out horizontally.
The witness who lived opposite said it was five or six feet but another neighbour who had noticed it said it was three feet six inches. The pole itself stood thirty-four feet out of the ground. Either of two hypotheses would account for the wire being alive. One is that it had already simply fallen against the overhead high tension wire owing to its loose condition; the other is that the plaintiff moved it, be it with his hand or with the pressure of his body or arm, so that it swung against the high tension wire as he reached up for the nest. He denied that he grasped the wire.
The plaintiff's case was put in negligence. It was assumed at the trial, rather than proved, that the defendant was the authority in whom was vested the electrical undertaking of which the poles and wires formed a part and that they had been erected in the highway under statutory powers enabling the transmission of energy.
It may seem strange, but among the provisions to which we were referred as supporting the very natural assumption that the defendant municipality was armed with such powers, there was not any containing an express authority sufficient to enable a municipality to carry high tension wires on poles on the highway and transmit electric current by that means. The provisions did however contain material from which perhaps such an authority may be implied: see Local Government Act 1919-1949 N.S.W., ss. 232, 382 (1) (b), 383, 417, 418 (1) (a), 420, 421 and 422, considered with the definition of public place in s. 4; Pt. XXIII, Divs. 2A, 2B and 3 and s. 525. We shall proceed on the basis that the plaintiff, in order to make out a cause of action, was under the necessity of establishing negligence in the carrying on of an otherwise authorized undertaking.
The case was left to the jury as one where, if the plaintiff was to succeed, they must find negligence and find that what befell was something of a kind which ought reasonably to have been foreseen. The jury's verdict for the plaintiff was set aside in the Supreme Court on the ground that, in relation to the pole, the plaintiff was a trespasser to whom the defendant was under no duty of care for his safety from danger, whether open or hidden, arising from the condition of the property under the control of the defendant upon which he trespassed, since an occupier's responsibility to a trespasser does not go beyond acts intentionally or recklessly harmful. The reasons for this conclusion were very clearly explained by Owen J. in a judgment in which Street C.J. and Clancy J. concurred. The judgment dealt with the possibility of supporting the plaintiff's case on the ground that he had been enticed into danger by the allurement which the bird's nest formed but it excluded that possibility because it had not been shown that the defendants knew of the presence of the bird's nest in the pole and their knowledge was an essential element.
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] .
In McLaughlin v. Antrim Electricity Supply Co. [6] , the plaintiff, a boy nearly twelve years of age, climbed up a structure supporting overhead high tension wires seventeen feet six inches from the ground and injured himself by grasping one of the wires. The structure consisted of two poles with connecting rods at various heights. Attached to the connecting rods was an upright channel bar. With the help of this and the rods the boy ascended to within reach of the wires. He and other boys had been playing round the poles about which at a height of seven feet barbed wire was wrapped. One pole stood on a lane over which it was assumed that there was a right of passage, the other stood on private land inadequately fenced. Andrews L.C.J. and Murphy L.J., Babington L.J. dissenting, held on these facts that the boy was a trespasser disentitled to recover from the electric light authority.
It will be seen that in each of these cases no ground existed for imputing fault to the defendants except the insufficiency of the precautions taken to ensure that children did not use the very structure by which the high tension wires were elevated safely out of reach, as a means of gaining access to them or of ascending into a dangerous proximity with them. Necessarily the duty of care set up was concerned with the exclusion of persons because of immaturity from a structure under the control of the defendant, that is from "premises occupied" by the defendant. Such a duty could not be affirmed except by resolving in favour of the child the ever recurring conflict between on the one hand the refusal of the law to allow to a trespasser any right against the occupier in respect of dangers connected with the nature or condition of the premises and on the other hand the imposition by the law of a general duty to conduct one's affairs with care for the safety of others, a duty of care measured in safeguarding children in accordance with their known disabilities, propensities, habits and customs, and with the principle that an act of their conscious volition may amount to no more than a link in a chain of causation.
The dissenting judgment of Scott L.J. in Adams v. Naylor [1] may be perhaps regarded as an avowed resolution of this conflict in favour of the child, that is to say of the application of the latter principle, and it must be borne in mind that in affirming the judgment of the Court of Appeal the members of the House of Lords confined their opinions to the interpretation of the Personal Injuries (Emergency Provisions) Act 1939 Imp. (2 & 3 Geo. 6, c. 82) and left the question of liability at common law untouched. But the rule that an infant trespasser is no more entitled than a person of full faculties to recover from the occupier of a structure or premises for any injury suffered by reason of their nature or condition has not otherwise been broken in upon; and decisions in favour of children thus injured in places where they had gone without the occupiers' invitation or express licence have been decided, or else subsequently explained, on the ground that a tacit or implied licence was to be inferred.
