Hackshaw v Shaw

[1984] HCA 84

HIGH COURT OF AUSTRALIA

Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.

DIANNE MAREE HACKSHAW v. GEORGE SHAW

(1984) 155 CLR 614

11 December 1984

Negligence

Negligence—Premises—Injury to entrant—Liability of occupier—Duty of care—Trespasser—Special duties owed by occupier to different classes of entrant—Whether general duty of care may co-exist with special duty—Trespass on farm to steal petrol—Shot fired by occupier at thief's vehicle—Passenger injured—Occupier unaware of passenger's presence—Contributory negligence.

Decisions

GIBBS C.J. This is an appeal from a judgment of the Full Court of the Supreme Court of Victoria, which, by a majority (Young C.J. and McInerney J., Gobbo J. dissenting) allowed an appeal by the defendant (the present respondent) in an action brought by the plaintiff to recover damages for personal injuries and dismissed the plaintiff's cross appeal.

2. The circumstances of the case were unusual. The defendant was the owner of a farm at Korong Vale in Victoria. He did not live on the farm but went there to work each day. On the farm there was a petrol tank and pump, installed for the purpose of refuelling any motor vehicles used on the farm. For at least a year before December 1978 the defendant had been plagued by thefts of his petrol. He put expensive locks on the petrol tank, but they were cut off. He wired up the hose, but that did not stop the thefts. He complained to the police but they told him that he would have to get further evidence, such as a description of the car used in the thefts, before they could act. So, after a theft on the night of 3 December 1978, the defendant decided to lie in wait for the thieves. On the night of 10 December, the defendant, accompanied by his wife, hid near the bowser. The defendant was armed with a rifle and a shotgun. His plan was that if a car was driven onto the farm he would fire at it and immobilise it, and in that way discover the identity of the thief.

3. At about 10.00 p.m. on the night one, Cox, driving a stolen car, went to the defendant's farm. He was accompanied by the plaintiff, a girl of sixteen with whom he was associating. As the car approached the gate leading to the farm, Cox turned off the headlights. The car was stopped, Cox opened the gate and then drove the car (with the lights still off) onto the property and across a paddock and stopped it alongside the petrol tank. Cox got out of the car and began to pump petrol into the car. At this point there arose a conflict of testimony. The plaintiff said that when Cox got out of the car, she also got out and stood beside the front passenger side door. A shot was then fired and she got back into the car and lay down on the front seat. She then felt a burning feeling in her arm. She was not sure when Cox got back into the car. Other shots were fired as Cox drove away. On the other hand, the defendant (whose evidence was in general corroborated by that of his wife) denied that anyone other than Cox got out of the car and said that he did not know that anyone but Cox was in the car that night. It is evident from the jury's answers that they accepted the defendant's evidence on those matters. The defendant said that he fired his rifle at the engine of the car from a distance of about 30 yards and that as he did so he called out to the driver to abandon the car. He said that when he fired he could not see anyone in the car. It was a dark night. When asked whether he could see quite clearly through the window of the car, the defendant replied, "I couldn't see that clear but there was no one there." Cox then ran around in front of the car and the defendant, who was by now running towards the car, fired a second shot at the car. It was probably this shot that penetrated the car door and struck the plaintiff. Cox got into the car and began to turn it and to put it in motion. The defendant, whose rifle had jammed, then fired a number of shots from the shotgun, flattening a tyre and breaking the windscreen on the passenger's side of the car. He said that he was a good shot and that had he wished to shoot Cox he could have done so. Cox did not give evidence at the trial.

4. The plaintiff gave evidence that she did not know that the car was stolen or that Cox intended to steal petrol. She did not know why he turned off the lights of the car or why he drove onto the defendant's land.

5. The plaintiff's statement of claim alleged that the shooting was intentional or, alternatively, that the defendant was reckless or, in the further alternative, negligent. Although the allegation that the shooting was intentional was not pursued, the plaintiff claimed in trespass as well as in negligence. The learned trial judge charged the jury that the burden lay on the defendant to disprove negligence. In so far as the claim was for damages for trespass, the charge proceeded on the view of the law taken by Windeyer J. in McHale v. Watson (1964) 111 CLR 384, at pp 388-389, where it was held that in an action for trespass to the person, based upon battery by a blow or a missile, the defendant must prove that he did not intend to hit the plaintiff and that he was not negligent in delivering the blow or discharging the missile. The decision of Windeyer J. in that case was affirmed, but the question where the onus of proof lay was not decided on appeal: see (1966) 115 C.L.R. 199. The conclusion reached by Windeyer J. finds support in earlier authority, and his decision on the point has since been followed in South Australia, although not in running down cases: Venning v. Chin (1974) 10 SASR 299; (1975) 49 ALJR 378, at p 379; West v. Peters (1976) 18 SASR 338; Lord v. Nominal Defendant (1979-80) 24 SASR 458. However a different view has been expressed in England: Fowler v. Lanning (1959) 1 QB 426; Letang v. Cooper (1965) 1 QB 232. This latter view appears to me, as at present advised, to be the preferable one, but, perhaps unfortunately, we are not now called upon to resolve this difference of opinion. The inconvenience of the rule to which the learned judge gave effect in his charge is obvious in a case where trespass and negligence are relied on in the alternative, since a jury would almost certainly be confused by a direction that in relation to one cause of action the defendant bears the onus of disproving negligence and in relation to the other the plaintiff bears the onus of proving it. In fact the learned trial judge omitted to tell the jury that in a case based on negligence the onus of proof lies on the plaintiff. That meant that there was a misdirection. However no appeal was taken on that ground to the Full Court of the Supreme Court and counsel for the defendant informed us, as he informed the Full Court, that no retrial is sought on the ground of misdirection unless the Court interferes with the finding of contributory negligence.

6. The allegation that the shooting was reckless may have been intended to serve as a basis for fixing liability on the defendant as an occupier to the plaintiff as a trespasser on his land, although no reference to the fact that the plaintiff was a trespasser appears in the pleadings of either party. Since the allegation was negatived by the jury, the question need not be pursued. A number of questions were left to the jury and they were answered as follows:

"1. Did a shot fired by the defendant on 10 December 1978 cause injury to the plaintiff? Yes.

2. Prior to the firing of the shot:

(a) did the defendant know or believe that a person other than Cox was in the car? No.

(b) did the defendant know or believe that a person other than Cox might be in the car? No.

(c) should the defendant have known or believed that a person other than Cox was in the car? No.

(d) should the defendant have known or believed that a person other than Cox might be in the car? Yes.

3. Did the defendant fire the rifle knowing the bullet might strike some person other than Cox, but not caring whether or not it did strike him or her? No.

