Cur Ad Vult
JUDGMENT
Feb. 16.
LORD REID,
My Lords, on June 7, 1965, the respondent, then a child of six years old, was playing with other children on National Trust property at Mitcham which is open to the public. Immediately adjoining this property the appellants have an electrified railway line a few yards from the boundary. Their boundary is marked by a fence which, if it had been in good repair, would have sufficed to prevent the respondent from reaching the railway line. But it was in very bad repair so that when the respondent strayed away from his playmates he was able to get through or over it. He then went a few yards farther and came in contact with the live electrified rail. Fortunately he was rescued but he had already sustained severe injury. His age was such that he was unable to appreciate the danger of going on to the railway line and probably unable to appreciate that he was doing wrong in getting over the fence.
I have no doubt that if the appellants owed to potential child trespassers any duty of care to take steps for their safety, they were in breach of any such duty. Inquiry soon after the accident showed that this was by no means the only place where their fence was defective and a well trodden track leading to the point where the respondent got on to their property showed that a considerable number of trespassers must have crossed the line at this point to other National Trust property on the other side. The appellants led no evidence at the trial and it cannot be inferred that they knew about these trespassers before the accident. The only evidence of their knowledge was a report produced by them which showed that they knew that a few weeks before the accident some children had been seen on the line at some point not very far away. But, in my view, the evidence was sufficient to show either that there was no systematic inspection of their fence or that, if there was any system, it was not operated or enforced.
The appellants' main contention is that they owed no duty to this child. They found on the leading case Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358. The respondent founds on later authorities and asks us to reconsider Addie's case if it cannot be distinguished. He is entitled to say that Addie's case has frequently been criticised. I well remember that this decision, which reversed the decision of the Court of Session, was much criticised in Scotland at the time. But no one doubted that it had settled the law. And it has always been said to have been followed both in England and in Scotland, although it is not easy to reconcile with it much that has been said in recent cases.
The speeches in Addie's case must be read in the light of the facts which are set out in 1928 S.C. 547. Lord President Clyde, after stating that the boy was a trespasser, said, at p. 553:
"On the other hand, he was a member of a class of persons - to wit, the local community of working-class residents of all ages - who, to the knowledge of the defenders, were in the habit of resorting to the field (1) as an open space; (2) as a playground; (3) as a means of access to chapel and railway station; and (4) - as regards the less well disposed members of the local community - as a means of approach to the defenders' coal bing and wood depot for purposes of depredation. Against the latter class the defenders took the usual means of legal protection by frequent prosecutions for theft. Against the former class they took no measures of a kind calculated to be effective; and they knew that such measures as they did take were quite ineffectual to check the habitual resort of both adults and children to the field and to the immediate neighbourhood of the haulage system."
Then, having said that if the presence of a trespasser near a dangerous machine is known to the proprietor he cannot disregard that, he went on at p. 554:
"I am unable to distinguish that case from the case in which the proprietor knows of the habitual resort of adults or children, or both, to the near neighbourhood of the dangerous machine - a habit of resort which makes it to his knowledge likely that one or more of such persons may be at the machine when he applies the motive power."
Later he said, at p. 555:
"The intrusion of the local public upon the defenders' field and the site of their haulage system in the present case seems to me to have been very similar to the use by the local public of an unauthorised short cut in Lowery v. Walker [1911] A.C. 10."
The speeches in this House in Addie's case appear to me to be intended to lay down a general rule that no occupier is under any duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land, however likely it may be that they will come and run into danger and however lethal the danger may be. I find it impossible to reconcile these speeches with any idea that the occupier will incur any duty of care to trespassers by carrying out dangerous operations on his land even when he knows that trespassers are very likely to come on to his land and that if they come these operations may cause them injury. If he knows that trespassers are already on his land, then for the first time he does incur a duty but it is a duty of a very limited kind - a duty not to act with reckless disregard of their safety.
There was nothing new in that. But the rule was laid down with stark simplicity and the speeches must have been intended to check a growing tendency of courts both in England and Scotland to try to soften its impact. Noble and learned lords appear to have had in mind that occupiers are entitled to know precisely what their duties are and nothing could be simpler than the answer which they gave.
But there were already two exceptions to this rule. The first was where the occupier had put on his land something which was dangerous and was an allurement to children. That seems to me to be easy to explain. He ought to know that by putting that allurement there he was in a sense inviting children to meddle with the dangerous thing, and the law would not permit him to do that without imposing a duty on him. His liability arose from his own choice to endanger children in that way.
The second exception is not so easy to explain. If, after a certain point not easy to define, the occupier continued to stand by and acquiesce in the coming of trespassers he was held to have given a general permission or licence to trespassers to continue to do what those trespassers had been doing. Any "licence" of this kind was purely fictitious. There was no need to find any evidence that he had in fact consented to the coming of the trespassers or to the continuance of the trespassing. His inaction in suffering the trespassing might have been due to many other reasons than his being willing to allow it. He might prove that there was some other reason but that would not avail him.
The Court of Session decided Addie's case on the ground that the child was a licensee. On the then current trend of authority I think they were well entitled to do so. But this House thought otherwise and it appears to me that their decision must be regarded as an attempt to confine the doctrine of licence within much narrower limits than had been customary.
