Commissioner for Railways (NSW) v Cardy

[1960] HCA 45

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 enough, as it is to everyone else, that they ought not to be. Sometimes they are chased away by men employed there or otherwise concerned in the place; sometimes that is not done and generally speaking no adequate measures are taken to keep them away. Then the courts are asked to find that a child who has been injured comes with an implied licence. In case after case the finding has been made and the child has triumphed over the objection that he is a trespasser without any relevant rights with reference to his safety. In the present instance the evidence shows rather that adults and children were apt to come to seek for trophies from the dump and the children also to watch operations and to play, but it is plain that to say that 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 and it is a course I am not prepared to take, notwithstanding the jury's verdict, unless the licence be treated rather as a legal or fictional than a factual conclusion. When the distinction between invitees and licensees was taken and the respective measures of responsibility to them for the safety of the premises upon which they came were defined, the duty of an occupier of land who consented to the use of it, or to the passage over it, by others for their own purposes, purposes which involved no material interest of his own, was regarded as the outcome of his consent, which was considered as a voluntary grant to others of a benefit from which he was entitled to exclude them. A person who conferred such a voluntary benefit could by doing so incur no duty of care to safeguard those who sought or accepted it from any danger arising from the nature or condition of the premises, unless the danger lay in a deceptive appearance of safety hiding a potential cause of injury of which the occupier knew but they neither knew nor could be expected to know. It is important to mark what placed the occupier under this very limited duty of care. It was his own voluntary act in consenting to the presence of the visitors to the premises. That is why in Gautret v. Egerton (1867) LR 2 CP at p 375 , Willes J. likens the case to the voluntary gift or loan of a chattel. This appears to me to be far away from the case of a public authority which manifestly does not consent to the presence of strangers but is weak in its active resistance to their intrusion which it may be obliged to suffer but never permits. In the joint reasons given in this case by the late Chief Judge in Equity (Roper J.) and Herron J. in the Supreme Court their Honours say : "In modern times the courts have shown a tendency not to regard persons as trespassers when no real objection to their presence on the land of the occupier exists" (1959) SR (NSW), at p 233 ; 76 WN, at p 168 . This I think is very true. But it appears to me to depart from the foundation of the principle on which a licensor's liability was erected, namely his own voluntary act in giving his consent without exercising due care by warning or otherwise to avert injury to the licensees from concealed danger of which he is aware and they are ignorant where there is a deceptive appearance of safety. The learned judges by way of justifying or illustrating the statement refer to judicial observations and conclusions in a number of well known decided cases. They are cases or statements which countenance the inference of consent or licence in circumstances where it could be but a construction placed by the law upon conduct. It must in truth be a construction placed upon conduct, because if the question were treated as an inquiry into the real will of the one party and the real understanding of the other, then the answer as a hard practical matter of fact would be inevitable, namely that there was no actual consent or licence. Suppose the inquiry be approached with a firm determination to reason from the true place in legal principle of the expression or manifestation of consent or licence to use or traverse the premises and to treat that as creating and measuring the duty of care which is incurred by a volunteer conferring a benefit. Would it then be possible to find, in a constructive or imputed consent or licence of such a kind, any foundation for fixing upon the occupier the duty of care measured according to the standard established? The truth is that the real source of the inference that a duty arose must be sought elsewhere. It is to be found in 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 precautions to safeguard them. In other words it is not upon the reality of a consent or licence consisting in the voluntary grant of a gratuitous benefit or advantage that the duty in such a case is founded, the real source is an implication that is made. (at p282)

4. Upon the facts of this case the dumping of hot ashes certain to smoulder under an apparently firm and reliable crust or surface presented an unusual and hidden danger to all who frequented the place. It is impossible to accept the view that it was a characteristic of a dump which all who came upon it should know ; but at the same time it is equally impossible to suppose that by his servants and agents the Commissioner was not fully alive to the characteristic. Adults and children did frequent the place and again, by his servants and agents, of this the Commissioner was aware. One may venture to think that no person who came to the case familiar with general juristic concepts but unindoctrinated with the notion that to be a trespasser is to be caput lupinum would expect to find a system of law which denied altogether the existence in the Commissioner of any duty of any sort in reference to the likelihood of persons coming to the site and suffering grievous injury. He would find that our law has not denied the duty but has placed it upon the supposal of a licence so that there will be no trespass. But is it necessary that we should go on ever constructing the liability out of the materials that can be found for inferring, implying or imputing a licence, fictional though it must inevitably seem? In the much canvassed case of Cooke v. Midland Great Western Railway of Ireland (1909) AC 229 Lord Atkinson explicitly placed his decision upon the inference that the children played upon the turntable with the leave and licence of the railway company. But the inference depended upon the frequency with which children went to it and was drawn in face of evidence that they were chased away, evidence which of course was not necessarily accepted. Only with difficulty can the consent be regarded as more than constructive. Lord Collins regarded the facts as enabling the jury to infer not merely a licence but an invitation (meaning, I imagine, a tacit request) ; yet again, though his Lordship took the turntable to be largely frequented by children without remonstrance, it is not easy to believe an active or conscious consent was given by any officer of the company possessing the requisite authority. Lord Macnaghten's opinion, although it has since been attributed by high authority to the same inference, reads as if his Lordship disregarded altogether the character of the children as trespassers ; but no doubt that explanation of his reasoning is based upon the 1 st sentence of his opinion with which, in reference to the claim that the decision might be disastrous to railway companies, Lord Macnaghten ends : "but it does not seem unreasonable to hold that, if they allow their property to be open to all comers, infants as well as children of maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission and who are unable, in consequence of their tender age, to take care of themselves" (1909) AC, at p 236 . Lord Loreburn L.C. who expressed his concurrence in Lord Macnaghten's opinion, gave reasons which appear to pass by the question of licence. The case shows as one might well think that in circumstances like those of the present case liability would then have been fastened upon the defendant, even though it might be done by an inference that the intruders came by tacit licence. It is only as an example of the two possible sources of duty that I refer to the case, a source consisting in an imputed or constructive licence, far different in character from that voluntary grant of a benefit upon which the restricted duty was originally considered to arise and a source consisting in the real considerations supplied by knowledge on the part of an occupier of a grave danger threatening those whom he knows frequent his premises. Lowery v. Walker (1909) 2 KB 433 ; (1910) 1 KB 173 ; (1911) AC 10 ; cf (1910) 101 LT 873 ; (1911) 103 LT 674 forms another example, for notwithstanding that so much turned upon the note of the County Court judge the inference he drew could not have stood without evidence to support it and that evidence disclosed little or no more than knowledge that the public customarily crossed the field into which the defendant placed the savage horse. (at p283)