4. If the defendant knew or believed or should have known or believed that someone other than Cox was or might have been in the car, was he guilty of negligence in firing the shot which caused injury to the plaintiff? Yes.

5. If yes to question 1 and one or both of questions 3 or 4 at what sum do you assess compensatory damages? $17,000.

6. If yes to question 3 is the plaintiff entitled to exemplary damages? No.

7. If yes to question 6 at what sum do you assess exemplary damages? Unanswered.

8. Was the plaintiff guilty of contributory negligence? Yes.

9. If yes to question 8, to what extent is it just and equitable to reduce the plaintiff's Plaintiff 40% damages having regard to her to blame; share of the responsibility Defendant 60% of her injuries? to blame."

7. Judgment was thereupon entered for the plaintiff for $10,200, with interest agreed at $650 and costs.

8. Since the suggestion that the defendant intended to shoot the plaintiff was abandoned, the plaintiff could succeed in trespass only if the shot which struck her was fired negligently. Apart, possibly, from the question which party bore the onus of proof, there was no difference except in name between the cause of action in trespass and that in negligence. The jury, by its answer to question 4, found that the defendant was negligent in firing the shot which caused the injury to the plaintiff. That finding gives rise to two questions. The first is whether the defendant owed to the plaintiff, a trespasser of whose presence the defendant was unaware, the duty of care now recognized by the common law, i.e., the duty to "take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour": Donoghue v. Stevenson (1932) AC 562, at p 580. The second is whether the answer of the jury to question 4, which in effect finds that the defendant failed to perform that duty, can be sustained, having regard to the other answers given by the jury and to the evidence.

9. The rules of the common law which govern the duty of an occupier to the various classes of persons who may enter the occupier's land, including trespassers, form part of the law of negligence. It would no doubt have been possible, after the House of Lords in Donoghue v. Stevenson had stated a general principle by which it can be decided in what circumstances a duty of care arises, to treat the question whether an occupier is liable for injuries suffered on his premises as depending on that general principle and not on special rules. Windeyer J., in Voli v. Inglewood Shire Council (1963) 110 CLR 74, at p 89, thought that the trend of judicial authority was in that direction, but in Munnings v. Hydro-Electric Commission (1971) 125 CLR 1, at p 25, he felt bound to acknowledge that the trend had been stopped short by the judgment of the Privy Council in Commissioner for Railways v. Quinlan (1964) AC 1054. When, in Herrington v. British Railways Board (1972) AC 877, the House of Lords reconsidered the earlier authorities which governed the duty of an occupier to a trespasser, and relaxed the strictness of the earlier rules laid down in Robert Addie &Sons (Collieries) v. Dumbreck (1929) AC 358, their Lordships still did not find it possible to apply to such a case the general principles stated in Donoghue v. Stevenson and to make the liability of the occupier depend on whether it was reasonably foreseeable that his act or omission would be likely to injure a trespasser. There were thought to be considerations which, in the well known words of Lord Wilberforce in the later case of Anns v. Merton London Borough (1978) AC 728, at p 752, ought to reduce or limit the scope of the duty of care towards the class which consisted of trespassers. The nature of those considerations was summed up by Lord Reid in Southern Cement Ltd. v. Cooper (1974) AC 623, at pp 643-644, by saying that "the neighbourhood relationship has been forced on the occupier by the trespasser and it would therefore be unjust to subject him to the full obligations resulting from it in the ordinary way". In that case the duty of the occupier towards a trespasser was said to be based on considerations of humanity: a concept which it is unnecessary to discuss, since the finding made by the jury in this case was that the defendant was negligent, and not that he acted in disregard of humanity. It was held that the occupier must act with due regard to the trespasser's safety once the occupier knows, or as good as knows, that he is on the land; he will as good as know if the trespasser's presence is extremely likely (see at pp.639-640). When one considers what is foreseeable in the future rather than whether the trespasser is already on the land, the duty is not limited to cases where the coming of trespassers is extremely probable, or more probable than not. Lord Reid said, at p.644:

"The only rational or practical answer would seem to be that the occupier is entitled to neglect a bare possibility that trespassers may come to a particular place on his land but is bound at least to give consideration to the matter when he knows facts which show a substantial chance that they may come there."

10. Notwithstanding the trend to which Windeyer J. referred in Voli v. Inglewood Shire Council, this Court has not discarded the special rules of the common law which have "adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others, and (have established) a special standard of duty ... in reference to each class": Lipman v. Clendinnen (1932) 46 CLR 550, at p 555. However, the Court has held that there may coexist with, or be superimposed on, the special duty which is owed by an occupier to persons in those various categories "a general duty of care, which is not related to the condition of the premises, and which arises not from the fact of occupation but from the general circumstances of the case": Rich v. Commissioner for Railways (N.S.W.) (1959) 101 CLR 135, at p 144. The fact that the plaintiff who was a trespasser might still be a "neighbour" within the principle of Donoghue v. Stevenson was recognized in three cases decided before Commissioner for Railways v. Quinlan: Thompson v. Bankstown Corporation (1953) 87 CLR 619, Rich v. Commissioner for Railways (N.S.W.) and Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 CLR 274.

11. It is unnecessary to review these cases, which have been so often discussed, but it may be profitable to cite some passages from the judgments in them. First, in Thompson v. Bankstown Corporation, Kitto J., at pp 642-643, very clearly explained the distinction which has been drawn by this Court:

"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 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, 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 ... The facts of the case must therefore be further examined for the purpose of considering whether there was another relation between the parties giving rise to such a duty of care that the jury could properly find a breach of it to have been a cause of the appellant's injuries."

12. In Commissioner for Railways (N.S.W.) v. Cardy Dixon C.J. said, at p 286:

"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."

Later he said, at p.286:

"In principle a duty of care should rest on a

man to safeguard others from a grave danger of serious harm if knowingly he has created the danger or is responsible for its continued existence 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."

In the same case Fullagar J. said, at p.296:

"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."

These cases support the conclusion that the special principle which is concerned with the incidents which the law attaches to the specific relation of occupier and trespasser does not either abrogate or supersede the general law of negligence which applies where the parties, although occupier and trespasser, stand in some other relation which gives rise to a duty of care.

13. In Commissioner for Railways v. Quinlan the Judicial Committee rejected the view that a general duty of care can coexist with the limited duty owed to a trespasser. Their Lordships regarded it as plain that the accepted formulation of the occupier's duty to a trespasser is intended to be an exclusive or comprehensive definition and said, at p.1074:

"... 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 - an important qualification - the occupier's duty is limited in the accepted terms. It is so limited because the character of trespassing is such that the law does not think it just to require the occupier to speculate about or to foresee the movements of a trespasser ...".