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.
The generation, or receipt, and transmission of electrical energy of a lethal voltage imposed the duty upon the defendant. By statute, as we assume, the defendant was authorized to bring it upon the highway. But a duty of care rested upon the defendant of a high degree; a duty of care measured by a high standard both because of the lethal nature of the agency and because of the almost infinite variety of mischance by which attempts to insulate it and prevent its escape may be defeated. Obvious as it may be, it is necessary to remember that the elevation of the high tension transmission wires upon poles is the first step in discharging that duty. That is the purpose and function of the pole upon which the vertical wire remained that brought disaster to the plaintiff. Suppose that the witness was right who said that the bent end of the wire was three feet six inches from the ground and suppose that the plaintiff had come into contact with it in playing round the pole at its base. We do not see what room there would be for the contention that he was a trespasser disabled from recovery for whatever injuries he might thus have received from the electric current. If the witness who said it was five or six feet was right, certainly for this boy to make contact with it he had to raise himself, as he did, by standing on the bicycle or by some other means. But does this mean an entire change of the legal situation?
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".
In the application of these formulas it is important to avoid the error of confusing the precise chain of circumstances by which the plaintiff incurs the injuries or damage of which he complains with the question whether he, acting as he did, falls within the general description of persons likely to be affected. The exact course which events take can seldom be foreseen in detail. But it is another thing to treat it as reasonable to foresee in a general way the kind of harm that may ensue from acts and omissions and, under wide and indefinite categories, the sorts of situation men must occupy for the harm to be likely to reach them.
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] ).
It seems proper to impute to the defendant in carrying on its undertaking a knowledge that children pursuing their natural instincts in their peregrinations through the streets and highways of Bankstown would be apt, for one chance reason or another, and by one means or another, to attain some level on or in connection with its posts higher than their unaided reach from the ground would allow. Why should not this probability or possibility be regarded as within reasonable foresight? If so, it ought to bring children within the class or description of persons likely to be endangered by a live wire dangling some five or six feet from the ground, or by such a wire which although not alive was in close and loose proximity at its upper end to a high tension line.
The substantial issue left to the jury, apart from failure in due care, was the question whether the injury in fact done to the plaintiff or the accident which befell him was reasonably foreseeable. In our opinion a verdict for the plaintiff was open to the jury.
The defendant suggested that there were grounds upon which in any case there should be a new trial. But we do not think that in the circumstances of the case the grounds suggested would warrant the setting aside of the verdict in order to send the action down to be tried again.
In our opinion the appeal should be allowed with costs. The verdict and judgment for the plaintiff should be restored. The order of the Full Court of the Supreme Court should be discharged and in lieu thereof the appeal to that Court should be dismissed with costs.
The plaintiff's pleaded causes of action were negligence and nuisance. At the trial he proceeded only upon the cause of action in negligence. The gist of this cause of action was that the defendant, as a supplier of electricity, had in its charge upon a road, where the plaintiff was by law entitled to go, electric light and power poles with wires, and in neglect of its duty to maintain the poles and wires in a safe condition, carelessly allowed a pole and a wire on it to fall into a condition which was dangerous to members of the public, and the plaintiff came into contact with the wire, whereby he suffered extremely severe burning by electricity. The wire ran from the top of the pole downwards. For some time before the accident it was hanging within a few feet of the ground. The plaintiff came into contact with the wire or caught it in his hand while attempting to climb the pole. It is evident that either the wire was alive, or the interference of the plaintiff caused the wire to touch one or more of the overhead cables strung over the cross arms, and the wire then became charged with electricity. It was of deadly voltage.
The plaintiff, recently turned thirteen years of age, attempted to climb the pole in order to reach a bird's nest which was in a crevice some distance down from the lowest cross-arm. He was not old enough to have "put away the things of a child" and to a boy of his age the bird's nest could be an allurement. The evidence is not sufficient perhaps to warrant a finding that the defendant ought to have known that a bird's nest was in the pole. It is not essential to the plaintiff's case that this issue be resolved against the defendant. The plaintiff's grievance is that the defendant in neglect of a duty of care left the pole and the wire in a dangerous condition. If the plaintiff had met with an injury from some other cause it would be a question, upon which it is not necessary to express any opinion, whether knowledge of the nest would involve the defendant in any liability.
