Hoyt's Pty Ltd v O'Connor

[1928] HCA 7

5(3G HIGH COURT

[1928.

^Pkivy

Por these reasons they will humbly advise His Majesty that

1928          'the appeal should be dismissed. They are always reluctant to give

unsuccessful appellants their costs. But in this case the questions

(xRAY

V,which have arisen are so obviously the result of the obscure and

^Tbustee ̂ unusual procedure of the husband and wife in relation to the

Co. L t d . settlement of 1879 that they think that the costs of all parties as

between solicitor and client should be paid out of the settled funds.

Refd to

Burwopd,

C p u ^ j/ o f the

Mutucipauty

Harvey

P»S)86

LGERA389

[HIGH COURT OP AUSTRALIA.]

HOYT’S PROPRIETARY LIMITED

A p p e l l a n t ;

D e f e n d a n t ,

O’CONNOR .

. R

e s p o n d e n t .

P l a in t if f ,

ON APPEAL FROM THE SUPRE5IE COURT OF

VICTORIA.

H. C. o r A. Xegligence— Occupier of building— Suspended verandah projecting over street—

Collapse of verandah— Injury to pedestrian— Negligence in construction— Negligence in user—Nuisance— Use of verandah for sightseeing—Occupier Me l b o u r n e , permitting use— Dangerous weight— Inroad of trespassers from adjoining premises Feb. 22, 23.— Anticipated danger of—Precautions against— Duty of occupier— New trial— Substantial wrong or miscarriage—Supre^ne Court Rules 1916 (Viet), Order

1928.

Sy d n e y ,

X X X I X . ,

r.

6.

April 17.

The appellant was occupier of a building attached to which was a verandah

Fnox C.J ,

Isaacs, Powers projecting over the footpath of a pubhc street. On the occasion of a street

and Starke J J .procession a number of persons were permitted to stand upon the verandah to view the scene. As the procession came near, other persons, without permission, stepped from an adjoining building on to the appellant’s verandah; and immediately afterwards the verandah sank to the ground and injured the respondent, who was upon the footpath below. The respondent brought

567

40 C.L.R.

OF AUSTRALIA.

an action against the appellant to recover damages in respect of his injuries H. C. of A.

and the jury returned a verdict for the respondent. The appellant moved 1928.

for a new trial on the ground tha t the trial Judge left to the jury the question

H o y t’s

of negligence in the construction of the verandah and did not direct them

P t y . Lt d .

that the appellant would not be liable for the neghgence of an independent

V.

contractor, and tha t the learned Judge had, in effect, directed the jury tha t

O ’C O N X O R .

it was the appellant’s duty to prevent the use of the verandah by people who might reasonably be expected to use it, if such use was likely to create a danger to passers-by. The Supreme Court of Victoria, having dismissed that motion, and an appeal having been brought to the High Court,

RM, by Knox C.J. and Starke J ., tha t there should be a new tria l: by Knox C.J., on the grounds (1) that, though there was no evidence on which the jury could reasonably find tha t the verandah was faulty in construction, that question had been left to them and the Court could not assume that they excluded it from their minds in arriving at their verdict, and (2) that there should have been submitted to the jury the question whether the appellant had proved that the accident was caused by the intrusion of persons who came against its will, and that, but for such intrusion, the accident would not have happened ; by Starke J ., on the ground tha t there was no evidence that the appellant allured persons on to the verandah from the adjoining building, and the appellant was not under any duty to prevent the intrusion of trespassers or to foresee that such an intrusion was likely and would cause damage.

Held, by Isaacs and Powers JJ., th a t a new trial should be refused on the grounds (1) that no substantial wrong or miscarriage of justice was involved in the leaving to the jury of the issue as to negligent construction, and (2) tha t the appellant, in permitting the use of the verandah for the purpose of a stand, was under an obligation to take reasonable precautions to prevent its being over-weighted by the intrusion thereon of persons whose presence the appellant ought to have anticipated and it had not taken such precautions.

Held, also, by Starke J ., that no substantial wrong or miscarriage of justice arose from the misdirection as to negligence in construction.

Judgment of the Supreme Court of Victoria (Full C ourt):

O'Connor v.

Hoyt's Ply. Ltd., (1928) V.L.R. 65 ; 49 A.L.T. 147, affirmed.

Appea l from the Supreme Court of Victoria.

The respondent, James Joseph O’Connor, brought an action in the Supreme Court against the appellant, H oyt’s Pty. Ltd., claiming £3,000 damages for personal injuries sustained by him through the fall of a suspended verandah attached to a building situated in Bourke Street, Melbourne. In the statement of claim the plaintiff alleged

568 HIGH COURT

[1928.

H . C. OF A.

about the year 1914 the defendant erected a building in Bourke

■ Street, Melbourne, with a verandah overhanging the public footway,

H oy t’s

and that on 24th July 1925 the defendant was in occupation and had

P t y . L t d .

V. control of the building and verandah, that the defendant was neghgent

O ’CONNOB.in the construction and management of the building and verandah,

and in consequence of such neghgence the verandah fell on the date named and struck the plaintiff, who was in the street below, and caused injuries to him. The negligence alleged was that defective material was used in making the verandah in that the metal rods supporting it were not of sufficient strength and not properly tempered, and one of them contained an improperly made weld, that the girders were not built sufficiently far into the building, that the hooks of the supporting rods became straightened and useless, that the verandah was not strong enough to support the number of persons who might reasonably have occasion to go upon it, that the supports had been allowed to get into disrepair and that certain persons were invited or allowed to assemble upon the verandah to watch a passing procession and to crowd towards the front part. Alternatively, the plaintiff alleged that the defendant permitted the verandah to become dangerous and likely to fall into the street. The defendant denied negligence. The action was tried before Mann J. and a jury.