Later cases can hardly be said to exhibit loyal acceptance of the Addie doctrine. In Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404 this House giving ex tempore judgments dismissed an appeal by the occupier without hearing the respondent. There cannot have been any intention to modify the considered judgments in Addie's case, and it is perhaps a little surprising that the House was able so easily to reach a different conclusion. I can only regard the decision in Callan's case as founded, rightly or wrongly, on the particular facts of the case. Encouraged by the decision in Callan's case the Court of Appeal were able to decide against the occupier in Mourton v. Poulter [1930] 2 K.B. 183. In Adams v. Naylor [1944] K.B. 750 there was a difference of opinion in the Court of Appeal. Scott L.J. decided against the occupier on grounds that are not easy to state succinctly. Mackinnon L.J. and Morton J. reluctantly followed Addie.
I need not notice any other cases until Edwards v. Railway Executive [1952] A.C. 737. There persistent trespassing by children imposed no duty on the railway to keep them out or protect them. I think Lord Goddard accurately stated the law when he said, at pp. 746-747:
". . . repeated trespass of itself confers no licence; . . . to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it."
So far Addie stood, disliked but essentially unshaken. A new chapter opened with Videan v. British Transport Commission [1963] 2 Q.B. 650. A stationmaster's child strayed on to the railway and was run over. It was rightly held that the child was a trespasser and that the authority were not liable. But some obiter dicta of Lord Denning M.R. appear to me to be directly contrary to the decision of this House in Addie's case. Nevertheless, they have attracted much support in subsequent cases. Having pointed out that for child trespassers innocent of any wicked intent the rule in Addie's case works most unfairly, he said, at p. 663:
"Hence the shifts to which generations of judges have been put to escape the rule. They have time and again turned a trespasser into a licensee so as to give him a remedy for negligence when otherwise he would have none."
So far I take no exception. But then he went on to discuss, at p. 664, "a new way . . . to mitigate the harshness of the old rule" by confining the old rule to the responsibility of the occupier for the condition of his premises and inventing a new duty towards trespassers to conduct his activities on his property with reasonable care. But in Addie's case the danger was not in the condition of the property; the mechanism when at rest was quite safe. The danger arose when Addie's servant began the operation of setting the mechanism in motion. If this new theory were right Addie's case must have gone the other way.
Lord Denning M.R. founded the new view on foreseeability. He said, at pp. 665-666:
"The true principle is this: In the ordinary way the duty to use reasonable care extends to all persons lawfully on the land, but it does not extend to trespassers, for the simple reason that he cannot ordinarily be expected to foresee the presence of a trespasser. But the circumstances may be such that he ought to foresee even the presence of a trespasser: and then the duty of care extends to the trespasser also."
But in Addie's case the presence of the children was not only foreseeable, it was very probable. Nevertheless, this House held there was no duty.
This House in Addie held that no duty at all arose until the trespassers were known to be on the land. It is easy to extend that to a case when the occupier as good as knows, where he shuts his eyes: he will not then be heard to say that he did not know. But he has no duty to do anything before the trespasser arrives. If, on the other hand, a duty were to arise before the trespassers' arrival, when that arrival is merely foreseeable or probable, the situation would be very different. The occupier would have to do what that duty required him to do to prepare for the trespassers' arrival. But that is precisely what Addie's case says he need not do. I can see no way of bringing in that foreseeability test without reconsidering and overruling at least that part of the decision in Addie. A duty to act with humanity towards a trespasser known to be there is one thing. A duty of care towards probable trespassers is of a different order. It would completely transform the whole picture and, so far as I can see, completely supersede the Addle duty in all cases where the arrival of the injured trespasser had been probable or foreseeable.
It follows that I cannot accept all that was said in the judgment of the Privy Council in Commissioner for Railways v. Quinlan [1964] A.C. 1054 as being consistent with the decision in Addie's case. On p. 1076 it is said, I think rightly:
"A person's knowledge is a question of fact: such a fact is a very different thing from the objective question whether there was a reasonable likelihood of someone being present at the relevant time and place and whether a person ought to have foreseen that likelihood.
Given the fact of the knowledge, the occupier comes under the obligation not to inflict intentional or reckless injury upon the person of whose presence he is aware. This again is a very different thing from an obligation to take precautions in advance against the likelihood of a trespasser being present."
And then there is a reference to the occupier being in a position in which he as good as knows that the other is there. So far that is pure Addie. But the passage on p. 1077 appears to me to be inconsistent with this. It would seem to say that it is sufficient if the presence of the trespasser is extremely likely or very probable.
So we are confronted with the position that persistent attempts have been made to confer on child trespassers greater rights and to impose on occupiers greater obligations than are to my mind consistent with the decision of this House in Addie's case. I shall not deal with the forthright Australian authorities farther than to say that those attempts are even more persuasive and far reaching than those in this country. So it appears to me that no satisfactory solution can be found without a re-examination of the whole problem and a reconsideration by this House of its decision in Addie's case.
Child trespassers have for a very long time presented to the courts an almost insoluble problem. They could only be completely safeguarded in one or other of two ways. Either parents must be required always to control and supervise the movements of their young children, or occupiers of premises where they are likely to trespass must be required to take effective steps to keep them out or else to make their premises safe for them if they come. Neither of these is practicable. The former course was practicable at one time for a limited number of well-to-do parents but that number is now small. The latter, if practicable at all, would in most cases impose on occupiers an impossible financial burden.
