Commissioner for Railways (NSW) v Cardy [1960] HCA 45

High Court of Australia Dixon C.J. McTiernan, Fullagar, Menzies and Windeyer JJ. Commissioner for Railways (NSW) v Cardy [1960] HCA 45

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1960, July 25 Dixon C.J.

The decision of this appeal appears to me to involve great difficulty. In essence the facts are of the simplest. A boy, the plaintiff respondent, being then a little over fourteen years of age, roamed with his brother three years younger over part of a large area of land belonging to the Commissioner for Railways who had used the material portion of it as a tip for, among other things, the deposit of ashes from fire-boxes and probably furnaces. It had been banked up but below the surface the ashes often remained hot and went on smouldering for long periods. At one side of the land beside the bank of ashes and rubbish a path ran which was open for pedestrians and led from certain streets on one side to some dwelling places and streets on the other. The boy in making his way over part of the area and down the bank to regain the path put his feet through the surface crust into the hot ashes beneath, suffering severe burns of his ankles and feet.

The boy recovered damages for his injuries from the Commissioner in the Supreme Court of New South Wales. An appeal by the defendant Commissioner to the Full Court failed [6] and he now appeals to this Court. The boy's cause of action has been treated as depending on his showing that he was on the Commissioner's premises with his licence and that the surface presented a deceptive appearance of safety concealing a most unexpected danger of serious injury from which the Commissioner as occupier of the land should have taken due care to protect him. That the surface appeared safe and that it concealed nevertheless a most potent source of injury that no boy would be expected to foresee and guard against is plain enough. But though the jury found that the boy was a licensee, that is anything but plain if the licence be considered as a reality.