Evidence was given that the building was erected by a builder under contract with the defendant, that the material for the verandah was obtained by the contractor from a company carrying on the business of manufacturing engineers and the verandah was erected by the contractor’s men. It was a flat structure of about five tons in weight extending over the full width of the street footpath, the inner part of the frame resting upon projections in the wall of the building, the outer part being held suspended by three steel rods attached at the lower end to the outer part of the frame, and at the upper end to steel eye-bolts built into the wall at a point some twelve feet above the level of the verandah. Some evidence was given on behalf of the plaintiff that the hooks in the supporting rods were not of the proper shape, and that the rods were of structural steel instead of special mild steel, and that the builder must have heated and straightened the hooks before inserting them in the eyes

40 C.L.R.l OF AUSTRALIA.

569

and had thus weakened them. Other witnesses denied that any

C. op A.

such forging had occurred. It also appeared that the verandah

1928.

was theoretically capable of sustaining the weight of about 170

H oy t’s

P t y .

L t d .

persons evenly distributed over its surface or 100 persons standing

V.

along the front edge.

Upon several occasions people had gathered O’Connob .

upon it for sightseeing purposes; and on 24th July 1925, when a procession of the men of the United States Fleet was expected to pass, about 30 persons found their way on to it and the defendant’s men on that day laid some planks on the corrugated iron surface to protect the iron. The verandah of an adjoining building known as the Theatre Royal was, at the time, being similarly used as a stand for sightseers, and some persons attempted to pass from that verandah to the defendant’s verandah and were stopped by the defendant’s servants. A few minutes later, the procession being about to arrive, several other persons, estimated at from 6 to 9 stepped from the Theatre Royal verandah on to the defendant’s verandah, which was lower by about two fe e t ; and immediately after this the entire structure began to sink to the ground. Some witnesses deposed that the western side, that nearest to the Theatre Royal, gave way first. The three rods had withdrawn from the eye-bolts by straightening out, and the eastern rod had broken at a point where there was a weld. This weld was not observable before the fracture occurred. It was sworn that a servant of the defendant had inspected the hooks earlier on the day of the accident, and that they were then in proper shape.

The jury returned a verdict for the plaintiff for £1,500 damages, and judgment was entered accordingly with costs. An application for a new trial was made to the Full Court of the Supreme Comt (Irvine C.J., McArthur J. and Wasley A.J.) and was dismissed with costs: O'Connor v. Hoyt's Pty. Ltd. (1).

From that judgment the defendant appealed to the High Court —the grounds of appeal being, in substance, that the learned trial Judge was wrong (1) in leaving to the jury the question whether the mode of construction of the verandah was faulty and (2) in the direction which he gave to the jury on the question of the respon­ sibility of the appellant in the event of the jury being of opinion

(1) (I928> V.L.R. 65 ; 49 A.L.T. 147.

570

HIGH COURT

[1928.

H. C. OF A. that the intrusion of strangers from the adjoining building might reasonably have been anticipated by the appellant or its servants.

H o y t’s Further material facts sufficiently appear in the judgments

F t y . Lt d .

V. hereunder.

O ’CONNOH.

Owen Dixon K.C. and Stafford, for the appellant. The jury should have been asked at the trial of the action whether the defendant ought to have known that permitting so many persons to stand on the verandah was creating danger, and whether the defendant was guilty of neghgence in that that danger was turned into actual disaster by the arrival of other persons. Unless the defendant allured these new arrivals it could not be responsible for the effect of their presence. There was no proof that the defendant was guilty of any lack of care as to ascertaining the number of persons who could safely stand on the structure, and the damage was not traced to any failure of duty in this respect. No jury could reasonably find that there was neghgence in construction in respect of the rods and hooks. That question, therefore, should not have been left to the jury. The defendant could not be responsible for any default of the manufacturer of the ironwork relating to an undiscoverable defect. There was no evidence that the defect in the weld could have been observed without breaking the rod, and none but an expert would have detected the presence of a weld at all. The theories advanced by one witness, an engineer, called by the plaintiff, were that either 200 persons must have been on the verandah or the hooks must have been forged and opened at the time of insertion. No reasonable jury could accept these theories in view of the evidence as to what actually occurred, and yet the verdict may have been founded upon them for aught that appears. The jury was misdirected as to the supposed duty of the defendant arising from the superior attractiveness of this verandah for sightseers. There was no duty to take the suggested precautions against the acts of others. The jury should not have been left to decide whether the precautionary, steps taken by the defendant were sufficient to exonerate it. The mere permitting of persons on the verandah was not negligence. In Noble v. Harrison (1) a

(1) (19i!G) 2 K B . 332.

40 C.L.R.]

OF AUSTRALIA.

landholder was held not responsible for damage caused to a pedestrian

H. C. O F A.

1928.

by a tree overhanging a street footpath. The owner of a street

sun-blind was held not responsible for the acts of persons who

H oy t’s

P t y .

L t d .

interfered with it, notwithstanding that the risk was foreseen

. V.

{Wheeler v. Morris (I) ).

O’CojraOH.

Reynolds, for the respondent.

