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Pelgens Ltd v Mathew [2002] PNGLR 54 (30 December 2002)

NATIONAL COURT OF JUSTICE

PELGENS LTD; and
ATUN BOY

v

ANILA MATHEW

Lae: Kirriwom J
23 September; 30 December 2002

TORTS – Negligence – Duty of care – Liability of occupier of property for injury to trespasser on his land – Necessary degree of proximity of relationship – Reasonable foreseeability of real risk of injury to visitor – Knowledge of actual or likely presence of trespasser or reasonable foreseeability of a real risk of such presence.

NEGLIGENCE – Duty of care – Occupier/Trespasser Rule – Doctrine of allurement

NEGLIGENCE – Duty of care – The Neighbour Test – Donoghue v Stevenson principle – General or ordinary duty of care.

Facts

The respondent was awarded compensation of K2,000.00 for injuries she sustained when bitten by fierce and savage dogs kept in the first appellant's farm which is a private property. Access is only through the main gate manned by static guards who screen all visitors going in and out of the premises which accommodates two paddocks. The dogs are in the inner paddock, which is next to the piggery. The appellant runs two piggeries in close proximity of each other. The respondent entered the outer paddock to harvest some vegetables from her garden which she grew inside the outer paddock before she was evicted with her relatives who lived there in makeshift houses. Unknown to her on this fateful afternoon the dogs were not locked inside the inner paddock, because for security reasons the gates to the inner paddock were left open to allow the dogs to wander freely to cover a wide area within the perimeter of the outer paddock. The respondent entered the outer paddock by climbing over the fence and was therefore present without the knowledge of the security guard at the gate or any other person in the vicinity. It was only when the dogs attacked her that her presence was known. The appellants argued that she was a trespasser on their property and she knew of the fierce dogs that patrolled the premises and the perimeter of the paddocks but she took the risk to get to her garden.

Held

1. The respondent was not a trespasser but a licensee. This was because of the existence of her vegetable garden inside the farmland which she cultivated with the permission of the farm manager before she was evicted from the property and continued to attend whilst resident outside with tacit approval from the manager who raised no objection since the eviction.

2. Even if she was a trespasser, she was still owed a duty of care because of the garden inside the appellants' farmland she has been attending regularly, the likelihood of her presence or the presence of others with gardens inside the farm was real and the appellants knew this and were aware of this. There was therefore a duty of care on the appellants' part to take reasonable steps to prevent any injury being caused to the respondent by the fierce dogs that were kept for security surveillance.

3. The respondent also contributed to her own misfortune by not entering the premises through the main gate by which she could have known if the dogs were under lock or chain and even could have been escorted to her garden by other employees in the farm. Instead she voluntarily assumed the risk by stealthily scaling the fence and entering the farm unknown to anyone and thus inviting upon herself the disastrous and painful consequences. Because of her past knowledge of the dogs confinement, she took it for granted that the dogs were locked inside the inner paddock, when on this particular day they were not. Therefore liability is split fifty/fifty for contributory negligence.

4. The amount of K2,000.00 compensation was arbitrary and unsupported by evidence and is therefore quashed and a sum of K1,000.00 is substituted which is divided in half so the respondent is only entitled to K500.00 in damages.

Other cases cited

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479.
Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202 (29 June 2001).
Dianne Maree Hackshaw v George Shaw [1984] HCA 84; (1984) 155 CLR 614.
Munnings v Hydro-Electric Commission (1971) 125 CLR 1.
Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358.
White v Aboriginal and Islander Affairs Corporation & Ors [2000] QDC 332 (15 September 2000).

Counsel

D Poka, for the appellants.
B Ovia, for the respondent.

30 December 2002

Kirriwom J. This is an appeal against the decision of the Lae District Court sitting in its civil jurisdiction on 17 April 2000 which found the appellants jointly liable to the respondent for negligence and awarded damages in the sum of K2,000.00 to the respondent.

Cause of action

This is an action that arose in torts where the respondent claimed that the appellants who owned and kept fierce dogs on their premises failed to take reasonable care in controlling and keeping them under chain resulting in the dogs attacking and brutally biting the respondent who entered the premises for her own purpose. Their failure was a breach of duty of care that the appellants as the owners and occupiers of the property owed to the respondent and therefore they were negligent by the breach of that duty of care.

Facts

The first appellant owns a farm at 9 Mile which is known as 'Abunaka' and on this farm it has a piggery. The second appellant is employed as the Farm Manager or the Manger of the Abunaka Piggery by the first appellant.