Legal principles cannot solve the problem. How far occupiers are to be required by law to take steps to safeguard such children must be a matter of public policy. The law was uncertain when Addie's case was decided. That decision was intended to make the law certain. It did so. This House must have taken the view that as a matter of public policy occupiers should have no duty at all to keep out such children or to make their premises safe for them. Their only duty was a humanitarian duty not to act recklessly with regard to children whom they knew to be there.
It may have been arguable forty years ago that that was good public policy. But for one fact I would think it unarguable today. That is the fact that only fourteen years ago Parliament when it had an obvious opportunity to alter that policy failed to do so. The law with regard to occupiers' liability to persons coming on to their land was then so unsatisfactory that Parliament found it necessary to pass for England and Wales the Occupiers' Liability Act 1957. It imposed a "common duty of care" on occupiers towards all persons who might lawfully come on to their land. But it pointedly omitted to alter the existing law as to trespassers. At that time there was no doubt that Addie's case had settled the law, and under the practice then prevailing this House could not alter that decision. The Court of Appeal had not yet begun to try to modify Addie's case. As I have already said, they had no right to do that and I do not think that in 1957 their action could reasonably have been foreseen.
So I find it exceedingly difficult to interpret the silence of Parliament in the 1957 Act with regard to trespassers in any other way than as an approval of the existing law with regard to them. And that means an approval of the decision in Addie's case.
It is, however, I think just possible to attribute that silence to Parliament (or those who then advised Parliament) being unable to make up their minds as to what to put in place of Addie. I say that because when the law of Scotland on this matter was amended in 1960 Parliament (no doubt acting on more robust advice from Scotland) did alter the Scots law with regard to trespassers. It seems unlikely that on a matter of this kind Parliament would deliberately adopt quite different policies for the two countries. So I think I may be justified in attributing to indecision the silence of Parliament in 1957 with regard to trespassers in England.
The question, then, is to what extent this House sitting in its judicial capacity can do what Parliament failed to do in 1957. I dislike usurping the functions of Parliament. But it appears to me that we are confronted with the choice of following Addie and putting the clock back or drastically modifying the Addie rules. It is suggested that such a modification can be achieved by developing the law as laid down in Addie's case without actually overruling any part of the decision. I do not think that that is possible. It can properly be said that one is developing the law laid down in a leading case so long but only so long as the "development" does not require us to say that the original case was wrongly decided. But it appears to me that any acceptable "development" of Addie's case must mean that Addie's case if it arose today would be decided the other way. The case for the pursuer in Addie's case was stronger on the facts than the case for the present respondent and I do not think that we could dismiss this appeal without holding or at least necessarily implying that Addie's case was wrongly decided.
I do not think that it would be satisfactory merely to follow the scheme of the Occupiers' Liability (Scotland) Act 1960. That Act provides by section 2 (1) that the care which an occupier is required to show to a person entering his land (which includes a trespasser) in respect either of its dangerous state or of dangerous activities on it shall be
"such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."
That may work satisfactorily where actions for damages for failure to exercise such care are generally decided by juries. Juries do not give reasons and so no verdict of a jury can establish a precedent. But in England such actions are decided by judges who must give reasons and whose decisions can be the subject of appeal. No doubt if the matter were left at large in this way a body of case law with regard to the position of trespassers would develop over the years. The matter would in one form or another come before this House before very long and some authoritative guidance would then emerge. But I would not create such a period of uncertainty if that can be avoided and I think it can be avoided.
The first matter to be determined is the nature of the duty owed by occupiers to trespassers. Here I think we can get good guidance from Addie's case. The duty there laid down was a duty not to act recklessly. Recklessness has, in my opinion, a subjective meaning: it implies culpability. An action which would be reckless if done by a man with adequate knowledge, skill or resources might not be reckless if done by a man with less appreciation of or ability to deal with the situation. One would be culpable, the other not. Reckless is a difficult word. I would substitute culpable.
The duty laid down in Addie's case was a humanitarian duty. Normally the common law applies an objective test. If a person chooses to assume a relationship with members of the public, say by setting out to drive a car or to erect a building fronting a highway, the law requires him to conduct himself as a reasonable man with adequate skill, knowledge and resources would do. He will not be heard to say that in fact he could not attain that standard. If he cannot attain that standard he ought not to assume the responsibility which that relationship involves. But an occupier does not voluntarily assume a relationship with trespassers. By trespassing they force a "neighbour" relationship on him. When they do so he must act in a humane manner - that is not asking too much of him - but I do not see why he should be required to do more.
So it appears to me that an occupier's duty to trespassers must vary according to his knowledge, ability and resources. It has often been said that trespassers must take the land as they find it. I would rather say that they must take the occupier as they find him.
So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give any thought to their safety. He might often reasonably think, weighing the seriousness of the danger and the degree of likelihood of trespassers coming against the burden he would have to incur in preventing their entry or making his premises safe, or curtailing his own activities on his land, that he could not fairly be expected to do anything. But if he could at small trouble and expense take some effective action, again I think that most people would think it inhumane and culpable not to do that. If some such principle is adopted there will no longer be any need to strive to imply a fictitious licence.
It would follow that an impecunious occupier with little assistance at hand would often be excused from doing something which a large organisation with ample staff would be expected to do.