Their Lordships examined and criticized the judgments in the three Australian cases to which I have referred and said that the passage from the judgment of Kitto J. which I have cited "can be read as suggesting that an occupier owes a duty of care or 'foreseeingness' towards a trespasser that is both undefined in extent or content and is inconsistent with the established law ..." (see at p.1080). They made the further comment, 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 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."

14. In Munnings v. Hydro-Electric Commission, this Court again considered the question in the light of that decision of the Judicial Committee. All the members of the Court regarded it as consistent with the judgment in Commissioner for Railways v. Quinlan to hold that the special rules which govern the duty of occupiers to trespassers apply only to those cases where the defendant's liability can be attributed only to his occupation of the land and his activities thereon and that in cases where the relationship of the occupier and the trespasser was not relevant to liability the general duty of care could arise: see at pp.11, 15, 28, 39, 48-49.

15. In Southern Cement Ltd. v. Cooper their Lordships again referred to the Australian decisions, and said, at p 645:

"Australian courts have tended to proceed on

somewhat different lines, perhaps in order to avoid restrictions flowing from the decisions in Addie's and Quinlan's cases. This has led to some intricate and possibly confusing arguments as to whether, in a given state of facts, there are two duties, existing side by side, falling upon an occupier towards trespassers or potential trespassers. These complications become unnecessary if it is right, as their Lordships think it is, to state the occupier's duty towards trespassers in wider terms than appear in Addie's case, or in some passages in Quinlan's case. Once it is accepted that the nature of this duty cannot be determined without reference to such all-embracing considerations as their Lordships have mentioned, the need for the imposition of two separate parallel duties disappears. Their Lordships believe that the above reformulation of the law would achieve results not substantially different from those achieved by recent decisions of the High Court."

16. The last case to be considered is Public Transport Commission (N.S.W.) v. Perry (1977) 137 CLR 107. The question there was whether a carrier by rail owed a duty to take reasonable care for the safety of a passenger who, while standing on a platform of a railway station, fell involuntarily onto the rails and was struck by a train. The majority of the Court answered the question in the affirmative. It was argued on behalf of the Public Transport Commission that the plaintiff was a trespasser on the rails. Barwick C.J., who accepted that view, regarded it as impossible, in the light of the decisions of the Judicial Committee, to find concurrent duties, one that of an occupier to a trespasser and one the general duty of care. The duty of the occupier in his opinion depended on the legal relationship of the plaintiff to the carrier; there was no room for the general duty of care: see especially at pp.119, 123-124. The other members of the Court took a different view. They held that the plaintiff was not a trespasser, so that the question for their decision was whether an occupier of land may owe a general duty of care to a person lawfully on the land. That question was answered in the affirmative. I said, at pp.130-131:

"The special rules which the common law has

evolved to govern the liability of an occupier of premises to a person who sustains injury while on those premises do not in every case state exhaustively the nature of the occupier's duty to the person who has come on to his premises. The relationship between the parties may be such as to give rise to a duty upon the occupier to take reasonable care for the safety of the other person. If the relationship between the parties imposes upon the occupier this general duty of care, which may be higher than that which he owes in his capacity as occupier, the fact that he is an occupier does not relieve him of the higher duty. The two duties exist concurrently."

I cautiously left open the question whether the occupier might owe similar concurrent duties to a trespasser. Stephen J., after saying that an occupier of premises may owe to an invitee or licensee two duties of care existing concurrently, neither displacing the other (see at pp.138-139), went on to deal with the case of trespasser and said, at pp.139-140:

"The case of the unlawful entrant is a

distinct one. If his entry be by stealth and unanticipated, entry alone will not cast any duty of care whatever upon the occupier. His arrival on the premises not being authorized, known or anticipated no duty in respect of the state of the premises will arise upon entry and he will in no sense be any 'neighbour' of the occupier. Once his presence is known the position changes and a duty, which has been described as one of common humanity, is cast upon the occupier. In the view which I take of this case the precise ambit of that duty need not concern me. ... It is in the realm of precautions against the as-yet-unidentified entrant that difficult questions of degrees of reasonable anticipation arise, coupled as they necessarily are with fears of unduly burdening occupiers for the benefit of future trespassers."

Mason and Jacobs JJ. expressly dealt with the question that falls for decision in the present case. They said, at pp.146-147:

"Further, even if the respondent be

categorized merely as a trespasser, it does not follow that a duty of care arose only when the driver actually knew that she, a human being, was on the railway line in the path of his train. The duty of an occupier to a trespasser is higher than that in the circumstances which the jury could have found to have existed in this case. Cases such as Commissioner for Railways v. Quinlan deal with the duty of care owed to persons whom the occupier may suspect will come upon the land 'at some time or another' (see Southern Portland Cement Ltd. v. Cooper (at p.639)). The question with which we now deal is different, namely, the duty which arises when something is brought to the notice of an occupier or his servant which would lead an ordinary man to suspect that a person, albeit a trespasser, may actually be upon the land and in a position where a continuation of the occupier's activity is likely to cause death or very serious injury if the suspicion turns out to be a reality. We have no doubt that there then arises a duty

of care on the part of the occupier towards the person whom an ordinary man would suspect to be actually upon the land and in a situation where the activities of the occupier or his servant, if pursued, will probably kill or seriously injure that person."

17. It seems to me of small importance to deny that a general duty of care may coexist with the special duty which an occupier owes to a trespasser if it is conceded that the relationship of occupier and trespasser may be replaced by another relationship. At any rate it is settled law in this country that the special duty may be replaced by the general duty if the relationship between the parties is not simply that of occupier and trespasser and there are circumstances which give rise to a duty of care.

