Cooper v Southern Portland Cement Ltd

[1972] HCA 28

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Menzies, Owen and Walsh JJ. (THE RIGHT HONOURABLE MR. JUSTICE OWEN died before the delivery of judgment in this case.)

COOPER v. SOUTHERN PORTLAND CEMENT LTD.

(1972) 128 CLR 427

5 May 1972

Negligence

Negligence—Dangerous premises—Injury to person entering—Liability of occupier—Duty of care—Trespasser—Licensee—Child playing on land—Allurement.

Decisions

May 5.
The following written judgments were delivered:-
BARWICK C.J. This appeal, brought by a plaintiff in an action at law in the Supreme Court of New South Wales against a decision, by majority of the Court of Appeal Division of that Court, entering a verdict for the defendant in the action (1971) 1 NSWLR 820 , raises the question whether the defendant, an occupier of land, may be held, in the circumstances, to be liable to a trespasser upon that land, and if so on what basis, for injuries received there by the trespasser as the result of acts and omissions which, but for the relationship of occupier and trespasser, could be held to amount to negligence on the part of the defendant. (at p432)

2. The appellant sued the respondent in five counts. By the first count he alleged that he was on the respondent's land with the leave and licence of the respondent and that there was on the land a concealed danger or trap the existence of which the respondent well knew and which caused injury to the appellant. (at p432)

3. By the second count the appellant alleged that the respondent's premises were frequented by "strangers" and openly used by other people and that there was, to the knowledge of the respondent, a great likelihood of boys and other persons coming and being upon the premises and that in those circumstances the respondent recklessly created and continued in existence a specific peril seriously menacing the safety of the said persons and that the appellant was a boy who came onto the said premises and in the vicinity of the said peril and thereby sustained injury. (at p432)

4. By the third count the appellant alleged that there was on the respondent's premises a heap of rubble which constituted an allurement to children, was negligently allowed to be in close proximity to a high tension electricity line, and which in fact allured the appellant upon the said land whereby he became injured. (at p432)

5. By the fourth and fifth counts the appellant alleged breaches of certain provisions of the Mines Inspection Act, 1901-1968 (N.S.W.) (at p432)

6. The learned trial judge, who presided at the trial of the action with a jury of four persons, allowed only the third count to go to the jury directing a verdict for the respondent on all the other counts. Upon an appeal by the respondent to the Court of Appeal Division of the Supreme Court the verdict which the jury returned for the appellant on the third count for the sum of $56,880 was set aside and a verdict entered on that count for the respondent (1971) 1 NSWLR 820 . A cross appeal by the appellant against the entry of the verdict for the respondent on each of the other counts was dismissed. (at p432)

7. Upon the appeal to this Court the appellant has not sought to have the verdict for the respondent on the fourth and fifth counts set aside, but has sought an order that the verdict and judgment for the respondent on the third count be set aside and the verdict of the jury restored. In default of such an order the appellant seeks an order that the verdicts for the respondent on the first and second counts at the trial be set aside and that there be a new trial on the issues raised by those counts. (at p433)

8. The evidence given before the jury could support, in my opinion, the following view of the facts of the matter. The respondent conducts in a fairly remote part of the southern highlands of New South Wales a limestone quarry. The limestone rock is quarried at a face, elevated to crushers where it is crushed and the limestone itself separated from the sand and other materials with which it is found in the quarry. The limestone after crushing is carried by conveyor to bins from which it is gravitated to railway trucks which pass beneath the bins. The trucks, when full, are taken to the respondent's cement works at another site in the southern highlands by locomotives of the New South Wales Government Railways. As trucks are filled under the bins they are moved by manpower on rails which run south of the bins to a point where buffers prevent their further movement. When enough trucks have been filled to make up a train of appropriate length they are removed by locomotives as I have indicated. The respondent over past years has used the sandy spoil or waste from the crushing and separation of the limestone to make an extensive platform which is considerably higher than the surrounding ground which otherwise remains in its natural partly timbered condition. (at p433)

9. During the year 1967 the respondent desired to lengthen the rail which ran from the base of the bins southwards, so as to accommodate a greater number of trucks filled with limestone and thus to constitute a longer train for movement by locomotives. To do this it increased the area of what I have called a platform by tipping more of the sandy spoil, sometimes referred to in the discussion of the case as "fines", in the area south of the bins. In this way an extension of the platform for a width of about one hundred feet was built increasingly higher, though itself level, than the surrounding country whose natural fall was to the south. On this extension of the platform the length of rail running from beneath the bins was extended. The whole length of the rail from the bins south was referred to as the "back shunt". The western boundary of the respondent's land ran close to the margin of the extended platform of which I have spoken. As the platform was increased in length and width by the tipping of further sandy material the spoil in fact extended beyond the limit of this fence; in other words, went through it, burying it to some extent. (at p433)

10. Approaching the respondent's land on the west was a high tension electrical transmission line owned and operated by an electricity county council. The line had been erected on wooden poles so that the uninsulated wires were originally some twenty feet above the natural level of the land below them. The transmission line came towards the boundary of the respondent's land at what was said to be an angle of the order of fifteen degrees to that boundary. The transmission line apparently crossed the boundary of the respondent's land towards its southern extremity. As the transmission line closed on the boundary of the respondent's land the spoil, tipped to raise the extended platform, passed underneath the transmission line. The distance between the face of the batter formed by the tipped material as it came to rest and the uninsulated wire of the transmission line was thus progressively decreased. Before the occurrence with which this appeal is concerned, the respondent had become aware that a dangerous situation was being created by the extension in this manner of the platform and had in fact taken steps pending the relocation of the transmission line to prevent further tipping of material which, if tipped, would have the effect of further decreasing the distance from the face of the batter and the overhead wires. However, this endeavour on the part of the respondent proved ineffective and further material was deposited beneath the line of the transmission wires so that, on the day in question and at the point with which the case became concerned, the distance from the face of the batter to the uninsulated transmission line carrying electricity of 33,000 volts was such that a boy of thirteen and a half in a crouched position could put his hand on the bare wire. The distance was of the order of five feet or less. (at p434)

11. There was adjacent to the quarry, the platform, the bins and the railway line, a village in which the employees of the respondent were housed. It is referred to in the evidence as a "company village". It consisted of some thirty-five to forty houses connected with the platform and the structures used in the separation and loading operations by what appears to be a gravel or dirt surfaced road. Between the village and the face of the platform on the north-east side there was bushland in its natural condition. From photographs tendered in evidence it was virtually open savannah country. No fences separated the platform and working areas from the village. (at p434)

12. Children of the employees were accustomed to play about this platform, certainly on its north-east side, and they were accustomed to cross it in order to play in the bushland of another person's property which abutted on the west side of the respondent's property. The play in this other person's property was round a rocky area which the children knew as "granny's castle" and as well rabbiting on an area which was south of "granny's castle" and approximately west or a little north of west of the area of the respondent's property with which this case is concerned. One form of play by the children was to toboggan down the slope formed by the tipping of spoil in the course of making the platform. When first tipped, the sandy material was loose and probably quite suitable either for sliding or tobogganing down or for the common youthful prank of rolling stones or rocks down it in order to see how far from the toe of the batter they would go. After weather had attacked the face of the batter it become harder, corrugated or gullied so as to be less suitable for at least some of these forms of play. (at p435)