It is always easy to be wise after the event and in judging what ought to have been done one would have to put out of one's mind the fact that an accident had occurred and visualise the position of the occupier before it had happened. Quite probably this would not be the only point on his land where trespass was likely. One would have to look at his problem as a whole and ask whether if he had thought about the matter it would have been humane or decent of him to do nothing. That may sound a low standard but in fact I believe that an occupier's failure to take any preventive steps is more often caused by thoughtlessness than by any shirking of his moral responsibility. I think that current conceptions of social duty do require occupiers to give reasonable attention to their responsibilities as occupiers, and I see nothing in legal principles to prevent the law from requiring them to do that.
If I apply that test to the present case I think that the appellants must be held responsible for this accident. They brought onto their land in the live rail a lethal and to a young child a concealed danger. It would have been very easy for them to have and enforce a reasonable system of inspection and repair of their boundary fence. They knew that children were entitled and accustomed to play on the other side of the fence and must have known, had any of their officers given the matter a thought, that a young child might easily cross a defective fence and run into grave danger. Yet they did nothing. I do not think that a large organisation is acting with due regard to humane consideration if its officers do not pay more attention to safety. I would not single out the station master for blame. The trouble appears to have been general slackness in the organisation. For that the appellants are responsible and I think in the circumstances culpable. I would therefore hold them liable to the respondent and dismiss this appeal.
LORD MORRIS OF BORTH-Y-GEST.
My Lords, on June 7 (Whit Monday) in the year 1965 a small boy aged six went to play in a field near Mitcham called Bunces Meadow. He was with his two brothers who were a little older than he was. Bunces Meadow is National Trust property which is freely open to the public. Through it there runs a public path. For a part of its distance the path is a made-up path having a tar-macadam surface. It continues as a trodden path which makes a turn to the right. The reason for this is that straight ahead of the path there is a single line railway track, which runs between Mitcham Junction and Morden Road Halt. By the side of the track there is a "live" rail carrying the necessary electric current for trains which are driven along the track. The path to the right leads to a footbridge over the railway track. By crossing the railway another National Trust property, Morden Hall Park, is reached.
The trodden path turned to the right near to but before reaching the line of the fence which had been erected to border the railway track. There was a further short stretch of trodden path (which should have been a cul-de-sac) reaching up to the fence. The fence was a chain link fence four feet high supported by concrete posts eight feet six inches apart. But at the very place where the fencing should have debarred a person from going straight on if he had not previously turned to the right it was defective. The fence was detached from one of the posts and had been pressed down so that its top curved down to within about ten inches of the ground. The lower part of the chain link, which was rusty, was lying on the ground. The state of affairs was, as the learned judge found, that for some time before June 7 people going to Morden Hall Park had been taking a short-cut. They proceeded straight on and crossed the railway track. The fence was in so dilapidated a condition that anybody, adult or child, "could quite easily get across on to the line."
The three boys played in Bunces Meadow but shortly after noon the two elder ones missed their young brother. He had wandered off. They went in search of him. One brother went through what was virtually the gap in the fencing and then found his young brother on the railway track. He was between the conductor rail and the running rail. He was lying unconscious. After help had been secured, a rescue was effected: but that was only after the boy had been most gravely injured. He suffered very severe burns.
Certain additional facts call for mention. The learned judge was satisfied by the evidence given by two youths who had visited Bunces Meadow a number of times in the six weeks previous to June 7 that the fence had been in its dilapidated condition for at least several weeks before that date. The state of the fence and of the path led the learned judge to think that the described condition of the fence had probably existed for months. The railways board made no attempt to contravert any of these conclusions. They thought it prudent not to put any witness in the box. They decided to give no explanations in regard to any of the documents which discovery disclosed. Thus, there was a memorandum dated April 17, 1965 (some seven weeks before the accident) from the station master's office, Mitcham Junction, to the "line manager" stating that the guard of an afternoon train two days previously had reported to the signalman at Mitcham on arrival at Merton Park that children were on the line between Mitcham and Morden Road Halt: the memorandum stated that the Mitcham Police were requested to investigate. There were various memoranda written on the date of the accident: they recorded that at 3.10 p.m., there was an examination of the fences in the vicinity of Bunces Meadow: three places in the vicinity were discovered where children could get onto the line through the fences. One memorandum was to the "line manager": another was to the "ganger" at Mitcham. "Control" had ordered the station master (of Mitcham Junction) to examine the fences and to report and also to inform the "ganger" to get the fences repaired immediately. The "engineer's department" were instructed to make repairs in three places. A letter of June 11 from the "divisional manager" recorded that he was advised that the fence at the site of the accident was "in rather a bad state" and that there were three different places where children could get on to the line through the fences: the writer asked that he should be informed when the repair work was completed: the letter went to the "line manager" with a copy to the station master. A memorandum from the station master to the divisional manager reported that the engineers department were called out and that the fences were repaired on the day of the accident.
In view of the evidence which was before the learned judge and in the light of the documents referred to, it is a matter of some surprise that when a claim was made it was stated on behalf of the railways board that their engineer had made an inspection of the fence in question on the morning of the accident and found it in order;
"Our evidence quite clearly establishes that the fence was found in good order earlier on the day in question, but was found damaged after the accident. Temporary repairs were carried out immediately afterwards, followed later by permanent repairs."
Having regard to the evidence before the learned judge and to the terms of the various internal memoranda it is difficult to understand how the letter came to be written. There was no evidence either to support it or to explain it. If there was a system of inspection there must have been a lamentable failure in its operation. The fact remains that for weeks or months the fencing was so broken down at a point ahead of a public path that a person could easily get across to the line: an adult would doubtless appreciate the risks or perils in so proceeding: a boy aged six would not.