According to the evidence the

verandah, if properly constructed, would have safely held 172 persons distributed over its surface or 100 concentrated near the front, and the fact of its collapsing with only 30 persons present may have induced the jury to decide that the mishap was due to bad work or material. Thus, apart from evidence of the engineer already referred to, there was support for a finding of negligence in construction. It was also open to the jury to find that the hooks were forged for the purpose of inserting them in the bolts and that they straightened out gradually. According to the evidence this was the largest crowd which had ever been accom­ modated. This verandah was intended to carry weight, and an expert witness for the defendant gave the opinion that it was improper to use a welded rod for such a purpose. The duty of the defendant as to anticipating the risk of persons invading the verandah must be considered in regard to the conditions of that day. In

Rmff V. Long dt Co. (2) and McDowall v. Great Western Railway

Co. (3) there was nothing to show that the risk ought to have been anticipated. Such cases may be contrasted with Martin v. Stan- borough (4).

[Isaacs J. referred to Rickards v. Lothian (5).]

The defendant had an absolute duty in relation to the verandah. Thi.s case cannot be distinguished from Tarry v. Ashton (6). It is not a case of exoneration upon account of vis major or mahcious act of a third person (Clerk and Lindsell on Torts, 7th ed., p. 435 ; Kearney v. London, Brighton and South Coast Railway Co. (7) ). In cases of nuisance the plaintiff is reheved from the necessity of showing

|l) (19].5) 113L.T. 044.

(5) (1913) A.C. 263. at p. 273 ;

(2) (1910) 1 K.B. 148.

C.L.R. 387, at p. 394.

(3) (1903) 2 K.B. 331.(6) (1876) 1 Q.B.D. 314.

(4) (1924) 40 T L.R. .5.37.

(7) (1871) L.R. 6 Q.B. 759.

572 HIGH COURT

[1928.

H.0. OF A. that the defendant knew of the defect {Mullan v. Forrester (1))

1928.	—the case of a wall blown down in a storm. The dangers arising
H oy t’s	from an artificial structure are to be distinguished from those

P t y . L t d .

V. arising from a tree overhanging a road (see Noble v. Harrison (2)).

O

’C O N U O B .

Owen Dixon K.C., in reply. As permission may be given by the local authority for the use of a street verandah, such a structure becomes an extension of the nominal use of land (see Local Government Act 1915, Thirteenth Schedule). Liability in such cases depends upon neghgence. In Tarry v. Ashton (3) the negligence of the contractor was established, and the case depended upon knowledge of the lack of repair (see Pollock on Torts, 12th ed., p. 529 ; Palmer

V.

Bateman (4) ).

[S t a r k e J. referred to Daniel v. Directors &c. of Metropolitan

Railway Co. (5).]

The jury has not yet found that the verandah was dangerous before the arrival of the people from the Theatre Royal. If misdirection is once estabhshed the burden of showing that no substantial wrong was done lies upon the party supporting the verdict. Here the jury was left to determine the issue of neghgence in construction w'hen no evidence of any such neghgence had been given.

Cur. adv. vuU.

April 17.

The following written judgments were dehvered :—

K n o x C.J. The respondent sued the appellant to recover damages

for physical injuries sustained by him by reason of the neghgence of the appellant. The relevant facts proved were as follows :—The appehant was the occupier of premises in Bourke Street, Melboiune, attached to which was an awning projecting over the highway. On the occasion of a procession taking place the appellant invited or permitted a number of persons variously stated as from 20 to 40, to stand upon the awning to see the procession. When the procession was approaching, a number of other persons came from

(1) (1921) 2 I.R. 412.(3) (1876) 1 Q.B.D. 314.

(2) (1926) 2 K.B. 332.

(4) (1908) 2 I.R. 393.

(5) (1871) L.R. 5 H.L. 45.

40 C.L.R.] OF AUSTRALIA.

573

an adjoining building on to the awning of the appellant notwith­

H. C. O F A.

1928.

standing the protest of the servants of the appellant.

Immediately

after the intrusion of these persons the awning fell and the respondent,

H oy t’s

P t y .

L t d .

who was standing on the footpath underneath, was injured. The

V.

jury found a verdict for the respondent for £1,500, and the appellant

O ’Con no r .

apphed to the Supreme Court of Victoria for a new trial on the

Knox C.J.

ground of misdirection. This application was refused and the

appellant now appeals to this Court.

In substance the appellant’s complaint is that the learned trial Judge was wrong (a) in leaving to the jury the question whether the mode of construction was faulty and (b) in the direction which he gave to the jury on the question of the responsibility of the appellant in the event of the jury being of opinion that the intrusion of strangers from the adjoining building might reasonably have been anticipated by the appellant or its servants. As to the first of these objections I think there was no evidence on which the jury could reasonably find that the mode of construction of the awning was faulty, and that consequently the question whether it was so should not have been left to them. But it is said for the respondent that, having regard to the terms in which the learned Judge summed up on this question, the improbability of the jury having founded their verdict on this ground is so great that this is a proper case for the application of the rule that a new trial should not be granted on the ground of misdirection unless in the opinion of the Court some substantial wrong or miscarriage has been thereby occasioned {Swpreme Court Rules 1916 (Viet.), Order X X X IX ., r. 6). I do not think the Coiut is justified in assuming that the jury in considering their verdict dismissed this question from their minds. Apart from evidence as to the nature and effect of the physical injury to the respondent, the evidence led for him at the trial was directed mainly, if not entirely, to establish neghgence in the original construction of the awning. The case made was that, if the hooks on the bars supporting the awning had been properly made and put into the eye-bolts, they would not have shpped out—as in fact they did— unless there were at least 200 people on the awning. It is true that the learned Judge told the jury that there was little, if any, evidence on which they could find that the mode of construction was in itself

574 HIGH COURT

[1928.