13. Some of the employees of the respondent kept goats, presumably for their milk. These were tethered on the western side of the employer's property and at least some of them if not all of them were depastured within the boundary of the respondent's land. To attend to the goats, as apparently the children did for their parents, they would cross the platform and railway line which lay between the village and the point where the goats were tethered. (at p435)

14. It was said that the children were forbidden to go near the workings which were identified in the evidence as the quarry area. Their school teacher had instructed them that they must not go into certain parts of the property on the weekend or, perhaps for that matter, at all. There was no evidence that the children had ever been seen on the face of the batter formed by tipping material in the area of the back shunt though they had been seen by the respondent's employees on other parts of the platform. (at p435)

15. The appellant, the son of an employee of the respondent, and other boys, children of employees, on the day before the occurrence out of which the action has arisen, went into the area of the back shunt and were playing on the batter there formed by the tipped sandy spoil. They also did so on the day of the occurrence. But at least the appellant had not played at this place before the first of these days. At some stage on these days the boys had tobogganed down the slope formed by the freshly tipped material and at the time of the accident to the appellant, he and some of the boys with him had been rolling stones down that batter, thereafter clambering down its face to see where the stones had come to rest. The appellant, a lad of thirteen and a half, was clambering back up the batter when, as well as can be gathered, he slipped to his knees and put his hand on the electrified wire and was very seriously injured. (at p435)

16. As I have indicated, the only basis of action which was allowed to be considered by the jury was that the site of the accident constituted an allurement to children which had been effective to bring the appellant to the spot and that the respondent had been negligent in its conduct in not having taken steps to protect the appellant and other children from the peril in the nature of a concealed danger or trap which the proximity to the ground of the highly charged wire could undoubtedly be held to constitute. After verdict, having regard to the summing up of the trial judge, it can be taken that the jury were of opinion that the situation was one of danger and called for some reasonable steps to protect persons who might be likely to come into contact with the wire, that the batter formed by the tipped sandy material was attractive to children at play, that the appellant had in fact been attracted to it by its alluring quality, and that the failure on the part of the respondent to take any steps to avoid injury to children who might be allured to the site was negligent. (at p436)

17. The learned trial judge in summing up to the jury said this:

"The company was the occupier of the quarry premises; the plaintiff is a boy of thirteen, who was on the premises and was injured by a condition of a part of the premises. The duty owed by the occupier of premises to a boy who is on the premises without any legal right to be there is well established, and the plaintiff must show a breach of this well established duty. The occupier of premises is bound by a duty to take reasonable care to protect children from risk to which they are exposed by a dangerous condition of part of the premises if that part of the premises constitutes an allurement to children to enter on to the premises and approach that dangerous part. The part must be dangerous in the sense that it is a concealed danger or a trap. Its existence and dangerous quality must be known to this occupier of the premises and unknown and not obvious to the children. Further, it should be known to the occupier that there is a likelihood that there will be in or near the premises children who will be subject to the allurement and who will in fact be allured to it. The word 'allurement' is a traditional word. What is a thing that is alluring to children? - something that is attractive to children, something that attracts them to approach it and perhaps play about it or approach it in any other way... You must remember the whole of the background of this happening, the fact that the quarry existed alongside a village; that the village was completely connected to the quarry, not with any other thing; it was a mining village attached to this quarry; it was remote and situated in a part of the country which - at least judging by the photographs - does not appear to be very attractive. It was a small isolated sort of place, and yet there were a number of school children there who, at weekends, sought their amusement as best they could." (at p436)

18. It will be observed that the summing up contained elements which were not expressed in the count, though it might be possible to regard them as being implied in it. I shall return to this feature of the case at a later stage. (at p437)

19. The situation which undoubtedly the respondent had created, and which clearly could be held to be highly dangerous to humans, and particularly to children who came to the vicinity, was the proximity of the bare high tension wire to the unnatural level of the soil brought about by the tipping of the sandy spoil. In this case, unlike other decided cases, the respondent was not a distributor of electricity and did not bring the high voltage current to the site. Here the respondent brought the land surface within human range of the electricity thus creating a situation of lethal potentiality. (at p437)

20. The third count upon which the jury has passed was based on the presence on the land of an allurement which attracted the appellant to the respondent's land where he was hurt. The count and the trial judge's summing up seem to have treated the allurement as itself a source of duty in the respondent towards the appellant if the respondent knew of the likelihood that children would respond to the allurement and be present in the area where the appellant was injured. Doubtless the pleader was encouraged to express the count in the terms he used by expressions to be found in Commissioner of Railways (N.S.W.) v. Quinlan (1964) AC 1054 , a decision of the Privy Council which is central to the resolution of the present appeal. But having regard to the presence of the first count of the declaration and his refusal to allow it to go before the jury, it would seem that the judge did not regard the effective allurement as the equivalent of a permission to come to the alluring place. Questions will later arise as to the precise "status" of an "allurement" in this area of alleged liability, and as to what can be taken from the jury's verdict on this count having regard to the summing up. Meantime, I will discuss the matter on the footing that the appellant was a trespasser on the respondent's land and that the respondent had created thereon the situation I have described. Later, I shall consider what is the effect of the findings that the appellant was attracted to the place where he was injured by its alluring quality, that the proximity of the electric transmission line to the surface of the batter constituted a concealed danger and that the respondent was aware of the dangerous quality of that proximity. Finally, I shall consider whether the first count of the declaration ought to have been left to the jury on the footing that it would have been open to them to have found upon the evidence that the appellant was at the place where he was injured by the leave and licence of the respondent. (at p438)

21. It might be as well at the outset to observe that this Court is bound by the actual decision of a case by the Privy Council and by the principles by which that decision is essentially supported, that is to say, by the basic reasons for its decision. The Court is not bound by the decisions of the Court of Appeal of England or of the House of Lords though, as we have said, the utmost respect will be paid to them and we will not lightly differ from what the House of Lords decides. In hearing an appeal from an Australian court which involves matters governed by the common law, the Judicial Committee is declaring the common law for Australia which is not necessarily the same as the common law in the United Kingdom - see Australian Consolidated Press Ltd. v. Uren (1967) 117 CLR 221 . Thus, the trend of decisions in this Court is relevant, particularly as, in actions involving the common law brought by a resident of one State against a resident of another, this is the final Court of Appeal - see Constitution s. 75 (iv.) and Privy Council (Limitation of Appeals) Act 1968 (Cth). (at p438)

