Balmain New Ferry Co Ltd v Robertson

[1906] HCA 83

4 C.L.R.] OF AUSTRALIA.

379

For these reasons their Lordships humbly advised His Majesty that the appeal should be dismissed, and ordered the appellant

Privy0 U CIL#

ĝQg

to pay the costs of the appeal. ■—.—'

P erry

V.

Clissold.

[H IG H COURT OF AU.STRALIA.]

THE BALMAIN NEW FERRY COMPANY j

A p p e l l a n t s ;

LIMITED . .

. f

D e f e n d a n t s ,

ROBERd'SON .

R e s p o n d e n t .

P l a i n t i f f ,

ON A P P E A L FROM T H E S U P R E M E COURT

OF

N E W SO UTH

W A LES.

Action Jor assault and false, imprisonment — Passenger prevented fr o m leaving fe r r y

H. (L of A.

company's w harf without paym ent— jVoticf o f conditions o f contract o f carriage

1906.

--L eave and licence—Pleading—Amendment.

'— —̂ '

S ydney ,

.A ferry company placed over tlie entrance to their private wharf a notice Oct. 9, 10, 11.

stating th a t a fare of one penny must be paid by all persons entering or

Dec. 18.

leaving the wharf, wliether they had travelled by the company’s boats or

Giirfith C.J.,

Barton and O’Connor, JJ.

not. Tlie plaintiff, who was aware of these conditions, paid the fare of one penny and was admitted to the wharf th rough a turnstile. Having missed his boat, he a ttem pted to leave the wharf by another turnsti le which was the only means of e.xit e.xcept by water. As he refused to pay a second penny tlie company’s servants endeavoured to detain him, b u t he eventually suc­ ceeded in forcing his way through a small opening beside the turnsti le . He brought an action against the company for assault and false imprisonment, and the defendants pleaded not guilty.

Held, th a t as the plaintiff could have left the wharf by water, there was, under the circumstances, no im prisonm ent; and

T h a t the plaintiff, having entered the wharf with knowledge of the con­ ditions imposed by the defendants, must be taken to have impliedly agreed

380

[1906.

tUGH

COUKT

H. C. OF A. th a t lie woiikl no t ask for egress from the wharf by land w ithou t payment of

1906.another penny, and to have consented to the defendants preventing him from leaving in th a t way w ithout .such fur ther payment, and, therefore, th a t the

T h e B almaix

defendants’ .servants were justified in using such force as was reasonably

IS'ew

Kerk y

Co. I.TU.

necessary for th a t purpose.

.

c .

R obertso n .H tkU 'also, th a t even if this defence, being in the na tu re of leave and licence, M'as not technically open to the defendants under the ir plea, any necessary amendm ent to raise it should be made, the case having been throughout conducted irre.spective of any point of pleading.

Although in the notice of appeal a new tr ia l only was asked by the de­ fendants, the Court in allowing the appeal, being of opinion th a t on tlie adm itted facts no ju ry , if properly directed, could reasonably find a verdict for the plaintiff, ordered a verdict to be entered for the defendants.

Decision of the Supreme C o u r t : BoherUon v. B ahnain AViw F erry Com-

p a vy L td ., (1906) 6 S.R. (N .S .W .),

195, reversed.

A p p e a l from a decision of the Supreme Court of New South

Wales.

Thi.s was an action by the respondent for assault and false imprisonment, alleged to have been committed by the appellants’ servants in forciblj" preventing the respondent from leaving a wharf, tlie property of the appellants, under the following circum.stances;—

The appellants carried on the business of a harbor steam ferry from the City of Sydney to Balmain, in connection M'ith which they used a wharf and premises leased by them from tlie Harbor Trust Commissioners. Fares were not taken on the steamers or on the Balmain side, but were all collected on the Sydney wharf on the following sj'̂ stem :—On the street side of the wharf were two regi.stering turnstiles, one for entry, the other for exit. The turnstiles did not quite hll up the opening in which they moved, there being a space of some eight and a half inches between the outer edge of the turnstiles and the bulkhead. For the purposes of this case it may be taken that there was no other way of entering or leaving the wharf on the land side except by the turnstiles. An officer of the company was stationed at each turnstile. Passengers entering the^diarf paid one penny to the officer at the entry turnstile, were admitted, and had then the right to travel by the company’s steamers to Balmain. Similarly passengers leaving the wharf, whether they had travelled from