5. In Latham v. R. Johnson &Nephew Ltd. (1913) 1 KB 398 , the land was used with the consent of the occupier but there was no "trap" and for that matter no negligence ; but in the famous exposition contained in Lord Sumner's judgment he borrowed the language of Lord Robson speaking for the Privy Council in the Grand Trunk Railway of Canada v. Barnett (1911) AC 361, at p 370 and defined the liability of an occupier to a trespasser thus : "The owner of the 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'" (1913) 1 KB, at p 411 . A much wider principle was enunciated by Lord Sumner in a case which involved no trespass to the premises but special danger to the young. "A measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others who know of or ought to anticipate the presence of such persons within the scope and hazard of their own operations" : Glasgow Corporation v. Taylor (1922) 1 AC 44, at p 67 . In Robert Addie &Sons (Collieries) v. Dumbreck (1929) AC 358 there was a return to the rigid classification of those entering the premises of others and a denial of any duty of precaution against harm, unless wilful, which might befall a trespasser. But the case was not one in which licence might fairly be imputed or callous disregard of a serious danger to others inferred. (at p284)

6. Of the case of Excelsior Wire Rope Co. v. Callan (1930) AC 404 it is needless to speak, because the defendant was not considered to be an occupier of the premises where the plaintiff was injured. One may be permitted to think however that it is an example of the recognition that quacunque via a duty exists with reference to the safety of young people likely to come into danger by interfering with things of others and that it is a duty of care whatever be the measure of care exacted. Indeed Viscount Dunedin said that "if the children trespassed, the servants of the defendant acted with reckless disregard of the presence of the trespasser" (1930) AC, at p 411 . Edwards v. Railway Executive (1952) AC 737 did not involve a return to any rigid view of the situation of a child who comes into danger with the foreknowledge of the party creating a danger or exercising control over the premises where it exists. The child, aged nine, was injured while recrossing a double running track of a live electric railway which he had crossed in search of a ball. He was burned by the live rails upon which he fell, and injured by a train. Incredible as it may seem, a jury found that he crossed with the tacit consent of the railway authority, the defendant, and that the driver of the train was negligent in failing to stop the train. Apart from the findings, which obviously could not stand, the plaintiff had no case. Children however had gained access through a fence at the foot of the embankment upon which the rails ran and down which the children enjoyed sliding. This led to some observations on the duty to trespassers which were formulated in the received manner. Lord Goddard said : "Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it" (1952) AC, at p 747 . The latter alternative in Lord Goddard's statement is what I have ventured to call an imputed licence. (at p285)

7. The foregoing decisions of the House of Lords provide a lesson by example in the ways of the law when it evolves principle. The fixed rule that a trespasser comes at his own risk and that only a wilful injury to him is actionable is modified by the assimilation of "reckless disregard of the presence of the trespasser" to wilfulness. It needs no argument to show that reckless disregard of the presence of a man must include not only the case of a man who is there but also of one whose coming is expected or foreseen. But the application of the rule is modified to the point of exclusion by inferring a licence from circumstances notwithstanding the unreality of the supposition that there was any actually consenting mind or will. The process of inference is then transmuted to a different and wider conception, that expressed by Lord Goddard, conduct on the part of the occupier of such a kind that he cannot be heard to say that he did not give a licence. At that point, by precluding the denial of a licence, the law has surely reached the use of fiction, and if now we boldly look at the facts which give rise to the imposition in this manner of the liability it will be but to complete the course of development by a process for which the history of the law furnishes many precedents. It is but to attribute the liability to the constituent elements of the title to the correlative right and to explain why they create it. No doubt there is some conscious acceleration of the process and an open acknowledgment of the course pursued. But it is evident that for want of some rationalization of the kind great confusion, not to say dissatisfaction, as to the state of the law exists. Is there any reason why in Australia the step should not be taken? With respect to licensees and invitees the law has been completely changed in England by the Occupiers' Liability Act 1957 (5 &6 Eliz. II, c. 31). What indirect effect the change may have on the practice of inferring, implying or imputing a licence from facts where no actual intention to grant a licence existed and none was expressed, it would be hazardous to prophesy. But it is at least clear that in England to impute a licence is now to place upon the occupier a duty of care measured by a much higher standard. Whatever may be the outcome it involves a distinct point of departure from the law obtaining in Australia. Why should we here continue to explain the liability which that law appears to impose in terms which can no longer command an intellectual assent and refuse to refer it directly to basal principle? (at p285)

8. 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. It may perhaps be useful to remark that upon the facts of United Zinc &Chemical Co. v. Britt (1) the question whether the neglect to safeguard children from the poisoned pond involved liability would depend upon the likelihood of children entering the premises and using the pond so as to encounter a risk of poisoning and upon the knowledge which the occupier had or ought to have had of the danger and of that likelihood. The doctrine of the decision in Britt's Case (1922) 258 US 268 (66 Law Ed 615) has been considered harsh and the decision itself can hardly be justified except on the footing that there was no sufficient reason to think that the pond would be visited by children or that they would be imperilled by the existence of the poisoned pond unless excluded. (at p286)

