Southern Portland Cement Ltd v Cooper - [1973] UKPCHCA 1

HIGH COURT OF AUSTRALIA

Lord Reid, Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Simon of Glaisdale and Lord Salmon.

SOUTHERN PORTLAND CEMENT LTD. v. COOPER.

(1973) 129 CLR 295

19 November 1973

Negligence

Negligence—Dangerous premises—Injury to entrant—Liability to occupier—Duty of care—Trespassers—Licences—Children—Allurement—Whether gives right of action to child—Duty to trespasser based on considerations of humanity—Whether general duty of care.

Decision

November 19.
LORD REID delivered the judgment of their Lordships as follows:-
This is an appeal from a decision of the High Court of Australia in an action for damages for personal injury in which the present respondent is plaintiff and the present appellants are defendants. The action was tried in the Supreme Court of New South Wales by Collins J. and a jury. The jury found for the plaintiff and awarded $56,880 as damages. In the Court of Appeal this verdict was set aside but on appeal to the High Court the jury's verdict was restored. (1972) 128 CLR 427 (at p296)

2. There is little or no dispute about the facts. The plaintiff sustained very severe injuries while a trespasser on land occupied by the defendants by coming in contact with a 33,000 volt electric cable. He was then thirteen years of age. The defendants carried on a business of quarrying limestone at South Marulan in a rather remote area. There was a township of over forty dwelling houses, most being occupied by the defendants' employees, with a school and other buildings situated immediately east of the working area where limestone was quarried, crushed and loaded into railway wagons. Over forty children attended the school. The quarry was in the southern part of the working area. Limestone was crushed near the quarry and then conveyed in a north-westerly direction to "bins" adjacent to and over a railway line so that wagons could be loaded there. This line ran north and south and was joined to the main line some distance away to the north. South of the bins there was a part of the line referred to as the backshunt with a slight gradient so that when a wagon was loaded at the bins it was run down the backshunt to buffers. When a sufficient number of wagons had been loaded a locomotive took them northwards to the main line. (at p296)

3. A high tension electric cable belonging to the county council brought power for the defendants' operation. It was carried by poles some twenty feet above the ground and it ran to the west of and nearly parallel with the railway line. Some months before the accident it was decided to extend the backshunt southwards to give room for more and larger wagons. To make this extension it was necessary to raise the ground level considerably. So waste material from the crushing operations referred to as "fines" or coarse sand had to be dumped there in large quantities. It spread outwards and created a slope of some 60 degrees and in the course of spreading it partially…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1973] UKPCHCA 1
Decision Date: 19 November 1973

CaseChat Overview and Summary

In Southern Portland Cement Ltd v Cooper, the High Court of Australia considered the liability of an occupier for injuries sustained by a trespasser, in this case a child, due to a dangerous condition on the premises. The appellants, Southern Portland Cement Ltd, were the occupiers of a limestone quarry where the respondent, Cooper, a thirteen-year-old boy, was electrocuted by a high-tension cable. The core legal issue was whether the occupiers owed a duty of care to the child trespasser, specifically if the allurement of the premises to children could impose a duty on the occupiers.

The Court began by examining the principles set out in previous cases, particularly the decision in Commissioner for Railways v Quinlan. The Court held that while there was no general duty of care owed to a trespasser, an occupier may have a duty to take reasonable care to protect trespassers, including children, from known dangers on their premises. The Court rejected the narrow interpretation of the occupier's duty as merely refraining from malicious or reckless conduct, emphasizing instead that the duty must be based on considerations of humanity. The Court further clarified that the occupier's duty to trespassers, especially children, is not contingent upon the extreme likelihood of their presence but rather on a substantial chance of their presence.

The Court concluded that the occupiers of the quarry had a duty to take reasonable steps to prevent the danger caused by the proximity of the high-tension cable to the attractive 'sandhill' to children. Given the foreseeable risk of children being attracted to the area, the occupiers failed to take adequate precautions, leading to the restoration of the jury's verdict in favor of the respondent. The appeal was dismissed, and the occupiers were ordered to pay the respondent's costs.

Orders