Cooper v Southern Portland Cement Ltd [1972] HCA 28

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Walsh JJ. Cooper v Southern Portland Cement Ltd [1972] HCA 28

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales, Court of Appeal Division, set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 5 Barwick C.J.

This appeal, brought by a plaintiff in an action at law in the Supreme Court of New South Wales against a decision, by majority of the Court of Appeal Division of that Court, entering a verdict for the defendant in the action (1), raises the question whether the defendant, an occupier of land, may be held, in the circumstances, to be liable to a trespasser upon that land, and if so on what basis, for injuries received there by the trespasser as the result of acts and omissions which, but for the relationship of occupier and trespasser, could be held to amount to negligence on the part of the defendant.

The appellant sued the respondent in five counts. By the first count he alleged that he was on the respondent's land with the leave and licence of the respondent and that there was on the land a concealed danger or trap the existence of which the respondent well knew and which caused injury to the appellant.

By the second count the appellant alleged that the respondent's premises were frequented by "strangers" and openly used by other people and that there was, to the knowledge of the respondent, a great likelihood of boys and other persons coming and being upon the premises and that in those circumstances the respondent recklessly created and continued in existence a specific peril seriously menacing the safety of the said persons and that the appellant was a boy who came onto the said premises and in the vicinity of the said peril and thereby sustained injury.