18. In the present case there can be no doubt that the actions of the plaintiff placed him under a duty of care which arose, not from the fact that he was an occupier, but from the fact that by discharging his firearms he was actively creating a present danger which he should reasonably have foreseen would be likely to result in injury to persons in the vicinity unless he took care to prevent it. To whom was that duty owed? Clearly enough he would have owed to the plaintiff the duty to take reasonable care in the use of his firearms if he had known that she was in or near the car. But the defendant did not know of the presence of the plaintiff. There are statements in the cases to the effect that the occupier's duty to a trespasser depends on knowledge, but that is not an exclusive statement of the basis of the duty of an occupier who is committing positive and dangerous acts. In general a defendant who performs a dangerous act owes a duty to persons who, he can reasonably foresee, are likely to be injured by it, even if he is unaware of their presence. The driver of a motor vehicle will be liable for the consequences of his negligence to passengers in another vehicle with which he collides, even if he did not know and had no reason to believe that they were in the vehicle. When the dangerous act is performed by the defendant on his own land, and the plaintiff is a trespasser, the position is different. Although, as I have said, the duty is not created by the relationship of occupier and trespasser, the fact that the plaintiff is a trespasser is not irrelevant. The presence and movements of the trespasser may have been unknown and unpredictable and the defendant may have had no reason to know or suspect that any trespassers would be on his land, where they had no business to be. In deciding whether the defendant in a case such as the present owes a duty to the unseen trespasser I do not consider that the tests suggested by Lord Reid in Southern Cement Ltd. v. Cooper should be adopted. Those tests were formulated for use in cases where the question is whether a duty is owed by an occupier, in his character of occupier, to a trespasser. Where the duty arises from the fact that the defendant is committing a series of lethal acts, the ordinary test should be applied - was the presence of the trespasser reasonably foreseeable? It would however not be enough that there existed a bare theoretical possibility that a trespasser might be present. In the context of a case such as the present, in deciding whether the presence of the trespasser was reasonably foreseeable it is useful to apply the practical test suggested by Mason and Jacobs JJ. in Public Transport Commission (N.S.W.) v. Perry - are there circumstances which would lead an ordinary man to suspect that someone was actually upon the land and in a situation where the activities of the occupier, if pursued, would probably kill or seriously injure that person?
On the facts of this case the question whether that test
is answered is a difficult one. The jury has, however, given an answer to it. The jury has found that the defendant should have known or believed that a person other than Cox might be in the car. If, by that answer, the jury meant no more than that there was a bare or theoretical possibility that the plaintiff might be in the car, the circumstances would not give rise to a duty of care on the part of the defendant. If, on the other hand, it meant that there were circumstances which should have led the defendant to suspect that the plaintiff might be there, then the finding of negligence made in the answer to question 4 is supportable. I consider that the jury should be taken to have given the answer in the latter sense. It would be obvious that a theoretical possibility existed that someone might be in the car. It would have been pointless for the judge to ask, and for the jury to answer, such a question, which indeed could have only one answer. The question was not asked in terms of possibility. Further the jury was, in my opinion, entitled to infer that there were circumstances which should have led the defendant to suspect that someone besides Cox might be in the vehicle. It is true that there was no sign of movement or other indication of the presence of the plaintiff. However, when at night a vehicle is driven onto land in the circumstances in which that was done in this case, and the darkness makes it impossible to see whether there is anyone else in the vehicle, the very presence of the vehicle is a circumstance that should lead a reasonable man to suspect that there may be someone in it as well as the driver. For these reasons I have concluded, although not without hesitation, that the jury was entitled to answer question 2(d) as it did, and that the answer given by the jury to that question provides sufficient support for the finding of negligence made in answer to question 4.

19. The question whether the plaintiff was guilty of contributory negligence can be shortly answered. The jury may well have been sceptical of the plaintiff's evidence that she thought that Cox was simply taking her for a drive, having regard to the distance which they travelled (over twenty miles). However that may be, it was open to the jury to infer that the plaintiff, notwithstanding her denials, knew, once Cox drove onto the farm, that he was doing so for an illegal purpose. She should not have accompanied him, however difficult it may have seemed to her to avoid doing so. A person who enters another's property at night, in the company of someone who intends to commit a crime, cannot be said to be taking reasonable care of her own safety. The apportionment of blame by the jury was within its discretion.

20. I sympathize with the defendant, who resorted to self-help when the police could not assist him in preventing the repeated thefts from his farm. However, for the reasons I have given, I consider that the appeal should be allowed, and the judgment of the trial judge restored.

MURPHY J. The respondent Mr Shaw was an owner and occupier of a farm which had a petrol bowser. Over a period there had been a number of thefts of his petrol from the bowser. He decided to ambush the next thief and waited in hiding, on the night in question, armed with a rifle and a shotgun. A young man, intending to steal petrol, drove a car up to the bowser. The appellant, Miss Hackshaw, a young woman, was a passenger in the car. When the driver got out of the car, Mr Shaw, who claimed to be an expert marksman, came out of hiding, and fired a number of bullets and shots into the car, severely injuring the appellant.

2. The jury found that the respondent injured the appellant by firing into the car at a time when he should have known or believed that a person might be in it, and in doing so was guilty of negligence. The finding of negligence was justified. It was not necessary that he knew or believed that a person probably was in the car; that misconception was exploded in Wyong Shire Council v. Shirt (1980) 146 CLR 40; see also Commonwealth v. Introvigne (1982) 41 ALR 577 at 592.

3. The fact that Mr Shaw was the occupier of the land on which he and the car were, and that the plaintiff was there as a trespasser with another who was attempting to steal, does not relieve Mr Shaw of liability. The respondent relied on cases such as Commissioner for Railways v. Quinlan (1964) AC 1054, but these over-protect occupiers of land and should not be followed. The Australian line of cases - Commissioner for Railways v. Cardy (1960) 104 CLR 274; Commissioner for Railways v. Anderson (1961) 105 CLR 42; Public Transport Commission v. Perry (1977) 137 CLR 107 - represent the common law in Australia.

4. It is not necessary to hold that the respondent's duty or standard of care was higher than in ordinary negligence, but in my opinion it was. I find it almost absurd to regard this as an ordinary case of negligence. The injury was not caused by someone shooting rabbits or even practising firing at trees and injuring a trespasser by accident. The car was not a disused one, it had just been driven onto the land. Mr Shaw was not defending himself. Firing bullets at a car in such circumstances is not merely extra-hazardous, it is ultra-hazardous. In Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (1940) 64 CLR 514 (Carlyle's case), Mr Justice Dixon observed that "the reasonable care required by the law means a standard of diligence growing in strictness as the danger increases" (p.534). The judgments in that case show that a very high degree of diligence is required when dealing with what were described as things "dangerous in themselves" such as loaded firearms, explosives or poisons. Even if the classification of things as dangerous in themselves is left aside, that case and a wealth of others make clear that engaging in extra-hazardous conduct imposes a very high standard of care approaching, even if it does not attain, strict or absolute liability. In Carlyle's case, Mr Justice Starke used expressions such as "consummate care", "a degree of diligence so stringent as to amount practically to a guarantee of safety" (p.522). Firing bullets at a car in the circumstances here was dangerous to the extreme, and reasonable care required that Mr Shaw make certain that no one was in the car before he fired at it. The standard of diligence required was so strict that it is splitting hairs to distinguish this from a case of strict or absolute liability.

5. The plaintiff was entitled to succeed.

6. It is necessary to divorce the question of contributory negligence from that of participation in an offence. On this aspect I agree with Mr Justice Gobbo of the Supreme Court. I take the view that there was no evidence which would sustain the verdict of contributory negligence. To be seated in a car, even in the circumstances of this case, should not be taken to expose one to the risk that an occupier, even one who had been provoked by repeated thefts of his petrol, would engage in the brutality of firing at a car without making certain that no one was in it.

