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Victorian Reports/Judgments/1966 VR/VICTORIAN RAILWAYS COMMISSIONERS v SEAL - 1966 VR 107 -

24 September 1965

26 pages

VICTORIAN RAILWAYS COMMISSIONERS v SEAL - [1966] VR 107

SUPREME COURT OF VICTORIA FULL COURT

O'BRYAN , HUDSON and GILLARD JJ

13, 16, 17, 18 August, 24 September 1965

Negligence -- Dangerous premises -- Injuries to persons entering -- Child trespasser -- Occupier's

knowledge of, and means of preventing, danger -- Wanton or reckless disregard -- Liability of
occupier.

The infant respondent, while crossing the appellant's railway yards by an unpermitted but often used
track, trespassed upon a turntable which revolved and crushed his foot. A locking device had earlier been
installed on the turntable but had been rendered ineffective and this fact was known or ought to have been
known to the appellant's servants. The jury, having found that the turntable constituted a concealed danger or
trap, that the appellant's servants had not taken reasonable care to prevent the infant respondent relying
upon the deceptive appearance of safety of the turntable and that the appellant's servants had been guilty of
wanton or reckless disregard of the infant respondent's safety, judgment was entered for the respondent. On
appeal,

Held, by the Full Court (O'Bryan, Hudson and Gillard, JJ), dismissing the appeal: though the infant
respondent was a trespasser, the appellant's servants were aware of the likelihood of other persons being
on the turntable and had the means of preventing or averting the danger; there was, therefore, a duty on the
appellant as occupier to safeguard others from the grave danger of serious harm for the continued existence
of which it was responsible.
Commissioners for Railways v Quinlan, [1964] AC 1054; [1964] ALR 900; Commissioners for Railways
(NSW) v Cardy (1960) 104 CLR 274; [1961] ALR 16; Robert Addie and Sons (Collieries) Ltd v Dumbreck,
[1929] AC 358; [1929] All ER Rep 1, discussed and applied.

Appeal

The appellant-defendant appealed against judgments of the county court at Melbourne ordering it to pay
the sums of 2600 pounds and 242 pounds 6s 3d. to the respondent-plaintiffs for damages. The facts appear
in the judgments. infra.

Lush, QC, and GV Tolhurst, for the appellant-defendant.

BKC Thomson and JA Keely, for the respondent-plaintiffs.

O'BRYAN J concurred in the judgment of Hudson, J, infra.

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Hudson J delivered the following written judgment:

This is an appeal from judgments of the county court entered in favour of the plaintiffs for the sums of
2600 pounds and 242 pounds 6s. 3d. respectively on the trial of an action for damages brought by the
plaintiffs against the defendant. The judgments were founded upon answers given by the jury at the trial to
certain questions put to them by the learned trial judge. The defendant moved for judgment notwithstanding
the jury's verdict on the ground that there was no evidence to support the answers to certain of the
questions, but this motion was rejected and the trial judge directed the judgments to be entered for the sums
above mentioned with costs.
The action was brought to recover damages for personal injuries suffered by the infant plaintiff and loss
and expense incurred by the other plaintiff, his father, as a result of an accident that occurred on 21 April
1960, when the infant plaintiff then aged 11 years and 5 months had his right foot caught and crushed in a
revolving turntable situated in the yards of the railway station at Mornington, in the occupation and control of
the defendant. These yards, which occupy a fairly extensive area in the township of Mornington, contain the
station and other buildings, the railway lines and the turntable. The area is bounded on the north by Gordon
Street and on the west by Franklin Street. The main shopping centre of the town lies slightly to the south of
the railway yards, and residents of Gordon Street and other areas north of the yards find it convenient to
cross the yards to reach the shopping centre, and make a practice of doing so.
[1966] VR 107 at 108

The turntable on which the accident occurred is at the western end of the yards, not far from the
intersection of Gordon and Franklin Streets and distant about 200 feet west of the railway platform and main
station buildings. Wire fences are erected along the boundaries of Gordon and Franklin Streets, but at the
time of the accident sections thereof were in disrepair and provided no great obstacle to anyone, certainly not
to small boys, desiring to enter the yards from these streets. The turntable was a structure some 60 feet in
diameter supported by heavy steel girders, and across its surface ran rails to carry the engines which it was
required to reverse. These rails, when the turntable was in operation, met up with a similar set of rails laid
along an embankment from the railway yards. The superstructure of the turntable revolved on a circular
running rail beneath the edge of its perimeter and, in order to maintain it in position and stable for the
purpose of operation, it was equipped with pawls which fitted into slots or jaws fixed in the embankment on
which the turntable was constructed. These pawls were controlled by means of a lever fixed in a prominent
and accessible position on the surface of the turntable and capable of easy manipulation by hand. When the
lever was worked so as to withdraw the pawls the turntable could be freely revolved. When it was to be
operated the turntable would be stopped at a point where the two sets of rails came into juxtaposition to
provide a continuous track and then, by means of the lever the pawls would be operated so that they would
fit in the fixed jaws and the machine would be thus held securely with its rails in the required position and
incapable of further movement. If the lever in was so manipulated to release the pawls, the turntable would of
course again become capable of movement and there was evidence that when not secured it was capable of
being set in motion by slight force - even by a strong wind.
The feature of the structure which led to the infant plaintiff's accident was the existence of a gap some
few inches in width between the outer edge of the decking of the turntable and the near edge of the
embankment on which the rails of the fixed track were laid. It was in this gap that the plaintiff caught his foot
whilst the turntable was revolving. It appeared from the evidence that, after they had left school in the
afternoon of the day of the accident, the infant plaintiff, his younger brother and another boy, desiring to visit
the main shopping centre of the township, decided to make their way thereto across the railway yards. As
they arrived at a point near the corner of Gordon and Franklin Streets, they saw the turntable turning in the
wind and decided to go and have a ride on it. They got through the fence at a spot where the wires were
loose and hanging, went to the turntable and got on it. There was no other person on or about the turntable
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at the time. After five or six minutes they decided to leave and proceeded to get off the turntable whilst it was
still revolving. In attempting to do so the infant plaintiff, in the course of jumping off at the eastern end of the
structure, slipped and his foot became wedged in the gap between the revolving turntable and the
embankment.
[1966] VR 107 at 109

At the trial the case sought to be made for the plaintiffs was that the infant plaintiff was on the turntable
as a licensee when he was injured and that the defendant's duty towards him was to be measured
accordingly and that there had been a breach of that duty. Alternatively it was put that even if the plaintiff was
a trespasser the defendant had been guilty of a breach of the duty owed to him as such. The defendant
contested both of these propositions and also pleaded contributory negligence on the part of the infant
plaintiff.
The questions put to the jury and their answers were as follow: -
Q. 1: Did the defendant by its servants give the infant plaintiff permission -
(a) to play on the turntable? - A.: No.
(b) to play in the railway yards? - A.: No.
(c) to use the railway yards as a means of crossing from one boundary to another? - A.: Yes.
Q. 2: On 21 April 1960 was the turntable in a state in which it was free to turn or in which it could be
turned by children? - A.: Yes.
Q. 3: On 21 April 1960 did the turntable constitute a concealed danger or trap for the infant plaintiff? - A.:
Yes.
Q. 4: On 21 April 1960 did the defendant's servants know that the turntable was on that date in a state in
which it was free to turn or in which it could be turned by children? - A.: Yes.
Q. 5: Did the defendant by its servants take reasonable care to prevent the infant plaintiff relying upon a
deceptive appearance of safety of the turntable? - A.: No.
Q. 6: Prior to 21 April 1960 was the locking device on the lever of the turntable cut by some unauthorized
person? - A.: It was cut prior to 21 April 1960 but the jury were unable to say by whom or in what
circumstances.
Q. 7: On 21 April 1960 was the defendant by its servants guilty of wanton or reckless disregard of the
infant plaintiff's safety? - A.: Yes.
Q. 8: [Relates to damages.]
Q. 9: On 21 April 1960 was the infant plaintiff guilty of contributory negligence? - A.: Yes.
Q. 10: If Yes to question 9, by what amount is it just and equitable that the infant plaintiff's damages be
reduced having regard to his share in the responsibility for the damage? - A.: 20 per cent.
No specific question was put to the jury to obtain their finding as to whether children such as the infant
plaintiff were in the habit of visiting and playing on the turntable and as to whether the defendant's servants
were aware of it. But there was a good deal of evidence including evidence from the defendant's servants
and the local constable that children did frequently play on the turntable and persisted in doing so despite
efforts on the part of the defendant's servants and the constable to prevent them. Having regard to the
evidence, it is inconceivable that the jury would not have found these facts in the plaintiff's favour had
appropriate questions been submitted to them and perhaps it was on this assumption that no question was
asked. In any event no objection was taken at any stage to the absence of such a finding and on the appeal
the case was argued on the basis that the jury must have accepted the evidence referred to.
[1966] VR 107 at 110
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On the hearing of the appeal the defendant relied upon the jury's answers to questions 1(a) and (b),
which were consistent with the evidence, and amounted to a finding to the effect that the infant plaintiff was a
trespasser at the time he was injured. On this basis the defendant contended that the only duty owed by the
defendant to the plaintiff was not to do any positive act of misfeasance in the course of its operations on the
premises with intent to injure the plaintiff or with reckless disregard for his safety; that this duty only arose in
respect of a trespasser known to be present on the premises in the area of danger or one whose presence
there was known to the defendant to be extremely probable; that the existence and maintenance of the
turntable on the defendant's premises did not constitute a part of the operations conducted by the defendant
in any relevant sense but its presence was merely a static condition of its premises; that nothing that
occurred, contributing to the plaintiff's injury, involved any positive act of misfeasance on the part of the
defendant or its servants; and that, in any event, any negligence involved could not properly be found to
amount to a reckless disregard of the plaintiff's safety but simply to non-feasance constituting at most
negligence of a degree which, though it might suffice to establish a breach of the ordinary duty of care, was
not sufficient to answer the requirements necessary to establish a breach of duty owed to the plaintiff as a
trespasser.
On behalf of the plaintiff these propositions were disputed and, furthermore, it was sought on their behalf
to uphold the judgment on the ground that despite the answers of the jury to questions 1(a) and (b) the
defendant, in all the circumstances, owed to the infant plaintiff a duty commensurate with that owed to a
licensee and, on this view, and, having regard to the jury's answers to questions 2, 3, 4 and 5, the judgment
for the plaintiffs should be upheld.
In order to deal with the issues arising on these contentions it is necessary to refer further to the facts in
evidence at the trial. The date when the turntable was erected does not appear in evidence but it is safe to
assume this took place when the station itself was established very many years ago. By 1960 passenger
trains had ceased to run to Mornington and the traffic over the line had been reduced to one goods train per
week. Because of this and the advent of diesel locomotives, a steam engine was rarely seen in the
Mornington railway yards. But the turntable was retained and used on the odd occasion when a steam driven
locomotive hauled a goods train to Mornington. Prior to 1956 the defendant apparently recognized the need
for securing the turntable against unauthorized interference, and employed some method of locking it in
position by means of a chain and bolt. In or about 1956 an accident befell a young girl named Williams whilst
she was playing on the turntable. No details as to the circumstances or cause of this appeared in the
evidence, and it may be purely a matter of coincidence, but about that time, that is the year 1956, the
defendant adopted and equipped the turntable with a completely new and different locking device affixed to
the lever already described, and preventing it from being moved. It is not necessary to describe the nature of
this device in detail but clearly it was such as to afford the maximum safeguard against the unauthorized
movement of the turntable whilst the locking device was in operation. And to secure that it should at all times
remain effective against unauthorized interference the device required that a special type of spanner should
be used to unlock the device. This essential tool was on issue only to engine drivers and when it was used to
enable the turntable to be rotated it could not be recovered without again putting the locking device into
operation. It provided, therefore, what might be described as an automatic system of locking the turntable in
a fixed position with the rails of the latter aligned with the rails leading from the abutment. But even this
device was not effective in the present case to prevent the unauthorized movement of the turntable because,
as was discovered almost immediately after the accident to the infant plaintiff, an essential part of the locking
device had been destroyed, by being sawn through and removed, apparently by the use of a hack-saw. Upon
the removal of this essential member the device became completely useless and the rotation of the turntable
was rendered possible by the manipulation of the lever operating to withdraw the pawls, and this was
something which could be done by any enterprising youth or boy.
[1966] VR 107 at 111