The farm itself is surrounded by a perimeter fence with a gate that is manned by static guards. All visitors to the farm enter and leave through this gate after careful screening by the guards. Inside the farm there are two paddocks. There is the main paddock and another paddock inside the main one next to the piggery itself. The Manager's residence is inside the second paddock which is also secured with a gate. Inside the second paddock are four huge German shepherd dogs kept to provide security to the farm against intruders and prowlers at all hours of the day. When the Manager is out of the farm, the gate to the second paddock is left open for the dogs to wander freely in and out of the second paddock into the main paddock to keep out intruders or trespassers.

On 4 September 2000, the second paddock gate was left open and the dogs were wandering freely inside the farm when the respondent and another girl entered the farm by scaling the fence. As they did not enter through the gate, the security guard at the gate was unaware of their presence until he heard screaming when the dogs attacked the girls. The respondent's friend climbed a tree and was safe but the respondent was not so lucky.

The guard on duty went to the girls' rescue and chased the dogs away thereby saving the respondent from further attacks. The Manager who was at home at the time transported the respondent to the hospital for medical attention.

Ground for appeal

The appellants rely on these two grounds of appeal:

1. That the learned magistrate erred in finding for the respondent when the respondent was a trespasser on the appellants' premises;

2. The learned magistrate erred in awarding damages when there was no medical report supporting the alleged injuries to the respondent.

The appellants' case

The appellants argued in the court below and in this appeal that they ought not be held liable because the respondent was clearly a trespasser who was unlawfully on their premises. She had no business to be there and she did not enter the property through the gate as all visitors are required to do. She gained entry unlawfully and thereby did so at her own risk.

Mr. Poka cited on an old English case of Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358, which is the only case authority cited by either of the counsel in this important area of the law that is constantly attracting and provoking much discussion and debate in everyday life of every person who finds himself or herself confronted by unexpected or unwanted intruders or prowlers in or on his or her property. There were no Papua New Guinea cases referred to or cited by either of the parties. Mr. Poka relied on an extract from this case which is quoted in the Australian Torts Reporter, a CCH publication in which the following extract from Lord Hailsham appears at p.365:

"Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes onto the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be 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."

The above statement formed the basis for the occupier and trespasser rule that is founded upon the doctrine of allurement, applying in particular where children are concerned. This doctrine recognises that children are allured to situations where a danger would not be as obvious to them as would be to adults. The occupier must therefore be aware of the danger to be held liable.

But the law since then has developed further as discussed in subsequent cases, although both English and Australian cases are not being quite precise in adopting what ought to be the correct position. In Munnings v Hydro-Electric Commission (1971) 125 CLR 1, a young boy in the company of another youth climbed so far up a power pole in order to reach a bird's nest and came into contact with uninsulated conductors carrying electricity that caused him severe burns. The land on which the pole was erected was a public property and easily accessible to all manner of people. The High Court took the view that for the Commission to use uninsulated cables for transmission of electricity through a public area without taking proper preventative measures to avoid injury to the members of the public, in particular children, was irresponsible and falling below the standard of care required in the circumstances. Barwick CJ said at p.6:

"The appellant came into contact with the uninsulated conductors whilst thus unlawfully and unauthorizedly on the pole. He was able to do so because of the lack of preventative measures of an obvious kind which could have been, and in connexion with other poles have been, adopted by the respondent. The jury, in my opinion, could have concluded that it was foreseeable by the respondent that a human being, but particularly that a youth, might for some purpose climb the pole and reach the uninsulated conductors: and that in that event personal injury of a serious kind might result. The legal prohibition of such use of the pole, even if known to those frequenting the surrounding land, did not prevent such conclusions being drawn. The tendency of youth to climb is notorious. That youth does so without authority and wittingly, or unwittingly, in breach of legal prohibition is, in my opinion, also a matter of notoriety. Further there may well be circumstances in which adults may be led to ascend such a pole."

The High Court upheld the appellants appeal and ordered a new trial.

The appellants second ground of appeal in connection with the damages awarded is largely against the award itself and not so much as to the amount. I am sure the first appellant would have no problem paying that amount but contend that the award itself is devoid of any proper evidentiary basis. It seemed the appellants through their counsel did not address this aspect in the trial probably on the erroneous belief that the respondent did not have an arguable case for it to go further beyond the issue of liability.