A bird's nest is not needed in a pole to give a boy of the plaintiff's age an inclination to climb. The accident occurred in the course of play in which the plaintiff and two other boys took part. The play was symptomatic of the tastes and simplicity of children. The bicycle belonging to one of the plaintiff's companions was put against the pole, the plaintiff stood erect upon the bar of the machine and then either touched the wire or pulled it in endeavouring to climb higher. Then came the electric shocks which so gravely injured him. The wire fell from the pole and one of the plaintiff's companions was also very gravely injured by the electricity.
The pole was at a place where all members of the public were entitled to be; they include children. The defendant ought reasonably to have anticipated such interference with the wire by boys or other children and to have foreseen that, if the interference occurred, its own neglect in maintaining the pole and the wire would lead to an accident. The defendant is therefore answerable for the injury received by the plaintiff even though, but for his own act, the injury would not have occurred to him. In law his meddling with the wire was not a novus actus: on the contrary, it was a link in the chain of causation between the negligence and the injury, because the meddling was a thing done in the "wantonness of infancy". The case is in the category described by Lord Sumner (then Hamilton L.J.) as "children's cases": Latham v. R. Johnson & Nephew Ltd. [1] .
In the opinion of the Full Court of New South Wales the plaintiff's attempt to climb the pole amounted to a trespass on the pole. I am not sure that this question is free from difficulty. The Full Court decided that the defendant owed no more care to the plaintiff at the moment he was injured than an occupier of land owes to a trespassing child injured by a structure upon his land. The occupier is not liable towards a trespassing child who meets with injury on his land unless the occupier maliciously caused the injury or recklessly disregarding the presence of the child did some act which caused the injury: Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [2] ; Excelsior Wire Rope Co. Ltd. v. Callan [3] . There is no evidence to support the liability of the defendant on this limited basis: "The liability, if any, of an occupier of land arises out of the fact of his occupancy and of some action of his while occupying.": per Morris J., Buckland v. Guildford Gas Light & Coke Co. [1] . The defendant's liability, on the other hand, arises because it was under a duty to take reasonable care while maintaining upon a public road poles and wires for the transmission of electricity of a very dangerous voltage.
The right of the plaintiff to be on the road where the pole stood should not be ignored in deciding the question of the defendant's liability. Cardozo J. in Hynes v. New York Central Railroad Co. [2] , made some observations which are important in relation to the defence that the plaintiff was a trespasser: "Landowners are not bound to regulate their conduct in contemplation of the presence of trespassers intruding upon private structures. Landowners are bound to regulate their conduct in contemplation of the presence of travelers upon the adjacent public ways. There are times when there is little trouble in marking off the field of exemption and immunity from that of liability and duty. Here structures and ways are so united and commingled, superimposed upon each other, that the fields are brought together. In such circumstances, there is little help in pursuing general maxims to ultimate conclusions. They have been framed alio intuitu. They must be reformulated and readapted to meet exceptional conditions. Rules appropriate to spheres which are conceived of as separate and distinct cannot, both, be enforced when the spheres become concentric. There must then be readjustment or collision. In one sense, and that a highly technical and artificial one, the diver at the end of the springboard is an intruder on the adjoining lands. In another sense, and one that realists will accept more readily, he is still on public waters in the exercise of public rights. The law must say whether it will subject him to the rule of the one field or of the other, of this sphere or of that. We think that considerations of analogy, of convenience, of policy, and of justice, exclude him from the field of the defendant's immunity and exemption, and place him in the field of liability and duty (Beck v. Carter [3] ; Jewhurst v. City of Syracuse [4] ; McCloskey v. Buckley [5] .)" [6] .
The pole with the wire which caused hurt to the plaintiff was a fixture on a public road: children were likely to meddle with them, in case of the pole, by climbing it and in case of the wire by taking hold of it: the pole and the wire were by reason of the defendant's negligence dangerous and capable of causing an injury to a boy who attempted to climb the pole or interfere with the wire.