If the facts which I have outlined were put to any well-disposed but fairminded member of the public, whether a parent or not, I venture to think that the response guided by the promptings of common sense would be that having regard to the dangerous nature of the live rail and its perils for a small child, the railways board were grievously at fault in allowing a fence at the particular place in question to remain for a long time in a broken-down condition. It must at any time be a matter of regret and of concern if the answer of the law does not accord with the answer that common sense would suggest. But the railways board assert that the law must refuse the infant's claim. In effect they say that he was a legal outcast. In short he was a trespasser. And they say,
"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 on to the premises at his own risk." (Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358, 365).
On the authority of the same case they say that an occupier is only liable to a trespasser 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." (p. 365).
So they say that in the present case there was no wilful act done against the infant: the railways board did not know of his presence and did nothing in disregard of his presence.
There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The facts in the present case differ from those in Addie's case. In the present case a question arises whether some duty may be owed to a person before he becomes a trespasser. In that case a question arose whether a duty was owed to someone who was already a trespasser. In that case both adults and children often went on to the land in question though it was made plain to them that they had no right to do so. There were many gaps in the hedge that surrounded the land. Children did in fact go and play on the land (in spite of their being periodically driven off): they played both near the wheel which was there and elsewhere. The wheel was about one hundred yards within the boundary of the land. The wheel was not something as inherently dangerous as a live rail which it is highly perilous to touch. Those who set the wheel in motion did not know that a four-year-old boy had gone to sit on it. He was a trespasser and he had been warned not to go to the land or to go near to the wheel. But as those operating the wheel must have known that it was at least a possibility if not a likelihood that a child would be on or near to the wheel, it might have been held that there was a duty to give some warning or to exercise some measure of care to see that no one was going to be injured before the machine was suddenly set in motion. But it was held that there was no liability for the death of the boy. The law was laid down in the terms that I have quoted. There have been many expressions of lament that the claim should not have succeeded as did the claim in Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404.
In the present case the boy was injured by coming into contact with something on the land - the live rail. The live rail was placed where it was for the legitimate purpose of supplying power for the running of trains. There was no question of intending to do harm to a trespasser. If the question is asked - What did the railways board do wrong? - the answer must, I think, be that they allowed the fence to remain for a long time in such a state that a child who did not sense danger could quite easily get on to the line and the live rail. Anyone who gave any thought to the matter would at once appreciate that the purpose of having a fence bordering on a railway track with a live rail is to warn people that they must proceed no further and to be to some extent an obstacle to prevent them from so doing. Anyone would further appreciate that if the fencing had a gap in it and a gap near to a public path a child might go through the gap and be in a position of great danger. Not only might a child come into contact with the live rail: he might be struck by a passing train. So the question arises whether the railways board had any obligation to take thought and having taken thought to take some action. Is it enough for them to say - true we could appreciate that if a child stepped over the broken fence he might get on to the railway track with its live rail and be killed or gravely hurt, but the moment he stepped over the broken fence he would be a trespasser and "towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger"? Though, generally speaking, an occupier is not obliged to fence his land and though, generally speaking, there is no obligation to prevent somebody from becoming a trespasser - are there some circumstances in which a duty arises to take some action to lessen the risk of peril both in the case of a potential or prospective trespasser and in the case of someone who has become a trespasser?
Having posed this question, it is to be remembered that in Addie's case consideration was given to such cases as Cooke v. Midland Great Western Railway of Ireland [1909] A.C. 229 and Lowery v. Walker [1911] A.C. 10 and Latham v. R. Johnson & Nephew Ltd. [1913] 1 K.B. 398 and to many other cases, and I think that it must be recognised that it was implicitly laid down in all the speeches that apart from cases where an occupier intends to injure a trespasser (as by laying a spring gun) he owes no duty to a potential or prospective trespasser and that it was expressly and indeed inexorably laid down that towards an actual trespasser he owes no duty apart from the duty not maliciously to cause him injury.
The question now arises whether we should depart, as we were invited to do, from what was laid down in Addie's case or whether in the light of developments in the law since 1929 there are some modifications which permissibly can be accepted.
In approaching this question regard must be had to the fact of the enactment of and to the provisions of the Occupiers' Liability Act 1957. It seems to me that Parliament must have decided that problems relating to trespassers should be left to be decided according to common law principles. By the Act the "rules" enacted by sections 2 and 3 are by section 1 (1) to have effect
"in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them."
To such "visitors" (subject to exceptions) there is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there. But a trespasser is not a "visitor." The term trespasser is a comprehensive word: it covers the wicked and the innocent: the burglar, the arrogant invader of another's land, the walker blithely unaware that he is stepping where he has no right to walk, or the wandering child - all may be dubbed as trespassers.
When in 1960 the Occupiers' Liability (Scotland) Act was passed it was in terms which created a certain duty of care to trespassers. The English Act was, however, left as it was. It was not amended. It would not, in my view, be fitting for us to make fundamental changes in the law, according to our view as to what its terms and policy should be, when Parliament, apparently deliberately, has refrained from making such changes. We can, however, ensure that the tide of development of the common law is not unwarrantably impeded.