22. By the decision in Quinlan's Case (1964) AC 1054 , a case not between residents of different States, we are bound. Thus the commencing point for the consideration of this case, on the footing that the appellant was a trespasser on the land occupied by the respondent, must begin with that case. The actual decision was that the Railway Commissioner was not liable to the trespasser for failure adequately to warn him of the approach of a train of whose approach, because of the terrain, he might be, and, apparently, was in fact, unaware. The reason for the decision was that the case was one of trespasser and occupier of land and nothing more. In that situation there was an adherence to the principle laid down in Robert Addie &Sons (Collieries) Ltd. v. Dumbreck (1929) AC 358 . (at p438)

23. A proper sense of justice has always denied that there is an absolute rule that the occupier of land owes no duty whatever to a trespasser. He is said to come upon the land at his own risk - taking the land and all that is upon it as he finds it. But it seems always to have been recognised that humanity as a handmaiden to justice requires considerable modification of an absolute irresponsibility of the occupier based on his proprietorship or control of the land. He must do no wilful harm to the trespasser of whose presence he is aware. Knowledge of facts and circumstances upon which it would be reasonable to expect the presence of a trespasser, so that the occupier as good as knows of that presence, will be accounted as actual knowledge. Reckless disregard of that presence, or perhaps callous indifference to it, will rank with wilful conduct to attract liability. Mantraps may not be laid with impunity ; nor may spring guns be set because they are directed to trespassers whose presence on the land is expected. Concessions must necessarily be made to trespassing juveniles. I leave on one side the mechanisms by which the concessions are made. But these denials of a rule of absolute irresponsibility have been made in the name of common humanity. With the increased availability of lethal substances and their use in activities upon land and structures, the traditional solicitude on the part of the law for human life and safety might well have led directly to further modification of the rule as to the liability of an occupier towards a trespasser. A court might well be thought to be in line with the traditional use of a sense of humanity in imposing directly upon the occupier, as such, some liability in relation to humanly dangerous situations created by him. But so far this has not been done authoritatively so far as this Court is concerned. (at p439)

24. The moot point in this case is whether an occupier, who introduces or maintains upon his land a thing or substance highly dangerous to humans, or to some class or group of humans or creates a situation highly dangerous to humans or to such class or group, on his land, owes a duty, and if so of what kind, to persons who may come upon his land and suffer injury by the thing, substance, or situation, and of whose likely presence on the land he knows or, on the facts and circumstances known to him, ought to be taken to know. (at p439)

25. It seems to me from reading their Lordships' advice in Quinlan's Case (1964) AC 1054 that they did not consider that a steam locomotive driven at speeds of 20 to 25 miles per hour, was inherently and highly dangerous to mankind, so that common humanity could be thought to place upon the operator of the railway service the need to consider who was likely to be or to come into its path at a place where its approach was neither visible nor appreciable. Thus, the case was regarded as one in which the only relationship between the parties was merely that of an occupier of land and trespasser thereon; in other words, that that was the relevant relationship in relation to the injured man's claim for damages. The duty to which that relationship gave rise was regarded as settled in the terms used by the House of Lords in Addie's Case (1929) AC 358 . The Commissioner was not in breach of that duty. (at p439)

26. The reasons of their Lordships for their advice in that case have created problems to which commentators have referred. It is not my purpose to canvass such matters. It is sufficient that I should express my own view as to what may be decided in this case conformably with their Lordships' decision. The trend of decisions in this Court was observed by their Lordships but not entirely affirmed. Perhaps one of the questions which their reasons raise is the extent to which, and the basis on which, this Court's decisions were accepted. But I think it is clear that their Lordships approved this Court's decision in Thompson v. Bankstown Corporation (1953) 87 CLR 619 . The Court there decided that an electricity distributing authority which brought electricity at a lethal voltage into the proximity of a public place was liable to a youth who, in the course of the unlawful use of a pole owned by that authority and without its permission, suffered injury by contact with electricity because of that authority's failure adequately by reasonable maintenance to prevent the possibility of that contact. Their Lordships' approval of that decision is, in my opinion, of paramount significance in resolving the present case. (at p440)

27. Having carefully studied them I do not read their Lordships' reasons whilst denying that the doctrine in Addie's Case (1929) AC 358 be confined to the condition of the land itself, as treating the nature of an activity carried on by the occupier on his land as irrelevant when considering whether a trespasser has a cause of action. I think that those reasons contemplate that the nature of such an activity may in some circumstances be such as to raise a larger and different duty towards a person coming upon the land without invitation or permission than that laid down in Addie's Case (1929) AC 358 , though, with great respect to the noble Lord who prepared them, I cannot say that I feel absolutely certain of their Lordships' views in this connexion. After all, as they saw the facts, the case before their Lordships was one of occupier and trespasser and nothing more. They were concerned to express the limits of the duty of the occupier in those circumstances. Any reference to the possibility of other duties arising out of other relationships was only made, as I read the reasons, in commenting upon expressions which their Lordships took to be attempts to formulate the duty of an occupier who stood in no other capacity or relationship to a person trespassing upon his land. In that connexion, however, their Lordships in affirming the statement of that duty by the House of Lords in Addie's Case (1929) AC 358 do seem to concede that if the situation which the occupier creates on his land is highly dangerous but not apparent to human beings coming upon the land, a failure to take reasonable steps to prevent that situation from causing harm to persons who to the knowledge of the occupier are likely, or at any rate highly likely, to come upon the land can be accounted "so callous as to be capable of constituting wanton or intentional harm" (see (1964) AC, at p 1084 ); for thus, at that point, their Lordships seem to explain their acceptance of this Court's decision in Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 CLR 274 . However, it may be that that acceptance was also placed on "the ash tip, with its burning interior", being at once, having regard to its location, a dangerous allurement to straying children and a trap or an unusual hidden danger (1964) AC, at p 1083 , a view which seemingly prompted the terms of the third count in this case. (at p441)

28. But their Lordships say this (1964) AC, at p 1081 :

" ... for the moment it is sufficient to say that their Lordships cannot find any line of reasoning by which the limited duty that an occupier owes to a trespasser can co-exist with the wider general duty of care appropriate to the Donoghue v. Stevenson (1932) AC 562 formula: and, if the relation of occupier and trespasser is to be displaced by 'some other relation', as may happen, the grounds upon which that displacement can be held to occur must admit of reasonably precise definition, otherwise the task of charging juries as to what the law requires or allows will become virtually incapable of formulation." (at p441)

29. When affirming the decision of this Court in Thompson's Case (1953) 87 CLR 619 , their Lordships described it as -

" ... one of those in which the court, for sufficient reason, is able to hold that, as regards the accident and the injury caused, the relation of occupier and trespasser does not bear upon the situation of the parties. The reason there held sufficient was that the corporation was maintaining on and over a public place a highly dangerous electric transmission system in a defective condition." (1964) AC, at p 1080