The appellants contend therefore that the award of K2,000,00 must not be allowed to stand as it is clearly unsubstantiated by evidence as an appropriate amount fixed based on precedents or being for reimbursement of out-of-pocket expenses incurred as the result of the injury sustained.

The respondent's case

The respondent, however argued that she was on the premises for legitimate reasons, which were to collect greens and vegetables from the garden inside the farm. These gardens were grown with the express permission of the Manager of the farm to its workers and their families.

Through this assertion it was learnt that the respondent used to go to the premises and reside there sometimes or to visit her relatives who worked in the piggery, some of whom were living in makeshift houses that the company disapproved of and ordered their demolition. This was the result of a circular instruction to the Farm Managers of both Singaua and Abunaka Piggeries by Sir Harry Pelgen by written Minute dated 26 January 1998 ordering removal of non-immediate family members of workers and demolition of makeshift houses built without company approval.

This instruction was issued primarily to safeguard the interests and well being of its workers and also for health and quarantine requirements of the piggeries. This was not disputed. As the result of this instruction, the respondent who had previously made a garden in the premises of the company was affected but continued to attend her gardens while living outside the farm.

The respondent contended that notwithstanding this instruction she had been going to the farm to her garden without any mishap from the dogs because they were always kept in the paddock. The company had been aware of their regular visits to their gardens but did not stop them from doing so. She was therefore a licensee who was tacitly given approval to enter the premises to visit her garden. And in those times the dogs were kept inside. But this time they were not in the paddock thus creating a danger that she had not anticipated. There was therefore a breach of duty of care owed to her by the ppellants.

The second appellant admitted to permitting the employees to make gardens within the farmland provided they were resident inside the farm. But that permission did not extend to those who were evicted from the premises or former employees. The respondent fell into the category of outsiders who had gardens inside the farm that were made before the 26 January 1998, policy was enforced. She had been thereafter visiting her garden from outside.

The issue

The appellants contend that the issue in the appeal is whether the respondent was a trespasser or not. If she was a trespasser, that is the end of the matter because as a trespasser who unlawfully entered the appellants' property and got attacked by the dogs, and therefore did so at her own risk. The appellants therefore ought not be held liable.

The respondent however contends that she was not a trespasser. She was an invitee or licensee who was in her garden with an implied permission from the second appellant who had allowed the workers and their dependents living inside the farm to make gardens in the farmland prior to the eviction of casual workers living in makeshift houses pursuant to the January 26, 1998 notice. Since then she has been visiting the garden from the outskirts of the farm where her relatives have rebuilt their makeshift homes.

Evidence

The evidence before the court below was that the respondent and another girl entered the premises by climbing the fence. This is not disputed. It is also not disputed that the second appellant kept four savage dogs in the paddock on the farm for security and more so to keep prowlers and trespassers out of the farm. It is also not disputed that on the day in question the dogs were not chained nor locked inside the second paddock where the Manager's residence was and they were wandering freely inside and outside the paddock.

I also accept the respondent's evidence of having a garden inside the first paddock which she had made while either living with or visiting her relatives, who engaged her as baby-sitter prior to the 26 January 1998 notice. And I further accept that since the 26 January, 1998 notice she has been visiting her garden although she was aware of the savage dogs being kept inside the farm.

The Law

The law of negligence does not preclude a trespasser from recompense for injuries sustained on another's private property provided it can be shown that the occupier owed a general duty of care to whoever might reasonably be expected to be there. Therefore if the occupier was aware of any danger in his property that might be harmful to anyone who happened to stray into his yard uninvited and possibly get hurt, he owed him a duty of care to ensure that the harm did not befall that person whether a trespasser or a licensee or an invitee. And this duty of care arises under two situations, by virtue of the occupier/trespasser relationship under the doctrine of allurement or by virtue of the 'neighbour' principle under Donoghue v Stevenson.

In a decision of the District Court of Queensland at Rockhampton, Judge Britton SC made this observation in White v Aboriginal and Islander Affairs Corporation & Ors [2000] QDC 332 (15 September 2000):

"Since the decision of the High Court of Australia in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, the general principles of negligence now exclusively govern an occupier's liability to a trespasser. The likelihood of entry will be relevant to the foreseeability of injury. A lower standard of care may apply in relation to a trespasser than in relation to an invitee. The general principle is of course that, if a duty of care exists, it is to take reasonable care for the safety of persons entering the premises. Whether or not a duty of care exists depends upon the foreseeability of injury to the plaintiff."

