2. The classical formulations of the occupier's duties to various classes of entrants date from a period prior to the first attempt to express in general terms the principles determining the circumstances in which one man owes another a duty of care such that its breach will give rise to an action for damages. An early statement of the rule that an occupier is under no duty to exercise care for trespassers is to be found in the judgment of Chief Justice Gibbs in Deane v. Clayton ((1817) 7 Taunt. 489 at 553):

I know it is a rule of law that I must occupy my own so as to do no harm to others; but it is their legal rights only that I am bound not to disturb. Subject to this qualification, I may use my own as I please.

3. The Master of the Rolls arrived at the general principle quoted in the last paragraph by a process of induction, and among the particular duties from which he generalised were those owed to invitees and licensees. He described the duty of an occupier to invitees as one "of using reasonable care so as to keep his house or warehouse that it may not endanger the person or property of the person invited" (Id. at 508) and to the licensee "a duty not to lay a trap for him" (Id. at 509). Had this approach been immediately accepted, it might have been anticipated that the individual rules relating to occupiers' duties would have been continuously referred to general principle in the manner which has occurred, for example, in the case of a master's duties to his servants. In that area the case of Qualcast (Wolverhampton) v. Haynes ((1959) A.C. 743) made it clear that the duties owed in particular sets of circumstances should not be regarded as the subject of rigid definitions. But in the area of occupiers' liability no similar process has effectively taken place, no doubt because of the early development of the law with regard to duties owed to the different categories of entrant, and the fact that Master of the Rolls Brett's approach was disavowed and not revived until Donoghue v. Stevenson ((1932) A.C. 562). Then Lord Atkin formulated the principle of the duty owed to one's neighbour in more elaborate but nevertheless similar terms.

4. Even subsequently to Donoghue v. Stevenson there was a continued trend in England to define the occupier's liabilities to invitees and licensees by interpreting the earlier formulations of the duties owed to them rather than to refer to the "neighbour" principle of Lord Atkin. This reached its culminating point in the House of Lords decision in London Graving Dock Co. Ltd. v. Horton ((1951) A.C. 737). Here the invitee's knowledge of a danger was treated as a conclusive answer to his claim against the occupier. The view was accepted that Mr. Justice Willes' reference to notice in his formulation of the duty involved that notice was always a discharge of the duty and therefore if the invitee knew of the danger the injury he suffered could not be regarded as caused by a failure of duty of the occupier. Widespread condemnation of this kind of formalistic approach led to the third report of the English Law Reform Committee in 1954 (Cmd. 9305). The central recommendation of this Committee was that the distinction between invitees and licensees should be abolished and that, with regard to lawful but non-contractual visitors, "the occupier of premises should owe a duty ('the common duty of care') to every person coming upon the premises at his invitation or by his permission, express or implied, to take such care as in all the circumstances of the case is reasonable to see that the premises are reasonably safe for use by the visitor for the purpose to which the invitation or permission relates" (Paragraph 78). Separate provision was made for contractual entrants (Paragraphs 54-56), but to similar effect in the absence of express contractual provision on the matter (Ibid.). The Committee did not recommend any change in the law with regard to an occupier's duty towards trespassers on his premises (Paragraph 80). Its recommendations were substantially adopted by the Occupiers' Liability Act, 1957 (5 & 6 Eliz. 2, c. 31). The matter was also the subject of the First Report of the Law Reform Committee for Scotland presented in 1957 (Cmd. 88), the principal recommendations of which were in the following terms:

24(a) A majority of us conclude that the law regarding liability in reparation of occupiers of land or other property to which the categories of invitee, licensee and trespasser apply in Scotland should be simplified by abolishing these categories, and that the standard of care owed should be determined by the whole circum-stances of the particular case. Two of us, however, are of opinion that the categories of invitees and licensees should be abolished, but not the category of trespassers. These two, and three others of us, are of opinion that the category of trespassers should in any event not be abolished if actions of reparation against occupiers of land or other property are left open to trial by jury.