9. 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 and is aware of the 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. (at p286)

10. Upon the facts of the present case 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. That appears to bring the case within the principle. (at p287)

11. One difficulty may be suggested. The trial went upon the conventional or traditional theory of liability. Neither judge nor jury dealt with application to the facts of the principle of liability as it is here formulated. It is a difficulty which has caused me to hesitate as to the necessity of a new trial. But after consideration I have concluded that a new trial ought not to be directed. After all a new trial is not granted where justice does not require it and independently of all discretion the facts implicit in the findings which upon the summing up the jury must be considered to have made really cover the ground and, as I see the matter, both upon those findings and upon the evidence, the liability of the defendant Commissioner is satisfactorily made out. (at p287)

12. The appeal should be dismissed. (at p287)

McTIERNAN J. In my opinion this appeal should be dismissed. The appellant is the owner and occupier of an expanse of vacant land in the Sydney suburb of Clyde. The total area is five hundred acres. The respondent, aged fourteen years and four months, was injured on a part of the land called the dump area. He went on to a heap of ashes and rubbish and when he was scrambling down his feet sank into hot ashes and were badly burned. The respondent was not wearing anything on his feet. He brought this action to recover damages from the appellant for the injuries he suffered in the accident. The basis of his claim was that the heap of ashes and rubbish was an allurement to a boy of his age and that the appellant did not take sufficient care to safeguard him from the danger which he encountered. The appellant defended the action on these grounds: that the respondent was a trespasser, that the heap of ashes and rubbish was an obviously dangerous place to go on, and that the respondent was guilty of contributory negligence by going on it barefooted. A verdict for 2,000 pounds was returned by the jury. The question in the appeal is whether there was evidence to go to the jury which would show that the appellant was liable. (at p287)

2. It was necessary for the plaintiff to prove that he entered the land by leave or right. He sought to prove that when he entered the land he became a licensee of the appellant because members of the public habitually went on the land and the appellant acquiesced in their doing so. The evidence proved that members of the public frequented the land: that they used regular means of access on the southern and north-western sides of the land which were never closed: that they passed and repassed over the land between these means of access and walked about the land: and in the case of children that they habitually played on it. It would appear from the evidence that the use of the land by the public was long-established and notorious. (at p288)

3. Evidence was given for the appellant by railway officers who had duties in relation to the control of the land, from which the jury could conclude that these officers were well aware of the facts just mentioned. According to their evidence the appellant, in fact, only permitted persons to go on the land who had official leave to do so and they proved that from time to time they warned persons whom they saw on the land, and who had no such leave, that they had no right to be there; and these officers also gave evidence that they frequently ordered grown-ups and children found on the dump area to leave the land. In all the circumstances it seems to me that it was open to the jury to think that the action which these officers said that they had taken was rather a token of departmental attitude than a genuine prohibition of the entry of members of the public on the land. It was, in my view, within the jury's rights to attach the greater weight to the evidence upon which the respondent relied to prove that he was not a trespasser but, in fact, entered the land with the acquiescence of the appellant. The jury could, after weighing all the evidence on that issue, reasonably find that members of the public had, in fact, tacit permission to go on the land and walk about it and that such permission was not limited only to pathways between the places of entry and exit. I am not prepared to hold that there was no evidence upon which the jury could reasonably find that the permission did not extend to the dump area, which, itself, was part of the whole area. There was evidence that children frequented the dump area and played on and about it when dumping was taking place and at other times. In my opinion, the jury could reasonably infer that the appellant, by its officers, was aware of these facts. When the accident happened dumping had ceased for the week-end. (at p288)

4. The respondent and a brother aged twelve years went through an entrance on the southern boundary, which the jury could find was always open, and proceeded by a road into the land from which a path led in the direction of the dump area. They strayed from this path to the heap of ashes and rubbish and went up its steep side, which was ten feet high. As stated above, when the respondent was scrambling down that side of the heap his feet sank into hot ashes beneath the surface and were badly burned. Only the respondent was injured. Neither the dump area nor the heap itself was fenced, and it was, on the evidence, easily accessible, over vacant ground, from the path. (at p289)

5. The jury could find that there was nothing in the appearance of the heap of ashes and rubbish which the boys climbed to indicate that beneath its surface there were hot ashes. The appellant conceded in argument that it was possible that the ashes which burned the respondent's feet were hot when deposited by its workmen on the heap. If the jury considered that the tacit permission to enter and walk over the land extended to climbing this heap they could find that the appellant did not take the proper measure of care due by an occupier to a licensee to protect the respondent from the danger he encountered. (at p289)

6. But I would not go as far as holding that a grown-up person, even though he could claim that he had tacit permission to walk about the dump area, could also rightly claim that the permission extended to climbing the heap of ashes and rubbish on which the respondent was injured. In my opinion, the verdict can be sustained on the basis that the respondent was not a trespasser on the land and the heap of ashes and rubbish was an allurement to a boy of his age. It is a well-known propensity of boys of the respondent's age to go up a bank, heap or mound which is at a place where they come to play and is accessible to them. This heap was not a natural formation of ground but an artificial construction on the land and it could be an allurement in the legal sense for children. In my opinion, it was clearly open to the jury to find the respondent followed instincts, generally natural to boys of his age, by going up the side of this heap of ashes and rubbish on which he was injured. (at p289)

7. There was evidence that there were pieces of scrap and bits of tin, board and other debris scattered on and about the heap. But this evidence did not make it unreasonable for the jury to find that it would not have appeared to a boy of the respondent's age to be a dangerous place to ascend. (at p289)

8. The jury could find that any risk involved in going on to the heap barefooted would not, having regard to the appearance of the place, be appreciated by a boy of the respondent's age, and that the appellant should not therefore succeed on the defence of contributory negligence. It is common ground that the appellant took no care to safeguard the respondent from the danger which he encountered. In my opinion, there was evidence which showed that the appellant was liable upon the basis on which the respondent claimed damages for his injuries. (at p290)

