Commissioner for Railways v Anderson [1961] HCA 38

High Court of Australia McTiernan, Fullagar, Kitto, Taylor and Menzies JJ. Commissioner for Railways v Anderson [1961] HCA 38

ORDER Judgment of the Supreme Court of New South Wales varied by discharging so much thereof as orders that the verdict for the plaintiff be set aside and a new trial ordered on the first count of the declaration, and as orders that the costs of the first trial abide the event of a new trial. Otherwise appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1961, June 23 McTiernan J.

This appeal concerns an action brought by the respondent in the Supreme Court of New South Wales to recover damages from the appellant for an injury which the respondent suffered on 12th October 1955 at the appellant's premises in Fairfield where the railway station is situated. These premises were entered by members of the public from the street, known as The Crescent, through posts erected on the frontage. The first and second posts on the left were five feet high and four feet apart and the rest of the posts were about four feet high but so arranged that only one person at a time could enter or leave through any of the spaces between them. There was no obstruction between the first and second posts, but directly opposite to them at a distance of four feet inside the frontage were two other posts, both five feet high and four feet apart, between which a beam was mortised at the height of four feet from the ground; and there was a similar beam between the first post and that opposite it inside the frontage, and between the second post and the one opposite to it.

At 6.30 a.m. on the abovementioned date—it was then daylight—the respondent entered the premises between the first and second posts on the left and in attempting to stoop under the cross beam between the two posts inside the frontage, bumped the top of his head against it and fell upon his buttocks. As a result of the impact with the cross beam the respondent sustained a severe spinal injury. The respondent was entering the premises for the purpose of travelling by train. He alleged accordingly in the action that he was an invitee when the injury occurred.