5. No similar legislation has yet been enacted in New South Wales or in any other Australian State. In this country the development of the common law has been the product of both English and local influences. A late nineteenth century New South Wales case in the Full Court showed an obvious reluctance to confine the category of invitee to business visitors of the occupier, and extended the duty of reasonable care to all who were on lawful business in the widest sense of that word, whether it concerned the occupier or not. In Hanson v. Newcastle Steam Navigation Co. ((1884) 5 L.R. (N.S.W.) 453) the plaintiff went on board the defendant's vessel to inquire after a parcel to be brought for her mother by a seaman in the defendant's employ and was held to be owed a duty of reasonable care, Sir George Innes concurring with hesitation and saying that the case went further than any he knew. But by 1899 the Court had accepted the distinction between invitees and licensees in the English sense (Sparkes v. North Coast Steam Navigation Co. (1899) 20 N.S.W.L.R. 371). Subsequently the High Court of Australia stated the law in terms of the graduated duties established in England for the various categories of entrant in a series of decisions culminating with the comprehensive formulation of Sir Owen Dixon in Lipman v. Clendinnen ((1932) 46 C.L.R. 550).

6. Even while accepting the position that different duties were owed to the different categories of entrant, and even during the period before Donoghue v. Stevenson, the High Court of Australia continued to concern itself with the relationship of these duties to general principles of the law of negligence. In Mountney v. Smith ((1904) 1 C.L.R. 146 at 154) Sir Samuel Griffith, dealing with an invitee, cited both the statement of the law on this matter in Indermaur v. Dames and the general negligence principle of Heaven v. Pender, and used them both as the foundation of his judgment in that case, obviously regarding them as coming to the same thing for the purpose in hand. And in South Australian Co. v. Richardson ((1915) 20 C.L.R. 181) he said again of the duty to the invitee laid down in Indermaur v. Dames that "the rule of law which governs such a case is not a special and isolated rule, but a particular application of a general rule governing human beings who have intercourse with one another under such circumstances that one man reposes trust in another, who invites or accepts the trust" (Id. at 185). In Lipman v. Clendinnen (Supra) Sir Owen Dixon elaborated the position:

The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises... The circumstances in which one man may lawfully come upon premises in the occupation of another are infinitely various and as his lawful presence there must raise some duty of diligence, however slight, for his safety, it might be considered consonant with general principle to measure the standard of care required by determining as matter of fact what amount of care in all the circumstances of each particular case the reasonable man would exercise. But English law has adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others, and a special standard of duty has been established in reference to each class (46 C.L.R. at 554-555).

The duty of the occupier is, however, rooted at bottom in his duty to his neighbour in Lord Atkin's sense. For, as Dixon, J., as he then was, said in Lipman v. Clendinnen "the circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises". The formulary rules really do no more than state what the law has determined a reasonable man must do to discharge a duty of care arising in particular circumstances.

8. In Commissioner for Railways v. Hooper ((1954) 89 C.L.R. 486), which involved an invitee, Sir Alan Taylor discussed the matter of the circumstances in which an independent duty would exist. The unusual dangers contemplated by the rule in Indermaur v. Dames, he points out, may exist by reason of the condition of the premises or by reason of some activity there carried on. On the other hand, he adds, there may be circumstances unrelated to questions of the safety of the premises in which the obligations of the occupier for both negligent acts of commission and omission fall to be determined in accordance with the general principles of liability for negligence. He instanced the case of an occupier who shoots his companion on a hunting expedition on his property. The result in the New South Wales Full Court decision of Lewis v. Sydney Flour Pty. Ltd. ((1955) 56 S.R. 189) is in accordance with this approach. Reliance is, however, there placed rather on the statements in London Graving Dock Co. Ltd, v. Horton, and the reasons of the Full Court base the rejection of the independent negligence count on the fact that the allegation related to the state of the premises. The Court added that it was "not to be taken to hold that in a proper case this (the Indermaur v. Dames cause of action) is the only cause of action open to an invitee to whom damage is caused by the negligence of an invitor or his servants, or even a third party performing some function on the invitor's premises" (Id. at 196). In Drive Yourself Lesseys Pty. Ltd. v. Burnside ((1958) S.R. 390) Sir Leslie Herron considered that where the property of the plaintiff was damaged on the defendant's land by falling rock, a count based on Donoghue v. Stevenson was appropriate even though the immediate cause of the harm was a state of the premises. But it should be added that in that case there was a negligent act of the occupier's servant in inviting the driver of the car to place it in a dangerous situation and Sir Leslie Herron doubted in any case whether the Indermaur v. Dames duty applied to damage to property in the circumstances of the case. With Sir Leslie's holding may be compared those of Mr. Justice Brereton in Mortomore v. McPhersons Ltd. ((1957) 74W.N. 294) (holding a Donoghue v. Stevenson count available where the negligence of the defendant's servant in carrying out his ordinary duties of driving a crane on the land resulted in harm to the plaintiff) and in Delaney v. Muttdon ((1963) 80 W.N. 1095) (that a Donoghue v. Stevenson count might be available where it was alleged that the defendant failed to see that stairs were lit). Yet the first of these two holdings may in turn be contrasted with the view expressed by Mr. Justice Walsh in Castellan v. Electric Power Transmission Pty. Ltd. ((1967) 86 W.N. (Pt. 2) 67). There the plaintiff was indirectly injured when a piece fell out of a truck being driven by the defendant's servants on the premises where plaintiff was an invitee, and his Honour stated "that it would not be reasonable to attribute liability in B.H.P. to the plaintiff for negligence in the manner in which it conducted its operations, as distinct from a liability arising out of the state of the premises" (Id. at 79). In these circumstances it is not surprising that difference of opinion has persisted in the most recent authority in the Court of Appeal. In Hislop v. Mooney ((1968) 1 N.S.W.R. 559) a piece of timber was dropped through a skylight on the plaintiff as he was drinking in the defendant's hotel by a workman on the roof. While Sir Leslie Herron and Mr. Justice Holmes entertained the possibility that the general negligence count might be sustained, perhaps with some amendment to its terms as then framed, Mr. Justice Sugerman rejected it. He said:

As to the negligence count the matters relied upon were obviously the same as those raised under the second count (liability of occupier) to which I shall later return. The count alleges not vicarious liability for a casual act of negligence but personal negligence of the defendant in the conduct of his business and premises. There is a duty of care as between occupier and invitee, but the measure of it is not defined by or derivable from Donoghue v. Stevenson; see Commissioner for Railways v. McDermott (1960)1 N.S.W.R. 420 at 424. In a case such as the present the duty must be found, if at all, in the statement of principle by Willes, J. in Indermaur v. Dames and resort to Donoghue v. Stevenson to establish a wider or different principle is not a correct approach - see Lewis v. Sydney Flour Pty. Ltd. (Id. at 563).

10. The relationship between the rules relating to the duties of occupiers to trespassers and the general principles of the law of negligence has presented especially difficult problems. The old rule that the trespasser was in effect an outlaw (Supra para.2) was early modified by the rule that no intentional injury could be done to him beyond what might be involved in the reasonable protection of the premises against trespassers (Bird v. Holbrook (1828) 4 Bing. 628; see for a discussion of the early history N.S. Marsh, "The History and Comparative Law of Invitees, Licensees and Trespassers" (1953) 69 L.Q.R. 182 at 188). One path of later liberalisation of the law was by way of extension of the concept of intentional harm. In Robert Addie & Sons (Collieries) Ltd. v. Dumbreck ((1929) A.C. 358) the condition of liability was stated to be some wilful act involving something more than the absence of reasonable care - some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser (Id. at 360). Another path of liberalisation rather uncomfortably pursued was what has been described by American writers as the "reclassification of trespassers" (Harper and James, 2 The Law of Torts 1467). Tolerance of trespass has sometimes, especially in the case of children, been elevated into licence (subject to the curb imposed by the House of Lords in Edwards v. Railway Executive (1952) A.C. 737), or an allurement of a child by the presentation of something of an appearance calculated to induce trespassory interference has been treated as a substitute for an invitation to interfere (Glasgow Corporation v. Taylor (1922) 1 A.C. 44, especially per Lord Sumner at 64). Artificial licence and allurement apart, it might have been supposed in the light of these authorities that the trespasser is not the neighbour of the occupier, that reasonable care for him is no care at all, and that the only duties lie in the different area of intentional or reckless injury. But this position has not been accepted in Australia without qualification and the development of tension between the common law in England and this country is described in the following paragraphs .