If a child is a visitor an occupier must "be prepared for children to be less careful than adults": see section 2 (3) (a) of the English Act. But apart from any statutory provisions it is a matter of ordinary common knowledge that children will roam and will explore. If a fence marks a boundary an adult who climbs over it will appreciate what he is doing. A small boy who finds a part of a fence so dilapidated that there is no real obstacle to his progress will not or may not know that he is at once a "trespasser" if he goes on. So the problem raised in this case is whether, if an occupier has for legitimate reasons (and with no object of hurting anyone) placed something highly dangerous on his land, he owes any and what duty to take some steps to lessen the risk that a wandering child may run into the danger. Though the present case relates to a young child who obviously may be less perceptive than an adult the kindred question is raised whether there may be circumstances, if a situation of danger has been created on land, in which some measure of duty would be owed to an adult trespasser. Furthermore, though in the present case the place of great danger was quite close to the boundary of the private land the question of principle might equally arise if the place of great danger was not close to such boundary. If a minefield had for legitimate reasons been created and if it continued in existence I should be sorry to think that an occupier owed no duty to warn a potential or actual trespasser. In his powerful dissenting judgment in Adams v. Naylor [1944] K.B. 750 Scott L.J. saw no reason in principle why an occupier should not be called on to take all reasonable precautions to keep trespassing children out of a place where he knows they will be blown up.
In the early part of the last century, occupiers of land sometimes placed spring guns on their land: if a trespasser walked against a wire he would cause a gun to be fired and he might be injured. If an occupier could do as he liked on and within the confines of his own land why should he not place such guns? Yet certain trespassers who suffered injury brought claims. Could such a trespasser recover damages? The courts held that he could. There were two reasons. One was that an occupier could not do indirectly what he could not do directly: if he had been present on his land and had seen a trespasser he would not have been entitled to fire a gun at him. So he ought not to cause a gun to be fired indiscriminately and automatically if and when an intruder walked on the land. The other reason was that it was contrary to principles of humanity to place a spring gun of which a trespasser was unaware.
Thus, in Jay v. Whitfield (Note) (1817) 3 B. & Ald. 308, a boy who entered the defendant's premises for the purpose of cutting a stick was shot by a spring gun: he recovered #120 damages (before Richards C.B.) for his injury. It is recorded in one of the cases that it was formerly the practice to give public notice in market towns if such means of protection as spring guns had been resorted to. It was the "common understanding of mankind" that such notice ought to be given. That was before there was any statutory provision in regard to them.
In Ilott v. Wilkes (1820) 3 B. & Ald. 304 a trespasser who knew that there were spring guns in a wood (without knowing the actual particular spots where they were placed) was injured when he trod on a latent wire and caused a gun to be fired. On the principle volenti non fit injuria he failed in his claim for damages. But the duty to warn was recognised. Thus Bayley J. said, at p. 312:
". . . although it may be lawful to put these instruments on a man's own ground, yet as they are calculated to produce great bodily injury to innocent persons (for many trespassers are comparatively innocent) it is necessary to give as much notice to the public as you can, so as to put people on their guard against the danger."
Best J. spoke with no uncertain voice when he proclaimed, at p. 319:
"Humanity requires that the fullest notice possible should be given, and the law of England will not sanction what is inconsistent with humanity."
Bayley J. recognised that there may be circumstances in which there is a duty to prevent injury to a trespasser. He instanced a situation in which a furious dog was loose in a yard but where there was notice over the entrance of the presence of the dog. He said that if a wrong-doer read the notice but then in the absence of the owner entered the yard he was voluntarily incurring the risk of being injured. But he expressed a further view for he said, at p. 313:
"If, indeed, the master had been upon the spot at the time, and had seen the dog running towards the man. it would have been his duty to have done all in his power to prevent the animal from worrying him, and if he had not so done, the party injured might have had a right of action."
The passage is of interest showing that the learned judge thought that even inaction, when humanitarian impulses would prompt action, might amount to a breach of a duty owed to a trespasser.
In a later case, Bird v. Holbrook (1828) 4 Bing. 628 a young man, in order to catch a stray fowl (so as to help the servant of its owner), went over a wall into the defendant's garden where he came into contact with a wire which discharged a gun. He recovered damages in respect of the injury which he sustained. Best C.J. stoutly proclaimed, at p. 643:
"But we want no authority in a case like the present; we put it on the principle that it is inhuman to catch a man by means which may maim him or endanger his life, and, as far as human means can go, it is the object of English law to uphold humanity, and the sanctions of religion."
Burrough J. said, at p. 645:
"The plaintiff was only a trespasser: if the defendant had been present, he would not have been authorised even in taking him into custody, and no man can do indirectly that which he is forbidden to do directly."
That approach would I think bring the case within the category of acts done with a "deliberate intention of doing harm to a trespasser." The spring gun would be deliberately placed so that it would cause injury to any trespasser who might arrive. As Viscount Dunedin said, at p. 376, in Addie's case: ". . . he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot." Alternatively the placing of the spring gun might amount to a "reckless disregard of the presence of the trespasser." It is to be observed that Dixon C.J. said in Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274, 285:
"The fixed rule that a trespasser comes at his own risk and that only a wilful injury to him is actionable is modified by the assimilation of 'reckless disregard of the presence of the trespasser' to wilfulness. It needs no argument to show that reckless disregard of the presence of a man must include not only the case of a man who is there but also of one whose coming is expected or foreseen."