7. The appeal should be allowed, judgment for the appellant plaintiff restored, but the damages should not be reduced for contributory negligence.

WILSON J. This is an appeal brought by special leave from a decision of the Full Court of the Supreme Court of Victoria. The question of substance is whether the respondent was negligent in discharging a firearm in consequence of which the appellant suffered injury. The circumstances in which the firearm came to be discharged may be stated shortly.

2. The respondent is a farmer, working a property of about 324 hectares in a fairly isolated part of Victoria, about 35 kilometres from Boort. At the material time he did not reside on the property. In consequence of a series of night-time thefts of petrol from a tank on his farm the respondent spent several evenings on the property in the hope of catching the thief or securing evidence leading to his identification. He had sought police assistance but had been advised to obtain some evidence on which police action could be taken.

3. On the evening of 10 December 1978 the respondent was lying in wait on the farm at a spot about thirty metres from the petrol tank. It was a dark night. He was armed with both a rifle and a shotgun and was accompanied by his wife. At about 10 p.m. a car, driven by a youth named Cox, entered the property and pulled up beside the petrol tank. The lights of the car were extinguished before it entered the property.

4. Cox got out of the car, untied the wiring intended to secure the petrol hose against unauthorized use and commenced to pump petrol from the farm tank into the car's tank. The respondent then fired a rifle shot towards the front of the car intending, as he said, to immobilize it so that it could not be driven away. At the same time he called out to the driver to get off the property. The respondent then started to run towards the car and fired another rifle shot as he ran. The first shot in fact struck the car in the vicinity of the engine but the second went through the passenger's side front door of the car and struck the appellant in the right arm. At that time she was curled up in a ball on the front seat of the car.

5. After firing the second shot the respondent found that the rifle had jammed. He thereupon ran back to his hiding place, collected the shotgun and discharged a further five shots at or into the car as Cox drove away. Later that evening the car was found abandoned a short distance away. It was subsequently found to have been stolen.

6. The appellant, Ms. Hackshaw, was almost 17 years old at the time of the incident. She lived with her parents in Boort and she had been friendly with Cox for some time. Cox lived at Ballarat but had made a habit of visiting her at weekends. At the trial Ms. Hackshaw testified that after the evening meal on the Sunday in question she agreed to go with Cox for a drive before he returned to Ballarat. He was driving a white Holden which he informed her he had bought during the previous week for $500. On each of the two previous weekends he had been driving different cars, each of which he told her had been loaned to him.

7. The appellant gave evidence that on the evening in question Cox drove towards Mr. Shaw's farm. As he approached a gate into the property he switched off the headlights. She said she asked him what he was doing but he did not answer the question. He entered the property and drove some distance. When he stopped the vehicle he got out and moved to the rear of the car. She said she then got out of the passenger's side front door to see what he was doing. Shortly thereafter she heard the sound of a shot and someone call out. She immediately scrambled back into the car and made herself as inconspicuous as possible on the front seat. Her feet were tucked under her and the whole of her body was below the level of the window. Whilst she was in this position she felt a searing pain in her arm. It is common ground that the second shot fired by Mr. Shaw penetrated the passenger's side front door and caused the injury to her arm.

8. The appellant instituted proceedings in the Supreme Court of Victoria, seeking damages for trespass to the person and for negligence. The respondent denied both claims. He testified to his belief that the driver was alone in the car: at no time did he see or hear anything to indicate the presence of another person. His sole purpose in discharging the firearms was to immobilize the vehicle so that he would have some evidence to present to the police. It is not now suggested for the appellant that the shot which caused her injury was fired by the respondent with the intention of injuring her, and as will be seen, the jury rejected the allegation that it was reckless.

9. With respect to the claim in negligence, the learned trial judge directed the jury on the basis of a general duty of care arising in accordance with Lord Atkin's statement in Donoghue v. Stevenson (1932) AC 562, at p 580. In the course of his charge, his Honour said:

"If the plaintiff's presence was known to the defendant, or the defendant should have realized that the plaintiff might be there, then the defendant owed a duty to the plaintiff to exercise care in the use of that gun; and if in firing the gun that was a breach of that duty, then he would be liable to pay damages for negligence. ... If he did not know that she was there would a reasonable man, in those circumstances, have apprehended the possibility of a person being there, and the possibility of injury to that person in firing that second shot."

10. So far as material, the questions left to the jury and the jury's answers were as follows:

"1. Did a shot fired by the defendant on 10th December, 1978 cause injury to the plaintiff? Answer: Yes.

2. Prior to the firing of the shot

(a) did the defendant know or believe that a person other than Cox was in the car?

Answer: No.

(b) did the defendant know or believe that a person other than Cox might be in the car?

Answer: No.

(c) should the defendant have known or believed that a person other than Cox was in the car?

Answer: No.

(d) should the defendant have known or believed that a person other than Cox might be in the car?

Answer: Yes.

3. Did the defendant fire the rifle knowing the bullet might strike some person other than Cox but not caring whether or not it did strike him or her? Answer: No.

4. If the defendant knew or believed or should have known or believed that someone other than Cox was or might have been in the car was he guilty of negligence in firing the shot which caused injury to the plaintiff? Answer: Yes."

...

8. Was the plaintiff guilty of contributory negligence? Answer: Yes.

9. If yes to question 8 to what extent is it just and equitable to reduce the plaintiff's damages having regard to her share of the responsibility for her injuries? Answer: The plaintiff: what percentage to blame - 40%. The defendant: what percentage to blame - 60%."

In the result judgment was entered for the plaintiff for $10,200 plus interest and costs.

11. Mr. Shaw appealed and Ms. Hackshaw cross-appealed to the Full Court, the former against the judgment and the latter against the finding of contributory negligence and the quantum of damages. By majority (Young C.J., McInerney J., Gobbo J. dissenting) the appeal was allowed and the cross appeal was dismissed. Judgment was entered for Mr. Shaw. Thereafter special leave was granted to enable Ms. Hackshaw to appeal to this Court. In the course of the hearing that leave was rescinded to the extent that it authorized an appeal on the ground that the jury's award of damages was unreasonably low.

12. It is the reference in the judge's charge to "the possibility of a person being there" which focusses the crucial issue in the appeal, namely, whether in all the circumstances the respondent owed a duty of care to the appellant by reason of the jury's finding that a reasonable man would have apprehended the possibility that she was in the car. If that question be answered in the affirmative, there can be no doubt that the jury's finding of negligence is correct whatever be the preferred description of the standard of care for which the duty calls. Whether it be the duty to take reasonable care towards a neighbour (Donoghue v. Stevenson) or the supposedly lesser duty of common humanity owed to a trespasser (Herrington v. British Railways Board (1972) AC 877), the respondent's conduct would be found wanting.