4 C.L.H.] OF AUSTRALIA.

381

Balmain in the company’s steamer.s or not, paid a penny to the

of A.

officer at the exit turirstile, and were allowed to pass through to

tlie street. The turnstile in each ca.se automatically registered

Balmain

the number of passengers passing through, and was thus a check

Ltd̂ ^

V.

upon the officers’ cash takings. Two photographs were put in by

R obertson.

the plaintiff, respondent, one showing the exterior, the other the interior of the wharf, from which it appeared that there was a notice hoard a few feet over the turnstiles, on which were painted the words, “ Notice. A fare of one penny must be paid on enter­ ing or leaving the wharf. No exception will be made to this rule, whether the pa.s.senger has travelled by tbe ferry or not.” The notice was so placed that in the daytime, at least, it would be difficult for a pa.s.senger giving reasonable attention to his sur­ roundings to avoid seeing it. The photographs also showed a large gas lamp so situated that at night time, if alight, it would throw a full light on the notice, but there was no direct evidence either that it was generally lit at night or that it was alight on the evening of the occurrence.

On the night of 5th June 1906 the respondent and a ladŷ came to the wharf, and, with the intention of crossing to Balmain in one of the appellants’ steamers, passed through the entrance turn­ stile, each paying a penny. When they had got to the water side of the wharf they found that the steamer had gone, and, instead of waiting for the next, they determined to go to another ferry company’s wharf and cro.ss the harbor by another steamer to Balmain. The respondent, seeing no way of getting from the wharf into the street except bj'' the turnstiles, asked one of the officers at the turnstiles to show him the way out. The officer replied that there was only one way out, and that was through the turnstile. The respondent then asked if he was expected to pay on going out, seeing that he had not travelled by the steamer. The officer replied in the affirmative, and told him that unless be did pay he would not be allowed to go out through the turn­ stile. '.riie respondent denied the company’s right to make the charge, or to make its pa3unent a condition of his being permitted to pass through the turnstile. The officer then called his attention to the notice. After some further conversation the respondent endeavoured to force his way through the eight and a-half inch

382 HIGH COURT

[1906.

H. C. OF A. space between the entrance turnstile and the Imlkhead, but was

prevented from doing so by the appellant company’s officers, who T h e B.m.maIN used force for that purpose. After some twenty minutes, dur­

N ew F erky

ing which the respondent continued to assert and the officers to

Go.

L td .

V.

R obertso.v.denj' liis right to pass out through the turnstiles without payment,

the respondent eventually, in spite of opposing force on the part of the officers, squeezed his way out between the exit turnstile and the bulkhead and gained the street. These facts constituted the assault and false imprisonment for which the respondent sued.

At the trial of the action the respondent obtained a verdict for £100 damages, and, on appeal, the Supreme Court granted a rule nisi for a new trial or a nonsuit or verdict for the defendants on the grounds (1) that His Honor was in error in directing the jury that tlie trespass complained of was not within the scope of tlie servants’ authority ; (2) that he was in error in directing tliat the defendants had no right to demand the second penny; and (3) that he should have directed the jury that, if they came to tlie conclu­ sion that the company had done what was reasonable to give persons going on the wharf notice of the terms on which they were admitted, the jury were entitled to hnd that the plaintiff was bound by that notice. The rule was subsequently discharged with costs; Robertson v. Balmain Nttv Ferry Go. Ltd. (1).

From this decision, as to the second and third grounds of the rule nisi the present appeal was brought by special leave, the Court having refused to grant leave as to the first ground.

The foregoing statement of the facts is taken from the judg­ ment of O’Connor J.