Though their Lordships do not expressly say so in this connexion, I would infer that what they did say was said on the assumption that the relationship of occupier and trespasser was relevantly capable of existing in the case of a structure such as the electric light pole. In the long run, though critical of such an extension of the doctrines relating to land, I assumed so much in Munnings v. Hydro-Electric Commission (1971) 125 CLR 1 . Their Lordships' expression "does not bear upon the situation of the parties", with due respect, is far from self-explanatory, but I read it as meaning in its context that the relationship of occupier and trespasser was not the relationship relevant to the circumstances of the injury. Consequently, it seems to me that in affirming the decision in Thompson's Case (1953) 87 CLR 619 , their Lordships were conceding that though the defendant be in fact the occupier of the land or structure on which the plaintiff receives his injuries when he has no right to be upon it, there can be an obligation of care on the part of the defendant which is larger than the duty of an occupier towards a trespasser where no other factors are present. The precise extent of that obligation need not presently be expressed; though, as their Lordships point out, the nature of the relationship must be defined with reasonable precision. The importance at the moment of the endorsement of the decision in Thompson's Case (1953) 87 CLR 619 is, in my opinion, that the occupier defendant was liable to a trespassing plaintiff, because, presumably, the relation of occupier and trespasser was not the relevant relationship of the parties. To use their Lordships' expression, the relation of occupier and trespasser had been "displaced by 'some other relation'" so far as it was necessary to consider whether a duty to the person trespassing had not been performed. The parties had not ceased in fact or in law to be occupier and trespasser in relation to the pole but that relationship did "not bear upon the situation of the parties" in connexion with the injury received. No doubt the proximity of the pole to a public place assisted to justify the conclusion that the state of the electrical wiring was a danger to humans and perhaps also assisted the conclusion that the Council ought to have expected the presence of people at or about the pole. It did not establish either the Council's knowledge or expectation of the presence of the plaintiff on the pole. (at p442)

30. Of course, whilst the relationship of occupier and trespasser is the relevant relationship, the obligation of an occupier can not be enlarged by supporting some co-existing relationship. That other relationship must "displace" that of occupier and trespasser so as to be the relevant relationship. In my opinion, it was because their Lordships thought Sir Frank Kitto to be attempting to extend the duty of an occupier whilst treating the relationship of occupier and trespasser as the relationship relevant to the receipt of the injury, that criticism was offered of what he had written in Thompson's Case (1953) 87 CLR 619 . See Quinlan's Case (1964) AC, at pp 1080-1081 . But, with due respect, I think this a misreading of what Sir Frank Kitto said. As I read the passage in question from Thompson's Case (1953) 87 CLR 619 , the case supposed was one in which, again to use their Lordships' language, the relationship of occupier and trespasser, though of course continuing in fact, was "displaced" by the other relationship derived in all the circumstances from the nature of the thing, activity, or situation brought or created by the occupier and the expectation of the presence of the injured person or of a group or class of persons of which he was one. The emphasis by their Lordships on the difference in the facts of the two cases confirms me in my conclusion that the reason given in Quinlan's Case (1964) AC 1054 do not deny the possibility of a person who is an occupier coming under a duty towards a person who is a trespasser different from the duty expressed in Addie's Case (1929) AC 358 , if the relevant relationship of the parties is not simply that of occupier and trespasser. If the plaintiff can sue the defendant only in his capacity of occupier and because he is the occupier, Addie's Case (1929) AC 358 , as currently expounded by the Privy Council, will determine the existence and extent of any duty to the plaintiff. But that proposition does not deny that in relation to injuries received or damage done there can be another relationship which determines the rights of the parties. (at p443)

31. Thus, whilst in Quinlan's Case (1964) AC 1054 there was a refusal to enlarge the duty of a person who was no more than an occupier towards a trespasser beyond those traditionally expressed in Addie's Case (1929) AC 358 , room was left to displace the relevance of that relationship of occupier and trespasser by another relationship which grew out of the demands of humanity. The bringing of a lethal substance into the proximity of persons expected to be present does suggest a relationship which in common humanity calls for the imposition of a duty of care. It is the high potential of danger to humans or to a class or group of humans which, it seems to me, excites humanity in the circumstances. Of course, to speak of a high potential of danger is to introduce questions of degree. But that is no novelty in the development of the common law, particularly in the area of negligence. Nor, in my opinion, does it lack precision, either in expression, or in its possible application. The range of substances and of situations which will qualify as having a high potential of danger to humans will, perhaps, extend as technology advances. Their identification by the courts is not a task of a kind to which they are unused. Whether or not a high as distinct from some lesser degree of danger will always be essential need not now be decided: for in this case the voltage carried by the uninsulated transmission line was lethal. (at p443)

32. It is noticeable that in Quinlan's Case (1964) AC 1054 , there seems to have been some recognition of the fact that a highly dangerous situation might have to be fitted into the "Addie" formula. Thus, the result in Cardy's Case (1960) 104 CLR 274 is, at one time, attributed to a callousness to be treated as wilful or intentional vis-a-vis the trespasser. So to relax the apparent rigidity of the "Addie" formula by its generous application would seem to me to introduce undesirable imprecision and uncertainty. On the other hand, to displace a relationship of occupier and trespasser by a relationship deriving from the highly dangerous thing, substance or situation brought or created upon the land is, in my opinion, in line with the development of the common law, and the place the criterion of common humanity has so far taken in denying irresponsibility of an occupier towards a trespasser. (at p444)

33. Once the relationship of occupier and trespasser is displaced as the relevant relationship one is not limited, in my opinion, to the requirement of actual knowledge of the presence of the trespasser, or of its equivalent. That requirement is of the essence of the "Addie" formula. The displacing relationship, stemming from the highly dangerous thing, substance or situation, depends, it seems, on the proximate presence of the person likely to be injured by that thing, substance or situation. Thus, the expectation actual or imputed of that proximate presence on the part of the occupier bringing the thing or substance or creating the situation on the land seems logically to be the remaining element in the creation of a duty. If the source of danger is proximate to a public place the nature of that place may provide the expectation of the presence there of persons to whom the thing, substance or situation is likely to be injurious. If the source of danger is proximate to a place where persons are known to resort, though not a public place, again that place may provide in the circumstances the necessary expectation. But clearly, these are not the only instances, or types of instance, in which an expectation of the presence of persons can be attributed. That expectation can be concluded in many other factual situations. In Munnings v. Hydro-Electric Commission (1971) 125 CLR 1 the use of the adjacent land as a playground to the knowledge of the Electricity Authority's officers was enough in that case to infer the necessary expectation of the presence of people such as the plaintiff. In British Railways Board v. Herrington (1972) AC 877 the position of the railway line between two meadows where children were known to play apparently was enough to justify the conclusion that the presence of children on the railway premises was to be expected if no adequate fence was maintained. (at p444)

34. The question in this case, granted the creation by the respondent of the situation highly dangerous to humans, or to a group or class of them, is whether the presence of the children on the back shunt in the proximity of the transmission line was to be expected by the respondent. If it was, the displacing relationship, in my opinion, would arise and the respondent would owe a particular duty of care for breach of which an action could be maintained. The expectation as I have indicated can, in my opinion, be actual or imputed from the facts and circumstances of the case. (at p445)

