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(1913) 1 K.B. 398
(1913) 1 K.B. 398
[1913]
1913 think that the second trial was valid and that the appeals
^^ should be dismissed.
«• Appeals dismissed.
RlCHABDSON.
" The principle of law as to gifts is, that the giver is not respon- C. A.
sible for damage resulting from the insecurity of the thing, 1912
unless he knew its evil character at the time, and omitted to LATHAM
caution the donee. There must be something like fraud on the R T *•
part of the giver before he can be made answerable . . . . To &NBPHEW,
create a cause of action, something like fraud must be shewn.
No action will lie against a spiteful man who, seeing another
running into a position of danger, merely omits to warn him.
To bring the case within the category of actionable negligence,
some wrongful act must be shewn, or a breach of some positive
duty: otherwise, a man who allows strangers to roam over his
property would be held to be answerable for not protecting them
against any danger which they might encounter whilst using the
licence." The owner of cliffs by the sea who allows the public
to walk there is not bound to fence them off, nor is the owner of
downs who allows people to walk and ride thereon liable for
unfenced quarries or banks honeycombed by rabbits, however
dangerous they may be. There are, however, the following
exceptions to the freedom from liability, namely, (1.) " Allure
ment " in the evil sense of alluring with malicious intent to
injure. This gives a right of action even to a trespasser—
Townsend v. Watlien (1); Deane v. Clayton (2); Pouting v.
Noakes (3)—and a fortiori therefore to a licensee. (2.) "Con
cealed trap"—that is, something added to the condition of the
ground as it was when the licence was, given in a way likely to
be dangerous and without giving notice to the licensee. " A
person coming on lands by licence has a right to suppose that
the person who gives the licence . . . . will not do anything
which will cause him an injury " : per Willes J., Corby v. Hill. (4)
So, too, if something known to the owner to be in a dangerous
state is put on the premises for the purpose of being used by
the licensee, e.g., rotten planks for a bridge over a stream,
this is actionable, notwithstanding that the grantor of a right of
way is not bound to repair it if foundrous: see Gale on Ease
ments, 8th ed., p. 475, and cases there cited. (3.) " Invitation " is
c. A.
excluded by the finding of the jury in this case, but the authorities
1912throw some light on the question before us. See the judgment
LATHAM °^ Bramwell B. in Southcote v. Stanley (1): " I agree with
R JOHN ^ r " Gray to this extent, that where a person is in the house of
& NEPHEW, another, either on business or for any other purpose, he has
' a right to expect that the owner of the house will take reasonable
care to protect him from injury; for instance, that he will not
allow a trapdoor to be open, through which the visitor may fall.
But in this case my difficulty is to see that the declaration
charges any act of commission. If a person asked another to
walk in his garden, in which he had placed spring-guns or men-
traps, and the latter, not being aware of it, was thereby injured,
that would be an act of commission. But if a person asked
a visitor to sleep at his house, and the former omitted to see
that the sheets were properly aired, whereby the visitor caught
cold, he could maintain no action, for there was no act of
commission, but simply an act of omission" ; and Erie J.'s
remark on that case in Chapman v. Rothwell (2): " The dis
tinction is between the case of a visitor (as the plaintiff was
in SoiUhcote v. Stanley (8) ) who must take care of himself, and
a customer who, as one of the public, is invited for the purposes
of business carried on by the defendant" ; and in Indermaur v.
Dames (4) Willes J. draws the same distinction between the
person on the premises " o n lawful business, in the course of
fulfilling a contract in which both the plaintiff and the defendant
had an interest," and the person there on bare permission. In
my opinion, " invitation " within the meaning of that phrase in
the decided cases does not extend to persons coming merely for
their own pleasure as members of a general body of licensees.
(4.) The last exception is the introduction into the land to which
the licence applies of something out of the normal user of the
land, known to the owners to be dangerous, without warning the
licensee. There is a dictum of Lord Kenyon illustrating this in
Brock v. Copeland (5), which is thus stated and explained by
Gibbs C. J. in Deans v. Clayton ( 6 ) : " The defendant in that case
C A.in their ordinary state, by the care of the owner " : per Pigot C.B.