H. C. O F A.faulty and defective so as to attach liability to the defendant.

But

1928.

notwithstanding this expression of opinion the question of negligence

H oy t’s in construction was left to the jury, and I do not feel justified in the

P t y . L t d .

V. circumstances of this case in concluding that the jury excluded thhi

O ’Con no r .

question from consideration in arriving at their verdict. It seems to

Knox C.J.me impossible to hold with any reasonable degree of confidence that

the jury did not on this part of the case come to a conclusion adverse to the appellant; and, that being so, t think the appellant is entitled to a new trial.

The question raised by the second groimd of objection is more difficult. The learned Judge, in effect, directed the jury that, if in the circumstances the appellant might reasonably have anticipated the intrusion on to the awning of persons other than those invited or permitted to be there and did not provide against such intrusion, the jury might find the appellant guilty of negligence. The evidence showed that the intruders came on to the awning without the consent and against the will of the servants of the appellant. The fact that the awning afforded a large flat platform and that it was being used as a stand by persons authorized by the appellant appears to have been regarded as something in the nature of an invitation or allurement to people on the adjoining buildings to come on to the awning, and it was put to the jury by the learned Judge that in the circiunstances the appellant was bound not only to use the property with proper circumspection but to provide against its use by other people if such use might reasonably have been anticipated. It was also suggested to the jury that a mere protest or remonstrance against the intrusion was not a sufficient precaution on the part of the appellant to absolve it from responsibihty for the consequences of the intrusion by unauthorized persons. Where the evidence showed, as I think it did, that the intruders came on to the awning without the consent and against the will of the appellant the proper question for the jury, in my opinion, was whether the appellant had proved that the collapse of the awning was caused by the intrusion of these persons and but for such intrusion would not have happened. The appellant, having permitted the use of the awning for a purpose for which it was not intended, might properly be held responsible

40 C.L.R.] OF AUSTRALIA.

575

for the consequences of such permitted user ; but, if the appellant H. C. o r A.

could establish that the accident was caused by the unauthorized

acts of persons who were in fact forbidden by the servants of the

H oyt’s

P t y . L t d .

appellant to come on to the awning, and that it would not have

V.

happened but for the unauthorized acts of those persons, to hold

O’CoNsroB.

that the appellant was stiU liable seems to me to put the duty of an

Knox C.J.

occupier too high. On that view the occupier might, it would seem, be held hable for the collapse of an awning even though he had not permitted any person to go upon it, provided the awning afforded an advantageous position for witnessing the procession and thus constituted an allurement or temptation to unauthorized persons to use it for that purpose. The defence sought to be established in this case was, I think, that the appellant was not responsible for the collapse of the awning because the collapse was caused by the intrusion of persons not authorized or invited by the appellant and in fact forbidden to go upon the awning. This issue was not, as I read the summing-up, submitted to the jury. On the contrary it was suggested to the jury that it was not material to determine “ where the man or men came from that provided the last straw.” The question ultimately submitted to the jury was whether, in expostulating with the intruders to try to stop them from coming on to the awning or in teUing them they must not come on, the appellant as proprietor of the awning took all reasonable care. In my opinion the true issue was whether the appellant had proved to the satisfaction of the jury that but for the unauthorized intrusion of these persons the awning would not have fallen. I agree with the Full Court in thinking that the appellant’s invitation or permission to a large number of persons to congregate on the awning without ascertaining whether such a course might not be fraught with danger to its stabihty was in itseM an act of neghgence in relation to persons using the highway who might he injured by its faUing, but the further question remained whether this act of neghgence was the cause of the accident and in the view which I take of the summing-up this question was not submitted to the jury.

For these reasons I am of the opinion that the appeal should be

allowed and a new trial ordered.

676 HIGH COURT

[1928.

H . C. o r A. I sa a c s a n d P o w e r s

JJ.

There are only two points of substance

1928.

for consideration as to whether a new trial should be ordered.

We

>—'

H oy t’s

have come to the conclusion that the Full Court of Victoria rightly

P t y . L t d .

V. refused to take that course.

O ’CONNOK.

It is always a serious matter to order a new trial. Both on

Isaacs J.

Powers J.principle {Hip Foong Hong v. H. Neotia & Co. (1) ) and by express

rule {Sup-eme Court Rules, Order X X X IX ., r. 6) a new trial should not be directed unless the Court is satisfied that there has been some substantial wrong or miscarriage of justice. The general meaning of that requirement is foxmd in Bray v. Ford (2). The appellate tribrmal must be satisfied that some wrong or miscarriage has occurred and, if so, that it is substantial. Each branch finds an illustration in this case. As Lord Buckmaster said in Wing Lee v. D. C. Lew (3) ), the right to a new trial is based on a discretion which is judicial and rests on sound principles and therefore is not arbitrary. IVe may get some guidance from the judgment of Lord Loreburn L.C. in Brown v. Dean (4), where two relevant passages occur. The first is a cautionary observation as to “ the extreme value of the old doctrine Interest reipuhlicce ut sit finis litium, remembering as we should that people who have means at their command are easily able to exhaust the resources of a poor antagonist.” The other is in the nature of a principle : “ When a litigant has obtained a judgment in a Court of justice . . . he is by law entitled not to be deprived of that judgment without very solid grounds.” Lord Loreburn’s observations seem to us to apply with very great force to the present case.