35. I am inclined to think that, because the duty to one's neighbour is styled a general duty of care, it is likely to be thought too large to impose upon a defendant who is an occupier but who has assumed the relationship stemming from the creation of a highly dangerous situation. That duty, in my opinion, would appear to be more specific and limited, namely, to take reasonable steps to prevent harm ensuing to the plaintiff from that dangerous situation as, for example, by adequately maintained fencing, or to enable him to avoid that harm as, for example, by providing a warning. So stated, I realize the duty in the circumstances is little, if at all, different from the acts required of a person who was not an occupier but otherwise in the same circumstances. Of course, the particular acts for which the performance of such a duty may call will vary with the circumstances. The ability of the occupier creating the danger to minimize or avert its consequences will be one of those circumstances. But here no such questions arise. The respondent created the situation. It was aware of its potential for serious harm and it had ample resources to have coped with the situation. It did nothing. (at p445)

36. At this point I should like to say something of the recent decision of the House of Lords in Herrington's Case (1972) AC 877 . I have been favoured with a print of their Lordships' reasons. I am not at liberty, of course, to prefer that decision, or their Lordships' reasons therefor, to the decision or reasons in Quinlan's Case (1964) AC 1054 . Nor may I treat the decision of the House of Lords as qualifying or in any part overruling Quinlan's Case (1964) AC 1054 . But, as I read their Lordships' reasons, they did not regard their decision as inconsistent with Quinlan's Case (1964) AC 1054 . Thus, a brief discussion of Herrington's Case as illustrative of the limits of Quinlan's Case (1964) AC 1054 is not out of place. (at p445)

37. It was decided in Herrington's Case (1972) AC 877 that the operators of a railway service by means of a third electrically activated rail at ground level came under a duty in the circumstances to maintain a fence between their property on which the rails were laid and the area of land adjacent thereto on which children were known to play. A fence placed by the railway operators on the boundary of their land having been allowed to fall into disrepair, a child stepped through or over it, reached the live rail and was injured thereby. There was really no evidence on which it could be held that the railway operators knew that the child was on their property or that children were coming upon that property at the place where the child was injured. There was some evidence that those operators had knowledge that children had come on to the railway line at some other point which, as far as I can see, was unrelated to the area in which the injury was received. (at p446)

38. The child was a trespasser on the railway operators' land. There was no question of allurement or permission, actual or inferred. Yet a verdict for the child was sustained. It was sustained, as it seems to me, because the placement of the live rail at ground level on insecurely fenced land created a highly dangerous situation for humans or at any rate for the group or class of them of whom the child was one. Consequently, the railway operators, in the circumstances, came under a duty to take reasonable steps to avoid injury to those whom they should expect to come upon their property if it were unfenced. This is not the place for a discussion of the various speeches of their Lordships in support of the result I have mentioned. But none of their Lordships, though of course not bound by it, seems to me to regard the reasoning of Quinlan's Case (1964) AC 1054 as standing athwart his path to that conclusion. Consequently, I find nothing in their speeches to lead me to think that I am in error in thinking that Quinlan's Case (1964) AC 1054 does not deny the possible existence of a liability in the respondent to the appellant in this case, treating the appellant as a trespasser, any question of allurement apart. (at p446)

39. Having regard to the close similarity in their essential structure of the facts in this case to those in Cardy's Case (1960) 104 CLR 274 , it may be possible to resolve this case by treating it as precisely covered by the decision in Cardy's Case (1960) 104 CLR 274 , the result of which was accepted in Quinlan's Case (1964) AC 1054 . But I am not prepared to do so. Further, it may be possible to conclude that the failure of the respondent to do anything to avoid injury from contact with the bare electrically charged wire to persons whose presence at the site of the accident to the appellant ought to have been expected was "so callous as to be capable of constituting wanton or intentional harm" within an unqualified application of the principle laid down in Addie's Case (1929) AC 358 . But I am not prepared to so resolve the case, though it might be possible to regard the respondent's inactivity in the matter as reckless. I would not so hold in the circumstances. (at p447)

40. In my opinion, the relevant relationship of these parties was not necessarily that of occupier of land and trespasser thereon. It could be held to be the relationship of a person who had created on his land a situation highly dangerous to mankind and a person whose presence on the land was expected or to be expected by the creator of the situation. The question whether, on the evidence, the presence of the appellant at the point of danger was to be expected can be dealt with as I deal with the question whether there was any evidence that the appellant was at the place with the permission of the respondent, a matter pertinent to the first count of the appellant's declaration and to which I now turn. If there was such evidence, clearly there was evidence on which it could have been held that the appellant's presence on the land at the particular location was to be expected. (at p447)

41. I should observe at the outset, in this connexion, that there is a difference between liberality in finding that actual, though inferred, permission has been given and imputing a permission which was not in fact given. I do not regard the latter in any case as warranted. Ample warrant for the former is to be found in the facts of the decided cases. (at p447)

42. I think there was evidence from which the jury could conclude that the children of the respondent's employees, living in the "company" village in its remote situation, were free, so far as the respondent was concerned, to play on any part of the platform or its slopes, putting aside for one moment the new slope at the back shunt, except the actual quarry workings: and that they did so to the knowledge of the respondent through various of its employees. Further, the evidence, in my opinion, would have warranted the conclusion that the children were free to cross the platform in order to reach the places on Cooper's property, the property on the west of the respondent's property, which for present purposes may be regarded as their playground, both granny's castle and the rabbiting area; also that they were free to cross the platform to attend to the goats. Apart from the quarry workings and the proximity of the power line to the extended platform there would seem, so far as appears, to have been little danger to children using the platform. It may be thought natural for the children in such a remote place to play on and around the platform, either as an occupation for its own sake or as incidental to crossing the platform to reach granny's castle, the rabbiting area or the place where the goats were tethered. Indeed, in my opinion, it might be thought to be something to be expected of them. It could also be concluded that it would be natural for children to wander upon the platform as they made across it. The "sandhills", as the children rather illuminatingly called the slopes of the platform, could be thought to be readymade playgrounds in the circumstances in which these children found themselves and likely to attract them to play upon them in the way in which children, according to the evidence, did in fact play, that is to say, by running up and down them or rolling stones down them or tobogganing down them with an improvised toboggan made of corrugated iron. The attractiveness of these "sandhills" for these purposes was at its greatest when the material had been newly tipped over the edge. Probably they lost their attraction progressively as the face of the batter became hardened by weather and gullied by rain. There was no reason, which I can appreciate, why the "sandhill" on the western side of the platform should be any less attractive to the children as a play area than one on the eastern side. No doubt the latter would be more proximate to the village but the other would be more proximate to the playing areas in Cooper's property, granny's castle and the rabbiting ground. And it might be thought that the newer slope was more attractive to the children than a weathered slope. Of course, the fact that prior to the relevant time they had not played on or around the back shunt is a fact for consideration but not a conclusive fact. (at p448)