The plaintiff's attempt to climb the pole, even though it was a trespass on the pole, is not a reason for discharging the defendant from liability for its neglect to maintain the pole and the wire in a proper condition: cf. Farrugia v. Great Western Railway Co. [1] .
Lord Atkinson in the case of Cooke v. Midland Great Western Railway of Ireland [2] , stated that the authorities from Lynch v. Nurdin [3] downwards establish among other propositions that the injured child is not disentitled to damages even though he "be a trespasser on the vehicle or machine at the moment the accident occurred". Lord Denman in Lynch v. Nurdin [4] , said: "The plaintiff himself has done wrong: he had no right to enter the cart, and, abstaining from doing so, would have escaped the mischief. Certainly he was a co-operating cause of his own misfortune by doing an unlawful act: and the question arises, whether that fact alone must deprive the child of his remedy." His Lordship said: "The answer is that, supposing that fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blameable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care: the child, acting without prudence or thought, has, however, shewn these qualities in as great a degree as he could be expected to possess them. His misconduct bears no proportion to that of the defendant which produced it." [5] .
Vaughan Williams L.J. said in Harrold v. Watney [6] , of the act of the injured child, who put his foot on the defective fence, and thereby met with an injury, that it did not matter whether that conduct was negligence or trespass; that the highway was for children as well as grown up people and the owner of the fence was liable because he left close to the highway a nuisance exceedingly likely to cause injury to children using it.
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."
Swift v. Westport Urban District Council [2] , was another case in which a child interfered with a permanent fixture on a highway. Gavan Duffy J. held that the child was entitled to damages. He said [3] : "The place where she was hurt was not in a private close, but on the public highway. The object which occasioned her damage was no casual nor unusual feature in the locality, but a permanent fixture." He added [4] : "The plaintiff succeeds upon the evidence in establishing negligence, because the defendants failed to anticipate the presence of children and the likelihood of damage to children in the making and maintaining of that gully-trap in High Street, and failed to take reasonable precautions to guard against damage to children interfering with the gully-trap."
McGovern v. Urban District Council of Clones [5] , was a case in which the action was dismissed for the reason that in the opinion of the Court the defendants ought not reasonably to have anticipated that the plaintiff would be likely to interfere with an object in a public street by which he was injured. In that case Black J. elaborately reviewed many of the "children's cases".
I conclude from all these authorities that it does not matter whether the plaintiff was a trespasser on the pole, for the liability of the defendant does not depend upon the law governing the obligations of an owner or occupier of property towards persons who come upon it. The liability of the defendant arises because of its neglect of a duty to take reasonable care while maintaining poles and wires upon a public place for use in the transmission of highly dangerous electric current.
Since preparing these reasons I have seen the report of the decision in the case of Cuttress v. Scaffolding (Great Britain) Ltd. [6] . It is useful to cite from the judgment of Jones J. [7] this passage: "I find that it was obvious to the servants of both defendants that this open space was used by the public as a thoroughfare and by children as a playground and that the scaffold would be attractive and alluring to children, particularly to boys aged about fifteen and sixteen, as a place on which to climb and play, especially if so attractive and alluring a piece of equipment as a rope was left on it. In my opinion the servants of both defendants should have realized that any reasonably active boy would be able to climb to the top of the scaffold and should have foreseen that, if the rope was left on the top, even though coiled up, it was probable that some boy or boys would climb up and detach the loose end and that others would pull the scaffold over and cause injury to passers-by."
I should allow the appeal and restore the verdict of the jury.
In an action brought in the Supreme Court of New South Wales by the appellant, a boy of fifteen, by his next friend against the respondent council, the jury awarded the appellant £6,500 damages for injuries caused by his coming into contact with a "live" wire hanging down the side of an electric light pole erected in a public street by the council in exercise of its statutory powers. No question arises as to the amount of damages awarded: it is not claimed to be excessive having regard to the extent of the appellant's injuries. But the council successfully appealed to the State Full Court on the ground that the council was not legally responsible for the appellant's injuries because he was a trespasser when injured, although he was then only thirteen and was trying to secure a bird's nest built on the pole in a spot where the wood had decayed and had fallen away. About eighteen months before the accident a bird's nest built in the same spot on this pole was removed by the council's employee; but the decayed wood was not removed, nor was anything else done to prevent another nest being built on the pole. And the hanging wire was not removed, although it then served no purpose. It had been a lightning conductor, but long before the day of the accident it had become severed somewhere within eight feet of the ground (the jury could have found on the evidence that it was severed within four feet of the ground) and had remained severed. At the time of the accident it was charged with electricity through contact with the high tension wires overhead, apparently because staples that had held the wire to the pole had become detached as the wood decayed, and as a result the wire had fallen across the high tension wires, or was pulled on to the high tension wires by the appellant as he put his arms around the pole when standing on the cross bar of a bicycle placed against the pole to enable him to reach the nest.