There was no evidence as to the identity of the person who had unlawfully destroyed the locking device
nor as to the date when this was done, but there was evidence upon which the jury were entitled to find,
despite evidence of witnesses called by the defendant pointing to a contrary conclusion, that the locking
device had been put out of operation a considerable time before the date of the plaintiff's accident. This
consisted of evidence from a number of witnesses that the turntable had, after 1956, been seen revolving on
many occasions over a period of months or years when it was not in official use, sometimes with children
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riding on it and sometimes without, and being turned merely by the force of a strong wind. There was
evidence also upon which the jury were entitled to find, as they of course did, that servants of the defendant
whose duty it was to inspect and observe the condition of the turntable must have observed long prior to the
accident that it was revolving out of control, indicating that the locking device could not have been operating.
It was common ground that no steps to remedy the dangerous condition of the turntable which had
developed as a result of the destruction of the locking device had been taken, and it was open to the jury to
find that this condition had been in existence and should have been and was in fact discovered before the
date of the accident. The defendant's case was that the damage was done but a short time before the
accident; that its servants though carrying out a weekly inspection of the turntable had not in fact observed
that the locking device had been interfered with, and were not guilty of any neglect in failing to ascertain the
fact that it had occurred. It followed of course that they could not be expected to have taken any remedial
action.
The jury by their answers to questions 2 and 4 obviously rejected the evidence of the defendant's
witnesses on these issues and though the questions were confined to 21 April, the date of the accident, the
fair inference is that they accepted the evidence called on behalf of the plaintiffs to the effect that the
turntable, as it then existed, had been in the same condition for a considerable time. The answer to question
7 must, of course, be considered in the light of these findings. In this connexion I think it is proper to refer to
the learned judge's charge in relation to this question. In dealing with this he said: "That involves you
considering the position of the defendant's knowledge - I mean the knowledge of the defendant's servants at
Mornington as to the state of this turntable on 21 April 1960, and if you find that they did not know that it was
then capable of being turned, it would be difficult to say - in fact I should say - impossible to say they had
been guilty of any wanton and reckless disregard of the infant plaintiff's safety. If you find that they did know
of this, because you accept the evidence that it was so many children had been on and around it in a turning
condition over preceding years that the inference is irresistible that they must have known about it, then you
have to consider what stage, what length of time you think they must have had that knowledge. And then say
to yourselves, well with that knowledge did one or more of the people who had it recklessly, realizing that
there was a danger to young children of the plaintiff's class being injured on the turntable, fail to take any
action to correct it, have the turntable restored to a state of immobility, so that you could say that they had not
done it, knowing it was a risk of injury, and that they had been wanton or reckless in failing to see that action
was taken to cure the position."
[1966] VR 107 at 112

It appears to be clear in the light of this direction that the jury's finding that the defendant had been guilty
of wanton or reckless disregard of the plaintiff's safety was founded not upon any failure on the part of the
defendant's servants to make proper inspections of the turntable and so to discover the defective condition of
the locking device, but on the failure of those servants, knowing that the device was for some reason not
operating, to take any steps to remedy the defect and again make the turntable safe and secure. But this was
nevertheless a fault or error of omission in the nature of a non-feasance, rather than a positive act of
misfeasance and the first question which arises upon the defendant's submissions is whether conduct of this
nature on the part of an occupier of property is capable of amounting to wanton or reckless disregard for the
safety of a trespasser known to be present or whose presence was known to be extremely probable. The
second question which arises on these submissions is whether an occupier of property owes any duty to a
trespasser in respect of what may be described as the static condition of his premises beyond the duty not
intentionally or maliciously to cause him harm, and, if this be the limit of the occupier's duty, whether the
turntable on which the plaintiff suffered his injury falls within the description of a static part of the defendant's
premises in the same sense as it might be said that the station buildings did.
The Court was referred by counsel for both parties to a great many authorities bearing upon the
responsibility of occupiers of premises to trespassers, of which those most canvassed were the recent
decision of the Privy Council in Commissioner for Railways v Quinlan, [1964] AC 1054; [1964] ALR 900, and
the decisions of the High Court in Commissioner for Railways v Cardy (1960) 104 CLR 274; [1961] ALR 16,
and Transport Commissioners of NSW v Barton (1933) 49 CLR 114; [1933] ALR 228. Reliance was, of
course, placed by the defendant upon the decision of the House of Lords in the case of Robert Addie and
Sons (Collieries) Ltd v Dumbreck, [1929] AC 358; [1929] All ER Rep 1, in which the duty of an occupier to
avoid injury to trespassers was defined in very restricted terms. In that case the authorities relating to the
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subject were fully reviewed and the statement of the law of Scrutton, LJ, in the Court of Appeal in Hardy v
Central London Railway Co, [1920] 3 KB 459; [1920] All ER Rep 205, was approved as correct. What the
learned Lord Justice said, at (KB) pp. 473-4, was: "If the children were trespassers, the landowner was not
entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but was
under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of
his business. Against those he was under no obligation to guard trespassers." But in the years that have
passed since Addie's Case, supra, and Hardy's Case, supra, the tendency of the law has been to develop a
less rigid and severe attitude towards those who are injured as a result of dangers they encounter whilst
trespassing upon the property of others. At all events, in my opinion, so far as this Court is concerned it must
be guided to its conclusion in the present case by the decisions of the Privy Council and the High Court in
Quinlan's Case and Cardy's Case, supra. By the decision in the latter case which was accepted as correct by
the Privy Council, it was held that a child, who was a little older than the plaintiff in the present case, was
entitled to recover in respect of injuries suffered by him when he walked upon a mound which had been
formed by the deposit of ashes from fire boxes and furnaces by the Railway Commissioner. The surface of
the mound presented an appearance of safety but underneath there were ashes which remained hot and
smouldering for long periods. The area, an extensive one, in which the mound was situate, was in the
occupation of the Commissioner but it was traversed by a path open to and used by pedestrians, including
children. The plaintiff in making his way over the area strayed from the path on to the mound and put his
feet through the surface crust into the hot ashes beneath, and suffered severe burns to his ankles and feet.
There was evidence that the fact that the area was used by adults and children was known to the servants
of the Commissioners, but in the High Court it was treated as clear by a majority of the judges that they did
so without any licence or authority from the Commissioner in any real sense, and that the plaintiff was really
a trespasser in law. Nevertheless, the plaintiff at the trial succeeded on the footing that he was a licensee
and the defendant, as occupier of the premises, was in breach of the duty owed to him as a licensee. Dixon,
CJ, after a close and critical examination of the authorities arrived at the conclusion that the plaintiff was
entitled to retain his judgment, not on the basis that he was a licensee, but because, of what he considered
to be the correct principles to be applied in determining the liability of an occupier of land to trespassers, the
plaintiff had, on the facts which the jury must be taken to have found, established the conditions giving rise to
a duty of care and a breach of that duty on the part of the Commissioner rendering him liable. The learned
Chief Justice closely examined the decisions in cases of high authority such as Cooke v Midland Great
Western Railway of Ireland, [1909] AC 229; [1908-10] All ER Rep 16; Lowery v Walker, [1911] AC 10; [1908-
10] All ER Rep 12, and Latham v Johnson and Nephew Ltd, [1913] 1 KB 398; [1911-13] All ER Rep 117, and
came to the conclusion that in those cases many others where injured plaintiffs had been held entitled to
succeed on the basis that they were licensees, there had not been established any real relationship of
licensor and licensee such as lies at the root of the duty of care owed when such a relationship exists. And
the learned Chief Justice took the view that it was unsatisfactory that the right to recover and the imposition
of liability should continue to rest upon what he said had come to be a fiction, a constructive or imputed
licence, where in fact no licence existed. After referring to the change in the law in England effected by the
Occupiers Liability Act 1957 he said, at (104 CLR) p. 285: "Why should we here continue to explain the
liability which that law [the law obtaining in Australia] appears to impose in terms which can no longer
command an intellectual assent and refuse to refer it directly to basal principle?" The learned Chief Justice
then proceeds to state the principle and to indicate what it involves and does not involve. He says, at pp.
285-7: "Such a recognition of principle by no means involves the imposition upon occupiers of premises of a
liability for want of care for the safety of trespassers. What it does is to confine the duty of licensors to its
true province, the case of a voluntary or gratuitous grant of an advantage to another consisting in the use of
or entry upon premises and to recognize that it is the grant that forms the source of the limited duty. The rule
remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from
intentional or wanton harm to him. But it recognizes that nevertheless a duty exists where to the knowledge
of the occupier premises are frequented by strangers or are openly used by other people and the occupier
actively creates a specific peril seriously menacing their safety or continues it in existence. The duty may be
limited to perils of which the persons so using the premises are unaware and which they are unlikely to
expect and guard against. The duty is measured by the nature of the danger or peril but it may, according to
circumstances, be sufficiently discharged by warning of the danger, by taking steps to exclude the intruder
or by removal or reduction of the danger." After referring to the "harsh doctrine" of an American case which
he cited, the learned Chief Justice summed up his view in the following passage: "In principle a duty of care
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should rest on a man to safeguard others from a grave danger of serious harm if knowingly he has created
the danger or is responsible for its continued existence and is aware of the likelihood of others coming into
proximity of the danger and has the means of preventing it or averting the danger or of bringing it to their
knowledge." He considered that the case before the Court fell within the principle because, as he stated, "the
responsible servants of the defendant Commissioner must have been aware of the great likelihood, not to
say certainty, of boys and others coming upon the site of the tip. The apparently safe surface concealed a
striking danger of a rather dreadful description. No steps to warn those who came or to exclude them or to
reduce or avert the danger were adopted. No care of any kind was shown for the safety from the danger of
those who frequented the place or were likely to come there". The other members of the Court agreed that
the judgment should be upheld save Menzies, J, who dissented on the ground that the plaintiff had failed to
make out the case upon which the verdict was founded, namely that he was a licensee. McTiernan, J, at pp.
287 et seq., took the view that the plaintiff had tacit permission to walk over the land and climb upon the
dump area which constituted a dangerous trap and was an allurement to a boy of the plaintiff's age. His
decision appears to have been founded upon the view that the plaintiff was virtually a licensee and that the
defendant was in breach of the duty owed to him in this character. Fullagar, J, at pp. 290 et seq., held that
the plaintiff was clearly not a licensee but a trespasser; that the rules prescribing the duty of care owed to
invitees and licensees respectively do not abrogate or supersede the general law of negligence as affecting
an occupier in relation to either an invitee or a licensee; that whilst an occupier owes to a trespasser no
"special duty" analogous to that which he owes to an invitee or licensee, circumstances over and above the
character of the visitor as a trespasser may give rise to a general duty of care, with the result that an
occupier may be liable to a trespasser for negligence. The learned judge referred to the statement in
Salmond on Torts that an occupier would be liable even to a trespasser for any "positive act of negligent
misfeasance" and thought this was sound, but in his opinion it did not go far enough. He cited with approval a
passage from the 12th ed. of Salmond that "There are, however, cases in which the 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 within the familiar principle expounded by Lord Atkin" (in Donoghue v
Stevenson, [1932] AC 562; [1932] All ER Rep 1). He referred to Barton's Case (1933) 49 CLR 114; [1933]
ALR 228, and cited from it the following passage in the judgment of Dixon, J (as he then was), at (CLR) p.
132: "With reference to positive acts likely to cause harm to others, I think the occupier's duty depends upon
knowledge of the presence of the trespasser on his property, and is measured by the care which a
reasonable man would take in all the circumstances, including the gravity and likelihood of the probable
injury, the character of the intrusion, the nature of the activities causing the danger and the consequences to
the occupier of attempting to avoid all injury."
[1966] VR 107 at 115