43. The absence of fences, the position of the platform between the village and the places to which the children went to play or to attend to the goats kept by their parents, the isolated nature of the whole situation, the nature of the platform and its marginal batters, the knowledge that the children did play on the platform and its batters, and did cross it to go to granny's castle, the rabbiting ground and the place where the goats were tethered, all furnish evidence, in my opinion, from which it could be inferred that the respondent acquiesced in the use by the children of the platform and the batters for play and for passage to and fro their other playing grounds, that is to say, there was room on the evidence to infer, as distinct from impute, permission on the part of the respondent for the children to do these things. (at p448)

The evidence would be sufficient, in my opinion, to enable the permission to be inferred as extending to the batters on the western side of the platform including the batters newly formed in the course of extending the back shunt. Indeed, I can see no ground upon which it could be said that if there were permission to use the platform for play and for passage that any part of it must be held to be excluded from the permission, with the exception of the working areas of the quarry. If it were concluded that the respondent had given permission to the children to play and to pass over the platform and its batters, its duty to its permittees, at the very lowest, could in this case attract liability for the subsequent injury to the child. The situation of great danger was one not appreciable by the children and certainly was one into which they could stumble by inadvertence in the course of play. The danger in general was known to and appreciated by the respondent. Therefore, there was evidence, in my opinion, to support the first count which ought to have been submitted to the jury. (at p449)

45. But even if permission thus to use the platform is not inferred, there is, in my opinion, evidence on which it could be found that the respondent, having regard to the nature and extent of the danger, ought to have expected the children to come within its range, particularly if the attractiveness of the newly formed batter on the western side is accepted as a fact. I include the nature and extent of the danger in this conclusion because these features call for thought to be given to the question whether persons are likely to be injured by it. In my opinion, the so-called "allurement" of the "sandhills" may be taken into account both in deciding whether or not permission was given to use the platform and its batters and whether or not the presence of the injured person, or of the class of whom he formed one, ought in all the circumstances to have been expected at or about the place where the appellant received his injury. (at p449)

46. In my opinion, an allurement on the occupier's land does not itself give rise to a cause of action if it leads a child to trespass, though it might be said that in explaining their acceptance of Cardy's Case (1960) 104 CLR 274 their Lordships might seem to regard the allurement, if the ashtip became effective in that respect, to have given a right of action. As I remarked earlier, the appellant's pleader seems to have taken such a view, for the third count, and indeed the summing up, is founded mainly on the allurement of the place where the appellant sustained injury. However, holding the opinion which I do, I would not support the third count as drawn or as treated by the trial judge in summing up. The trial judge, in the portion of his summing up which I have set out, expanded the count, though still leaving the allurement as the source of a duty to protect the children who might be allured to the situation of danger. (at p450)

47. But the matter does not end there. After verdict, bearing in mind the summing up, it must be taken that the jury found that the respondent had created a situation of danger on its land. That situation was the proximity of the surface of the batter of the platform to the uninsulated high voltage transmission line. That situation of danger could only be regarded as highly dangerous to human life and safety. Then, the jury must be taken to have found that the respondent knew of the existence and dangerous quality of what they must have concluded was a concealed trap as far as children were concerned. Further, because the place of the danger was attractive to children seeking their amusement in the remote area where they lived, and having regard to the terms of the summing up, the jury must have concluded that the respondent must have known that it was likely that children would be attracted to the place of danger. In my opinion, that finding in the circumstances of the case is the equivalent of a finding that the presence of the children in the area was to be expected by the respondent. Upon the possible view of the facts, which I have already indicated, there was, in my opinion, sufficient evidence to support such findings. They are sufficient, in my opinion, to support a verdict against the respondent on the footing that, having created a situation highly dangerous to human life, the proximate presence of children was to be expected by it, with the consequence that the respondent owed the appellant a duty to take reasonable steps to prevent the appellant suffering injury by that highly dangerous situation. If there was any duty, there can be no question that the respondent failed to perform it. (at p450)

48. Therefore, because of the findings inherent in it, and upon the basis I have indicated, I would not disturb the verdict of the jury. A comparable course taken in Cardy's Case (1960) 104 CLR 274 does not seem to have excited criticism in the Privy Council in Quinlan's Case (1964) AC 1054 . (at p450)

49. In my opinion, the appeal should be allowed and the verdict of the jury restored.

McTIERNAN J. In my opinion the appeal should be allowed and the verdict of the jury on the third count should be restored. It is said by the count: the defendant was the occupier of premises and there was on them a pile of rubble which was alluring to children and such as was likely to induce the presence on the said premises of children and the plaintiff was a child who was on the said premises and was allured by the said heap of rubble and thereupon the defendant by itself its servants and agents was so careless negligent and unskilful in and about allowing the said pile of rubble to be in close proximity to a high tension electricity line that the plaintiff sustained the injuries and suffered the damage more particularly set out in the first count hereof. The salient features of the evidence before the jury are stated by the Chief Justice in his judgment. The trial judge gave directions to the jury as follows:

"The company (respondent) was the occupier of the quarry premises; the plaintiff (appellant) is a boy of thirteen, who was on the premises and was injured by a condition of a part of the premises. The duty owed by the occupier of premises to a boy who is on the premises without any legal right to be there is well established, and the plaintiff must show a breach of this well established duty. The occupier of premises is bound by a duty to take reasonable care to protect children from risk to which they are exposed by a dangerous condition of part of the premises if that part of the premises constitutes an allurement to children to enter on to the premises and approach that dangerous part. The part must be dangerous in the sense that it is a concealed danger of a trap. Its existence and dangerous quality must be known to this occupier of the premises and unknown and not obvious to the children. Further, it should be known to the occupier that there is a likelihood that there will be in or near the premises children who will be subject to the allurement and who will in fact be allured by it. The word 'allurement' is a traditional word. What is a thing that is alluring to children? - something that is attractive to children, something that attracts them to approach it and perhaps play about it or approach it in any other way ... It was a small isolated sort of place, and yet there were a number of school children there who, at week-ends, sought their amusement as best they could. Then there were the physical features of the quarry itself. There was the fact that on week days - and very often on Saturdays - production was taking place, and even on Sundays there may be maintenance going on. Then you have the background of the evidence - if you accept it - that the schoolmaster, and indeed officials of the company, from time to time warned children of dangers inherent in the village and on the works, and also - if you accept it - that children were quite often warned to keep away from the premises, and indeed ordered off the premises. It is against that background and the background of the evidence also, that on Sundays, despite these prohibitions, children - being children and apt to the sin of disobedience - wandered onto the premises either to cross over them or to play on them and that, if you accept the evidence again, that there was an attraction in what has been called the dumps where waste material is put in with the heap in such a way that slopes were formed and the children, again if you accept the evidence, liked to play on these slopes, rolling stones down them, running up and down them or using pieces of steel in such a way that they could indulge in the sport that is called tobogganing. I do not know how much of this evidence you accept and how much you reject, but undoubtedly you must accept part of it, on one view that has been put to you. It is your duty now, against that background, to examine what I have put to you. The occupier of premises is bound to take reasonable care. The law is not so unreal as to demand of any human being or institution perfect care; but having regard to all the circumstances, the duty is to take reasonable care and a failure to take reasonable care is a breach of that duty and is called - as I have already told you - negligence. The occupier is under a duty to protect children. This duty of care, in the circumstances of this accident, is only in favour of children. Because it is considered