This pole with the wire hanging from it charged with electric current, or likely to be so charged at any time, was, I think, as much a nuisance as the unattended horse and cart in the public street in Lynch v. Nurdin [1] , or the poisonous berries in the public gardens in Glasgow Corporation v. Taylor [2] . But the plaintiff in standing on the cross bar of the bicycle with his arms around the pole was not making a use of the pole incidental to his passage along the street, and so he was, I think, a trespasser when he was injured, and not entitled to recover damages from the council, unless the council must be held to have been responsible for the nest being on the pole and for the temptation to the boy to climb the pole. Now if the council knew, or should have known, that the nest was on the pole, or should have anticipated that it would be built there, then I might hesitate to hold that the council was not responsible, as it alone had authority to remove the nest and to remove the decayed wood or otherwise to deal with the pole so as to prevent another nest being built on it. However, the council did not know, and I do not think it should have known of the nest, or should have anticipated that it would be built there. It may have been there for a brief period; and the fact that a nest had been built on the pole before did not make it probable that another nest would be built in such an unusual place for a bird's nest. There was, of course, the possibility that another nest would be built on the pole, but it was at least as remote as that which was realized in Bolton v. Stone [3] without creating any liability for damages for the injury that resulted.
Had the council been responsible for the bird's nest being on the pole then it could not successfully set up that the appellant was a trespasser, because he would then be regarded as having "merely indulged the natural instinct of a child" in climbing the pole to secure the nest, and the council "having tempted the child, he ought not to reproach the child with yielding to that temptation": Lynch v. Nurdin [4] , per Lord Denman C.J. The Council should in such circumstances "have anticipated the presence of" (the appellant) "and the attractiveness of the peril of the object". Glasgow Corporation v. Taylor, per Lord Buckmaster [5] , and Lord Shaw [6] quoting from Hamilton L.J. in Latham v. R. Johnson & Nephew Ltd. [7] .
Then as to the appellant's position as a trespasser, although he was only a child the council is not responsible for his injuries, unless it had the deliberate intention of doing harm to him; or displayed a reckless disregard of his presence; or was guilty of a wilful act in reckless disregard of ordinary humanity: see Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1] per Lord Hailsham L.C. and Lord Dunedin [2] . But no such intention or disregard or wilful act can be found on the evidence. I cannot distinguish the position of the appellant with his arms around the pole from that of the boy of four on the company's premises in the Dumbreck Case [3] . Each was a trespasser on the spot where the injury was sustained. The mode of trespass seems to me to be immaterial to the question of the responsibility of the occupier.
I have not overlooked the fact that this was a jury trial. If it were a trial without a jury we would substitute our own finding for that of the trial judge if we thought he was wrong, after allowing for the fact that he had the advantage of seeing the witnesses give their evidence. But as this was a jury trial the appeal court is not at liberty to set aside the verdict unless satisfied that it was such that reasonable men could not have arrived at it. Further, what is an incidental user of an electric light pole in a street or road depends on all the circumstances. Now a person using the street or road might well place his hand on such a pole when resting, and that could reasonably be held to be an incidental user. So too a person might place his bicycle against the pole, and that too could properly be regarded as an incidental user. But I cannot see how it can be an incidental user to place a ladder against the pole in the course of securing a nest; and if a bicycle is used instead of a ladder for such a purpose the user does not become incidental because a bicycle is used. Certainly the use of a ladder or bicycle for such a purpose is quite harmless. But it is technically a trespass and a judge or jury is not at liberty to disregard even a technical trespass when determining a question of legal responsibility.
Nor am I able to take the view that, as the jury could have found that the live wire was within four feet of the ground, and a person making an incidental use of the pole, say by resting against it or when placing his bicycle against it, could have touched the live wire and suffered the same injuries as the appellant, then the council is liable, although they could not have foreseen just how the accident would happen. In Pearson v. Lambeth Borough Council [4] , to which we were referred by counsel for the appellant, the Court was not dealing with the case of a trespasser, but with that of a licensee.