With this Fullar, J, agreed, but he considered it necessary to go further because he considered that in
certain cases liability had properly been imposed where there had not been any positive act of negligent
misfeasance. He referred to what had been said by Kitto, J, in the case of Thompson v Bankstown Municipal
Council (1953) 87 CLR 619, at pp. 642-3; [1953] ALR 165, in which he had cited what had been said by Lord
Uthwatt in Read v J Lyons and Co Ltd, [1947] AC 156, at p. 185; [1946] 2 All ER 471, as to the relationship of
occupier and trespasser demanding "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". After indicating clearly enough that, in his opinion, an occupier's breach of duty might
extend to negligent omissions, he said (104 CLR, at pp. 298-300): "The circumstances which may justify the
conclusion that an occupier has committed, by act or omission, a breach of a general duty of care in relation
to an invitee or a licensee or a trespasser are, to use Lord Macmillan's words, 'various and manifold'. So far
as trespassers are concerned, the questions of duty and breach generally arise (and perhaps can only
arise) where the occupier or his servants know that a trespasser is on the land, or that trespassers are in
the habit of entering upon the land, and in a high proportion of cases the plaintiff trespasser is a child. In
such cases it seems hardly possible to classify or enumerate the factors which will be relevant to the
question whether by act or omission the defendant has fallen short of the standard of the reasonable man. ...
The fact that the plaintiff is a trespasser is, of course, always itself a relevant factor, and among the most
important of other factors will commonly be the comparative slightness or seriousness of the risk and the
comparative simplicity or difficulty of taking effective precautions. In Cook's Case, supra, the very simple
precaution of locking the turntable when not in use would have prevented the accident which in fact
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happened. The standard of care does not vary according to the age of the trespasser, but the fact that he is
a young child will often be a relevant matter both because a child is less likely than an adult to realize that
he is where he has no business to be, and because a precaution, such as a warning notice, which might be
effective in the case of an adult, could not be expected to be effective in the case of a child. ... But I think
that out of all the circumstances a duty of care on the part of the Commissioner and his servants to persons
in the position of the plaintiff arose. And I am not prepared to say that it was not open to the jury to find that
there had been a breach of that duty. ... It might be possible in this case for the plaintiff to succeed even on a
narrower view that an occupier is liable to a trespasser only for 'positive acts of negligent misfeasance'. It
might be suggested that the depositing of ashes in the circumstances amounted to a positive act of that
nature. It has seemed to me, however, that the gravamen of the case against the defendant is not that his
servants deposited ashes on the land, a thing that he was perfectly entitled to do, but that he failed to give
any warning or take any other precaution for the safety of persons likely to wander in the vicinity of the
deposit. I do not think that the plaintiff can succeed in this case except on the wider view which, in the light of
Donoghue v Stevenson, [1932] AC 562; [1932] All ER Rep 1, I am convinced is the correct view." Windeyer,
J, at pp. 307 et seq., agreed that the judgment should be upheld. In the course of his judgment he referred to
the "rock-like principle" stated in Addie's Case, [1929] AC 358; [1929] All ER Rep 1, that "there must be some
act done with the deliberate intention of doing harm to the trespasser, or at least some act done with
reckless disregard of the presence of the trespasser", but said that a duty of care might however arise from
some circumstances beyond the mere fact of entry by the trespasser, as for example from the occupier's
knowledge of the trespasser's presence and of his proximity to dangerous operations on the premises and
that the occupier's immunity from actions by trespassers may be qualified if he knows that they are, or very
probably may be, present. He expressed the view that the duty, which could arise in appropriate
circumstances might be a duty to warn persons coming on to premises of hidden dangers they might
encounter there, when those dangers were not natural features of the land but arose from conditions created
by the occupier. He concluded that the plaintiff in the case before the court might have sought to avoid
"foundering on the rock that he was a trespasser and to get past it by basing his case on the absence of any
warning of the danger of the hidden fires". The learned judge, however, although he thought that strictly the
plaintiff was a trespasser, considered that in the light of previous authorities the evidence justified a
"conventional finding" that the plaintiff was a licensee in respect of the area of the dump, and that the jury's
verdict and the judgment could be supported and should be upheld on this ground. But his judgment
concludes with the following passage: "I think too that without resorting to the conventional misnomer of
trespassers as licensees, the circumstances could give rise to a duty in the defendant to take reasonable
precautions to warn persons coming upon the land of the danger there existing."
[1966] VR 107 at 116

If the present appeal is to be determined by the decision in Cardy's Case, supra, and the reasoning upon
which it is based, I think it should certainly fail. The principle of liability as stated by the learned Chief Justice
covers not only an occupier guilty of positive acts of misfeasance but extends to one who "actively creates a
specific peril or continues it in existence" upon his premises. Fullagar J, is more specific in denying that the
duty is confined to positive acts of negligent misfeasance and makes clear his view that it extends to
omissions. Windeyer, J, also would have allowed the plaintiff's action to succeed on the ground of the
defendant's negligent omission, his failure to give warning of the danger, had it been so pleaded. And all of
the judgments proceed upon the footing that the occupier may be liable for any condition of danger created
or allowed to exist on his premises, other than something arising from the natural state of the land, and no
distinction is suggested between dangers arising from operations carried on upon premises and those arising
from the static condition thereof.
It would seem to me, therefore, that on the basis of the jury's findings in the present case, assuming, as it
must be assumed, that the defendant by its servants had knowledge that children such as the plaintiff
frequently resorted to the turntable and played on it even though, in doing so, they were trespassers, a duty
to exercise some degree of care for the safety of such children existed, and that the finding of the jury that
the defendant was guilty of a wanton or reckless disregard of the infant plaintiff's safety was justified and thus
a breach of the duty owed by the defendant to the infant plaintiff was established.
[1966] VR 107 at 117
 10