The spring gun would be placed on land because the possible presence of a trespasser would either be expected or foreseen - and there would be the circumstance that injury was intended. Though the conditions of danger on the railway track in the present case were not created with any intention of doing injury to anyone, if it could be expected or foreseen that some trespasser (such as a young child) might run into the danger unawares, was there some and, if so, what duty to take some and what steps to seek to avert such an occurrence? If humanity is to be a guide should it not operate to lessen the risk of foreseeable injury from a danger which has been created even though such injury is not intended?
If the passages to which I have referred show that even in days when property rights were jealously safeguarded it was firmly recognised that the dictates of humanity must guide conduct even towards trespassers, such recognition must surely be no less firm today. Indeed, it should be firmer. It is today basic to our legal thinking that every member of a community must have regard to the effect upon others of his actions or his inactions. If in all probability the boy in the present case would not have suffered injury had the fence been in ordinary repair instead of being left dilapidated for weeks on end the question might be asked - even so, as the boy would be a trespasser the moment he crossed the line of the fence, why and for what reason should the railways board owe him any duty at all beyond that of not deliberately harming him thereafter or of acting with reckless disregard of his presence on their land? I would answer for reasons of common sense and common humanity. The nature and extent of any duty owed will call for separate consideration. But there must be some circumstances in which by reason of them, a duty is owed by an occupier of land to potential trespassers as well as to actual trespassers of whom he is positively aware. As my noble and learned friend, Lord Pearson, said in Videan v. British Transport Commission [1963] 2 Q.B. 650, 677-678, it is a heresy to suggest that occupation of land is a ground of exemption from liability: on the contrary (he said) occupation of land is a possible ground of liability and if a duty of care is owed then any person to whom it is owed is a neighbour though the content of the duty will vary according to the circumstances.
If it is asked - why need the railways board give any thought to the question whether a trespasser might come to harm by trespassing on their land? - the answer must, I think, again be that common sense and common intelligence so direct. What has been called ordinary civilised behaviour would so prompt. The words of Lord Macnaghten in Cooke v. Midland Great Western Railway of Ireland [1909] A.C. 229, 234 (while remembering that it was held that the children in that case were licensees) are apposite:
"Would not a private individual of common sense and ordinary intelligence, placed in the position in which the company were placed, and possessing the knowledge which must be attributed to them, have seen that there was a likelihood of some injury happening to children resorting to the place and playing with the turntable, and would he not have thought it his plain duty either to put a stop to the practice altogether, or at least to take ordinary precautions to prevent such an accident as that which occurred?"
By taking ordinary thought and exercising "common sense and ordinary intelligence" - even apart from the guidance of common humanity - I think that the railways board would see that in the circumstances of this case there was a likelihood that some child might pass over the broken down fence and get on to the track with its live rail and be in peril of serious injury. Even though the child would be a trespasser ought it not to be their "plain duty" to repair the fence? That would be a relatively simple operation not involving any unreasonable demands of time or labour or expense.
In the classic definition of negligence in Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781, 784, Alderson B. said that negligence was
"the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
Ought not the "considerations which ordinarily regulate the conduct of human affairs" under some circumstances (and I would include those of the present case) produce the result that some duty is owed by an occupier of land towards those who if they proceed further may suffer injury at a time when they are trespassing?
That in a civilised community there is need to take thought as to the result of acts or omissions has long been recognised. Though in Heaven v. Pender (1883) 11 Q.B.D. 503 the colleagues of Brett M.R. were unwilling to concur (p. 516) in "laying down unnecessarily the larger principle" which he entertained his words may be recalled. He considered, at p. 509, that from decided cases the proposition was to be deduced
"that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."
The Master of the Rolls was of course not considering any question in regard to trespassers, but the question now arises whether there are not some trespassers for whom thought must be taken. The stress placed on the taking of thought by persons of "ordinary sense" is today constantly reflected in decisions in the courts. Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580 said that: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." The corporation in Glasgow Corporation v. Taylor [1922] 1 A.C. 44 ought by taking thought to have realised that the poisonous berries deceptively presented a tempting and harmless appearance to a young boy who was entitled to be where he was: there was a case for trial as to whether the corporation had failed to take certain precautions that they ought to have taken. In Haley v. London Electricity Board [1965] A.C. 778 it was held that those engaged in operations on the pavement of a highway ought to have foreseen that blind persons might walk along the pavement. So, by taking thought, should the danger have been appreciated of allowing the small child in Carmarthenshire County Council v. Lewis [1955] A.C. 549 to be out of care. So, by taking thought, should the consequences have been realised of failing to exercise reasonable control in the case Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004.
I consider that it is abundantly clear that the railways board, if they had taken thought, must have realised that if they allowed the fence to be broken down at the particular place in question there was a considerable risk that a small child would pass through it and might as a result either be killed or come to serious harm. This was not a case in which a child could be said to have been invited or permitted to proceed with the result that he would as an invitee or licensee be proceeding towards what could be called a trap: nor do I think that any temptation to proceed could be said to have been in response to an allurement.
The present case is to be distinguished on its facts from Edwards v. Railway Executive [1952] A.C. 737 where the main issue was whether the boy could be said to have been a licensee. The lay-out of the land was in B that case quite different from that in the present case and the fence in that case was repaired whenever it was observed to have suffered interference. There was evidence in that case that on the morning of the accident the fence was in proper repair.