Rolin {D. G. Ferguson with him), for the appellants. The res­ pondent brought upon himself the trouble of which he complains. He must be taken to have had notice of the conditions upon which he was admitted to the wharf. There was evi­ dence from which the jury must have inferred that he did in fact know the terms of the printed notice. Even if there had been no evidence that he did in fact know those conditions, there was abundant evidence that the appellants did all that was reasonably to be expected of them in order- to inform person.s

(1)

(1906) 6 S.R. (N .S .W .), 195.

383

4 C.L.R.]

OF AUSTRALIA.

H. C. OF A.

using the wharf what the conditions of admittance were.

It

1906.

was not necessary to prove affirmatively that the respondent had

knowledge of tliem : Parker v. South EaMern Raihvay Com- T h e Balmain

pony Watkinn

R ym ill {2)-, Richardson, S'pence & Co.y.

V.

Roivntree, (.3). The meaning of the notice was clear, viz., that

R obeet.son .

any person who entered the wharf, whether through the turn­ stile or from a boat, would be prev'ented from leaving through the turnstile unless he paid a penny. That was a reasonable condition to impose under the circumstances, becau.se it would be impo.ssible for the appellants to carry on their business if it were neces.sary to imjuire of each person whether he had actually travelled by boat or not. The respondent, therefore, when he entered the wharf, knew, and accepted as an implied term of the contract of cai'riage, that he would have to submit to such detention if he failed to carry out his part of the contract. There was no imprisonment, because he could have left the wharf by water; Bird v. Jones (4). The assault proved was not greater than was necessary to prevent, the respondent from leaving, and was, therefore, only such as the respondent must have contemplated as likely to be used in case he .should fail to carry out the contract to pay the second penny. Even if this ilefence amounts to leave and licence, it was open to the de­ fendants under the plea of the general issue: Bidlen and Lealce, Precedents of Pleadings, 3rd ed., p. 792, citing Christopherson v. Bare {5). A verdict should be entered for the defendants with­ out a new trial.

Even if the as.sault or imprisonment was not justified, and the respondent is entitled to a verdict, there should be a new trial on the question of damages. There was, at any rate, a contract by the respondent to pay the second penny, and the direction that it could not be demanded was erroneous. That direction affected tlie question of damages, because there was nothing wanton in the trespass ; it was committed in the assertion of a legal right ; Br((y V. Fo)'d (G).

Respondent, in person. The question is not whether I con-

(1) 2 C .P .U . , 416.

(4) 7 Q.B., 742.

(2) 10 Q.B.D., 178.(5) 11 Q.B., 473.

(3) (1894) A.C., 217.

(6) (1896) A.C., 44.

384 HIGH COURT

[1906.

H. C. OF A. tracted to pay a second penny before leaving tlie wharf, but

whether the appellants had a right to imprison me if I failed to T h e B alm ain P̂ -y it. On the evidence, the position of the placard was not such

'̂ Co

make it reasonably clear to a person en tering the turnstile. It cannot, therefore, be said that the appellants took all rea.son- able means to bring it to the attention of passenger.s. The mere placing of a notice on the wall is not sufficient: Bro'jke v. Pick­ wick (1).

V.

R obertson.

[ G r i f f i t h C.J. referred to Byiuater v. Richardson (2) and

Parker v. South Eastern Railway Co. (8).]

If the meaning of it was what the appellants contend, it should have been actually brought to the knowledge of each passenger. If that is impracticable, they should adopt another method of dealing with the traffic. Their present system is wholly for their own benefit, not for that of the public. [He referred also to Henderson v. Stevenson (4); Barke v. South Eastern Raihvay Co. (5)]. But the notice is not reasonably capable of the meaning that the appellants seek to put upon it. It uses the word “ fai-e,” which implies that the person pajdng it has been conveyed by land or water. The natural construction is that any person who landed there, whether from a boat of the appellants or from one belonging to other persons, must pay at the turnstile. The use of the words “ by the ferry ” tend to support that view of the meaning. There was nothing in it to lead a person to expect that a breach of the peace would be committed if he abandoned his intention of travelling and wished to leave the wharf. I paid full coiLsideration for admittance, and was entitled to abandon the conti'act there and then, whether I rendered myself liable to pay another penny or not. Even if that was the consec|uence, it was merely a civil liability enforceable in the ordinary way. In the Supreme Court it was not contended that the appellants had any right to detain a passenger under such circumstances, but that the appellants were not liable because it was not within the scope of the servants’ authority to do what it was unlawful for their employers to do. Appellants’ servants were really

(1) 4 Bing., 218.(4) L.R., 2 H. L. Sc., 470.