It remains to consider whether these conclusions are affected by the decision of the Privy Council in
Quinlan's Case, [1964] AC 1054; [1964] ALR 900. In that case the respondent who had succeeded in
recovering damages in the New South Wales courts was injured when a vehicle he was driving was struck by
a railway train on a private level crossing. He was undoubtedly a trespasser on the crossing when he was
injured. The appellant Commissioner had no knowledge that the respondent or any other member of the
public was likely to be using the crossing and in this lies the essential distinction between Quinlan's Case
and the present. The Privy Council repeated and re-affirmed the statement of the law contained in Latham's
Case, [1913] 1 KB 398; [1911-13] All ER Rep 117, and approved in Addie's Case, [1929] AC 365; [1929] All
ER Rep 1, that "the owner of property is under a duty not to injure the trespasser wilfully; not to do a wilful
act in reckless disregard of ordinary humanity towards him; but otherwise a man trespasses at his own risk".
It accepted also the proposition stated by Lord Hailsham in Addie's Case, supra, at (AC) p. 365, that in
determining an occupier's liability to a trespasser there must be found "injury...due to some wilful act
involving something more than the absence of reasonable care. There must be something done with the
deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the
presence of the trespasser". They referred to the judgment of Dixon, J (as he then was), in Barton's Case
(1933) 49 CLR 114; [1933] ALR 228, which was a case of injury to cattle trespassing on an unfenced railway
line and cited the following passage from that judgment appearing at (CLR) p.127:
"Even in reference to the condition of the premises an occupier in the absence of reasonable cause or
excuse, must abstain from intentional injury to a trespasser, actual or possible. In the performance of acts
likely to inflict harm the measure of duty towards persons who are on the land, although wrongfully, is
perhaps greater and certainly can be no less"; and with reference to this passage their Lordships expressed
the view that it was intended by Dixon, J, that the duty of the occupier only arose upon the "known presence"
of the trespasser upon the property. They also cited with approval the following passage from the judgment
of Evatt, J, in that case where he said, at p. 134: "In my opinion the appellant conducting its railway entirely
upon its own property was not under any duty to the respondent to forecast the probability of trespassing
cattle, and to run its train so as to prevent, by all reasonable precautions, injury to such
trespassers...trespassers accept the risk not only of the premises as land and buildings but also of the
enterprise conducted thereon."
The Privy Council referred to the suggested distinction between injuries arising out of the static condition
of the occupier's premises and those arising out of the occupier's activities or operations thereon and said
that such a distinction was not maintainable. Their Lordships emphasized ([1964] AC) at p. 1076 that in
determining whether the occupier's duty arose in any particular case the requirement was that there should
be actual knowledge of the trespasser's presence and pointed out that this "is a very different thing from the
objective question whether there was a reasonable likelihood of someone being present at the relevant time
and place and whether a person ought to have foreseen that likelihood. Given the fact of knowledge the
occupier comes under the obligation not to inflict intentional or reckless injury upon the person of whose
presence he is aware. This is again a very different thing from an obligation to take precautions in advance
against the likelihood of a trespasser being present". But the judgment continued: "It is true however that an
occupier ca be treated as having knowledge of a trespasser's presence even though the latter is not visibly
before his eyes at the time when the act that causes injury is done. He can be in a position in which he 'as
good as' knows that the other is there. It is this transference from direct to imputed knowledge that has been
responsible for several decisions that would otherwise be difficult to explain consistently with the accepted
definition of the occupier's duty." After a reference to further authorities the judgment proceeds, at p. 1077: "It
must be stressed, however, that the knowledge that is here material, is knowledge in the occupier sufficient
to impose upon him the duty not to be wilful or reckless towards the man to whom otherwise he would owe
no duty at all; and such knowledge is something a great deal more concrete than a mere warning of
likelihood. The presence, if it is to be treated as anticipated, must be 'extremely likely', to use Lord
Buckmaster's words in Excelsior Wire Rope Co v Calleu, [1930] AC 404, at p. 410; [1930] All ER Rep 1, at p.
4. There was 'great likelihood, not to say certainty, of boys and others coming upon the site', per Dixon, CJ, in
Commissioner for RAilways (NSW) v Cardy (1960) 104 CLR 274, at p. 286; [1961] ALR 16: the trespasser
must be one whose coming is 'expected or foreseen'. In the same case Windeyer, J, says (at p. 319) that 'the
occupier's immunity from actions by trespassers may be qualified if he knows that they are, or very probably
may be, present'. This is the same thing as was said by Evatt, J, in Transport Commissioners of New South
Wales v Barton (1933) 49 CLR 114, at p. 135; [1933] ALR 228%: 'As a general rule the plaintiff must show
 11

that the occupier knew of the actual, or, at least, the very probable, presence of the trespasser on his land at
the very time when some activity fraught with danger to the trespasser was being continued.' In their
Lordships' opinion, if an occupier is being charged with breach of duty towards a trespasser in not giving
him warning of some dangerous activity that is conducted on the occupier's premises and by which the
trespasser has been injured, the law requires that the occupier's knowledge of the other's presence at the
material time should be established in some such terms as those quoted above."
[1966] VR 107 at 118

The Privy Council insisted that there has been no departure from the rule governing the occupier's
liability to trespassers as stated and approved in Addie's Case and refused to countenance the view that
this rule had been affected by the decision of the House of Lords in Donoghue v Stevenson. This they made
clear in a passage in the judgment, at p. 1082, where in discussing the case of Rich v Commissioner of
Railways (1959) 101 CLR 135; [1959] ALR 1104, they said: "In their view the character in which the injured
person was upon the occupier's premises is an escapable element in the determination of the extent or limit
of the latter's duty towards that person; and mere knowledge of some unprevented trespassing would not
convert the occupier's limited duty into a 'general duty of care' which is said to arise from 'the general
circumstances of the case', to quote from the judgment of Fullagar, J (101 CLR, at p. 144). There are
certainly passages in one or more of the judgments delivered which suggest that the opinion adopted was
that, given a course of trespassing by members of the public and knowledge of it by the defendant's
servants, his duty of care towards a trespasser became equivalent to the duty of care owed to members of
the public properly using a public level crossing. Their Lordships, with respect, would not agree with this."
[1966] VR 107 at 119

Their Lordships then discussed Cardy's Case, supra, and of this they said they did not "demur at all to
the decision that was come to in this case". They agreed with the exposition of Dixon, CJ, of the unreality of
the description of children as licensees in several previous authorities, and considered that the case did not
stand for any more general conception of the railway authority's liability than that which had been outlined in
the reasons of the Board. They cited with approval a passage from the judgment of the Chief Justice, which I
have already quoted, and reconciled it with the general formula as laid down in Addie's Case on the view that
the occupier's conduct to which the judgment of the Chief Justice related was so callous as to be capable of
constituting wanton or intentional harm.
Save therefore that it was more clear that the duty of care which the High Court, and in particular the
Chief Justice, held was imposed upon an occupier towards trespassers in the conditions which the latter
specified, was not the ordinary duty of care owed to persons on the property as of right, but was no more
than a duty not to act wantonly or with reckless disregard for their safety, and also that the duty arises only
when the presence of the trespasser is actually known or so "extremely probable" or "highly likely" that his
presence may be "expected or foreseen" it appears to me that the Privy Council has not thrown any doubt
upon the authority of Cardy's Case, supra, so far as the issues in the present case are concerned. It certainly
lends no support for the view put by the appellant in the present case that liability can arise only upon proof
of a positive act of misfeasance or the view that there is a distinction between the duty owed in relation to
dangers arising from the static condition of the occupier's premises and that owed in respect of dangerous
activities or operations conducted by the occupier on his premises.
In my opinion, the evidence and the findings of the jury established the conditions stated in Cardy's
Case, supra, as necessary to give rise to a duty on the part of the defendant towards the infant plaintiff to
take that degree of precaution for his safety the neglect of which could be described as amounting to a
reckless disregard thereof. And, in my view, the jury's finding that the defendant had been guilty of a wanton
or reckless disregard of the plaintiff's safety was justified by the evidence and plaintiff's cause of action was,
therefore, established and judgment in their favour was properly entered.
The appeal should, therefore, be dismissed with costs.

Gilard J delivered the following written judgment:

 12

On 21 April 1960 Kevin Patrick Seal (hereinafter referred to as the plaintiff) then aged 11 years 5 months,
was proceeding from approximately the corner of Gordon and Frankston Streets, Mornington, in a general
southerly direction through the railway yards towards the main shopping centre of that city. He was
accompanied by a younger brother and a friend of approximately the same age. As they were going across
the yard, they observed a railway turntable revolving freely around, propelled by the wind. They decided to
have a ride on the turntable, which was of a typical character, being a heavy superstructure supported on
wheels which could be moved around a circular steel track.
It would appear from the evidence given at the trial that the children left the course of the path which
they were following and boarded the turntable. After riding on it for some time the plaintiff decided to jump off
and as he was doing so he slipped and caught his foot between the end of the turntable and a timbered
abutment at the end of the permanent way upon which steam engines would have travelled to get on to the
turntable. The plaintiff's foot was injured and he and his father sued the Victorian Railways Commissioners
for damages, basing their claim primarily on the allegation that the Commissioners were the occupiers of the
premises, and that the plaintiff was either a licensee or trespasser on the Commissioners' turntable and that
the Commissioners through their servants had not observed their duty to the plaintiff either as licensee or
trespasser, as the case may be, thereby causing injury. After a trial before a judge and jury in the county
court lasting some five days, questions were answered by the jury in the manner set out in the judgment of
Hudson, J.
[1966] VR 107 at 120

Before dealing with the problems raised by these answers, something should be said of the braking
mechanism of the turntable. The turntable could be kept in a stationary position continuous with the
permanent way, by a latch or tongue at each end which fitted into a jaw on the timber abutments of the
permanent way at the ends. These latches or tongues could be moved mechanically by a lever (similar to a
typical railway signal lever) which was mounted and fitted on the turntable. In about 1956 or 1957, a locking
device had been fitted on to this lever. If it was working properly and was in the locked position, the lever
could not be shifted to move the latches or the tongues out of the jaws. In order to move the lever, the device
had to be unlocked by the use of a special spanner issued by the Commissioners to their engine-drivers. The
principle of the locking device was quite simple. There was a hexagonal nut on the device which could be
moved by the use, but only by the use, of the special spanner. As the nut was turned by the spanner in one
direction, it would mechanically lift a pawl out of a slot or aperture in the steel bed of the lever, thereby
allowing the lever to move freely. On the other hand, if the nut was then turned in the opposite direction, the
pawl would be mechanically moved into the slot or aperture and the level would become immovable. At the
time of the accident the device was not functioning properly since someone had cut the end of the metal
pawl, so that, even though the device was apparently in the locked position, no part of the metal was fitting
into the slot or aperture to prevent the movement of the lever. Taking advantage of the defect in the locking
device, someone had moved the lever to release the latches or tongues from the jaws, thereby enabling the
turntable to move and revolve freely in the wind. Although the superstructure of the turntable was an
exceedingly heavy piece of equipment, since it was so finely balanced and weight evenly distributed, little
force was required to move it on its axis.
In the county court, although leave had been reserved to the Commissioners to move for judgment
notwithstanding the jury's verdict, the trial judge overruled the Commissioners' submissions and entered
judgment in favour of the plaintiff, on the basis of the jury's answer to question 7. An appeal is now submitted
to this Court on two broad but fundamental grounds. First, it was urged that there was no duty owed by an
occupier to a trespasser in relation to the nature or condition of the premises. The trespasser had to take
the premises as he found them, so it was said. The only qualification on this submission was that the
occupier was duty-bound not to create wilfully a trap with intention to injure the trespasser. The only other
duty owed by an occupier to a trespasser, it was submitted, was not to conduct any activity on the premises
which was deliberately intended to injure a trespasser, or which was carried on wantonly or with a reckless
disregard for the safety of those whom the occupier knew were on the premises or whom he might have
expected to be there at the time of his activity. Alternatively, it was submitted that if there were a duty
imposed on the Commissioners and its servants in relation to the "static" condition of their premises not to be
 13

guilty of a wanton or reckless disregard of the plaintiff's safety, there was insufficient evidence to support the
jury's answer to question 7.
[1966] VR 107 at 121