11. The existence of exceptional circumstances in which an ordinary duty of reasonable care is owed to trespassers was asserted as long ago as 1933 by Sir Owen Dixon in Transport Commissioners of N.S.W. v. Barton ((1933) 49 C.L.R. 114). He says that "with reference to positive acts likely to cause harm to others, I think the occupier's duty depends on knowledge of the presence of the trespasser on his property, and is measured by the care which a reasonable man would take in all the circumstances, including the gravity and likelihood of the probable injury, the character of the intrusion, the nature of the activities causing the danger and the consequences to the occupier of attempting to avoid all injury" (Id. at 131). At this stage Sir Owen was content to accept the position that no duty of reasonable care arose between occupier and trespasser regarding the state of the premises as distinct from acts done while the trespasser was known to be present. But in his joint judgment with Mr. Justice Williams in Thompson v. The Municipality of Bankstown ((1953) 87 C.L.R. 619) this was qualified where the occupier-trespasser categorisation of the relationship of the parties competed with another, in which circumstances it was laid down that the court must choose between them. In that case, where a boy climbing an electric light pole was injured through the disrepair of the installation, the court selected for application, not the occupier-trespasser categorisation which would have dictated judgment for the defendant, but the law of negligence relating to "the duty of exercising a high standard of care falling upon those controlling an extremely dangerous agency, such as electricity of a lethal voltage". The approach was applied to other circumstances and a different competing category of duty by the High Court in Rich v. Commissioner for Railways ((1959) 101 C.L.R. 135) where the occupier-trespasser relationship was considered superseded by the duty owed by the Commissioner for Railways in running his trains to persons upon level crossings. In this case an activity was involved, but the case did not fall within Sir Owen Dixon's original proposition in Transport Commissioners for N.S.W. v. Barton since the duty was not treated as dependent on discovery of the trespasser in time for action to be taken. Thus the decision broke new ground. Finally, in Commissioner for Railways (N.S.W.) v. Cardy ((1960) 104 C.L.R. 274) another duty overriding the occupier's immunity from suit by a trespasser was laid down by the High Court. Sir Owen Dixon thus described the circumstances which give rise to the duty there involved (the case of a child falling through a crust of earth into hot ashes in a railway yard):

It is to be found in a combination of factors. There are the dangers which attend the use of the premises, the circumstance that the premises are so used or frequented and that in spite of the knowledge which the occupier has or perhaps ought to have of that fact and of the description of persons who use or frequent the premises he exposes them to the danger and takes no precautions to safeguard them (Id. at 281-282).

12. In Commissioner for Railways v. Quinlan ((1964) A.C. 1054), the case of a trespasser on a level crossing run down by a train, the Privy Council, on appeal from the Supreme Court of New South Wales, reasserted the principle of Robert Addie & Sons Ltd. v. Dumbreck and held that it covered the whole field of liability of an occupier to a trespasser. It rejected the notion that appeal could be made to the neighbour principle, or that the consequences of the trespasser rule could be escaped by distinguishing activities from static states, or that the trespasser rule deals only with the position of the occupier as such vis a vis the trespasser as such so as to give rise to the possibility of independent duties. Some wavering on the last point can indeed be detected in the statement that the rule cannot be escaped so long as the occupier-trespasser relationship continues to be "relevant" and by the readiness to defend the decision in Thompson v. Municipality of Bankstown. But the reasoning in Rich's Case is condemned, as in effect is that in Cardy's Case, which is defended on the "allurement" principle, with its blurring of the distinction between licence and trespass, condemnation of which was the starting point and foundation of Sir Owen Dixon's judgment in that case. However, Cardy's Case was alternatively defended in Quinlan’s Case on the basis that there was there reckless behaviour and the point was made that "that formula may embrace an extensive and it may be, an expanding interpretation of what is wanton or reckless conduct towards a trespasser in any given situation and, in the case of children, it will not preclude full weight being given to any reckless lack of care involved in allowing things naturally dangerous to them to be accessible in their vicinity" (Id. at 1084).

13. The defence of Cardy’s Case (concerned with static states) as one of recklessness seems at odds with the assertion of the rule in Addie’s Case in terms of a duty to refrain from wilful or reckless positive acts when the presence of the trespasser is known. Yet the Privy Council in Commissioner for Railways v. McDermott ((1967) A.C. 169) continued to state the rule in terms of such positive acts:

No duty is owing to a trespasser until it becomes known either that he is present or that the presence of a trespasser is extremely likely. The duty, when it arises, is of a very limited character - not to injure him wilfully, and not to behave with reckless disregard for his safety (Id. at 190).