(2) 1 A. & E . , 508.(5) 5 C .P .D ., 1.

(3) 2 C .P .D ., 416, a t p. 42.3.

4 U.L.li.l OF

38.5

AUSTRALIA.

eiuleavourino- by force to make me pay another penny, or as the

R- C. of a ,

appellants contend, to keep my contract.

But it has never been

held that in such a contract there is an implied term that the'i’heJ3,vlmain

carrier may imprison in order to prevent a breach. [He referred

ltd^̂

to Butler v. Manchester, Shefjfield, and Lincolnshire Railway

^

Uo. (1).] There was clearly evidence of an imprisonment. The

-----

water surrounding the wharf was as much a barrier under the circumstances as a wall would have been. [He referred to Furry

That cannot be implied, but must be plainly proved, and must be specially pleaded : Bullen and LeuLe Frecedents of Fleadinys, did ed., p. 7.92.

V.

Marsludl] Furry v. Grad Northern Raihvay Co. (2).]

[B arton J. referred to Syers v. Chapman (3).]

It is not a matter which can be given in evidence in mitigation of damages without being pleaded, because if pleaded, it is a defence to the action. Reasonable belief that the passenger owed another penny wa.s here irrelevant on the question of damages, because tlie existence of such a debt in fact would not have

excused the trespass.

[He referred to Chinn v. Morris (4).]

The damages were not excessive. The jury might fairly have thought the circumstances of the trespass justified a substantial verdict, but not a vindictive one.

Even if the appeal is allowed, a verdict should not be entered for the defendants, but a new trial ordered, .so that the issue of as.sent might be put clearly before the jury. Leave and licence not having been pleaded, the question whether I had notice of the suggested condition was not before the juiy, and the appellants should not be allowed to assume that I had such notice and take advantage of it as of a fact proved : Osborne v. London and North Western Raihuay Co. (5), It was not contended that such a defence coidd be raised under the plea of not guilty.

Ro ,

-eply.

Cur. adv. vult.

(1) 21 Q.B.D., -207.

(4) 2 C. anil P., 361.

(2) (IS98) 2 I .R . , ;«2.

(5) 2! Q.B.D., 220, a t p. 224.

(3) ‘2C .H .N .S . ,

438.

386 HIGH COURT

[1906.

H. C. OF A.

The following judgments were read ;—

1906.G r i f f i t h C.J. I have had the opportunity of reading the

I'he B almain JrJg'ioent which will be delivered by my learned brother

N ew

F erry

O’Connor, in whicli I fully concur.

I will therefore only say a

C'o.

Ltd .

V.

R obertson. few words for myself. The first question that arises for con­

sideration i s : On what terms did the plaintiff ask for and obtain

Dec. 18.

admittance to the defendants’ premises ? It is clear that the invitation whicli the defendants offered to members of the jJublic to come upon their premises was conditional, and it must be taken that members of the public, who availed themselves of the permission, agreed to be bound b}̂ the terms on which it was granted .so far as they were acquainted with tliem. There is no doubt that in fact the terms were that persons should obtain admittance on payment of one penny, and when admitted should be free to depart from the premises by water, but should not be entitled to egre.ss by land except on payment of another sum of one penny. If tlie plaintiff was aware of these terms he must be held to have agreed to tliem when he obtained admission. If he had been a stranger who had never before been on the pre­ mises, it would have been sufficient for the defendants to prove that they had done what was reasonably sufficient to give the plaintiff notice of the conditions of admittance : Parker v. South EaHtern Railway Co. (1), cited with approval in Richardson v. Roivntree (2). In this case, however, it appeared that the plain­ tiff had been on the premises before, and was aware of the existence of the turnstiles and of the purpose for which they were used. It was therefore established that he was aware of the terms on which he had obtained admittance, and it follows that he had agreed to be bound by them.