In response to these submissions, the plaintiff relied not only on the answer to question 7, which was the
only answer of the jury challenged in the grounds of appeal, but also on the answers to questions (1) (c), (3),
(4) and (5). It was submitted on his behalf that at all times material the plaintiff was a licensee of the
Commissioners' premises, including the turntable, or, alternatively, even if he were a trespasser on the
actual turntable, he never lost his status as a licensee on the Commissioners' premises, and, accordingly, the
Commissioners owed him the duty of an occupier to a licensee. If this submission were rejected, it was urged
in the alternative that so far as trespassers were concerned there was no distinction to be drawn in the duty
owed by the occupier, either in relation to the "static" condition of his premises, or to the carrying on of his
operations. In any event, it was submitted the installation and continued existence of a turntable was a
carrying on of its operation by the Commissioners. Although no attack was made by the Commissioners on
the trial judge's direction, it can be seen that these respective contentions of the parties raise directly for
discussion and decision the precise nature of the duty of an occupier to a person of the plaintiff's age in the
circumstances of this case. In particular, great reliance was place by each party on the recent decision of the
High Court in Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274; [1961] ALR 16, and of the
Privy Council in Commissioner for Railways (NSW) v Quinlan, [1964] AC 1054; [1964] ALR 900, and
accordingly, it becomes necessary to consider these decisions carefully and fully.
If the submissions made on behalf of the plaintiff that the Commissioners owed the plaintiff the duty of an
occupier to a licensee can be established, then, on the unchallenged findings of the jury, the plaintiff must
succeed. It is eminently desirable, therefore, that this aspect of the case should be dealt with first.
Mr. Thomson, on behalf of the plaintiff, submitted that since the jury had found that the plaintiff was
entitled to use the railway yards as a means of crossing from one boundary to another, the Commissioners
were guilty of a breach of duty for the safety of the plaintiff by having on their premises a fascinating
allurement which constituted a concealed danger or "trap" for a child such as the plaintiff. He relied upon the
well-known case of Lynch v Nurdin (1841) 1 QB 29; 113 ER 1041, and the subsequent cases which adopted
the reasoning of that case to justify his submission. The plaintiff in Lynch v Nurdin was a child who
mischievously commenced to climb into an unattended horsedrawn vehicle left in a public highway. Another
youngster, at the same time started to lead the horse which took fright, causing the plaintiff to fall from the
vehicle with resulting injury. It was held that the plaintiff should recover, since although it may be said that he
was trespassing on the vehicle at the time of his injury, the driver of the vehicle was negligent in relation to
other users of the highway in leaving the vehicle unattended, whereby the plaintiff, another user of the
highway, was caused injury. He should have foreseen the probability of young boys mischievously doing
what the plaintiff and his colleague had done. But in that case, the court was not called on to consider the
duty which an occupier of land owed to a child trespasser on his land. The duty there being considered was
the duty owed by one user of the highway to another. The correlative right to the performance of this duty
was not lost by the child entitled to the right doing something which was forbidden by law, but which was a
natural consequence of the breach of duty. Although Lord Atkinson does advert to the authority of this case in
Cooke v Midland Great Western Railway of Ireland, [1909] AC 229, at p. 234; [1908-10] All ER Rep 16, in
relation to the duty owed by various persons to children, he was very careful to explain in his address that
he based his decision in favor of the plaintiff in that case on the view that it had been established that the
plaintiff was a licensee, not only in the railway company's field or yard, but also on its turntable.
[1966] VR 107 at 122

Reference was also made by plaintiff's counsel to Glasgow Corporation v Taylor, [1922] 1 AC 44; [1921]
1 All ER 1, and Holdman v Hamlyn, [1943] 1 KB 664; [1943] 2 All ER 137, to justify his submissions. These
cases may be conveniently dealt with together. The fundamental reasoning in each of these cases was that
the person injured was rightfully on the actual land where and when the incident causing injury occurred,
even although such person may have committed a trespass in relation to the thing causing injury. In the latter
case the infant plaintiff had entered the defendant's farm as an invitee and he was taken by the defendant's
son, who at the time was the defendant's agent, to the vicinity of a threshing machine. Whilst in such place
 14

the plaintiff put his foot into the machine and was injured. Du Parcq, LJ, giving judgment in the Court of
Appeal said, at (KB) p. 668: "It was, indeed, argued that the plaintiff was a trespasser. The truth is, however,
that he was an invitee, at any rate down to the moment when the threshing machine proved an irresistible
temptation. If the boy strayed beyond the strict limit imposed by the terms of the invitation, it was because of
the failure of the defendant's agent to guard him against a dangerous allurement, and if he can properly be
called a trespasser at all, this trespass was a material and probable result of the negligence of the
defendant's agent. A defendant who was lured the invitee into a forbidden area cannot thereafter treat him as
a trespasser."
Similar reasoning was applied in the earlier case. A child ate a poisonous berry plucked from a shrub
planted in the very area of the corporation's gardens in which the child was licensed to be. Although the
child was forbidden to pick anything from the plants, and in doing so may have committed a trespass,
nevertheless he never lost his status as a licensee of the corporation in respect of the precise area in which
the harmful plant was growing.
The authority which afforded the main basis for the submission by plaintiff's counsel (and with some
justification) was the decision of the Court of Appeal in Gough v National Coal Board, [1954] 1 QB 191;
[1953] 2 All ER 1283. In that case persons, including children, were in the habit of crossing the unfenced
and unguarded railway line of the defendant in order to cross from one point of a mining village to another.
The plaintiff was on the premises when a slowly moving train passed. He got on to the buffer of a truck and
as he was jumping off, slipped and had his leg amputated. Relying on what Lord Du Parcq said above,
judgment was found in favour of the plaintiff. It was held that the plaintiff was a licensee, at the material time,
of the land on which he was injured. Singleton, LJ, summarized the law in this way: "If an occupier allows
children of tender years on his land, and if he has thereon something which is, to his knowledge, attractive
to them and which is dangerous, he must take reasonable care to protect them from danger." The important
part of this summary is the first part thereof in its reference to allowing children on his land, that is to say, the
infant was licensed by the occupier to be in the place where he was injured.
[1966] VR 107 at 123

Unless Gough's case, supra, is explained in this way, it is difficult to reconcile it with the decision of the
Court of Appeal in Hardy v Central London Railway Co, [1920] 3 KB 459; [1920] All ER Rep 205, approved
by the House of Lords in Robert Addie and Sons (Collieries) Ltd v Dumbreck, [1929] AC 358, at pp. 367, 374;
[1929] All ER Rep 1. In Hardy's Case, the plaintiff was a young boy who injured himself on an escalator going
from one level to another at an English railway station. It was held he could not recover because he was a
trespasser. Scrutton, LJ, summarized the rationale of the decision, at (KB) p. 473, in these terms: "If the
children were trespassers, the landowner was not entitled intentionally to injure them, or to place
dangerous traps for them intending to injure them, but was under no liability if, in trespassing, they injured
themselves on objects legitimately on his land in the course of his business. Against those he was under no
obligation to guard trespassers."
In Gough's Case, Birkett, LJ, distinguished Hardy's Case in this way, at (QB) pp. 203-4: "The Court of
Appeal reversed the decision of the learned trial judge, who had based his decision on the ground that the
boy in question was a licensee, by holding that the boy who was injured in the moving staircase at Liverpool
Street Station, which staircase could be reached from the bookinghall which was open to the street, was a
trespasser. Both Bankes, LJ, and Warrington, LJ, came to the conclusion on the facts proved in the case
that the boy was not only a trespasser on the moving staircase, but that he was a trespasser in the
bookinghall itself."
It seems to me that the effect of these cases is that in order to succeed, when he has done something
forbidden, an injured child must prove as a fact the requisite relationship in respect of the land upon which
he was at the time of the injury to him in order to raise a duty which remained quite unaffected by his doing
the forbidden act. If the person injured was a child and the forbidden act was something which would
naturally attract a child, then the courts were ready to accept the view that the observation of the duty was
still required of the occupier, albeit the child did the forbidden thing which, in the circumstances, was a
natural thing for the child to do.
 15

If the child establishes by evidence a breach of duty arising from the relationship proved he will succeed.
Thus, if it be established that the relationship was that of occupier and licensee on the land, then any breach
of duty by the occupier would found a claim by the licensee injured by such breach, even though the licensee
may himself be guilty of a trespass to goods or equipment on that land, such trespass being a foreseeable
consequence of the breach of duty. Similarly, if it be established that the relationship was that of occupier and
invitee on the land, then any breach of duty by the occupier causing injury to the invitee would justify a claim
by the invitee, despite any trespass which he might have committed in relation to some equipment also
present on the land and which the defendant should reasonably have foreseen would happen as a result of
his breach.
The High Court summed up the situation in Thompson v Bankstown Municipal Council, [1953] ALR 165;
87 CLR 619, at p. 628, in these words: "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."
[1966] VR 107 at 124