- and you might think realistically so, - that children, being children, might be lured or attracted on to premises where they have no right to be, where an adult would not be so lured or attracted, or if there were an allurement or attraction he would be expected to reject that allurement or attraction. Did this slope constitute an allurement? You have heard the arguments of Mr. Loveday (for the plaintiff) on this point. He said that in this village at that time, the children, on the evidence he asks you to accept, did like to play and were attracted to these slopes, to use them in the way the evidence indicates ... The part of the premises must be dangerous in the sense that the danger was a concealed danger; that it constituted, in effect, a trap. Well, on this matter Mr. Loveday asks you to say without any great hesitation that the presence of an unguarded uninsulated electric wire carrying 33,000 volts within four or five feet of a slope, which he claimed was an allurement to children, was clearly a trap and a concealed danger. There were no warnings, no guards, and the wire was in easy reach of any person who was playing on this slope

- any children - I should say, who were playing on the slope, and as I understand it, Mr. McGregor (for the defendant) did not advance any arguments to the contrary. Then its existence and dangerous quality must be known to the occupier. Here, Mr. Loveday put to you that this danger must have been known to the occupier; it was on the defendant's own premises and the danger had been created by the activities of the company in dumping soil to the extent that the edge of the soil on the slope was brought so close to the wire that employees of the company engaged in the very operation must have known of the existence and the quality of the danger. He asks you also to accept the evidence of Mr. Cosgrove, that it was an estimated five feet from the slope for quite a period before. And if you do not accept that evidence, he asks you to accept the evidence of Mr. Howard, the mine superintendent, who recognised the potential danger, but that according to Mr. Howard it was not five feet from the slope but a considerably greater distance away from the slope on the Thursday, and he took immediate steps to have that wire removed. Unfortunately, the wire was not removed before the Sunday, when the plaintiff came in contact with it. Mr. McGregor asks you to say that in all the circumstances the knowledge of the danger was not to be imputed to the company because something went wrong after the Thursday when the danger was only potential and not actual, and that the company had, through its officers and servants and employees, really no knowledge that the wire was so approximate to the edge of the slope. The other matter is - and this again, I think, is one of those obvious matters that Mr. McGregor made no submissions about - that the danger must be unknown and not obvious to the child. Well, you have heard the description of the situation, and you might think a child of thirteen would not appreciate that the wire hanging in proximity to the edge of a slope was a potentially lethal wire. Then, as I told you, it must be known or at least be foreseeable and foreseen by the occupier that there was a likelihood that there would be in or near the premises children who would be subject to the allurement that existed on the premises. Again, it is idle to give illustrations of other situations. You bear the situation in mind here of the village, its locality: its proximity to the works and all the other evidence about how children had conducted themselves in and about and near these premises over the week-ends for years before the accident. And also, as I told you, it must be foreseeable by the occupier that this part would be an allurement to children. Again you find the danger of becoming repetitive. You have the evidence - if you accept it - that children did pass over or go to various spots on the works premises; and you have the evidence that on other dumps children did play, whether they were tobogganing or rolling stones or doing other things. So much depends on what you find the situation to be. But to whatever you find the situation to be you apply the principle I have given you and you ask yourselves: 'Has the plaintiff established - in the way I indicated - that he met with his injury as a result of the breach of duty on the part of the defendant?' If you are not so satisfied, the verdict is for the defendant."

There was evidence on which the jury could find for the plaintiff on every allegation made by the third count. (at p453)

2. The reasons of Asprey J.A., and of Holmes J.A. also, for deciding that the verdict of the jury on this count should be set aside were that the plaintiff or any other boy with whom he was playing had no licence or permission to be at the place where the accident happened. Their Honours took the view that there was no evidence fit for the jury to consider that the permission which children living in houses on the premises had to roam over the premises, extended to the place where the accident happened; and further, they took the view that evidence adduced for the company showed that such permission did not extend to the place where the accident happened. Taylor A.-J.A. took the view that there was evidence on which the jury could reasonably find, if the issue had been left to them, that the scope of the permission enjoyed by the children to ramble over the premises would have extended to the place where the accident happened. I agree with Asprey J.A. and Holmes J.A., so far as this question is concerned. (at p454)

14. I turn to the third question which I posed above. Here, it is necessary to consider how one should apply, in the circumstances of this case, the principle stated positively in Quinlan's Case (1964) AC, at p 1074 that "the accepted formulation of the occupier's duty to a trespasser" is intended to be an exclusive or comprehensive definition of the duty, together with the "important qualification" of that principle which their Lordships mentioned. The qualification was that the occupier's duty was limited in accordance with the Addie formula "so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured". Later, in approving the decision in Thompson v. Bankstown Corporation (1953) 87 CLR 619 , their Lordships said of it (1964) AC, at p 1080 :

"It was one of those '(cases)' in which the court, for sufficient reason, is able to hold that, as regards the accident and the injury caused, the relation of occupier and trespasser does not bear upon the situation of the parties."

At this point, it seems to me that their Lordships were describing a factual situation in which the one party remains an occupier and the other remains a trespasser, but in which although that relation still exists, it does not bear upon their situation, "as regards the accident and the injury caused". When (1964) AC, at p 1081 their Lordships spoke of the relation of occupier and trespasser as being "displaced" by some other relation they did not mean, in my opinion, that the former relation had ceased to exist, for example, by the trespasser receiving permission to remain on the land. They meant that the relation is displaced in the sense that some other relation has taken its place as that which is relevant, in a legal sense, for the determination of the rights and liabilities of the parties. But their Lordships stressed the point that this could be held to occur only when the grounds for so holding admitted of "reasonably precise definition" (1964) AC, at p 1081 . Their Lordships were at pains to make it clear that it is not enough, in order to displace the relationship, to describe the party injured as a "neighbour" of the other party, in Lord Atkin's sense of the word. (at p477)

15. The question which must now be considered is whether it is permissible to find in the evidence in this case any ground for holding that there was "some other relation" between the parties, which gave rise to a duty of care which could be found to have been broken. In my opinion, it is not permissible to do so. It is not sufficient for this purpose, in my opinion, that the danger to any person who came into contact with the high tension wire was of a high degree and that the respondent permitted such a danger to exist at a place where access to it was possible. There are not, in this case, any facts additional to those just stated which are, in my opinion, relevant to the question under consideration. I cannot regard it as being in accordance with the principles enunciated in Addie's Case (1929) AC 358 , as confirmed in Quinlan's Case (1964) AC 1054 , to say that the application of the formula may be excluded where the condition of the premises is "extremely" dangerous or "highly" dangerous, but not where it is dangerous in some smaller degree. I do not mean that the degree of the danger is irrelevant. But I cannot accept it as being itself a decisive fact, which is sufficient to create a special relationship which "displaces" that of occupier and trespasser. (at p478)