FULLAGAR J. This is a case in which the plaintiff's injuries were occasioned by what turned out to be a latent danger created by servants of the Commissioner on premises of which he was clearly the occupier. The facts are set out in the judgment of the Chief Justice. The plaintiff has maintained that he entered on the premises as a licensee. The defendant has maintained that the plaintiff was a trespasser. We are therefore involved in the tangled web which has been woven about those two controversial characters. (at p290)

2. The learned trial judge directed the jury to consider first whether the plaintiff was where he was with the leave and licence of the Commissioner. If they found that issue in the negative, the plaintiff, being a trespasser, must, he said, fail. If, on the other hand, they found the affirmative of that issue, then they were to consider whether "the condition of the premises was such that they constituted a concealed trap or hidden danger or peril, and that they were dangerous to the knowledge of the defendant and without the knowledge of the plaintiff". There is, of course, authority for this approach to cases of this type, but in some of the decided cases a person in the position of the present plaintiff has been treated as a licensee when there was, in my opinion, no evidence whatever to support a finding of leave and licence. The present is such a case, and it calls, I think, for an examination of the whole position at law of a person who is injured while trespassing on the land of another. In reading the decided cases with this end in view we must, I think, bear steadily in mind an observation of Lord Atkin in Donoghue v. Stevenson (1932) AC 562, at pp 583, 584 . His Lordship said: "In the branch of the law which deals with civil wrongs, dependent in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of English law be unduly restricted" (1932) AC, at pp 583, 584 . This passage occurs in a judgment which itself made a synthesis of great importance. (at p290)

3. In the Addie Collieries Case (1929) AC 358 the plaintiff's son was, I should have thought, unquestionably a trespasser. It was so held, and it was held that it followed that no duty of care was owed to him by the occupier of the land. But there are several things to be said about this case. In the first place, the greatest difficulty has always been felt in finding a satisfactory basis on which to reconcile the decision in the Addie Collieries Case (1929) AC 358 with Cooke's Case (1909) AC 229 for, if there was evidence to support a finding of leave and licence in the earlier case, there was at least as much evidence to support such a finding in the later cases (1929) AC, at pp 359, 360 . (at p291)

4. What is perhaps more important is that less than a year after the Addie Collieries Case (1929) AC 358 the House of Lords decided the case of Excelsior Wire Rope Co. v. Callan (1930) AC 404 . Here again the plaintiffs were trespassers, but the defendant was held liable for negligence. I am bound to say that, with the greatest respect, I share the difficulty felt by Scrutton L.J. in Mourton v. Poulter (1930) 2 KB 183, at p 190 , in referring the two cases to a common principle. It is true that an obvious difference between the facts of the two cases exists in that in the former the defendant was the owner and occupier of the land on which the accident happened, whereas in the latter case the defendant company was using the land under a licence from the owner. But there are, as it seems to me, two very good reasons why this factual difference cannot be regarded as a relevant difference. In the first place, the basis of the liability of an "occupier" in this class of case lies in the fact that he has control of the land. The defendant company in Callan's Case (1930) AC 404 , although it had only a licence and not a lease or other tenancy, was using the land for the purposes of its business, and was apparently in complete control of it and of the operations carried on upon it. In the second place, it seems to me almost unthinkable that, if the defendant in Callan's Case (1930) AC 404 had had a lease instead of a licence, it would have escaped liability on a finding that the plaintiff was a trespasser. So in Mourton v. Poulter (1930) 2 KB 183 , where the plaintiff was in fact found to be a trespasser, the case surely could not have been different if the negligent felling of the tree had been carried out not by an independent contractor with the occupier but by the occupier himself or his servant, and the occupier had been sued. (at p291)

5. Of still greater importance is it to remember that a little more than two years after the Addie Collieries Case (1929) AC 358 the House of Lords decided the leading case of Donoghue v. Stevenson (1932) AC 562 . This case (albeit it may be thought to be restorative rather than revolutionary) in a sense reoriented the whole law of negligence, and left perhaps few cases which went to the root of that subject and which were not liable to be re-examined and tested in the light of it. (at p291)

6. These considerations, in my opinion, justify, and indeed in this case necessitate, a consideration of the law relating to the liability of an occupier of land to a trespasser with a view to seeing whether the cases cannot be referred to a principle which will explain them all. If further justification for making the attempt were needed, it is to be found in the candid statement of Lord Goddard, with whom Lord Reid agreed, in Edwards v. Railway Executive (1952) AC 737, at p 750 . Lord Goddard said: "My lords, when a person is injured on land or in a place where he has no business to be, efforts are frequently made, sometimes with success due perhaps largely to sympathy, to establish that the injured person was where he was with the leave and licence of the landowner or occupier, even though by every canon of common sense it is perfectly plain that the latter, had he been asked before the accident, would have said that he objected strongly to the uninvited person coming on his land" (1952) AC, at p 746 . (at p292)

7. It is evident that Lord Goddard and Lord Reid were of opinion that in many cases a trespasser had been held, without sufficient justification, to be a licensee. The tendency which their Lordships criticize has been occasioned largely, I think, by taking as a startingpoint the numerous statements, absolute or qualified in a variety of ways, which are to be found in the reports to the effect that an occupier of land is under no duty in relation to the safety of a trespasser. These statements are not consistent, many of them being doubtless framed with an eye to the particular case in hand. Sometimes it is said that a trespasser enters at his own risk, sometimes that he must take premises as he finds them and look out for himself, sometimes that an occupier owes no duty to a trespasser, sometimes that he is liable only for harm intentionally or maliciously caused to a trespasser. It has even been said that he is liable only for malicious acts or acts so grossly negligent that they are "tantamount to malicious acting" (per Viscount Dunedin in the Addie Collieries Case (1929) AC, at p 377 ). (at p292)