13. Counsel for the respondent argues that the appellant was a trespasser and that any duty owed to her by the respondent must be found in the principles applicable to the relationship of an occupier of land to a trespasser. He relies on the decision in Commissioner for Railways v. Quinlan (1964) AC 1054 for the proposition that an occupier is under no duty to a trespasser of whose actual presence he neither knows nor ought to know. The jury having found expressly that the respondent neither knew nor ought to have known that the appellant was in the car, those findings resolve the action of negligence in his favour. It is a necessary part of the argument to make good the further proposition that the relationship of occupier to trespasser is the only relevant relationship, there being no room as a matter of law for any liability arising out of the more general relationship of neighbour to neighbour as expounded by Lord Atkin in Donoghue v. Stevenson, at p 580.

14. It is unnecessary to consider the first limb of the argument at any length because, as will appear, I find the answer to the second limb to be determinative of this aspect of the appeal. However, I would say that the former proposition is not merely correct but finds confirmation in the subsequent decision of the Privy Council in Southern Portland Cement Ltd. v. Cooper (1973) 129 CLR 295, where their Lordships distinguished between the responsibility of an occupier towards a trespasser who is actually present and one in respect of whom there is a substantial chance that he will come in the future.

15. There have been a number of decisions of this Court over the past thirty years in which it has been recognized that the special rules which have been developed to express the liability of an occupier towards the various categories of entrants to his land may not be exhaustive of the sources of his liability to persons who suffer injury on the land. In Thompson v. Bankstown Corporation (1953) 87 CLR 619, at pp 642-643, Kitto J., speaking of the rule of law which defines the limits of the duty owed by an occupier to a trespasser, said:

"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 C.L.R. 114, at pp. 122, 127 et seq.".

See also Rich v. Commissioner of Railways (N.S.W.) (1959) 101 CLR 135; Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 CLR 274; Munnings v. Hydro-Electric Commission (1971) 125 CLR 1.

16. In Quinlan, at pp. 1079-1086, their Lordships discuss the first three of these cases. They were unable to accept the references therein to the existence of a general duty of care standing alongside the duty of an occupier to a trespasser. The decisions in Rich and Cardy were found acceptable on the basis that the facts were such as to place the injured plaintiffs in the category of licensee rather than trespasser. As to the decision in Thompson, it was said, at p. 1080:

"Their Lordships have no doubt that Thompson's

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

Then, after referring to the proposition of Kitto J., which I have cited, their Lordships, at p. 1081 explained that they

"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 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."

17. In Cooper, their Lordships reformulated the law with respect to the duty resting on an occupier to avoid injury arising from the condition of the premises to trespassers when he knows facts which show a substantial chance that they may come on to his land. At pp. 309-310, their Lordships acknowledged that the Australian courts have tended to proceed on somewhat different lines, leading to "some intricate and possibly confusing arguments as to whether, in a given state of facts, there are two duties, existing side by side, falling upon an occupier towards trespassers or potential trespassers" and expressed the view that the wider reformulation rendered unnecessary the imposition of "two separate parallel duties".

18. This case does not require a detailed examination of the decisions of the Privy Council in Quinlan and Cooper. It is sufficient for me to say that I do not find them seriously at odds with the acknowledgment by this Court of the existence in appropriate circumstances of a Donoghue v. Stevenson duty of reasonable care resting on an occupier towards a person who may be described as a trespasser on his property. Their Lordships clearly found it confusing to speak of two duties having different incidents and consequences standing side by side or coexisting. But they also clearly recognized that the circumstances could result in the general duty of care displacing the special rule applicable to an occupier because "the relation of occupier and trespasser does not bear upon the situation of the parties".

19. The possibility that the precise formulation of the liability of an occupier to licensees or invitees which is recognized in the cases may be displaced or overlaid in particular circumstances by the general duty to take reasonable care is well recognized: Caterson v. Commissioner for Railways (1973) 128 CLR 99; Public Transport Commission (N.S.W.) v. Perry (1977) 137 CLR 107, at pp 130-132, 137-139. The relevant principle was stated by Stephen J. in Perry, at p 138, as follows:

"An invitee or licensee who enters upon the

property of another does not thereby forfeit the benefit of having owed to him, by those who are in a state of proximity to him and should foresee the consequences which their conduct may have upon him, the neighbourly duty to take reasonable care for his safety. He remains entitled once on the premises, as he was off them, to have this duty performed by those with whom he is in the necessary relationship of proximity."

His Honour recognized that the case of an unlawful entrant was a distinct one. As to such an entrant, he said, at pp. 139-140:

"If his entry be by stealth and unanticipated, entry alone will not cast any duty of care whatever upon the occupier. His arrival on the premises not being authorized, known or anticipated no duty in respect of the state of the premises will arise upon entry and he will in no sense be any 'neighbour' of the occupier. Once his presence is known the position changes and a duty, which has been described as one of common humanity, is cast upon the occupier."

Stephen J. did not pursue the question because he was not concerned with the duty of an occupier to a trespasser. The duty of common humanity to a known or anticipated trespasser is that which was discussed by the House of Lords in Herrington and by the Privy Council in Cooper. As I have said, the problem in the present case is not the content of the duty but its relevance.

20. The circumstances of the present case are quite extraordinary. They bear no resemblance to cases in which courts have ordinarily been required to expound and apply the principles governing the liability of an occupier to a person trespassing on his land. It is not a case of injury arising from some danger inherent in the static condition of the premises. It is not a case of injury occasioned incidentally by the occupier's conduct of operations on the land. Here the respondent engaged in positive and inherently dangerous actions intended to discourage a nocturnal trespasser whose presence was known from continuing a trespass and thereby to prevent the theft of his property. The observed trespasser, Cox, was not injured. Whether his escape from injury was due to good fortune or bears out the adamant assertion of the occupier that he had no intention of hitting him is a question which it is unnecessary to pursue. Had Cox suffered injury, there could have been no doubt that at the very least the respondent was in breach of the duty of common humanity owed towards a known trespasser. Unfortunately, the appellant, of whose presence the respondent did not know and in the light of the jury's findings should not have known, was hit by a bullet as she lay hidden in the car.