The first point is as to the alleged original construction of the verandah. At the trial the plaintiff rehed on the opinion of a skilled witness that there was defective construction in respect of a welded bar and of certain hooks essential to the support of the structure. The point made before us was that there was no evidence on which the jury could reasonably find neghgence in construction, or, at all events, negligence imputable to the appellant with regard to the bar. The slenderness of the evidence is imdeniable, and the responsibihty of the appehant for initial weakness of the bar is

(1) (1918) A.C. 888, at p. 894.(3) (1925) A.C. 819, at p. 823.

(2) (1896) A.C. 44.

(4) (1910) A.C. 373, at p. 374.

40 C.L.R.]

577

OF AUSTRALIA.

H. C. O F A.

arguable.

It is true that in form the learned trial Judge (Mann J.)

1928.

left the jury free to come to a conclusion either way on the construction

issue. But when the charge is read as a whole, and by the light of

H o y t’s

P t y .

L t d .

the evidence, we entertain no doubt whatever that, giving credit

V.

O’ComsroR.

to the jury for common sense and the ordinary reasonableness of

Isaacs J.

daily life, they followed the plain indications of the learned Judge

Powers J .

and disregarded this portion of the plaintiff’s claim, basing their verdict on what Mann J. told them was “ the real gist of the case.” It is not credible that the jury in arriving at the verdict they gave founded themselves on original negligence of builder or manufacturer, and entirely absolved the appellant from the more distinct, immediate and prominent charges of its own negligence in supervision and overloading. Assuming, therefore, an error in leaving the first issue to the jury, we are satisfied it led to no wrong or miscarriage, and if the error itself can be called a wrong or miscarriage, it was not substantial, and does not enter into the verdict of the jury.

The second point is of a different character, and is of wider importance :— The appellant urges that as the structure gave way only after the irruption upon it of persons not authorized by the appellant to come on to the verandah, and therefore trespassers, non constat the collapse would have occurred if only those other persons who were authorized to be there had been present, and so, for the intruders, not being invitees or licensees, but constituting the dangerous overloading, the appellant is not responsible. The respondent meets this by two positions. In the first place he says that the appellant owed him a higher duty than that of merely exercising reasonable care to avoid insecurity. Tarry v. Ashton (1) and similar cases were relied on. It may be that there was a higher duty, and that the duty was absolute unless excused by the act of God or by vis major or by some latent defect undiscoverable upon careful and available examination, or by the unanticipated act of a third person (see Barker v. Herbert (2) ). As to this contention we do not find it necessary to form any conclusion either as to the extent of duty or its application, because on the second position we are of opinion the respondent is entitled to hold the verdict. That position is that upon the facts in evidence the

(1) <1876) 1 Q.B.D. 314. (2)

(1911) 2 K B . 633, a t p. 638.

VOl.. XL.

578 HIGH COURT

[ 1928.

H. C. O F A.

jury were justified in considering the appellant responsible for the

1928.

total overloading of the verandah, including the persons, regarded

H oy t’s as not authorized, and for the consequent collapse of the structure.

P t y . Lt d .

V. As to this part of the case Mann J., after leaving other aspects of

O ’Connor .alleged neghgence to the jury, dealt with the matter separately and at Isaacs J. Powers J.some considerable length. He summed up the position thus:—

“ They ” (the defendants) “ are bound, as I have said, not only to use the property with proper circumspection but to provide against

its use by other people i f that were a thing which they might reasonably

have anticipated. There seems to have been nothing more than a mild protest against interlopers coming on to share this platform in front of H oyt’s building.” As much controversy centred around this position and as unfortunately a difference of opinion exists as to this, it is weU to state the matter as clearly as possible. The fundamental consideration is that the respondent’s claim is based, not as invitee or licensee of the appellant as in the Latham

V. R. Johnson & Nephew Ltd. (1) and Hardy v. Central London

Railway Co. (2) class of cases, but upon his inherent and independent right as a passenger upon the King’s highway. His claim—hmiting it for present purposes to the higher duty—is that the appellant, having constructed the verandah over the pubhc street as a verandah for the purposes of an awning, and so far lawful, apphed it so negligently to the use of a stand for witnessing the procession as to cause it—as between the appellant and himself-—to be overweighted and, by its collapse, to injure him. It is not essential to the respon­ dent’s case that the people upon the stand were invested with the character of invitees or licensees in order to hold the appehant responsible for overloading. But it is essential to his case, as submitted to the jury and found by the verdict, that the presence of people whose weight constituted in whole or part the overloading which brought down the structure was in some way imputable to the appellant. The question, to the extent that it is one of law, is : How far is the doctrine of anticipated action on the part of others applicable to such a case as the present ? With respect to the greater number—at least 30—of the persons present, no question arises as to this, for ex concessis they were authorized or permitted

(1) (1913) 1 K.B. 398, a t p. 416.

(2) (1920) 3 K.B. 459.

40 C.L.R.] OP AUSTRALIA.

579

to be there. The struggle is as to the few—about 5—who, so to

H. C. O F A.

speak, appear to have turned the scale, and who increased the 1928.

already superimposed weight, and, by adding to the inevitable

H oy t’s

P t y .

L t d .

vibration of a moving crowd viewing the incidents of the procession,

V.

O ’CONNOK.

seriously altered the factor of safety.