This agreement involves, in my opinion, an implied promise by the plaintiff that he would not ask for egre.ss by land except on payment of one penny, and, further, a consent on his part that the defendants should be entitled to prevent him from depart­ ing in that way until he paid the penny. In the case of Butler

V. Manchester, Sheffield and Lincolnshire R ailw ay Co. ( 8 ) , it

was taken for granted, and, I think rightly, that, if such an

(1) 2 C .P .D ., 416.

(2) (1894) A.C., 217.

{:i) 21 Q.B.D., 207.

4 C.L.K.] OF AUSTRALIA.

387

agreement exi.sted, the use of any nece.ssary force to prevent a R- L. ok a .

breach of it would be justified. As tlie plaintiff was free to

leave the premises by water I think that there was no imprison­

ment: Bird \ . Junes (1). And as to the alleged assault, there

V.

was no evidence that anything was done which was not au­

R obertsox.

thorized by the agreement to which the plaintiff was a party.

Griffith C.J.

The only point that could be made for him is that this defence, being in the nature of a plea of leave and licence, should have been specially pleaded. As, however, the case has been through­ out conducted irre.spective of any point of pleading, it is un- neces.sary to consider whether this point is technically a good one. Any necessary amendment should be made to raise the real ((uestion contested at the trial.

B a r t o n J. Having given long and careful consideration to the

arguments and authorities, and having, like the Chief Justice, read the judgment to be delivered by my brother (/Connor, I am content to rest my conclusion on the reasons which are so clearly expre.ssed in that judgment. I wish, however, to say a word or two with regard to a case that was strongly relied on by the respondent in his argument, namely, Butler v. Manchester, Skerffidd and Lincohi- shire RoAhvay Co. (2). I was at first disposed to think it applic­ able in favour of the respondent. But further examination has now convinced me that it is not .so. Clearly there the contract of carriage continued. A condition of it was broken by the plaintiff, but, though probably liable for that breach in an action for the extra fare, he did not therebj’̂ become a trespasser so as to be law­ fully removable from the defendant’s carriage, but on the contrary was entitled to be carried to his destination which he was anxious to reach. Here the case is (|uite the other way. The respondent does not contend that he was holding to the contract to be carried acro.ss the water by the appellant companj’. So far from that, his whole conduct demonstrates that he had given up all thought of such a thing, and would itself have quite overthrown any such con­ tention had he raised it. So that here there was not subsisting at the critical point the contract of carriage on which the decision in

( 1 ) 7 Q.B., l i ‘2.

(•2) L>1 Q.B.D., -207.

388 HIGH COURT

[1906.

H.c. OF A. Butler V. Manchester, Sheffield and. Lincolnshire Raihuay Co. 0)

1906. was based.

T he B almain N ew F erry

O ’C o n n o r J.

Tlie material facts of this case may be sliortly

Co, Lt d .

V. stated. (His Honor then stated the facts as already reported,

R obert.son.

and continued.) It is admitted on this appeal that the company

Barton J.

are responsible for what was done by their officers, so that there is left for our decision substantially one question only, namely, whetlier, on the facts, the company are liable to the plaintiti’ for false imprisonment and assault. The legal position on which the plaintiti'relies may be thus stated :—He entered the wharf under a contract to be carried in the company’s steamer from Sydney to Balmain. Before the contract was performed he decided to aban­ don it, and, having no further business on the wharf, became entitled to pass out to the street through the turnstiles, or, if not through them, at least through the eight and a-half inch space be­ tween the tuni.stile and the bulkhead. The company’s officers by force prevented him from doing so, refused to allow him to pass out through the turnstile except on payment of a penny at the exit turnstile, and thus kept him impilsoned as a means of enforcing payment of that demand. He maintains that, even if he were bound to pay the extra penny as a matter of contract and it became a debt recoverable in the Courts, the company could not thus take the law into their own hands and deprive him of his liberty in order to enforce payment. If that were an accurate statement of the position the plaintiif’s contention would be unanswerable. But it is not an accurate statement of the position. Undoubtedly it is not permissible for a creditor, excejit under due process of the law, to abridge the liberty of his debtor for the purpo.se of enfoi'cing payment. But the abildgment of a man’s liberty is not under all circumstances actionable. He may enter into a conti-act which necessarily involves the surrender of a portion of his liberty for a certain period, and if the act complained of is nothing more than a restraint in accordance with that surrender he cannot complain. Nor can he, without the a.s.sent of the other party,by electing to put an end to the contract,become entitled at once, unconditionally and irrespective of the other

(1) 21 Q.B.D., 207.