While Robert Addie & Sons (Collieries ) Ltd v Dumbreck (supra) emphasise something more than the absence or reasonable care, in other words an act done with deliberate intention of doing harm to the trespasser or some act done with reckless disregard of the presence of the trespasser for the occupier to be liable, Australian Safeway Stores Pty Ltd v Zaluzna (supra) relaxes that distinction between the occupier/trespasser rule and the ordinary duty of care by applying the foreseeability test or the likelihood of injury to the trespasser.

A classic case in point is Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202 (29 June 2001). The plaintiff, Mr. Backman, who is the first respondent in this appeal, was injured when he fell into an open sewer access point on vacant land owned by the second respondents Mr. & Mrs. Featherstone. Due to the long grass on the land, the plaintiff did not see the open access point. Coffs Harbour City Council, the appellant in this case, was joined as defendant in this action as they had previously issued an Order under the local municipal law directing the owners to slash the land upon receipt of complaints from the public of the long grass. The vegetation was slashed after the notice was served but by whom it was unclear. Mrs. Featherstone said her husband slashed the land whereas Mr. Featherstone said he engaged contractors to do the job but was not willing to and would not divulge the name of the contractor. But the grass was still tall estimated up to 2 feet in height. In the denseness of the tall grass was the sewer access hole that was left open with the heavy lid pushed to the side. The First Respondent, Mr. Backman entered the part of the land in question while performing his duty as a neighbourhood watchman when he fell into the sewer access hole and injured himself. There is no question that he did not see the hole because of the tall grass that covered it.

The first respondent succeeded against both the appellant and the second respondents and the appellant appealed and the second respondents cross-appealed to the New South Wales Court of Appeal. The appeal by the Council was upheld while the cross-appeal by the owners was dismissed. The court was of the view that the primary cause of the plaintiff's accident was the removal of the lid and the surround from the sewer access manhole. If it had not been removed the plaintiff would not have fallen into the manhole. The danger of the manhole was not one which the Council could have reasonably suspected to exist or known to arise. Therefore there was no breach of duty of care owed by the Council to the plaintiff.

The court held on inference that Mr. Featherstone removed the cover of the manhole when he was slashing the land in response to the Council order. And consequently they were aware of the danger that was posed by the open sewer hole. The Court thus held that the owners should have reasonably expected that a person may cross their land up to the rear boundary and into the south-east corner, where the sewer access point is located. The owners would know, or ought to know, of the likely presence of trespassers on their land. Once the owners knew of the danger created by the displacement of the sewer access point cover, there was a reasonably foreseeable risk of injury to anyone entering this part of their land.

In reference to the first respondent's status as a trespasser the Court of Appeal said:

"The circumstances of the plaintiff's entry on the land, while constituting a trespass, was but a technical one. He was there for a laudable purpose as part of his neighbourhood watch duties. He was not on the land for any nefarious, illegal or mischievous purpose. The land was vacant and open to the roadway. It almost invited entry by a variety of persons for a variety of reasons. The circumstances of the plaintiff's entry on the subject land do not...diminish the content of the duty owed, which was to take reasonable care.."

This case followed the earlier decision of the High Court of Australia in Dianne Maree Hackshaw v George Shaw [1984] HCA 84; (1984) 155 CLR 614. In this case the plaintiff was a sixteen year old girl who was associating with a young boy of seventeen and who was engaged in stealing petrol from the defendant's farm when the owner caught him in the act and fired several shots from his rifle and shotgun and the plaintiff was hit as the result. Deane, J said at pp. 662-663:

"...it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the matter of plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk. Where the visitor is lawfully upon the land, the mere relationship between the occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to her or him. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required. The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At least they will include either knowledge of actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence."

In Hackshaw v Shaw (supra) the High Court said that the general rules on the law of negligence relating to duty of care applied even in occupier/trespasser situation. It was noted also that subsequent cases, some of which are cited herein, decided since Robert Addie & Sons (Collieries) Ltd v Drumbreck (supra) have relaxed the strictness of the earlier rules with some modification to accommodate the particular status of a trespasser. As Barwick CJ states:

"The rules of the common law which govern the duty of an occupier to the various classes of persons who may enter the occupier's land, including trespassers, form part of the law of negligence. It would no doubt have been possible, after the House of Lords in Donoghue v Stevenson had stated a general principle by which it can be decided in what circumstances a duty of care arises, to treat the question whether an occupier is liable for injuries suffered on his premises as depending on that general principle and not on special rules."