8. The difficulty of these cases has always, I think, been acutely felt, and I think that it has arisen in this way. Courts are faced with cases in which general principle seems to require holding that a trespasser has a cause of action for negligence against an occupier in respect of harm suffered through some danger on the premises, and are faced also with the many statements, to which I have referred, which appear to deny, or very strictly limit, the possibility of such a cause of action. And they have in many cases attempted to solve the problem by treating as a licensee one who by any realistic standard is a trespasser. Dr. J. G. Fleming (The Law of Torts (1957), p. 463) says that this solution amounts to a "technique for raising the standard of protection for trespassers . . . by calling the plaintiff what he clearly is not". I do not regard the word "trespasser" as having any dyslogistic connotation, and I take it to mean simply a person who enters upon land without the permission of the occupier, and permission involves much more than an abstention from taking physical or forensic steps against intruders : see Transport Commissioners of New South Wales v. Barton (1933) 49 CLR 114 (a case of trespassing animals). (at p293)

9. One would, of course, readily agree that permission may be express or implied from conduct. But to say that the plaintiff in such a case as Lowery v. Walker (1910) 1 KB 173 ; (1911) AC 10 was a licensee is, in effect, to impute to him a character which he does not in fact possess. In that case the persons who were supposed to have permission to cross the defendant's land had got over a fence in order to enter, the defendant had repeatedly warned off persons entering, and he had complained to the police of their crossing his land. I would not suggest, even if it were open to suggestion, that Lowery v. Walker (1910) 1 KB 173 ; (1911) AC 10 was wrongly decided, but the decision cannot be justified on the ground that the plaintiff had a licence from the defendant to enter and cross the land. It was no doubt a consciousness of the unreality involved in calling a person in the position of the plaintiff in Lowery v. Walker (1910) 1 KB 173 ; (1911) AC 10 a licensee that led Viscount Dunedin in Callan's Case (1930) AC, at p 411 to make the suggestion that such a person was neither a true licensee nor a true trespasser, but might be called a "permittee". But, with all respect, this would seem to complicate rather than simplify. (at p293)

10. The view deprecated by Lord Goddard and Lord Reid in Edward's Case (1952) AC 737 must have the practical effect, as Lord Goddard proceeded to point out, of placing many occupiers of land in an intolerable position. How is an occupier of vacant land to make sure of avoiding the possibility that persons who cross his land without his consent and against his will may be held to be the holders of an implied licence? The erection of a fence will not be enough, for the people who crossed the land in Lowery v. Walker (1910) 1 KB 173 ; (1911) AC 10 got over a fence in order to enter the land. Warning people off the land every now and then will clearly not be enough. Nor will the taking of legal proceedings against a selected few. In such a case as the present, where the land in question is of an area of some hundreds of acres, the difficulties of the Commissioner in guarding against the possibility of a jury's being allowed to find him to be the grantor of a licence are indeed formidable. (at p293)

11. These and other considerations lead one to think that it cannot be right to say that a person in the position of the plaintiff in the present case is, or can be found by a jury to be, a licensee. He had no permission from the Commissioner to be where he was. He was a trespasser, and there is no escape from that conclusion. But this, in my opinion, is by no means necessarily the end of the plaintiff's case. For, while it is not incorrect to state, as a general rule of the common law, that an occupier of land owes no duty of care to a trespasser, this proposition, like so many general rules of law, exists, so to speak, in a context, and, if its meaning and its limits are to be understood, it must be examined in its context. The context in this particular case consists of the two other rules, which deal with liability to invitees and licensees respectively. (at p294)

12. The rules for which we refer primarily to Indermaur v. Dames (1866) LR 1 CP 274; (1867) LR 2 CP 311 are now (rightly, I think) regarded as part of the general law relating to negligence. According to that general law a duty to take reasonable care for the safety of others arises from certain situations. There is, in English law, as Lord Atkin has said, "some general conception of relations giving rise to a duty of care" (1932) AC, at p 580 . That general conception is stated by his Lordship in words now too famous to need quoting : Donoghue v. Stevenson (1932) AC 562, at p 580 . The standard of care required by the common law - the standard, departure from which, where the duty exists, constitutes actionable negligence - is stated in the equally famous words of Alderson B. in Blyth v. Birmingham Waterworks Co. (1856) 11 Ex 781, at p 784 (156 ER 1047, at p 1049) . The important point for present purposes is that what we call shortly the duty of care arises from a de facto relationship. That relationship (as Lord Atkin pointed out after referring to Heaven v. Pender (1883) 11 QBD 503 and Le Lievre v. Gould (1893) 1 QB 491 may, and very often does, consist of mere physical proximity. But the relationships which give rise to the duty are of infinite variety, their only common characteristic being that which is stated by Lord Atkin in the passage referred to above. (at p294)

13. One such relationship is that which subsists between an occupier of land and visitors who enter upon his land. It is, of course, under normal circumstances, to be expected by an occupier that visitors will enter for various reasons and for various purposes. And in such cases the common law has not been content to leave the situation to the general rule without extension or qualification. It has not been content to say that, when a visitor enters and the relationship comes into existence, the occupier becomes subject to a duty of care for the safety of the visitor, and that the standard of care required of him is that which is laid down by Alderson B., and depends on all the circumstances of the case. In the first place, the common law recognized that harm might befall a visitor not by reason of any act or omission of the occupier after entry but by reason of some dangerous condition of the premises, and that in some cases the occupier ought to be held responsible for the harm suffered. And, in the second place, it did not (as it might have done, and as the Occupiers' Liability Act 1957 in England now, in effect, does) leave the standard of care in relation to the condition of premises to be decided according to the general formula of Alderson B., but defined more specifically the standard of care to be required of the occupier. For this purpose it divided visitors into two classes, which have been called "invitees" and "licensees" respectively, the standard of care required being higher in the former case than in the latter. (at p295)

