Commissioner for Railways (NSW) v Cardy

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Fullagar, Menzies and Windeyer JJ .

COMMISSIONER FOR RAILWAYS (N.S.W.) v. CARDY

(1960) 104 CLR 274

25 July 1960

Negligence

Negligence—Dangerous premises—Latent danger on land—Absence of warning to persons entering upon land—Injuries to persons entering—Liability of occupier—Licensees—Trespassers—General duty of care—Child playing upon land without permission of occupier.

Decisions

1960, July 25.
The following written judgments were delivered: -
DIXON C.J. The decision of this appeal appears to me to involve great difficulty. In essence the facts are of the simplest. A boy, the plaintiff respondent, being then a little over fourteen years of age, roamed with his brother three years younger over part of a large area of land belonging to the Commissioner for Railways who had used the material portion of it as a tip for, among other things, the deposit of ashes from fire-boxes and probably furnaces. It had been banked up but below the surface the ashes often remained hot and went on smouldering for long periods. At one side of the land beside the bank of ashes and rubbish a path ran which was open for pedestrians and led from certain streets on one side to some dwelling places and streets on the other. The boy in making his way over part of the area and down the bank to regain the path put his feet through the surface crust into the hot ashes beneath, suffering severe burns of his ankles and feet. (at p279)

2. The boy recovered damages for his injuries from the Commissioner in the Supreme Court of New South Wales. An appeal by the defendant Commissioner to the Full Court failed (1959) SR (NSW) 230; 76 WN 166 and he now appeals to this Court. The boy's cause of action has been treated as depending on his showing that he was on the Commissioner's premises with his licence and that the surface presented a deceptive appearance of safety concealing a most unexpected danger of serious injury from which the Commissioner as occupier of the land should have taken due care to protect him. That the surface appeared safe and that it concealed nevertheless a most potent source of injury that no boy would be expected to foresee and guard against is plain enough. But though the jury found that the boy was a licensee, that is anything but plain if the licence be considered as a reality. (at p280)

3. The boy had played on the site years before but he had gone to live in the country and only on the day of the accident was he renewing his acquaintance with the dump which had undergone considerable changes in the interval. The evidence bearing upon the question whether he came with the Commissioner's licence was of the sort that cases here and in England about injuries to children in open or public places have led one to expect. The children come to a place where it is evident to them, if they be old…