4 C.L.ll.J OF AUSTRALIA.

389

party’s rights, to regain his liberty as if he had never

H. U. OF A.

1906.

surrendered it.

A familiar instance of such a contract is

tliat between a passenger and the railway company which under- T he

takes to carry him on a journey. If the passenger suddenly N kw F erkv

Co. Ct d .

V.

during the journey decided to abandon it and to leave the

R o bertson .

train at the next station, being one at which the train was

not timed to stop, he clearly would not be entitled to have

O'Connor J.

tlie train stopped at that station. However much he might object, the railway company could lawfully carry him on to the next stopping place of that particular train. In such a case the passenger’s liberty would be for a certain period restrained, but tlie restraint would not be actionable, becau.se it is an implied term of .such a contract that the pa.s.senger will permit the restraint of his liberty so far as may be neces.sary for the performance by the company of the contract of carriage accord­ ing to the time table of that train. Or a person may con­ ditionally, by his own act, place himself in such a position that he cannot complain of a certain restraint of his liberty. Take an illustration which was used in the course of the argument. Assume that the turnstiles on the company’s wharf completely closeil the opening between the bulkheads, that they were worked on the penny in the slot system, and would not open except when a penny dropped in the slot operated the mechanism. If under these circumstances the plaintiff, having ojDened the entry turnstile by his penny and entered the wharf, changed his mind about crossing in the company’s steamers, and wished to return at once to the street, could he claim that he was not hound to use the ordinary means of opening the exit turnstile by dropping in his penny, hut was entitled to break his way through it, or to demand from the company’s officers that they should speciall}’ unlock the apparatus to enable him to pass out ? If, under the circumstances, the officers refused to comply with his re(]uest, could it possibly be contended that the company would he liable to an action for false imprisonment ? Prim a facie, no doubt, any restraint of a person’s liberty without his consent is actionable. But, when the restiTynt is referable to the terms on which the per.son entered the premises in which he complains he was imprisoned, we must examine those terms before we can

390 HfGH COURT

[1906.

H. C. OP A. detei'inine whetlier there has been an imprisonment whicli is

actionable. The fallacy in the plaintiffs legal position lies in

T h e B alhaix tlie assumption that, immediately he abandoned the contract to

be carried to Bahnain by the company’s steamer, he was in the

V.

R obp:ktson.same position as if the wharf was one to which the public had

free right of access, that, finding his exit barred by the turn­

O'Connor J.

stiles, he was entitled either to squeeze past them, or to demand from the company’s officers that they should be specially released to let him through. Whether that assumption is or is not justi­ fiable depends upon the terms on which the plaintiff was per­ mitted to enter the wharf. In ascertaining those terms it must be remembered that the wharf was not a place to which the public had free right of access. If it had been so no one could legally place upon the wharf any bar or obstruction to the free entry or exit of any member of the public. But it was not a public place in that sense. It was private property. No one had a right to enter there without the company’s permission, and they could impose on the membei's of the public any terms they thought fit as a condition of entering or leaving the premises. What were the terms on which the plaintiff entered the company’s wharf ? There was no express contract, and the terms must therefore be implied from the circumstances. In dealing Avith the circumstances I leave the question of the notice board out of consideration. In my view, it is immaterial whether the company did what was reasonable to direct public attention to the notice, or whether the plaintiff ever read it until his attention was called to it by the officer at the turnstile. But as to the material facts from Avhich the con­ tract must be implied there is no dispute. The plaintiff was aware that the onlj ̂ entrance to and exit from the wharf on the land side was through the turnstiles, and that, to quote his evi­ dence, “ \\'hen the turn.stile was not released there was a complete barrier stretching across the whole entrance,” in other words, entrance to and exit from the wharf were completely barred except when by the action of the officer in charge the turnstile was released. He also knew that the turnstiles were so con­ structed as to admit only persons entering the wharf tlirough the entry turnstile, and only per,sons leaving the whai-f through the