In our opinion the doctrine

Isaacs J.

of anticipation is applicable. It is true that no case exactly in point

Powers J.

can be foimd ; but, though that circumstance should make a Court cautious, it is no reason for denying the right to redress. This is a claim rested on the common law. While it is perfectly true that new principles are not now to be invented by the Courts but must be left to the Legislature, it is equally true that long established principles of the common law regulating the relations of society are not to be denied their just application to those relations merely because the circumsta,nces attending them are novel and more complex. This is really part of the common law itself. Bracton, in his Treatise on the Law and Customs of England, bk. i., ch. 2, written nearly seven centuries ago, says : “ If however any new and unaccustomed cases shall emerge, and such as have not been usual in the realm, if indeed any like cases have occurred, let them be judged after a similar case, for it is a good occasion to proceed from Hke to like.” Vaughan v. Menlove (1) is an apposite instance. There, as Tindal C.J. said (2), it was “ a case primce impressionis.” But the basic principle which, as Park J. stated it (3), is “ every man must use his own so as not to hurt another,” was adapted to the facts of the case which were “ new in specie.” The test was “ the care which a prudent man would take,” and taking’that as their guide the jury were left to say whether there was negligence on the occasion in question. Among modern recognitions of Bractmds rule we have, for instance, that of Lord FitzGerald in Wake v. Hall (4)) and of Lord Herschell in Allen v. Flood (5); and still more recently we find Bankes L. J. in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) (6), saying:— “ There can, of course, be no exact precedent, as the Electricity Commissioners are a body of quite recent creation. It has, how­ ever, always been the boast of our common law that it wUl,

(1) (1837) 3 Bing. N.C. 468.(4) (1883) 8 App. Gas. 195, at p. 211.

(2) (1837) 3 Bing. N.C., a t p. 474.(5) (1898) A.C. 1, a t pp. 127, 128.

(3) (1837) 3 Bing. N.C., a t p. 476.

(6) (1924) 1 K.B. 171, at p. 192.

580 HIGH COURT

[1928.

H.	C. OP A. whenever possible, and where necessary, apply existing principles to
1928 ^

,__ new sets of circumstances.” (See further Prager v. Blatspiel, Stamp S

H oy t’s Heacock Ltd. (1).) The fundamental principle is, as already stated,

P t y .

L t d .

t). v(

that a man in exercising his own rights of property is to pay due

O’Comsroit.

regard to the rights of others.

If by what the law calls negligence

Isaacs J.

Powers J.he injures another he is responsible unless some valid answer is

available. The circumstances of the present case appear to be so debatable that it is not out of place to go a little further into the rationale of the matter. Negligence is the absence of that care which the law requires in the circumstances. Care means taking reasonable precautions to guard against injury to another, which an ordinarily prudent person would anticipate as likely at that time and in that place to arise unless such precautions were taken. Whether in a given case care is required by law and, if so, the extent of such care depend upon the relations of the parties and must be deter­ mined by the Court (see per Lord Kinnear in Butler {or Black) v. Fife Coal Co. (2)). The actual sufficiency of the precautions taken having regard to the legal standard and also whether the relevant injury should have been anticipated are questions of fact determin­ able by the jury (per Lord Kinnear (2) ). The necessity and extent of care, in some well-known relations, as invitor and invitee, licensor and licensee, owner and trespasser, bailor and bailee, carrier and passenger, are now well established. In other circumstances, for instance in the present case, the question has not been expressly settled, and has given rise to considerable discussion and some difference of opinion. That is only to be expected from the multiform and changing aspects of life in a progressive society. As a matter of law, we think that, having regard to the relation between the appellant and the respondent and to the proved circumstances of the case, the appellant, if it chose to use its verandah for the undesigned purpose of a stand for viewing the procession, was under the legal obligation towards street passengers of at least taking reasonable precautions to prevent the structure becoming over­ weighted beyond its strength, either by the presence of too many permitted persons, or by the advent of additional persons whose

(1) (1924) 1 K.B. 566, a t p. 570, perilfcCardie J.

(2) (1912) A.C. 149, at p. 159.

40 C.L.R.] OF AUSTRALIA.

.581

presence, though unpermitted, ought in the circumstances of the

C. or A.

user by the appellant to have been anticipated. As to the first

‘

alternative no doubt can exist. The second is easily illustrated ;

H oy t’s

P t y .

L t d .

Suppose during a public procession a property ovmer, using his

V.

verandah as the appellant’s was used, displays some emblem

O ’COKNOE.

Isaacs J.

calculated to arouse public indignation and resentment, and a

Powers J!

number of persons spurred by the feelings so engendered mount the verandah to tear down the emblem, with the result that the verandah falls and hurts a passer-by. Technically the invaders are trespassers, but, nevertheless, since the consequence is what the property owner should have anticipated from his own act, the passer-by would, in our opinion, have a good cause of action against him, not to be defeated by the plea that the persons who broke down the structure were trespassers. Those persons—the invaders—if injured would as to reparation stand in a different position, because their relation to the property owner was difierent. Similar processions are not infrequent in Melbourne. People do, on these occasions, as a matter of common knowledge, mount on verandahs and such points of vantage. Owners who are merely not churlish enough to hunt the pubhc off might weU be thought to do no more by inaction than let them take their own risk. But when an owner sets the example as in this case, openly prepares his verandah as a sightseeing stand, and provides sitting accommodation for more than are actua lly present and does all that the appellant did in this case, what then is the legal position ? We are of opinion that it was competent for the jury, upon a consideration of what the appellant itself admittedly did, in the circumstances then present, to conclude, from their own knowledge of local habits and conditions, that the appellant ought to have anticipated the probabihty of what actually happened, namely, the attempted entry upon the verandah of persons desiring a more advantageous or convenient place for viewing the procession, and ought to have either refrained from going so far, or have taken adequate measures to prevent further incursions on the verandah. The verandah was, apparently, a very comfortable and attractive place for the purpose ; there was nothing to suggest to an onlooker that it was unsafe ; it was openly

582 HIGH COURT

[1928.