21. In my opinion, the conduct of the respondent was such as to render inapplicable to this case the special rules governing the liability of an occupier to a trespasser. Had they been applicable, those rules in the light of the jury's findings must have led to the conclusion that the respondent was under no duty at all to the appellant. This was the conclusion of the majority of their Honours in the Full Court. But, with all respect to their Honours, however relevant and appropriate the rules may be to the case where a trespasser suffers injury through the dangerous condition of the premises or by reason of activities carried on by the occupier in the exercise of his rights of occupation, they bear little relation to positive acts of misfeasance on the part of the occupier occasioned by the actual presence of trespassers. The effect of those acts of misfeasance in a context where the parties are brought into the necessary state of proximity is to render the relationship of occupier to trespasser irrelevant to any determination of the rights and liabilities of the parties save in so far as all the circumstances must be taken into account in applying the general principles of the law of negligence. I therefore see the question as being whether in all the circumstances the respondent was in a relevant state of proximity to the appellant and should have foreseen the risk of injury to which his conduct exposed her. It also follows from what I have said that provided a prima facie duty of care is found to arise, I do not think that there are any considerations of public policy which

"ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht case (1970) A.C. 1004, per Lord Reid at p. 1027.": per Lord Wilberforce in Anns v. Merton London Borough Council (1978) AC 728, at p 752.

22. The jury found that the respondent should have known or believed that a person other than Cox might be in the car and, that being the case, that he was guilty of negligence in firing the shot which caused injury to the appellant. Provided there is evidence to support them, the first of these findings satisfies the element of proximity and the second, inter alia, the element of reasonable foreseeability of the risk of injury. In my opinion, having regard to the evidence, it was open to the jury to reach these conclusions.

23. The salient features of the evidence can be recapitulated briefly. It was a dark night. There was no moon and no lighting of any kind. The respondent lay in wait on his property, accompanied by his wife. He was armed with a rifle and a shotgun. The respondent saw the car enter the property without the aid of its headlights and eventually stop adjacent to the petrol tank. He saw the driver alight and commence pumping petrol into the car. He said that he did not see the girl. He heard no conversation between the driver and anyone in the car. He fired a shot. He did not hear any scream or other protest following the first shot. The jury must have believed the respondent rather than the appellant on the conflict of testimony as to whether at any time she opened the passenger's door and emerged from the car. But there was ample evidence from which the jury could conclude that he fired the shots without knowing whether or not the driver was accompanied by another person. He said he looked at the vehicle to see if there was anyone inside before he fired the first shot. At that time he was still about thirty yards away. When asked whether he could see quite clearly through the window he replied:

"I couldn't see that clear but there was no one there."

Until the first shot was fired the presence of the respondent was not known to the trespassers and there was no reason for the appellant to hide in the car by crouching down on the seat. It was open to the jury to find that he fired the first shot at the car without satisfying himself whether a second person was in the car or in its vicinity. The respondent then started running towards the car and fired the second shot as he ran. At that time his state of knowledge as to the presence of a person in the car was unchanged. It was this shot which penetrated the door of the vehicle and struck the appellant. It was open to the jury to find that in discharging the second shot the respondent was in breach of his duty to take reasonable care to avoid causing harm to his "neighbour", namely, a person whom he ought to have known might be in the car at which he directed the shot.

24. In the course of argument, some attention was directed to the question whether knowledge merely of the possibility that someone was in the car was sufficient to establish the requisite relationship of proximity between the respondent and the appellant. There may be a question as to the proper construction of the jury's answer to question 2(d). Gobbo J. considered that the question was not simply asking whether the presence of another person in the car was possible and construed it as asking whether in the circumstances as they existed for the respondent there was a substantial chance that another person might be present in the car. I do not find it necessary to choose between these two formulations because it seems to me that in every case the existence of the requisite relationship is a question of fact and also one of degree. There will often be a correlation between the inherent danger of the activity which occasions the injury and the finding of a relationship which gives rise to a duty of care. In the present case, I find the necessary relationship to be established by the jury's finding.

25. One may readily sympathize with the predicament in which the respondent found himself with repeated thefts of his property at night in an isolated area in circumstances where he was left to fend for himself. He intended by his actions to scare off the intruder and to obtain evidence on which the police could take action. But clearly, in endeavouring to protect his property and obtain evidence, he went too far. The law cannot condone or excuse such conduct. Even at a time when the law jealously safeguarded the rights of property owners it was recognized, as Erle C.J. said in Potter v. Faulkner (1861) 1 B &S 800, at p 805 (121 ER 911, at p 913) that:

"The law of England, in its care for human life, requires consummate caution in the person who deals with dangerous weapons."

26. It remains to consider the question of contributory negligence. The jury found this issue against the appellant and reduced her damages by 40%. The finding was challenged on appeal. It was not necessary for the majority to consider the question but Gobbo J. took the view that the finding could not stand. His Honour said:

19. In this case there was nothing in the evidence to suggest that the defendant should have suspected that there was someone other than Cox in the car. There was the evidence of the plaintiff that she got out of the car, but the jury by its answers clearly accepted the defendant's statements that he saw only Cox. There was a possibility that there was another person in the car, but it was no more than a bare possibility and the jury recognized this by denying in their answers that the defendant should have known or believed that a person other than Cox was in the car. There was nothing which should have led the defendant to suspect that the plaintiff was in his line of fire.

20. As I conceive it, the law does not require an occupier of land to take steps for the safety of a trespasser on his land except where there are facts to suggest that a trespasser who is present or is likely to be present will suffer some serious harm as a result of the occupier's activities on the land of which, or of the danger of which, the trespasser could reasonably be expected to be unaware. I may add that, to my mind, such a test is both humane and reasonable having regard to the fact that it is predicated upon a relationship between the two which involves the trespass of one upon the property of the other. The application of that test produces the result that in this case the defendant, as the occupier of his land, was under no duty to take steps for the safety of the plaintiff. The only basis upon which the result could be said to be otherwise is the answer of the jury that the defendant should have known or believed that a person other than Cox might be in the car. It is difficult to conceive how the jury could have answered differently, for it is obvious that any reasonable person must have recognized the theoretical possibility of the presence of another person. But there was nothing to suggest that as a fact to the defendant and the next answer given by the jury was that the defendant did not fire the rifle knowing the bullet might strike some person other than Cox, but not caring whether or not it did strike him or her.

21. There was, of course, the affirmative answer of the jury to the question "If the defendant knew or believed or should have known or believed that someone other than Cox was or might have been in the car, was he guilty of negligence in firing the shot which caused injury to the plaintiff?" That, however, was not a question which could assist in determining the existence of the relevant duty and the actual question which is asked appears to be based upon the assumption that a duty of care on the part of the defendant arose if he knew or ought to have known that someone other than Cox might have been in the car. Such is not the case. No doubt the answer of the jury is explained by the charge of the learned trial judge, which was in terms of the possible, rather than the likely, presence of the plaintiff. It contained the following direction:

"If you think that he should have regarded the presence of someone in the car as a reasonable possibility then as I have said, in law he would owe a duty of care to that person. To fire a shot at the side of the car in those circumstances you may well think would be a breach of that duty. Therefore members of the jury it seems to me that the next critical question of fact is; if he did not realize she was there, should he have realized that it was possible that someone else was there. If you are satisfied that he should have realized that, or he fails to satisfy you to the contrary, then it seems to be obvious that he was in breach of the duty of care he owed to anyone who may have been in that car."