As the Privy Council said in approving Thompson's Case: "It was one of those in which the court, for
sufficient reason, is able to hold that, as regards the accident and the injury caused, the relation of occupier
and trespasser does not bear upon the situation of the parties" (Commissioner for Railways (NSW) v
Quinlan, [1964] AC 1054, at p. 1080; [1960] ALR 900).
This explanation of the cases I have ventured to make seems to have been borne out by the judgments
of the majority of the High Court in Cardy's Case, supra. This case will require close study when one comes
to the Commissioners' contentions but it should be pointed out that at the trial in those proceedings the
action was brought by the plaintiff in the court of first instance on the basis that he was a licensee. On this
issue he succeeded in the lower court but when the appeal was taken to the High Court it was held by three
of the five judges that on the evidence he was a trespasser in the area where he was injured. It was
established that members of the public, as a matter of convenience, had with the defendant's tacit
permission for many years used a nearby path over railway property. Near to this path was a tip on which,
among other things, there had been deposited smouldering ash from railway engines and these ashes
covered over with an apparently solid surface. The plaintiff, who was aged about 14 years, left the path and
passed over the tip. As he did so he broke through the apparently safe surface, thereby burning his bare feet
in the burning ash underneath. Despite evidence that many persons, including children, frequented the tip to
fossick for various articles and, despite a suggestion that the tip constituted an allurement inviting children to
go to it, the majority of judges in the High Court held that any licence of the defendant Commissioners
extended only to the pathway and not to the tip, and these members of the Court proceeded to decide the
action on the basis that the plaintiff had not proved that he was a licensee on the tip.
Conceding the temptation of falling into the fallacy of attempting to determine one case in one set of facts
by an appeal to a decision on a different set of facts, it would appear that the decision in Cardy's Case does
draw attention to the crucial inquiry that should be made on the circumstances of this case. What was the
precise nature and limits (if any) of any licence relied upon by the plaintiff in this case? These primarily have
been determined by the jury and remain unchallenged. Turning to the answers to question 1, the jury has
found that the plaintiff, like other members of the public, was impliedly granted permission by the
Commissioners to cross the Mornington railyard for the purpose of going to the shopping area to the south of
the station, entering at the north boundary, crossing the rails to the station, mounting the platform and leaving
by the street to the south. While the answer to question 1(a) does not unequivocally negative a licence or
permission by the Commissioners to the plaintiff to be in the area of the turntable, it certainly negatives any
finding which would justify the plaintiff succeeding on the authority of Cooke's Case, supra. Secondly, when it
is read with the answers to 1(b) and (c), it may readily be inferred that the jury decided that the plaintiff had a
limited licence for a prescribed purpose only. To effectuate this purpose it was unnecessary to go on the
turntable or even the circular embankment surrounding it. If I understand the evidence correctly, the privilege
acquiesced in was to cross the way, mount and cross the platform to enter the street on the south side of the
station. There were reasonably defined paths worn in the grass by the members of the public. It was not
suggested that any of these paths lead on to the turntable. It would be quite illogical to infer from either the
answers given by the jury or the evidence given at the trial, that the Commissioners had licensed the plaintiff
 16

to use every part of the railway yard. Despite the possible implication that could be drawn from the answer to
question 1(c) to give a broad area of licence, the purposive nature of the permission defined in the question
narrows the interpretation to be placed on the answer. "It is plain that to say they came in fact with the
licence of the Commissioner or any of his servants with authority in the matter is quite unreal. It is rather to
impute than to imply a licence" (per Dixon, CJ, in Cardy's Case (104 CLR), at p. 280). Mere indolence or
disinterestedness on the part of the Commissioners' servants to keep the public to the paths cannot and
does not confer any permission by implication for members of the public to wander at will on any part of the
Commissioners' railway yard. The Commissioners may suffer from their servants' ineptitude but do not
thereby impliedly permit the plaintiff to go on the turntable. Having regard to the nature of the evidence it
seems to me that the jury by its answers has determined that in effect the plaintiff had a limited licence only,
similar to other members of the public, and that he had no implied permission to be in the area of the
turntable, and was, accordingly, a trespasser in that area. The proper interpretation of the jury's answers is
that at the material time and place for the purposes of these proceedings the plaintiff was a trespasser of the
Commissioners' property in the area of the turntable. The factual situation thus reached by the jury is similar
to that reached by the majority of the High Court in Cardy's Case, supra, and, in my opinion, disposes of the
plaintiff's first submission that he was a licensee on the turntable or in the area of the turntable.
[1966] VR 107 at 125

The duty owed by the Commissioners to the plaintiff was, therefore, the duty owed to a trespasser by an
occupier. But here the trespasser was a comparatively young child who would naturally be attracted to a
turntable freely revolving in the wind. Any normal child moving along the path near the turntable, finding it
unattended and moving freely, would be greatly tempted to leave the path and have a ride on a revolving
roundabout. On the unchallenged finding of the jury, it constituted a concealed danger or trap for the plaintiff.
The question immediately arises for determination as to the true nature and content of the duty owed in such
circumstances by the Commissioners to the plaintiff. Whatever difficulties might have been encountered by
the plaintiff in consequence of the decision of the House of Lords in Robert Addie and Sons (Collieries) Ltd v
Dumbreck, [1929] AC 358; [1929] All ER Rep 1, they have been considerably eased by the development in
the High Court of a body of law for this Court's guidance. In Cardy's Case all the earlier decisions on this
aspect of the law were carefully examined and authoritatively explained for the assistance of this Court. In
turn, Cardy's Case, with the other earlier cases, has been reviewed by the Privy Council in Quinlan's Case,
supra. In that case the Privy Council approved of the actual decision in Cardy's Case but has possibly put a
brake on the development in the High Court of this rubric of the law (see 38 ALJ, pp. 332-3). Many authorities
earlier than Cardy's Case and Quinlan's Case were cited by counsel. Since those earlier cases were
reviewed by the High Court and the Privy Council, a close examination of the law expounded in these latest
decisions, binding as they are on this Court, should determine the matters raised for the consideration of this
Court in the submissions made on behalf of the Commissioners.
[1966] VR 107 at 126

I have already set out the facts of Cardy's Case. The case in the court below was fought on the basis
that the plaintiff was a licensee and the jury so found. Dixon, CJ, Fullagar and Menzies, JJ, in the High Court
held that on the evidence a jury should not have found that he was a licensee. McTiernan and Windeyer, JJ,
on the other hand, held that there was sufficient evidence for a jury so to find. Dixon, CJ, and Fullagar, J,
further held that despite the plaintiff being a trespasser, the defendant nevertheless owed him a duty which
had, in the circumstances established by the evidence, been broken by the servants of the Commissioner.
Fullagar, J, was of opinion that having regard to the history of the site and the presence of persons on the tip
to the knowledge of the servants of the Commissioner, the plaintiff was a "neighbour" within the doctrine of
Donoghue v Stevenson, [1932] AC 562; [1932] All ER Rep 1, and, accordingly, the Commissioner through his
servants owed a duty of care to the plaintiff for his safety. On this ground he upheld the plaintiff's verdict
since the jury had found that the servants had not exercised reasonable care for the plaintiff's safety.
Sufficient is it to say, this view of the law did not meet with the approval of the Privy Council in Quinlan's
Case. It therefore must be put out of the way in considering these proceedings. Menzies, J, did not discuss
the duty owed to a trespasser since he formed the opinion that the case below had been fought only on the
basis of an allegation of occupier and licensee, but had never been litigated on the basis on which Dixon, CJ,
and Fullagar, J, were prepared to deal with it.
 17

Accordingly, when the Privy Council in Quinlan's Case is discussing the decision in Cardy's Case, in so
far as there is any examination of the views of the High Court with respect to the duty, if any, owed by an
occupier to a trespasser, it must be taken that the Privy Council, having discarded the views of Fullagar, J,
was primarily directing its attention to the opinion expressed by Dixon, CJ.
Having discussed earlier authority in the House of Lords and Court of Appeal, Dixon, CJ, expressed the
view in Cardy's Case that in the law as developed in Australia there was no justification for adopting the
English development of imputing a licence (as he called it) from the mere inaction of an occupier (e.g. a
public authority), i.e. of suffering intrusions rather than permitting them. The intruder could not obtain an
implied permission from a failure by the occupier to take active steps to prevent the intrusion. If a licence
were to be inferred from such inactivity, then it was unreal and fictional. Having stated his views on this, his
Honour proceeded, at (104 CLR) pp. 285-6: "Such a recognition of principle by no means involves the
imposition upon occupiers of premises of a liability for want of care for the safety of trespassers. What it
does is to confine the duty of licensors to its true province, the case of a voluntary or gratuitous grant of an
advantage to another consisting in the use of or entry upon premises and to recognize that it is the grant that
forms the source of the limited duty. The rule remains that a man trespasses at his own risk and the occupier
is under no duty to him except to refrain from intentional or wanton harm to him. But it recognizes that
nevertheless a duty exists where, to the knowledge of the occupier, premises are frequented by strangers or
are openly used by other people and the occupier actively creates a specific peril seriously menacing their
safety or continues it in existence. The duty may be limited to perils of which the persons so using the
premises are unaware and which they are unlikely to expect and guard against. The duty is measured by the
nature of the danger of peril but it may, according to the circumstances, be sufficiently discharged by
warning of the danger, by taking steps to exclude the intruder or by removal or reduction of the danger."
[1966] VR 107 at 127

The following comments on the foregoing citation may be made in relation to this case: -
(a) The Commissioners have never voluntarily or gratuitously granted any permission to the plaintiff to
play on the turntable. Accordingly, there was no source to found any liability by the Commissioners to the
plaintiff on the basis of the occupier-licensee relationship.
(b) The duty of the Commissioners to a trespasser was to refrain from intentional or wanton harm. It was
never suggested in this action that there was any intentional harm and the sole question debated on the
appeal was whether there was in the circumstances of the case any evidence of wanton harm.
(c) But the duty of the Commissioners may be apparently extended where, knowing that intruders
frequent an area, they actually create therein a specific peril or continue it in existence, thereby exposing the
intruders to perils of which they would be unaware and unlikely to guard against.
It was submitted on behalf of the Commissioners that this passage of Dixon, CJ, recognized the
formulation of the duty by Lord Hailsham, LC, in Addie's Case, [1929] AC 358; [1929] All ER Rep 1, that in
order to make an occupier responsible for injury to a trespasser, "... the injury is due to some wilful act
involving something more than the absence of reasonable care. There must be some act done with the
deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the
presence of the trespasser" (at p. 365).
It was argued that in order for the plaintiff to succeed he must prove that the Commissioners by their
servants had been guilty of some positive act of misfeasance which caused injury to the plaintiff. Any peril
arising from the "static" conditions of the land was insufficient. On the facts of this case, it was said the
Commissioners by their servants were, at the most, guilty of a failure to exercise reasonable care in that they
failed to discover that the pawl on the locking device had been cut thereby rendering the device useless and
allowing persons to move the lever freely so as to permit the turntable to revolve. Such non-feasance, it was
submitted, could not and did not constitute a reckless disregard of the presence of trespassers. The
difficulty facing this submission lies in the second leg of the formulation of the duty by Dixon, CJ, namely, did
the Commissioners continue in existence a specific peril after knowledge by their servants of such peril and
of the probability that young children, like the plaintiff, would frequent the turntable if it were freely revolving
in the wind?
 18