14. In what I have just said lies, in my opinion, the true significance, which is twofold, of the rules laid down by Willes J. about a century ago. In the present case, we are not concerned with the standard of care, or with the content of the duty owed either to an invitee or to a licensee, for the plaintiff was, in my opinion, clearly neither. But there are one or two observations to be made before proceeding. First, the duty to an invitee and the duty to a licensee are both correctly described as duties of care. It is convenient enough to speak of them as special duties, but they are not special duties lying outside the general law of negligence. The rules are concerned only with laying down the standard of care appropriate to two special classes of case. Secondly, those rules are concerned only with cases where a visitor has suffered harm through some dangerous condition of the premises. Thirdly - and this may be regarded as a corollary - they do not abrogate or supersede the general law of negligence as affecting an occupier in relation to either an invitee or a licensee. A very good illustration of this is to be found in the recent case of Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99 . In that case a visitor entered upon business premises with a view to doing business with the occupier. While he was there, he was struck in the face by a large piece of wood apparently ejected by a power-driven circular saw, which was in motion. It seems clear that the plaintiff was an invitee, and the jury so found. They found also (rightly, one would think) that there had been no breach of the duty of care specially defined in Indermaur v. Dames (1866) LR 1 CP 274; (1867) LR 2 CP 311 as owing by an occupier to an invitee. The whole Court was of opinion, however, that, if there had been any evidence (and one Justice held that there was) of negligence on the part of the defendant's servant who was operating the saw, the plaintiff would have been entitled to recover as for a breach of the general duty of care arising from the circumstances. The Court in the majority judgment said : ". . . the duty which the occupier of premises, as such, owes to invitees present on the premises is a separate and distinct duty from that which is involved when the servant of such an occupier causes injury to some person present on the premises by some casual act of negligence. The first duty is founded on the occupation of premises whilst the latter is not ; . . ." (1956) 96 CLR, at p 110 . See also Rich v. Commissioner for Railways (N.S.W.) (1959) 101 CLR 135 . The special duty arises out of the relationship of occupier as such and invitee or licensee as such. The general duty arises out of a relationship created by all the circumstances of the particular case. (at p296)

15. The two classes - invitees and licensees - are exhaustive of visitors who enter lawfully on premises. Any person who is neither an invitee nor a licensee is called a trespasser. An occupier is not expected to anticipate the entry of a trespasser, or the passage of a trespasser across his land, and he owes to a trespasser no special duty analogous to that which he owes to an invitee or a licensee, and no duty of care whatever is imposed upon an occupier by the relationship of occupier and trespasser. But, when we have said this, we have, in my opinion, said all that ought to be taken to be meant, or can today be taken to be meant, by such statements as that a trespasser enters at his own risk. There is no special duty, but 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 is liable to a trespasser for negligence. Sir John Salmond wrote that an occupier would be liable even to a trespasser for any "positive act of negligent misfeasance", and this statement has been repeated in editions published after his death. It recognizes that an occupier may become liable for negligence even to a trespasser, and, so far as it goes, it is, I think, sound, but it does not, in my opinion, go far enough. It accounts satisfactorily for Lowery v. Walker (1910) 1 KB 173 ; (1911) AC 10 , but not for what Lord Goddard described as "that hard-worked case" of Cooke v. Midland Great Western Railway Co. of Ireland (1909) AC 229 . The last edition for which Salmond was himself responsible was published before Donoghue v. Stevenson (1932) AC 562 , and, in the light of that case, I think that the law is correctly stated in the 12th Ed. (1957) of Salmond, edited by Mr. Heuston, at p. 516. What is there said is : "The general principle" (sc. that an occupier owes no duty of care to a trespasser) "is concerned only with the incidents which the law attaches to the specific relation of occupier and trespasser and covers only cases in which the breach of duty of which the plaintiff complains arises out of the defendant's occupation or control of property, of 'premises' or a 'structure'. 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.". (at p297)

16. The view expressed in the passage which I have quoted from the latest edition of Salmond is, in my opinion, the only view which is capable of putting all the decisions on a satisfactory basis, and which is consonant with the general doctrine of the law of negligence as laid down in Donoghue v. Stevenson (1932) AC 562 . It has really, I think, been accepted in this Court. Barton's Case (1933) 49 CLR 114 was decided very shortly after Donoghue v. Stevenson (1932) AC 562 . In a joint judgment Gavan Duffy C.J. and Starke J., after referring to that case, said : "So we are driven in the present case to consider whether it falls within the category of cases in which the duty owed to certain persons by owners or occupiers in relation to dangers which exist upon their property has been considered and determined, or within the more general principle of the duty of care already referred to" (1933) 49 CLR, at p 123 . Dixon J. (as he then was) did not refer to Donoghue v. Stevenson (1932) AC 562 , but he clearly recognized that an occupier might be liable to a trespasser for what Sir John Salmond called "positive acts of negligent misfeasance", and his Honour said : "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" (1933) 49 CLR, at p 132 . I would respectfully agree with this, but I think, as I have said, it is necessary to go a little further, because I do not think that either in Cooke's Case (1909) AC 229 or in Callan's Case (1930) AC 404 , or in Mourton v. Poulter (1930) 2 KB 183 , could it fairly be said that there was any positive act of negligent misfeasance. In each of those cases the substance of the defendant's fault lay in an omission to take a reasonable precaution. (at p298)