16. The case of Thompson v. Bankstown Corporation (1953) 87 CLR 619 was approved by the Privy Council. But it is distinguishable from this case. One ground of distinction which, if accepted, would set apart both that case and the case of Munnings v. Hydro-Electric Commission (1971) 125 CLR 1 from the present case is that in each of the earlier cases the plaintiff was not a trespasser upon land occupied by the defendant and for that reason, although he may have been in a technical sense a trespasser upon a pole belonging to the defendant, he was not considered to be affected at all by the rules contained in the Addie formula. Such a view was expressed in Munnings' Case by the Chief Justice (1971) 125 CLR, at p 7 and by Menzies J. (1971) 125 CLR, at p 18 . See also the judgment of Windeyer J. (1971) 125 CLR, at p 25 . It was for the same reason that Menzies J. regarded the case of Excelsior Wire Rope Co. Ltd. v. Callan (1930) AC 404 , as being in no way inconsistent with Addie's Case (1929) AC 358 . His Honour's explanation of what has sometimes been thought to be a conflict between those two cases accords with the opinions stated by Sir Owen Dixon in Transport Commissioners (N.S.W.) v. Barton (1933) 49 CLR 114, at p 129 and again in Cardy's Case (1960) 104 CLR 274, at p 284 . But a quite different distinction between the two English cases, suggested by Scrutton L.J. in Mourton v. Poulter (1930) 2 KB 183, at p 190 , was accepted by the Privy Council in Quinlan's Case (1964) AC, at p 1076 . On that view the difference between the two cases was a difference as to the recklessness of the acts by which the injuries were caused. But in order to distinguish the present case from Thompson's Case (1953) 87 CLR 619 and from Munnings' Case (1971) 125 CLR 1 it is not necessary, in my opinion, to decide whether it is correct to say that the Addie formula had no bearing on the facts in the latter cases for the reason that the injured persons did not come as trespassers onto the lands of the occupiers. For there is another reason for which, in my opinion, it could be held in those cases, but not in this case, that another "relevant relationship" existed between the parties. All three cases have in common the fact that injury was caused by contact with electric wires which were under the control of the defendants. But in the other cases the land above which the wires were placed and from which access to them could be obtained was land upon which the public had a right, or were regarded as having a right, to be and upon which that right was regularly exercised. In Thompson's Case (1953) 87 CLR 619 it was a public highway. In Munnings' Case (1971) 125 CLR 1 the children were regarded as having a right to be on the land no different, for relevant purposes, from the public right which existed in Thompson's Case (1953) 87 CLR 619 . It is this positive feature, consisting of the right in the plaintiffs to be on the land that is, in my opinion, a sufficient ground of distinction between those cases and this case. In my opinion, that is of more significance than the negative feature that it was not the land of the defendants upon which the plaintiffs came to harm. In the statement in Quinlan's Case (1964) AC, at p 1080 of the reason which was held sufficient in Thompson's Case (1953) 87 CLR 619 for the conclusion that the relationship of occupier and trespasser did not bear on the situation of the parties the words "on and over a public place" are, in my opinion, of cardinal importance. The same idea is expressed in Munnings' Case (1971) 125 CLR 1 , in which the Chief Justice (1971) 125 CLR, at p 10 referred to the bringing of a dangerous substance "into proximity of members of the public". Menzies J. (1971) 125 CLR, at p 18 referred to the pole being "in a place of public resort" and Gibbs J. (1971) 125 CLR, at p 49 said that the pole stood in a place which "was in fact a public place open to all and a place where children were accustomed to play without any hindrance or dissuasion". In the present case it would have been impossible upon the evidence to apply those descriptions to the place where the danger existed. (at p479)

17. I have not found it easy to solve the problem which, in my opinion, is created by Cardy's Case (1960) 104 CLR 274 and the treatment of it in Quinlan's Case (1964) AC 1054 . But after much consideration of that problem, I have reached the conclusion that I cannot treat Cardy's Case (1960) 104 CLR 274 as authority for the proposition that in the circumstances of the present case the respondent owed to the appellant a duty, based upon another relevant relationship, which duty was more extensive than that of an occupier of land to a trespasser on that land. My reason for that conclusion has already been indicated. If it had stood alone, the paragraph which appears in Quinlan's Case (1964) AC, at p 1083 might have been interpreted as treating Cardy's Case (1960) 104 CLR 274 as one which stood quite outside the principles relating to the duty of an occupier of land to a trespasser and which depended upon a special duty owed to children by an occupier of land who has on his land both an allurement and a hidden danger. But, as I have said earlier, when the whole of the reasons of their Lordships are considered, the decision in Cardy's Case (1960) 104 CLR 274 must be taken to have been accepted as one which could be justified upon the application of the Addie formula to the facts, because the conduct of the defendant could have been properly found to have amounted to a reckless disregard for the safety of persons who frequented and openly used a place in which there was a serious hidden danger. I am of opinion that, thus understood, the decision in Cardy's Case (1960) 104 CLR 274 cannot be of any real assistance to the appellant. It does not warrant the view that the circumstances of the present case gave rise to a different relationship which displaced that of occupier and trespasser. (at p480)

18. I feel no satisfaction in coming to that conclusion. The view that I have taken about the way in which Cardy's Case (1960) 104 CLR 274 must be explained since the decision in Quinlan's Case (1964) AC 1054 has not been adopted without hesitation. In my respectful opinion it assigns to Cardy's Case (1960) 104 CLR 274 a basis not in conformity with the reasons given by those who decided it. In my opinion, it is only by doing that that their Lordships could have reconciled their acceptance of the decision of Cardy's Case (1960) 104 CLR 274 with their strict insistence upon the rules which, according to the main thesis of the judgment, are applicable to adult trespassers and child trespassers alike. Nevertheless, I have felt constrained to apply those rules in the present case. (at p480)

19. In the case of British Railways Board v. Herrington (1972) AC 877 , which I mentioned earlier, there are statements which can only be regarded as departures from, rather than mere developments of, the law as formulated in Addie's Case (1929) AC 358 . But I do not think that I am at liberty to give effect to anything contained in Herrington's Case (1972) AC 877 which is inconsistent with the law as laid down in Quinlan's Case (1964) AC 1054 . For example, Lord Pearson expressed the opinion (1972) AC, at p 928 , that the rule in Addie's Case (1929) AC 358 has been rendered obsolete and has become an encumbrance impeding the proper development of the law. I do not think that I am free to adopt that view. The same observation applies to other passages in the reasons of their Lordships in Herrington's Case (1972) AC 877 . (at p481)

20. The conclusions that I have stated have the necessary consequence that in my opinion the appellant was not entitled to have left to the jury any of the counts with which the appeal is concerned. (at p481)

21. In my opinion the appeal should be dismissed. (at p481)

Orders

Appeal allowed with costs. Order of the Supreme Court
of New South Wales, Court of Appeal Division,
set aside and in lieu thereof order that the appeal to
that Court be dismissed with costs.