H. C. OP A.

used for the purpose by a considerable number of people ; accom­

1928.

modation was provided for a still greater number ; planks were

H o y t’s visibly placed to meet the exigencies of the occasion. From the

P t y .

L t d .

V. answer of a director of the appellant company to the sixth interroga­

O ’Con no r .tory, it appears that he took steps to distribute over the verandah

Isaacs J.

the people thereon, and lining-boards were placed on the verandah to distribute such people. Unless that implies a sense of insecurity, what was done indicated—and it certainly might to an outsider indicate—a general suitability and availability of the whole area of the verandah for the occasion. Human nature being as it is, local habits being known, and previous similar processions having taken place, when the appellant created indications of space and convenience for a further number and apparent safety—because appearances were all that would naturally influence outsiders—and with but a step down to reach the verandah on the part of those persons whom everyone would expect to swarm on the neighbouring structures, what ought the appellant reasonably to have anticipated ?Ought it to have anticipated on such an occasion, when impulse is so powerful, that other persons, less comfortably or conveniently, or perhaps—to all appearances—less safely, placed, might suddenly and without stopping to ask permission join the persons already on the verandah ? That was a question which Mann J. in substance asked the jury and which the jury answered in the affirmative. The learned Judge invited the jury also to consider in that connection the effect on the public mind of what he termed the “ mild expostula­ tion,” and the jury clearly thought that it wms no real corrective, but that, as opposed to the rest of the circumstances, it would not operate as any real deterrent or preventive—if, indeed, those who finally entered observed it. Not only do we think the jury were well within their powers as reasonable men gauging the probabihties of the moment in coming to their conclusion (see, for instance, McLoughlin v. Warrington Corporation (1) and In re Polemis and Furness, Withy & Co. (2); and see also Seven on Negligence, 4th ed., at p. 59), but it appears to us it would have been remarkable if they had thought otherwise. If that point once be reached, then it matters not that as between the appellant and the invaders there was technically

Powers ,J.

(1) (1910) 75 J.P . 57 (C.A.).

(2) (1921) 3 K.B. 560.

40 C.L.R.] OF AUSTRALIA.

583

a trespass—-if trespass there was—for, as between an innocent C.

of A.

spectator in the street below and the appellant, the latter by what ,___

'

Mann J. calls “ allurement,” or what may be called “ inducement ”

H oyt’s

P t y .

Lt d .

or “ attraction ” or “ temptation ” or any other name, insufficiently

V.

counteracted in effect, was instrumental in bringing about the final

O ’CONNOB.

Isaacs J.

and additional stress which eventuated in the fall of the structure.

Powers J.

It ran the risk of endangering persons lawfully on the highway, and for this it is, on the finding of the jury, in our opinion properly answerable to the respondent who has suffered by it.

The verdict, therefore, not being erroneous for the reasons

advanced, should stand, and this appeal should fail.

St a r k e J. In this case the plaintiff, who was lawfully standing

in a public highway watching a procession, was injured by the fall of a verandah or awning attached to a building owned and occupied by the defendant and overhanging the highway. The plaintiff alleged that the verandah fell by reason of the negligence of the defendant or those for whom it was responsible, in its construction, management or use. He also alleged that the defendant or those for whom it was responsible allowed the verandah to be in a condition dangerous to those using the highway, or, in other words, created a public nuisance. The action was tried before a jury, and a general verdict was found for the plaintiff, damages £1,500. A new trial was refused by the Supreme Court of Victoria, and an appeal has been brought to this Court.

Apparently, at the trial little attention was paid to the count for nuisance—to the duty of an occupier of property abutting on a highway to keep his property from being a cause of danger to the public. Some authorities there are which suggest an absolute duty on the part of an occupier whose property overhangs the highway to insure the safety of the public “ against . . . consequent harm not due to some cause beyond human foresight and control ” {Pollock on Torts, 10th ed., p. 506 ; Tarry v. Ashton (1) ; Kearney v. London, Brighton and South Coast Railway Co. (2) ). This strict rule of responsibility approaches the rule of Rylands v. Fletcher (3), and

(1) (1876) 1 Q.B.D. 314.

(2) (1871) L.R. 6 Q.B. 759.

(3) (1868) L.R. 3 H.L. 330.

.

584 HIGH COURT

[1S28.

H.	a OF A.cannot 'well be distinguished from it. Modern authorities, however,
1928. refuse to apply that strict rule in the case of a normal or ordinary

H oy t’s use of property, as is the case of awnings or verandahs to a building,

P t y . L t d .

V. overhanging the public highway [Barker v. Herbert (1) ; Rickards v.

O ’Con no r .