17. The view which I would adopt is implicit, I think, in Mummery v. Irvings (1956) 96 CLR 99 , where the two possible sources of duty are clearly stated and distinguished. It was accepted, I think, in Thompson v. Bankstown Corporation (1953) 87 CLR 619 , and I quote at somewhat greater length a passage in the judgment of Kitto J. in that case, which I quoted in Rich's Case (1959) 101 CLR, at pp 144, 145 . His Honour said (1953) 87 CLR, at pp 642, 643 : "The respondent's contention appears to assume that the rule of law which defines the limits of the duty owed by an occupier to a trespasser goes so far as to provide the occupier with an effective answer to any assertion by the trespasser that during the period of the trespass the occupier owed him a duty of care. The assumption is unwarranted, for the rule is concerned only with the incidents which the law attaches to the specific relation of occupier and trespasser. It demands, as Lord Uthwatt said in Read v. J. Lyons &Co. Ltd. (1947) AC 156, at p 185 , a standard of conduct which a reasonably-minded occupier with due regard to his own interests might well agree to be fair and a trespasser might in a civilized community reasonably expect. It would be a misconception of the rule to regard it as precluding the application of the general principle of M'Alister (or Donoghue) v. Stevenson (1932) AC 562 to a case where an occupier, in addition to being an occupier, stands in some other relation to a trespasser so that the latter is not only a trespasser but is also the occupier's neighbour in Lord Atkin's sense of the word : see Transport Commissioners of New South Wales v. Barton (1933) 49 CLR at pp 122, 127 et seq ". I refer also to what I said in Rich's Case (1959) 101 CLR, at pp 144-146 , and to what my brother Windeyer said in the same case (1959) 101 CLR, at pp 158, 159 . (at p298)

18. 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, though a very interesting attempt to classify them is made in the Restatement of the Law, Torts, Vol. 2, Negligence, pp. 901-927 ; see also Prosser, Handbook of the Law of Torts, 2nd Ed. (1955), pp. 432 et seq. 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 Cooke's Case (1909) AC 229 the very simple precaution of locking the turntable when not in use would have prevented the accident which in fact 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. (at p299)

19. These things having been said, the particular case in hand can be dealt with very shortly. It is perhaps a border-line case, inviting the cliche about wisdom after the event. 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 a jury to find that there had been a breach of that duty. (at p299)

20. The plaintiff was, in my opinion, undoubtedly a trespasser. He was not a very young child - he was aged fourteen years - but he was young enough to be attracted by the dump as a playground, a field of exploration, and a depository for discarded articles for which boys may find a use, and he would see no reason why he should not wander at large over the area. The defendant or his servants knew that children frequently wandered and played about in the area, and it was obviously, as one of the witnesses said, a physical impossibility to keep them out. That having been the position for many years, I do not think it can be said, however unwelcome the children were, that no duty of care was owed to them. It may have amounted to no more than a negative duty not to do anything on the land, or place anything on the land, from which a danger to wandering children would arise. The plaintiff could read, and it may be that in the particular case the duty of reasonable care would have been discharged if a notice had been erected stating that hot ashes or burning coals had been deposited at the place where the plaintiff was injured. But the defendant's servants did place live coals on the land, and these were below the surface and not visible, and no warning notice was erected. (at p300)

21. It may be urged - and I have no doubt that it was strongly urged to the jury - that to say that the defendant's servants, who deposited the ashes, ought to have foreseen the possibility of wandering children being burned by them, is to demand a higher standard of care than that of the reasonable man. There is force in this argument, and there has undoubtedly been of recent years a tendency to take an exaggerated view of what is required by the common law duty of care. But, after full consideration, I think it was a matter for the jury, and I think that it was open to the jury to find that the possibility ought to have been foreseen. (at p300)

22. It might be possible in this case for the plaintiff to succeed even on the 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 the 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 , I am convinced is the correct view. (at p300)

23. The direction of the learned trial judge to the jury was not in accordance with the position at law as I see it. But I do not think that it follows from this that a new trial is necessary. On his Honour's direction the jury must be taken to have found (1) that the plaintiff was a licensee, and (2) that the defendant created on the land a danger of the nature of a "concealed trap". The first of these findings, as I have said, cannot, in my opinion, be supported, but the second finding is equivalent to a finding of negligence, and that finding is sufficient to support a judgment for the plaintiff. The jury have, in effect, found not less but more than was necessary to support the judgment. I am of opinion, therefore, that this appeal should be dismissed. (at p300)

MENZIES J. This is an appeal from the Full Court of the Supreme Court of New South Wales unanimously dismissing an appeal against a verdict and judgment for 2,000 pounds damages for personal injury in favour of the plaintiff (the present respondent) against the defendant (the present appellant) (1959) SR (NSW) 230 ; 76 WN 166 . The litigation has proceeded, and I think properly proceeded, on the basis that to succeed the respondent had to establish that when he suffered his injuries he was a licensee upon the appellant's land and that the appellant failed to take the care that it is requisite that the occupier of land should take for the safety of a licensee. The jury by its verdict must be taken to have found both that the respondent was a licensee and that the appellant failed to observe the duty of care that it owed him as a licensee. That duty has often been stated and there are many formulations coming to much the same thing. I do not propose to add another and for the purposes of this case I think it is sufficient to make two references. The first is to what Dixon J. (as he then was) said in Lipman v. Clendinnen (1932) 46 CLR 550, at pp 554-557 relating to the duties of occupiers of land to those who come upon their land in various capacities and his Honour's statement of the occupier's duty to a licensee, i.e. " . . . an obligation of reasonable care to prevent his relying upon a deceptive appearance of safety and thus sustaining harm from a danger of which the occupier is aware and he is not. The metaphor 'concealed trap' has become almost a term of art for describing the danger from which the occupier must take care to protect the licensee" (1932) 46 CLR, at p 556 . The second is to the opinion of the Privy Council in Perkowski v. Wellington Corporation (1959) AC 53 , where Lord Somervell of Harrow, speaking for the Judicial Committee, said: "The authorities on the duty of occupier to licensee were considered by Farwell L.J. and Hamilton L.J. in Latham v. R. Johnson &Nephew Ltd. (1913) 1 KB 398, at p 404; 29 TLR 124 . Farwell L.J. quotes with approval a statement by Williams J. in Hounsell v. Smyth (1860) 7 CBNS 731 (141 ER 1003) , adopted by Wightman J. in Binks v. South Yorkshire Railway Co. (1862) 3 B &S 244, at p 252 (122 ER 92, at pp 95, 96) . 'No right is alleged: it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint - that they were not churlish enough to interfere with any person who went there. One who thus uses the waste has no right to complain of an excavation he finds there. He must take the permission with its concomitant conditions, and, it may be, perils'. One recognized exception to this principle is that the occupier must warn the licensee of a danger of which he knows which is in the nature of a trap. 'A trap', said Hamilton L.J. (1913) 1 KB at p 415 , 'involves the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger'" (1959) AC, at p 66 . (at p302)