Obviously that was a misdirection which left the jury with little alternative but to return the verdict which they did. But the misdirection and the jury's answer as a whole indicate that it was a wrong verdict which cannot be sustained.

22. The final matter with which I must deal is whether it is possible to regard the defendant as owing a wider duty of care - in this case it would be in negligence - than that flowing from the relationship between occupier and trespasser. In my view, it is not possible. As I have already pointed out, at one time the decisions of this Court pointed in the direction of the subordination of "the categorical rules of occupier's liability to the general and more generous doctrines of the law of negligence and of a common duty of care based on foreseeability of harm." See Munnings v. Hydro-Electric Commission, per Windeyer J. at p 25. But that time has passed with the decision in Quinlan's Case. That decision has been accepted, as it had to be, by this Court and it has passed into our jurisprudence. See Munnings v. Hydro-Electric Commission, at pp 10-11, 15, 25, 39. It is clear that Quinlan's Case denied the possibility of concurrent duties of care arising out of the relationship of occupier and trespasser.

23. Their Lordships could hardly have been more explicit when they said, at p.1081, that they could not "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 formula". In rejecting that notion, their Lordships also rejected the reasoning based upon it in Thompson v. Bankstown Corporation, but they nevertheless accepted the correctness of the decision in that case. In doing so, they accepted, as has been pointed out in Munnings v. Hydro-Electric Commission, that if, in addition to the relationship of occupier and trespasser, there is some other relationship which gives rise to a wider duty of care, then that duty of care will prevail notwithstanding that the relationship of occupier and trespasser also exists. Thompson's Case itself provides an example of such an additional relationship, for, in that case, if the defendant was an occupier and the plaintiff a trespasser, the defendant was also an electricity authority bringing electricity into proximity with the public, of whom the plaintiff was a member, and because of that relationship the defendant owed a duty to take reasonable care to avoid harm to those whom it ought reasonably to have foreseen might be injured by coming into contact with the electricity.

24. In Public Transport Commission (N.S.W.) v. Perry it was further recognized that Quinlan's Case and, by that time, Southern Cement Ltd. v. Cooper, left no room, in the case of an occupier, for any general duty of care towards a trespasser such as is owed to a neighbour in a public place, although it was again pointed out that if the relevant relationship is other than that of occupier and trespasser, there may be some such duty of care. As Gibbs J. put it, at pp.130-131:

"The special rules which the common law has

evolved to govern the liability of an occupier of premises to a person who sustains injury while on those premises do not in every case state exhaustively the nature of the occupier's duty to the person who has come on to his premises. The relationship between the parties may be such as to give rise to a duty upon the occupier to take reasonable care for the safety of the other person. If the relationship between the parties imposes upon the occupier this general duty of care, which may be higher than that which he owes in his capacity as occupier, the fact that he is an occupier does not relieve him of the higher duty."

25. It may be, and I suspect that it is so, that the present position, in the light of the explanation of Quinlan's Case in Southern Cement Ltd. v. Cooper, is little different in practical result from the position adopted in the trilogy of decisions in this Court to which I have referred. But it is not, in my view, possible simply to go back to those decisions and re-assert the views expressed in them. To do so would be to do violence to the subsequent decisions, including decisions of this Court. Moreover, to do so would be to disregard the reason which lies behind the currently accepted view that the relationship of occupier and trespasser requires a different treatment from other relationships. That reason, to which I have already referred, was expressed by the Privy Council in Southern Cement Ltd. v. Cooper, at p 642, as follows:

"The fundamental difference between the relationship of occupier and trespasser and other relationships which give rise to a duty of care is that the occupier's relationship with a trespasser is forced on him against his will, whereas other relationships are generally undertaken voluntarily. So it cannot be said in this case that a man ought not to enter into a relationship with others unless he has the ability and resources necessary for the proper performance of the duties which that relationship entails."

Even if the gap between the general duty of care imposed by the law relating to negligence and the duty of care owed by an occupier to a trespasser is narrowing, it still remains, and it seems to me to be wiser to allow the law to develop in the direction which it has taken, rather than to disrupt it by reinstating discarded notions. The old, rigid formula of Robert Addie &Sons (Collieries) Ltd. v. Dumbreck no longer correctly or comprehensively states the law and if there is a distinction between the dictates of common humanity and those of reasonableness towards a trespasser, it will in many cases, perhaps more and more, not be critical. I do not think that it is critical in this case.

26. Turning to this case, I am unable to see that the relationship between the defendant and the plaintiff was other than that of occupier and trespasser. The fact that the defendant was engaged in the activity of discharging firearms at the relevant time did not convert his relationship with the plaintiff into something different. Moreover, the plaintiff was a trespasser of whose presence the defendant was unaware. The defendant was, of course, under a duty towards Cox, of whose presence he was aware, although, because Cox was stealing petrol, the defendant may or may not have been entitled to arrest him by immobilizing his car. See Crimes Act 1958 (Vic.), s.458. But that can have no bearing upon the defendant's relationship with the plaintiff. She was a trespasser on his land and if he owed her any duty of care it was the duty which an occupier owes to a trespasser of whose presence he is unaware. In the circumstances and having regard to the answers given by the jury, there was no duty in this case because those circumstances were not such as to suggest to the defendant the likelihood of the presence of the plaintiff.

27. It only remains for me to add that the law has now been altered in Victoria, although the alteration has no application in this case. The Wrongs Act 1958 has been amended by the Occupiers' Liability Act 1983, which provides that an occupier of premises owes a duty to take such care as is, in all the circumstances of the case, reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. A number of matters are set out which are required to be considered in determining whether the duty of care laid down has been discharged. This legislation goes further than the English Occupiers' Liability Act 1957, which dealt with invitees and licensees by grouping them together as visitors and requiring a common duty of care towards them, but left the position of trespassers unaltered. It is more akin to the Scottish legislation, to which I have already referred. The common law continues to apply in the other Australian States.

Orders

Appeal allowed with costs.

Set aside the judgment of the full Court of the Supreme Court of Victoria and in lieu thereof order that the appeal to that Court be dismissed with costs and that the cross appeal to that Court be dismissed with costs.