Lothian (2) ). The duty of an occupier is rather “ to keep his property

Starke J.from being a cause of danger to the public by reason of any defect

either in structure, repair, or use and management, which reasonable care and skill can guard against ” [Pollock on Torts, 11th ed., pp. 526-527, 512-513 ; cf. Latham v. R. Johnson & Nephew Ltd., per Hamilton L.J. (3); Noble v. Harrison (4) ). The duty, as Sir Frederick Pollock says, is impersonal rather than personal [Penny

V. Wimbledon Urban Council (5) ). Again, the occupiers may be

answerable for the neglect of the duty, as Hamilton L.J. (now Viscount Sumner) points out in Latham’s Case (6), “ even though but for the intervening act of a third person or the plaintifi himself ” the “ injury would not have occurred.” “ No doubt each intervener is a causa sine qua non, but unless the intervention is a fresh independent cause, the person guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such interventions and to have foreseen that if they occurred the result would be that his negligence would lead to mischief.” McLoughlin v. Warrington Corporation (7) is but an illustration of this view. Undoubtedly there was evidence to go to the jury of a breach by the defendant of this duty of an occupier of property abutting on a highway, but the case was not so presented to the jury by the learned Judge, and a verdict cannot be sustained on this ground.

The case put to the jury was whether the defendant or those for whom it was responsible so negligently constructed the verandah or so negligently managed and used it that it fell down and injured the plaintiff. There was not, I think, any evidence of neghgence in construction ; and the jury should have been so directed. An engineer called for the plaintiff indulged in a number of conjectures, but the matters on which he based his conjectures were all disproved

(1) (1911) 2 K.B., a t p. 647.(4) (1926) 2 K.B. 332.

(2) (1913) A.C., a t p. 280;

(5) (1899) 2 Q.B. 72.

C.L.R., a t p. 401.

(6) (1913) 1 K.B., at p. 413.

(3) (1913) 1 K.B., a t p. 413.

(7) (1910) 75 J .R 57 (C.A.).

40 C.L.R.] OF AUSTRALIA.

585

as matters of fact.

The learned Judge, however, instructed the H . c. of a .

jury that there was little, if any, evidence on which they cotild find

’

that the mode of construction was in itself faulty and defective so

H oyt’s

P t y .

L t d .

as to attach Uability to the defendant. Under these circumstances

V.

the Court can I think rightly act upon Order X X X IX ., r. 6, of the

O ’COITOOR.

Rules of the Supreme Court, and say that no substantial wrong or

Starke J.

miscarriage was occasioned by reason of the misdirection. There was a possibility that the jury disregarded the opinion of the learned Judge ; but that possibility is so slight that I think it may be disregarded.

We come now to the learned Judge’s charge with reference to the management and use of the verandah. There was ample evidence to go to the jury of such negligence. The defendant’s case, however, was that the fall of the verandah was caused, not by the neglect of the defendant, but by the independent intervention of third parties for whom it was not responsible, namely, trespassers from an adjoining verandah. I quite agree with the learned Judge that, if the fall of the verandah was caused by the combined act of the defendant and the third parties in overweighing the verandah, that would afford no answer to the plaintiff’s claim ; but the learned Judge went much further : he suggested that the third persons were allured on to the verandah and, therefore, were there in substance at the invitation or with the leave of the defendant. There was not, in my opinion, the slightest evidence of any such invitation or leave. The people on the adjoining verandah jumped on to the defendant’s verandah without any such, leave, and even against the protest of the defendant’s servants. And as to allure­ ment, a man is “ a trespasser . . . if he goes on private ground without leave or right, however natural it may have been for him to do so ” {Latham's Case (1) ). Having suggested to the jury that the defendant’s verandah was an allurement to people on the adjoining verandah the learned Judge proceeded : “ It is a matter for you to consider whether that course of conduct on the part of people so situated was not just such a course of conduct as the defendants might reasonably have anticipated and ought to have provided Against if they had given any thought to the matter at all, if they

(1) (1913) 1 K.B., a t p. 416.

586 HIGH COURT

[1928.

H. C. OP A. }|ad realized the danger, the peril of the people beneath.

1928.

They are bound, as I have said, not only to use their property with

H o y t ’.s proper circumspection but to provide against its use by other people

P t y . Lt d .

V. if that were a thing which might reasonably have been anticipated.”'

O’CONNOH. Possibly this direction was suggested by the observations in

Sterke .1.

Rickards v. Lothian (1) and In re Polemis and Furness, Withy &

Co. (2).

Now, I quite agree that the defendant is responsible if it or those for whom it is responsible allowed too great a weight upon the verandah ; but I cannot assent to the view that an occupier of property is under a duty to prevent the intrusion of trespassers upon his property, or to forsee that such an intrusion was likely and would cause damage. Such a view is opposed to the decision in Barker v. Herbert (3), and it is not within the proposition of Viscount Sumner in Latham's Case (4), for the defendant’s case is that it was guiltless of negligence and that the cause—the effective and direct cause—of the accident was the intervention of third persons—trespassers—over whom it had no control and who came upon its verandah without any right and without any leave on its part. (See also Weld-Blundell v. Stephens (5).)

In my opinion the verdict should be set aside and a new trial had. But I do not regret that the opinion of the Court in this case is otherwise, for a proper direction on the facts of this case would, I should think, on any further trial almost certainly again result in a verdict for the plaintiff.

Knox C.J. The Court being equally divided in opinion, the order appealed from is affirmed. The appeal will be dismissed, the appellant to pay costs of the appeal.

Appeal dismissed, accordingly.

Sohcitors for the appellant, W. B. (& 0. McCutcheon.

Solicitors for the respondent, Luke Murphy & Co.

(1) (1913) A.C. 263 ; 16 C.L.R. 387.(3) (1911) 2 K.B., a t p. 647.

(2) (1921) 3 K.B., a t pp. 571, .574,

(4) (1913) 1 K.B. 398.

.577,

(5) (1920) A.C. 956, a t pp. 986 et seq..