4 C.L.R.] OF AUSTHA.LIA.

391

exit turn.stile, that the pa.s.sing through of every passenger was R-

automatically registered by the turnstile, and that the automatic

regi.ster was a check on the cash taken by the officer.

He himself t h k Balmain

in .speaking to one of the officers said, “ If it is the que.stion of Ltd!̂

̂

V.

putting out the tally of your turnstiles I can squeeze through R obertson .

there,” referring to the eight and a-half inch space before men­

O’Connor J.

tioned. Having travelled on many occasions backward and forward by tlm company’s boats, and, as he says, paid his fare to the officers at the turnstiles, he must have been aware that the company’s metliod of conducting their busine.ss was to release the turnstiles only on payment of a penny, and that in every case where there was a departure from that method “ the tally of the turn.stile,” as he terms it, would be thrown out.

Such being the condition of the company’s premises, and such being their method of carrying on their busine.ss, the plaintiff paid his penny to the officer and went through the entry turn­ stile on to the wharf. The first question is, what is the contract to be implied from the plaintiff’s payment at and passing through the turnstiles under these circumstances ? It is tliat in con­ sideration of that payment the company undertook to carry him as a passenger to Bahnain by any of their ferry boats from that wharf. That is the only contract which could be implied from those circumstances, and the plaintifi’ was permitted to enter the wharf for tlie purpose of that contract being performed. It is not denied that the company were ready to perform their part̂ but the plaintiff, as far as one party can do so, rescinded the contract and determined to go back from the wharf to the street. What then were his rights ? They were, in my opinion, no more and no less than they would have been if he had landed from his own boat at the company’s wharf. He was on private property. He had not been forced or entrapped there. He had entered it of his own free will and with the knowledge that the only exit on the land side was through the turnstile, operated as a part of the company’s system of collecting fares in the manner I have mentioned. If he wished to use the turnstile as a means of exit lie could only do so on complying with the usual conditions on which the company opened them. The company were lawfully entitled to impose the condition of a penny payment on all who

392 HIGH COUKT

[1906,

H. C. OF A. used the turnstiles, whetlier tliey had travelled by the conipany’s

steamers or not, and they were under no obligation to make an T h e B alm ain ®^ception in the plaintiffs favour. The company, therefore,

(̂Jo being lawfully entitled to impose that condition, and the plaintiff

V.          being free to pa.ss out through the turnstile at any time on com-

R obert.son.

phdng with it, he had only himself to blame for his detention,

O’Connor J.and there was no imprisonment of which he could legally com­

plain.

Next, had he the right to force his way through the

narrow space between the turnstile and the bulkhead ? Clearly he had not. If the turnstile had filled the whole space between the bulkheads, it could not be contended that the plaintiff would have been entitled to break it open in order to jia-ss through. The company’s officers were, in my opinion, entitled to regard the turnstile as blocking the whole space, not only for the neces­ sary protection of the mechanism of the turnstiles from injury, but also because it was a necessaiy part of their system of col­ lecting fares on entry and exit that the turnstile should be an effective barrier against entry and exit of any person except on the company’s conditions. They were therefore entitled to pre­ vent the plaintiff from s(pieezing through the space in (question, and were justified in meeting the plaintiff's forcible attempt with as much force as was reasonably necessary to defeat it. It is not alleged that they did more, and aii}̂ assault they may have committed on the plaintiff under these circumstances was justified. In this connection I may observe that it is not neces- sai’3" to determine whether or not this justification is, strictly speaking, open to the company on the pleadings. The case has been conducted all through on the footing tliat it is open, arid, if it were necessary, the Court would make any amendment re­ quired to formally shape the issues in accordance with the way in wliich both parties regarded them at the trial.