1912in Sullivan v. Waters. (1) Again Scotch law is the same.
LATHAM " When a person uses by permission private property where a
on( or
E JOHNSON P ^ other dangerous excavation exists, he must take the
& NEPHEW, benefit of the use subject to the risk which attends i t " : per
' Lord Shand, Prentice v. Assets Co., Ld. (2) ; and Ross v.
Keith. (3) The rule as to invitees is stated in the Exchequer
Chamber by Tindal C.J. in Parnaby v. Lancaster Canal Co. (4):
" The common law in such a case" (namely, where a canal
company invites customers and persons who come on business to
use its canals) " imposes a duty upon the proprietors, not perhaps
to repair the canal, or absolutely to free it from obstructions, but
to take reasonable care, so long as they keep it open for the
public use of all who may choose to navigate it, that they may
navigate without danger to their lives or property . . . . they
are responsible . . . . upon a similar principle to that which
makes a shopkeeper, who invites the public to his shop, liable
for neglect on leaving a trapdoor open without any protection,
by which his customers suffer i n j u r y " ; and in Inclermaur v.
Dames (5) the Exchequer Chamber again approved the rule as
stated in the Court below by Willes J.: " With respect to such a
visitor at least,"—i.e., a person on lawful business in the course
of fulfilling a contract in which both the plaintiff and the
defendant have an interest—" we consider it settled law that he,
using reasonable care on his part for his own safety, is entitled
to expect that the occupier shall on his part use reasonable care
to prevent damage from unusual danger which he knows or
ought to know; and that, when there is evidence of neglect, the
question whether such reasonable care has been taken by notice,
lighting, guarding, or otherwise, and whether there was such
contributory negligence in the sufferer, must be determined by
a jury as a matter of fact." It is necessary to distinguish all
these cases which turn upon negligence from those which turn
on nuisance upon or adjoining a highway. Such cases, so far
as they relate to children, may in that particular be to some extent
Barker v. Herbert (4) are all of this class (see especially per «•
Vaughan Williams L.J. in the last cited case at pp. 637 and 638). &,NEPHEW,
In the present case it is not suggested that the stones were near
am
enough to a highway to constitute a nuisance, nor is the claim '
based on nuisance, but on negligence.
Children's cases are always troublesome. English law has
been very ready to find remedies for their injuries. Scotch law
has been less indulgent: see Campbell v. Ord & Maddison (5);
Gavin v. Arrol & Go. (6); Cass v. Edinburgh and District Tram
ways Co. (7) They are the commonest cases of the general
rule, which is as old as Scott v. Shepherd (8), that a person
who, in neglect of ordinary care, places or leaves his property
in a condition which may be dangerous to another may be
answerable for the resulting injury, even though but for the
intervening act of a third person or of the plaintiff himself (Bird
v. Holbrook (9); Lynch v. Nurdin (1)) that injury would not
have occurred. Children acting in the wantonness of infancy
and adults acting on the impulse of personal peril may be and
often are only links in a chain of causation extending from
such initial negligence to the subsequent injury. No doubt
each intervener is a causa sine qua non, but unless the interven
tion is a fresh, independent cause, the person guilty of the original
negligence will still be the effective cause, if he ought reason
ably to have anticipated such interventions and to have foreseen
that if they occurred the result would be that his negligence
would lead to mischief. Such cases are collected and elaborately
discussed in Sullivan v. Creed. (10) The following are instances:—
Dixon v. Bell(ll) ; Illidge v. Goodwin (12) ; Lynchv. Nurdin(1);
Clark Vj Chambers (13); Englehart v. Farrant & Co. (14);
whichever way it may have been caused to fall, nor is there any C. A.
evidence that the defendants knew that there was anything 1912
dangerous about any stones in general or these stones recently shot LATHAM'
v
there in particular. Has, then, Cooke v. Midland Great Western ^
Railway of Ireland (1) silently altered all this ? The case has been & NJSPHEW,
T J T AT T T P T>