(d) Even accepting that a turntable was a part of the "static" condition of the land (cf. Coffey v McEvoy,
[1912] 2 IR 290), there is nothing in this dictum of Dixon, CJ, to suggest that there was, in law, any distinction
to be drawn between the "static" condition of premises and active operations of the occupier in measuring his
duty to trespassers. Indeed, on the facts in Cardy's Case, in one aspect, the dumping of ashes together with
or other rubbish to fill up low-lying ground with the resultant condition as encountered by the plaintiff therein
may be thought to be a "static" condition when compared with the activity of felling a tree as in Mourton v
Poulter, [1930] 2 KB 183; [1930] All ER Rep 6; which caused injury to a trespasser. On the other hand, to
use the words of Dixon, CJ, the Commissioner by his servants by creating or continuing the heap of ashes
had either created a specific peril, or alternatively, had continued it thereby menacing the safety of
trespassers who, to the knowledge of the Commissioner's servants, would very probably go on to the trip.
So it seems to me, adopting the same line of reasoning, if the Commissioners' servants here knew that the
turntable was free to revolve (as the jury have found) and that it was very probable that children would be
attracted to and mount the moving turntable, then it is immaterial whether one regards the revolving turntable
as a part of the "static" condition of the land or as a unit in the active railway operations of the
Commissioners. The vital question for consideration which seems to emerge from the view of Dixon, CJ,
was, did the Commissioners create the peril or did they continue the peril with knowledge by their servants of
the great likelihood of trespassers being upon or near the peril thus created? Although it may be conceded
that an unauthorized person cut the metal pawl, the Commissioners for some time continued apparently to
allow a dangerous piece of equipment to move freely without a proper locking device. This was the relevant
peril to the plaintiff.
[1966] VR 107 at 128

(e) There seems little logic in differentiating between the occupier's liability to a trespasser arising from
his activities and operations as opposed to the condition of his land. Coming back to the test enunciated by
Dixon, CJ, the question for the Court's determination is whether or not the Commissioners by their servants
refrained from inflicting any wanton harm on the plaintiff. In cases of adults it might be rare that an occupier
would show a reckless disregard for the safety of trespassers who he knows are present by simply
continuing some peril in the static condition of his property. Its hazardous nature and condition might well be
obvious to an adult, and according to Dixon, CJ, the occupier's duty might be discharged by a notice of
warning which could be read by any person, responsible and careful for his own safety. But different
considerations must apply to children, particularly young children who cannot read and who cannot be
expected to overcome their natural curiosity and investigating propensities. The law since Lynch v Nurdin
(1841) 1 QB 29, has always recognized the limited volition of children to restrain their natural characteristics
of mischievousness and adventurous curiosity. Whatever criticism may be implicit in the Privy Council's
reasoning in Quinlan's Case of the passage of Dixon, CJ, set out above, in relation to adults, I am of opinion
for reasons set out hereunder that such criticism did not extend to the cases where children, and particularly
young children, are the trespassers and whilst trespassing suffer injury on a contrivance attractive to
children.
(f) After the passage set out above Dixon, CJ, reviewed shortly the American decision of United Zinc and
Chemical Co v Britt (1922) 258 US 268, and then concluded (104 CLR, at p. 286): "In principle a duty of care
should rest on a man to safeguard others from a grave danger of serious harm if knowingly he has created
the danger or is responsible for its continued existence [the italics are mine] and is aware of likelihood of
others coming into proximity of the danger and has the means of preventing it or of averting the danger or of
bringing it to their knowledge." Whilst the duty of care referred to in this passage must be limited to the duty
enunciated by his Honour in the earlier passage, it seems to me that when read with the early passage, it
could simplify the plaintiff's task to prove liability considerably in this action. From the unchallenged jury's
answers the Commissioners' servants knowingly continued the existence of the peril of a revolving turntable.
They had the means of preventing danger to children who, on the evidence, they must have known would
be likely to be attracted to it. With the knowledge of the danger apparently for some time and with an
awareness that members of the public, including children, would cross the railway yard near to the danger,
at some period, the mere failure of the servants to do anything to prevent or avert the danger to children
could be transmuted from a mere negligent act of omission into a reckless disregard for the safety of such
children. To use the words of Lord Dunedin in Addie's Case, [1929] AC 358, at p. 365, the servants' inactivity
at that time may well be "tantamount to malicious acting". It had reached the stage as if they had at that
 19

period deliberately set up the hazard to attract the children. From the evidence it appeared that even though
the locking device was defective the turntable could easily have been secured by bolting fish plates along the
rails on the permanent way and continuing them along the rails of the turntable. Since the turntable was
rarely used, no great hardship would have been incurred in the operations of the railways by affixing of fish
plates. If I understand the evidence correctly, the turntable after the accident to the plaintiff had continued to
be affixed by fish plates, although there was always the possibility that some unauthorized person would
unscrew the bolts to release the turntable.
[1966] VR 107 at 129

(g) Before leaving the judgment of Dixon, CJ, there are several other matters of importance which were
dealt with by his Honour, and to which attention should be drawn. First, he rejected the view that the source
of the Commissioner's liability to the plaintiff depended on establishing the relationship of occupier-licensee.
He says it depended on a combination of factors: "There are the dangers which attend the use of the
premises, the circumstance that the premises are so used or frequented and that in spite of the knowledge
which the occupier has or perhaps ought to have of that fact and of the description of persons who use or
frequent the premises he exposes them to the danger and takes no precaution to safeguard them ... the real
source is an implication that is made" (104 CLR, at pp. 281-2). Having regard to his enunciation of the duty of
an occupier to a trespasser as set out above, one should read this passage as directing attention to the kind
of considerations to be borne in mind in each case to determine the content of the duty which is shortly
expressed as "refraining from intentional or wanton harm" to the trespasser. Secondly, Dixon, CJ, dismissed
Addie's Case in these words: "The case was not one in which licence might fairly be imputed or callous
disregard of a serious danger to others inferred" (at p. 284). It is sufficient to point out that in the present
appeal, when consideration is being given to whether there was evidence to justify the jury's answer to
question 7, the important question must arise as to whether there was any evidence of "a callous disregard
of a serious danger" to the plaintiff. Thirdly, Dixon, CJ, pointed out the development of the law in the House of
Lords whereby the liability of an occupier to a trespasser has been "modified by the assimilation of 'reckless
disregard of the presence of the trespasser' to wilfulness". This modification in the stringency of the original
common law rule has eased the plaintiff's position in the present proceedings, and in view of the jury's
answer to question 7, unless there is no evidence to support it, it makes, in my view, the Commissioners'
task on this appeal formidable.
[1966] VR 107 at 130

(h) In my opinion, there is nothing in the judgment of Dixon, CJ, in Cardy's Case which supports or even
encourages the submission of Mr. Lush, on behalf of the Commissioners, that the duty to a trespasser
arises only from the active operations of the occupier.
On the contrary, it would appear that the former Chief Justice has clearly defined the nature of the duty
owed by an occupier to a trespasser of whose presence he is aware or whose presence is very likely, and in
that definition, he draws no distinction between active operations and the "static" condition of premises. It
therefore now becomes necessary to consider whether there is anything in Quinlan's Case which varies in
any way the views expressed by the Chief Justice.
In referring to Cardy's Case the Privy Council stated that it did not "demur at all to the decision that was
come to in this case. ... The circumstances seemed to place it squarely among those 'children's cases' in
which an occupier who has placed a dangerous 'allurement' on his land is liable for injury caused by it to a
straying child. In any accepted use of the word the ash-tip with its burning interior was a 'trap' or 'an unusual
and hidden danger'. A considerable portion of the court's full and learned judgments is devoted to the
question whether it was necessary or possible to describe the boy, playing on the surface of the tip, as a
licensee, and their Lordships are at one with Dixon, CJ, in his exposition of the unreality of this description as
applied to children in several previous authorities. Nor, as he says, is it necessary to resort to this
categorisation to give them the legal remedy that is felt to be their due. Children's cases in this context do
unavoidably introduce considerations that do not apply where the sufferer of injury is an adult. What is an
allurement to a child and, being so, imposes by itself a measure of responsibility, is not an allurement to an
adult: and those conceptions of licence or permission which may be highly relevant for the determination of
 20

the adult's rights, are virtually without meaning, at any rate as applied to small children" [1964] AC, at p.
1083).
This passage from their Lordships' advice does raise a number of difficulties and several comments
should be made upon the passage.
(a) Despite their Lordships' adoption of Lord Hailsham's formulation, supra, of an occupier's duty to a
trespasser given in Addie's Case where the injured person was a young child and where it was stated by
Lord Dunedin no difference was to be detected in the duty owed by an occupier to an adult or child
trespasser, the Privy Council placed Cardy's Case in the "children's cases". The Privy Council apparently
took the same view of Addie's Case as was expressed by Dixon, CJ, referred to ubi supra.
(b) Adopting the reasoning of Dixon, CJ, as to the unreality of an "imputed licence", the Privy Council
must have accepted that the plaintiff in Cardy's Case was a trespasser.
(c) No judge who treated the plaintiff as a trespasser in Cardy's Case expressly adverted to the fact that
the offending tip was an "allurement". The only relevance of an "allurement" to the reasoning in the judgment
of Dixon, CJ, seems to be in the awareness of "the likelihood of others coming into proximity of the danger".
Not unnaturally, if the danger were a source of fascination to children, particularly to young children, then
any occupier who directed his attention to the matter would be aware of the extreme likelihood or great
probability of children frequenting the area of the danger.
[1966] VR 107 at 131