In the view I have taken of this case it has become unneces­ sary to refer to the decisions on notices which were cited on both sides. But I desire to point out that the principle laid down in Butler y . Manchester, 8liep,eld, and Lincolnshire Railw ay Co. (1), relied on by Mr. Robertson, has no application. It was in that case common ground that, unless the contract of carriage had been

(1) 21 Q.B.D., 207.

4 C.L.K.] OF AUSTRALIA.

393

determined by tJie plaintiff’s conduct, he was not a tre.spasser in H. C. of A.

the defendants’ carriage and could not be forcibly removed.

The

defendants’ contention was that the failui’e on the part of the x h e Balmain

N ew

F erry

plaintiff to perform the condition of producing his ticket enabled

Co.

Ltd .

V.

the company to regard the contract of carriage as at an end and

R obertson.

to treat the plaintiff as a trespas.ser.

The plaintiff’s case was that

his breach of that condition, although it rendered him liable to an

O’Connor J.

action, did not determine the contract, and that, as long as that subsisted, he was lawfully in the defendants’ carriage and could not be treated as a trespa.sser. The Court of Appeal took the latter view and upheld the plaintiff’s contention. The decision turned entirely on the (juestion whether or not the contract of carriage had been determined. In this case it is admitted that tlte plaintiff himself had abandoned the contract under whicli he was to be carried in the company’s steamers to Balmain. It is unnecessary to decide whether, if he had remained an unrea.son- able time on the wharf after the contract was at an end, refusing to leave it either by steamer or in compliance with the company’s conditions by the turnstile, the company would not have been entitled to treat him as a trespasser and remove him. The com­ pany had a.sserted no right of that kind. If they had done so, the facts would have been more like those in Butler v. Manchester, Sheffield, and Lincolnshire R ailway Co. (1) with the important exception that there did not exist in this case any contract such as the contract which in that case gave the plaintiff a right to remain in the railway carriage.

’faking then the whole facts in this case together, the plaintiff, in my opinion, was not entitled to succeed, and the verdict which the jury returned in his favour mu.st be set aside. The onl}' remaining (piestion is, whether this Court should grant a new trial, or order the verdict to be entered for the defendants. The Court may make any order which the Supreme Court ought to have made in the first instance. That Court ought, in my opinion, to have directed a verdict to be entered for the defendants. All the material facts were before them as they have been before us. It is impossible that any jury could on those facts find a verdict for the plaintiff which could stand for one moment if

(1) 21 Q.B.D., 207.

VOL. IV.

394 HIGH COURT

[1906.

H. C. o r A. questioned. The verdict ought tlierefore to have been entered

for the defendants, and this Court must now order accordingly

T he B alm ain that the verdict for the plaintiff be set a.side and judgment be

entered for the defendants.

V.

T^o b e r x s o n

___ ̂ ’

Appeal allowed. Oi'der appealed from dis­ charged. Order absolute to enter ver­ dict for the defendants. Appellants to pa y the respondent’s costs of the appeal, undertaking to set off such costs against any costs payable by the respondent.

O’Connor J.

Solicitors for the appellants, McDonell & Moffitt.

Solicitor for the respondent, J. J. Jagelnian.

C. A. W.

[H IG H COURT OF

A U S T R A L IA .]

PRIOR .

A i ' p e l l a n t ;

D e f e n d a n t ,

LUDLOW .

R e s p o n d e n t .

P l a i n t i f f ,

ON A P P E A L FROM T H E S U P R E M E COU RT

OF

H. C. OF A.

N E W SO UTH

W A LES.

1906.

SvDNEF,

A ppeal from a decision of Walker J., 20th June 1906.

Oct. 11, 12. ̂

.

The case turned wholly on questions of fact.

Griffith C.J.,

Barton and

O'Connor JJ.

Appeal dismissed with costs.

Decree varied

by consent.

Appellant to pay respond­

ent’s costs of the appeal.

Solicitors, for appellant, McCoy & McCoy. vSolicitor, for respondent, H. R. Way.

C. A. W.