24. I turn, therefore, to see whether, on that basis, there was evidence to support the jury's verdict, although strictly I think the plaintiff was a trespasser. The evidence would clearly justify a finding that there was a general licence to the public to use the road across this railway land as a way to and from the railway station. The open access to the land; the notices forbidding cyclists, and thus impliedly permitting pedestrians; the use of the way every morning and afternoon by numbers of people without interference - all these not only justify such a conclusion, they make any other conclusion unjustifiable. "In a frequented neighbourhood and where the owner or occupier may be supposed to know that others regularly enter it and he does not object, an open field may be enough to prove that persons, who would otherwise have been trespassers, in fact enter it by his tacit permission and are licensees" (per Lord Sumner, then Hamilton L.J., in Latham v. R. Johnson &Nephew Ltd. (1913) 1 KB, at p 410 ). But the more difficult question is whether there was any licence to use the land except as a way, any licence, that is, for the plaintiff to leave the road and go upon the area of the dump. The evidence, I think, justifies a conventional finding that there was, for the following reasons: The land as a whole was used by children as a playground; and use as a playground is essentially different from use as a way; and that children were accustomed to go upon the dump and to fossick around it was well known to the servants of the Railway Commissioner. In Gough v. National Coal Board (1954) 1 QB 191 Singleton L.J. said "There is evidence that on some occasions children were chased away. Whether that was sufficient in the circumstances is a question of fact" (1954) 1 QB, at p 201 . And so too here. The plaintiff had never been chased away. There was no fence, nothing to suggest to him that he was confined to the land below the bank. When he went up the bank he merely indulged the natural curiosity and venturesomeness that, fortunately for the nation, boys have. If there be a general licence to go upon land some reason must be shown for excluding a particular part of it (Gough v. National Coal Board (1954) 1 QB 191 ). If the plaintiff came lawfully upon the land as one of a class permitted to play there, he did not become a trespasser when he went upon that part of it likely to prove most attractive to him, there being, when work was not in progress, nothing to indicate that it was barred to him. The only question on this aspect of the case was whether an invitation to the plaintiff to come there to play could be imputed to the defendant. That was a question of fact for the jury. (at p326)

25. Much was said in argument about "allurements". A rubbish tip it was urged could not be an allurement. That contention, however, seems to me to ignore both the nature of boys and the sense in which the word "allurement" has come to be used in this connexion. This is not a case of a young child allured to meddle with a dangerous thing. The plaintiff was an intelligent boy of fourteen. But an allurement, as Lord Goddard pointed out in Edwards v. Railway Executive (1952) AC 737 , "only means a form of invitation" (1952) AC, at p 747 . The word was, as far as I have noticed, first used in this connexion, when Cockburn C.J. in Corby v. Hill (1858) 4 CB (NS) 556 (140 ER 1209) , in 1858 spoke of a road as "an allurement whereby the plaintiff was induced to come upon the place in question" (1858) 4 CB (NS), at p 563 (140 ER, at p 1212) . Cases on "allurements" seem, unfortunately, to be multiplying and the word is becoming a term of art adding an unnecessary technicality to the law of negligence. A building in course of demolition is an allurement - so it is said (Davis v. St. Mary's Demolition &Excavation Co. Ltd. (1954) 1 WLR 592 ); but a trench in a road under repair is not (Perry v. Thomas Wrigley Ltd. (1955) 1 WLR 1164 ). The statement in the judgment in the last case that an allurement is something both attractive and dangerous - "something insidious" (1955) 1 WLR, at p 1167 has, I respectfully think, nothing to support it. An allurement is the invitation that creates the fictional licence. It does not also have to create the danger by which the licensee is injured. Decisions that this or that thing can or cannot be an allurement are really of no value, because decisions on questions of fact in negligence actions ought not to be exalted into propositions of law. The House of Lords has very recently protested against this (Qualcast (Wolverhampton) Ltd. v. Haynes (1959) AC 743 ). (at p327)

26. The plaintiff, if a constructive licensee, was entitled to be warned of or protected against concealed dangers or traps. Were the jury entitled to find that the hidden fire into which he fell was such a trap? I have no doubt they were. It was a question of fact for them: cf. Pettiet v. Municipal Council of Sydney (1936) 36 SR (NSW) 125; 53 WN 52 . And, so far as decisions on questions of fact are aided by decisions on the facts of other cases, Williams v. Cardiff Corporation (1950) 1 KB 514 , is much in point. I do not think any purpose would be served by going through all the other cases to which we were referred. (at p327)

27. Finally, it was strenuously argued that the plaintiff ought not to succeed because he went upon the land barefooted and took the chance of cutting his foot on tins or broken glass. But how could his taking upon himself a risk of which he was aware excuse the defendant entrapping him in a danger of which he was not aware? His lack of footwear might have some relevance as contributory negligence; that is all; and it was so put to the jury. Had he been wearing shoes he might perhaps have been less badly burnt. But why should he take precautions against a danger that was concealed from him? In summer many children go barefooted on holidays, and the jury were not required to forget the ways of boys. (at p327)

28. I would therefore dismiss the appeal on the ground that there was evidence to support the jury's verdict on the issues as left to them. 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 measures to warn persons coming upon the land of the danger there existing. (at p327)

Orders

Appeal dismissed with costs.