Application of the law to the facts

In this case, there is a conflicting scenario on the evidence as to the true status of the respondent. She could qualify as a licensee if I accept her evidence of previous visits to the garden inside the farm. On the other hand she could quite rightly be classified as a trespasser who had no right to be where she was when the dogs attacked her. It seems to me that she and others have been visiting their gardens in the farm since moving out but were not told to discontinue further trips to their gardens in the farm land. The circular instruction of 26 January 1998 only directs demolition of illegal makeshift houses in the farmland and eviction of non-immediate family members of employees. The circular memo is silent on the gardens that were cultivated inside the farmland before the eviction and what became or was to become of them. The dependents of casual employees affected by this notice took it for granted that they were still entitled to their gardens and therefore continued to visit them regularly without any objection being raised. How they gained entry into the farm to have access to their gardens seem to be of little significance now as there is no evidence of any serious objections being raised by the appellants.

The appellants who were aware of the existence of these gardens and the regular visits to the gardens by the family members of the employees living outside the farm were therefore not uninformed of the presence of these people. By allowing them to have access to their gardens the appellants can be deemed to have granted temporary licence or permission for restricted access to the gardens only. The Respondent was therefore not a trespasser but a licensee to whom the appellants clearly owed her a duty of care.

Occupiers liability to Invitee, Licensee and Trespasser

It is also arguable that the respondent was a bona fide visitor who went to the farm to attend to her garden but her method of entry into the farm makes her a trespasser more than a licensee. This is because the respondent did not enter the property through the main gate with full knowledge and approval of the guard and the Manager. She jumped over the fence which may have been the method of entry in her past visits. But I do not think the method of entry ought to determine the category of visitor that the respondent could well fit into. In my view there need not be any distinction between licensee and trespasser because as long as the Appellants, in particular the Manager, knew that families of casual employees entered the farm paddock to attend their gardens and that there was real likelihood of the savage dogs inside the paddock attacking them, that is enough to amount to a breach of duty of care if the dogs were not properly secured and attacked the respondent.

In my view therefore, whether a trespasser or not, the Respondent was owed a duty of care by the second appellant who did not securely tie the dogs when it was reasonably foreseeable to him that any member of the company's casual employees with gardens inside the farmland could walk into the first paddock at short or without notice at all. It was also with his knowledge that the savage dogs were left running around freely inside the paddock.

Whilst I find that the verdict of the lower court must stand, I have great difficulty accepting the quantum as awarded by the District Court. There is no doubt that the award of K2,000.00 is an arbitrary figure that is not supported by properly adduced evidence. The extent of the injury is unknown especially when there is no medical report to show this. There is evidence that the respondent was taken to the hospital and this means that there must be a report in place but was not tendered as evidence of the injuries sustained in court. An appeal from the District Court to the National Court is usually by way of rehearing. The court was therefore entitled to be availed the medical report. It is not a matter of plucking a figure out of the blue and awarding to someone who pleads negligence by another.

Contributory Negligence

On the other hand I am also not prepared to hold the appellants wholly responsible for the injury to the respondent. I think the respondent contributed to her own misfortune by making an unconventional entry into the premises by climbing the fence instead of using the gate. One could even assume that the respondent chose to climb over the fence because she would have been denied access had she gone through the gate. But that point aside, the respondent most certainly would have clearly fulfilled the criteria of a licensee had she gone through the gate and probably would have been forewarned of the dogs being loose.

On the whole, I dismiss the appeal by the appellants and confirm the decision of the District Court as to negligence of the appellants as the occupiers of the farm that kept dangerous animals. But at the same time I also find contributory negligence on the part of the respondent and I divide the liability between the appellants and the respondent on a ratio of equal fifty/fifty.

Quantum

As to the quantum I agree with the submission of Counsel for the appellants that the figure is arbitrary and has no evidentiary reflection of the extent of the injury (if any) suffered by the respondent. Nothing in the transcript point to any discussion by either of the parties or the learned Magistrate as to the amount claimed. The discussion in the judgment was only centred on the issue of liability and once the learned Magistrate was satisfied on that issue he simply awarded the amount of K2,000.00 which was the amount claimed by the respondent. There is clearly no justification for the award of this amount. I quash the award for K2,000.00 and substitute in its place a sum of K1,000.00. On the ratio of 50:50 contributory negligence by the respondent, the Appellants are liable to pay K500.00 only in compensation to the respondent.

Costs shall be borne by the parties.

Lawyers for the appellants: Pryke & Bray Lawyers.
Lawyers for the respondent: Gamoga & Co Lawyers.