(d) The statement that it is unnecessary for the child to resort to establish the relationship of occupier
and licensee in order to obtain a legal remedy against the occupier suggests that there is some special
exception to the Addie formulation when the injured trespasser is a child despite the fact that in Addie's
Case the injured trespasser was a child. Subsequent statements in the advice of the Privy Council,
however, seem to remove this difficulty. After quoting the passage from the judgment of Dixon, CJ in Cardy's
Case set out at pp. 126-7, ante, the advice proceeded as follows: "Their Lordships take it tha in such a
situation it is to be presumed that the occupier's conduct is so callous as to be capable of constituting wanton
or intentional harm and, no doubt, in such circumstances it could be so regarded" ([1964] AC, at p. 1083).
Lower down the same page the Privy Council stated further: "If on the evidence a plaintiff is a trespasser, a
person present without right or licence, the occupier's duty to him is determined by the general formula as
laid down in Addie's Case. That formula may embrace an extensive, and it may be expanding interpretation
of what is wanton or reckless conduct towards a trespasser in any given situation, and in the case of
children it will not preclude full weight being given to any reckless lack of care involved in allowing things
naturally dangerous to them to be accessible in their vicinity" (the italics are mine). This passage may be
compared with the passage from the judgment of Dixon, CJ, set out at pp. 126-7, ante. I there ventured the
opinion that Dixon, CJ, was directing attention to the relevant consideration to determine the content of the
duty in any particular case. The Privy Council in the passage just quoted together with the earlier passage
cited supports the view that so far as children are concerned, the presence of a fascinating object near
where children frequent requires a closer attention by the occupier of the premises. His continued failure to
exercise care to safeguard young children whom he should be aware will be on or near the dangerous
object, having been probably attracted to it, may well be described as conduct so callous as to be a reckless
disregard for the children's safety. His conduct of continued apathy or omission may be characterized after a
period of time, not as mere negligence, but as a reckless disregard for the child-trespasser's safety.
(e) In these passages there seems to be no reason for distinguishing between active operations of an
occupier and to the static condition of his premises. Again, the emphasis in defining the occupier's duty is on
the presence of the danger, the awareness of the trespasser in the area of danger and the reckless lack of
care for the children's safety. In this context omission or non-feasance as well as commission or
misfeasance can fulfil the description of "a reckless lack of care involved in allowing things naturally
dangerous to them to be accessible in their vicinity". If any doubt might reasonably be open on this aspect, it
is, in my opinion, disposed of by earlier passages in the advice of the Privy Council. When dealing with the
supposed dichotomy introduced to limit the application of the Addie formulation by distinguishing between the
"static" condition of the occupier's premises and his actual operations their Lordships rejected the refinement
as unmaintainable, either in principle or authority. They then proceeded: "The opportunity of inflicting wilful or
 21

reckless damage on a trespasser will hardly arise in respect of this 'static' condition, unless in the special
and perhaps rather old-fashioned device of setting man traps and spring jaws explicitly designed to cause
him injury. It will arise more typically and more frequently when an occupier insists on conducting potentially
dangerous activities on his land with indifference to the known presence of a trespasser who is likely to be
injured by them" (at p. 1075). This passage, in my view, rejected the notion that any distinction in law was to
be drawn between the occupier's active operation and the "static" condition of the land.
[1966] VR 107 at 132

Factually it may be hard to establish liability arising from the "static" condition of the occupation. But if the
inference from the facts can be drawn that there was knowledge of a continuing danger and an awareness
by the occupier of the presence of trespassers in the area of the danger, then continual failure for long
periods to exercise reasonable care for the safety of persons frequenting the area may, in my view, be
interpreted as "so callous as to be capable of constituting wanton or intentional harm".
(f) Before leaving the Privy Council judgment there is one other matter raised therein of some importance
to this case. What awareness must the occupier have of the trespasser's presence? The Privy Council
answered the question in this way: "The situation would be less liable to be misunderstood, if it were
explained that the only trespasser to whom the occupier is accountable for his actions even if dangerous, is
one of whose presence he actually knows or one whose presence at the time of injury can fairly be described
as extremely likely or very probable" (at p. 1086).
For the purposes of determining this appeal, the following conclusions may, in my opinion, be drawn from
an examination of the authorities.
(1) An intruder on premises should not be characterized as a licensee merely because the occupier
(particularly where a statutory authority is the occupier) is inactive in preventing the intrusion. If, however, to
the knowledge of the occupier the public for a certain purpose continuously for a long period uses land of the
occupier, and if with such knowledge the occupier takes no steps to prevent the intrusion, then such a
continuous user, without objection, could lead to an implication of a grant of licence by the occupier in
respect of the land so used for such purpose and to the extent it is necessary to effectuate such purpose.
(2) The occupier's liability to a trespasser will depend on proof that the injury suffered by the trespasser
on the premises was caused by the occupier's wilful act or his reckless disregard of the trespasser's safety.
(3) In order that the occupier should incur liability it must be proved that the trespasser's presence must
be actually known by the occupier or was to the occupier's knowledge "extremely likely or very probable".
(4) The doctrine of "allurement" strictly only applies to cases where the relationship of licensee-occupier
has been established: Latham v Richard Johnson and Nephew Ltd, [1913] 1 KB 398, at p. 416; [1911-13] All
ER Rep 117. Nevertheless, it seems to me that it is implicit in the Privy Council decision in Quinlan's Case
that if the occupier knows that the danger upon his property is one likely to attract children who may lawfully
come to the area near to it, and the injured trespasser upon such danger turns out to be a child, the
"allurement" could possibly affect the occupier's liability in two ways -
(a) It will be an easy inference for the tribunal of fact to draw that the presence of the child-trespasser
was "extremely likely or very probable"; and
(b) It could convert conduct of omission which in the case of an adult would constitute mere negligence,
into a reckless lack of care for the safety of a child trespasser. If the occupier allowed an unprotected but
fascinating danger to continue for an unreasonably long time after awareness of the extreme likelihood of
children playing on or being in the vicinity of the peril, such non-feasance may justify a tribunal of fact to find
the occupier was so callous as to be guilty of wanton or intentional harm.
[1966] VR 107 at 133

(5) There is no justification for confining the duty of an occupier to a trespasser to the active operations
carried on by the occupier. Practically, it may be difficult for a plaintiff to prove as a fact the elements of the
occupier's liability when the trespasser's injury arose from the "static" condition of the premises.
 22

Nevertheless, liability to a trespasser could, in law, be imposed on an occupier because of the state or
condition of his premises, if the necessary proofs were forthcoming.
These propositions, in my view, are sufficient to dispose of the primary submissions of the
Commissioners.
Attention should now be directed to discovering whether there was any evidence to support the answer
to question 7. In this regard, there is an unchallenged finding that on the material date the Commissioners
knew that the turntable was free to turn. Recklessness implied some measure of awareness for some time of
the condition of the turntable, some knowledge of the dangerous nature of the turntable, and some
knowledge of the presence of children playing upon it. There was plenty of evidence as to the latter fact in
answers to interrogatories and otherwise from various witnesses called. Equally there were admissions of the
dangerous character of the turntable, particularly for children, made b Mrs. Fraser, the caretaker. The vital
question of fact requiring consideration then seems to be, what length of time was it open to the jury to find
that the servants of the Commissioners knew the turntable was free to turn?
The local policeman had seen the turntable turning freely in 1958, 1959 and early 1960, and at times he
had secured it after he had received complaints from Mrs. Fraser of children having been on the turntable.
The importance of this evidence when related to the evidence given by the railway employees is that the jury
were entitled to find that if the police constable knew of the state of the turntable, then so did the employees
who regularly inspected, maintained it weekly or monthly. Either they did not care to check the locking device
over a very long period, or, alternatively, must have known it was defective and was of no value to keep the
turntable stationary and fixed. Furthermore, evidence was given by several other witnesses that prior to the
accident to the plaintiff, they had seen the turntable revolving in the wind. All this could have suggested to the
jury that the local railway employees were not really concerned about the condition of the turntable and were
callous of the danger it would be to children frequenting the area.
When added to that there was the further evidence that children frequently played on the turntable, I am
of opinion that it was open to the jury to say the employees were not merely careless for the children's
safety but also recklessly so. The revolving turntable would and did attract the children; it was dangerous to
play on and it seems to me that despite the difficulty of proving as a fact a breach of the occupier's duty from
the "static" condition of the premises, this is one case where it was open to the jury to accept the view that
the conduct of the employees was not only indolent but callous for the children's safety. It is essentially a
jury question when and under what circumstances this inference should be drawn. Having regard to the facts
found by the jury that the turntable constituted to the plaintiff a concealed danger which the Commissioners'
servants knew for some time was in a moveable condition and, therefore, dangerous to children who they
knew were frequently playing on the turntable they accordingly should have appreciated its dangerous but
alluring character to children, then a jury might well come to the conclusion that the Commissioners through
their servants were guilty of a reckless disregard for the children's safety. It would be open to so hold, even
though it was accepted that the locking device was destroyed by some unauthorized person and the
turntable constituted a part of the "static condition" of the land.
[1966] VR 107 at 134

Following the example of the summation made by Dixon, CJ, in Cardy's Case, the jury might well have
said, the responsible employees of the Commissioners must have been aware of the great likelihood, not to
say certainty, of curious, if not mischievous little boys attracted to and playing upon a freely moving
roundabout. It is unchallenged that in such condition the turntable constituted a concealed danger to the
plaintiff, which because of his immaturity he would not appreciate. No steps to warn those who came, or to
exclude them, or to reduce or avert the danger, were adopted. It was open to the jury to find that "no care of
any kind was shown for the safety from the danger of those who frequented the place or were extremely
likely to come there". In my view, therefore, there was sufficient evidence to be submitted to the jury on
question 7.
Although the jury also found that the plaintiff was guilty of contributory negligence, it does not follow that
the employees of the Commissioners were in any way excused by that finding from exercising care towards
the plaintiff to the degree required to be exercised by an occupier to a trespasser. In my opinion, the appeal
should be dismissed with the usual consequences.
 23

Order

Appeal dismissed.

Solicitor for the appellant: Thomas F Mornane, Crown Solicitor.

Solicitors for the respondents: Moorhead and Moorhead.

ANNE CURTIS