In no case to which reference has been made did a trespasser succeed. In Swift v. Westport Urban District Council [5] Gavan Duffy J. observed that the man-trap was "a seductive lure for this little girl of five". A child so tempted is really not a trespasser. An electric light pole is, I think, in a different category from a man-trap.
The appellant sued the respondent in the Supreme Court of New South Wales, alleging that he had sustained injury by the negligence of the respondent in and about the care, control, management, installation and maintenance of an electric power system and an electric power pole and the wires thereon. At the trial the jury returned a verdict for the appellant, but the Full Court of the Supreme Court set aside the verdict, and ordered that judgment in the action be entered for the respondent. The Full Court's order is challenged by this appeal.
The appellant is a boy who had just turned thirteen at the time of his injury. With another boy who had a bicycle, he was walking along a road late one afternoon when he saw a bird fly into a nest situated in an electric power pole at a height which may have been anything from eight to eleven feet from the ground. The sapwood of the pole was much decayed, and the nest had been built in a crevice formed by the falling away of rotted wood. The appellant, desiring to get to the nest, placed the bicycle against the pole, and climbed on to the handle bars which apparently he got his companion to hold. What he did then is not entirely clear, but he came into contact with an uninsulated wire, the remains of a lightning conductor, and received a violent electric shock which caused him serious injury.
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.
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 unwarranted, 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. [8] , 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 [9] , 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 of New South Wales v. Barton [1] . The facts of the case must therefore be further examined for the purpose of considering whether there was another relation between the parties giving rise to such a duty of care that the jury could properly find a breach of it to have been a cause of the appellant's injuries.
The pole on which the appellant was injured stood, as has been said, in a public highway. Together with other poles, it supported high-tension wires carrying electric current of lethal power. The poles had been erected by the respondent many years before, and at one time their tops had been joined by a copper wire from which other wires led down some of the poles to the earth. The purpose of this was to provide a lightning conductor, but the practice of making this kind of provision had become obsolete. Some six years before the accident the copper wire joining the poles had been removed, but on the particular pole in question the earth wire had been allowed to remain. It was fastened to the pole by staples, and originally it reached from the top to the ground. A precaution sometimes taken against injury to persons touching the pole, namely the enclosing of the lower portion of the earth wire in a pipe, had not been employed. At some stage the sapwood was cut away to a height of some feet from the ground, and, presumably at the same time, a part of the wire was removed so that it no longer reached to the earth. There was a conflict of evidence as to the height of the lowest point on the pole to which the wire reached: it may have been as little as two feet or as much as eight feet from the ground. With the decaying of the sapwood, some of the staples had become insecure or had fallen out, and the wire bulged between some of the staples that remained. Its lower end was free, and projected substantially from the pole.
The evidence reveals two possibilities as to the manner in which the accident occurred. It may be that before the appellant arrived on the scene the earth wire had become disconnected from the pole at the top and its end had fallen either onto a power line or onto the metal support of an insulator which, being cracked, had allowed current to pass through it. If so, the earth wire was electrically charged when the appellant placed his arms around the pole, and it was by doing so that he came into contact with the wire. Or it may be that the appellant attempted to pull himself up by grasping the loose end of the wire, causing it to break free from insecure staples at the top and fall onto a power line. But whichever of these explanations of the occurrence is the true one, two points at least are clear. First, the lower end of the wire was accessible to any boy who might yield to a temptation to climb to the modest height which the appellant reached - and his foot, it will be remembered, had not left the handle-bars of the bicycle. Secondly, the wire, if not already electrically charged, was so loosely held to the pole that it could easily be pulled so as to become electrically charged; and in either case the situation had arisen through the respondent's omission either to remove the wire altogether or to see that it did not become dangerously insecure.
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.
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.
In my opinion the trial judge was right in directing the jury that the respondent owed a duty of care to those persons whom it could reasonably foresee might be injured by any failure on its part to act reasonably in the circumstances. There was ample evidence upon which the jury, applying the considerations I have mentioned, could find that the appellant was such a person, and that his injury was caused by a failure by the respondent to perform the duty it owed him.
Accordingly I am of opinion that the appeal should be allowed and the verdict restored.
Thompson
Bankstown Municipal Council