Could a child such as the boy in the present case be regarded as a "neighbour"? When Lord Atkin posed the question [1932] A.C 562, 580, "Who, then, in law is my neighbour?" he said that the answer seemed to be
"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
No one would suggest that every trespasser is a "neighbour" but within these words was not the small boy in the present case a neighbour? When the railway track and its electrified rail were laid and at all times when they were maintained the risks of injury resulting, if there was neither warning nor impediment such as a fence would provide, would be clear to anyone who gave the matter a moment's thought. Yet when the boy went on to the track he undoubtedly became a trespasser. Does this mean that the strict edict of Addie's case prevents any kind of duty from arising towards such a neighbour, especially as Parliament has not legislated in terms which cover trespassers? In my view, while it cannot be said that the railways board owed a common duty of care to the young boy in the present case they did owe to him at least the duty of acting with common humanity towards him. In regard to the words that I have quoted from Addie's case I do not think that the railways board (through their servants) did any act with the deliberate intention of doing harm to the boy; their omission for a long time to repair the fence and their continuing distribution of electric power along their live rail did not, in my view, amount to a "reckless disregard of the presence of a trespasser." If those last quoted words can be said to cover the likely or expected or anticipated presence of a trespasser, then the question arises whether the lamentable inaction of the railways board is to be characterised as "reckless." As to this I have doubt. The word "reckless" seems more apposite in reference to positive conduct than to inaction.
The duty that lay upon the railways board was a limited one. There was no duty to ensure that no trespasser could enter upon the land. And certainly an occupier owes no duty to make his land fit for trespassers to trespass in. Nor need he make surveys of his land in order to decide whether dangers exist of which he is unaware. The general law remains that one who trespasses does so at his peril. But in the present case there were a number of special circumstances - (a) the place where the fence was faulty was near to a public path and public ground; (b) a child might easily pass through the fence; (c) if a child did pass through and go onto the track he would be in grave danger of death or serious bodily harm: (d) a child might not realise the risk involved in touching the live rail or being in a place where a train might pass at speed. Because of these circumstances (all of them well known and obvious) there was, in my view, a duty which, while not amounting to the duty of care which an occupier owes to a visitor, would be a duty to take such steps as common sense or common humanity would dictate: they would be steps calculated to exclude or to warn or otherwise within reasonable and practicable limits to reduce or avert danger.
I would adopt the approach of my noble and learned friend, Lord Pearson, in his judgment in the Court of Appeal in Videan v. British Transport Commission [1963] 2 Q.B. 650. In agreement with him I do not think that there is any sound basis of principle for differentiating sharply between liability for the static condition of land and liability for current operations on land. In general, therefore, a trespasser has not only to take the land as he finds it but the current operations on land as he finds them. Yet a potential or actual trespasser may on occasion be a neighbour and, as my noble and learned friend said at p. 678: "the expression 'duty to a neighbour' is more appropriately used as an aid to ascertaining whether or not there is a duty of care owing by one person to another rather than as a definition of the content of such a duty." So, at pp. 680-681:
"If the person concerned does not know of or have good reason to anticipate the presence of the trespasser, that person owes to him no duty of care because he is not within the 'zone of reasonable contemplation' and is not a 'neighbour.' If the person concerned knows of or has good reason to anticipate the presence of the trespasser, that person owes to the trespasser a duty of care which is substantially less than the duty of care which is owing to a lawful visitor, because the duty to a trespasser is only a duty to treat him with common humanity and not a duty to make the land and operations thereon safe for the trespasser in his trespassing."
The case of Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274 amply repays study. Though the boy who was injured was a trespasser he recovered damages. In the course of his judgment Dixon C.J. said, at p. 286:
"In principle a duty of care should rest on a man to safeguard others from a grave danger of serious harm if knowingly he has created the danger or is responsible for its continued existence and is aware of the likelihood of others coming into proximity of the danger and has the means of preventing it or of averting the danger or of bringing it to their knowledge."
Windeyer J. expressed the view that the duty of an occupier is rooted at bottom in his duty to his neighbour in Lord Atkin's sense and he said, at p. 321:
"No man has a duty to make his land safe for trespassers. But, if he has made it dangerous and the danger he has created is not apparent, he may have a duty to warn people who might come there of the danger of doing so. Whether there be such a duty in a particular case must depend upon the circumstances, including the likelihood of people coming there. But if they would be likely to come, the duty does not, in my view, disappear because in coming they would be trespassing. It is a duty owed to likely comers, to those who would be intruders as well as to those who would be welcome."
He further said, at p. 322:
"I do not see how, speaking generally, there can be a duty either to prevent people trespassing or to make the premises safe for those who do. But the duty that I think can, in appropriate circumstances, exist is a duty to warn persons coming upon premises of hidden dangers they may encounter there, when those dangers are not natural features of the land but arise from conditions created by the occupier. Such a duty is not necessarily discharged by posting notices such as 'trespassers will be prosecuted'; for the warning required is not that trespassing is not tolerated but that entry may be dangerous."
For the reasons which I have given I consider that the learned judge was warranted in deciding that the plaintiff was entitled to recover. My approach involves some departure from some of what was said in Commissioner for Railways v. Quinlan [1964] A.C. 1054. It involves also that, on its facts, the decision in Addie's case should in my view have been the other way. The colliery company knew that young children were in the habit of playing on the ground near to the wheel in question and knew that, though at times there were warnings children continued to frequent the place. They knew that children might be or were likely to be there. I consider that with such knowledge they should have taken reasonable care to avoid the risk of a child trespasser being killed or injured by reason of the wheel being suddenly and blindly put to work. It follows that I consider that the case was wrongly decided.
I would dismiss the appeal.
LORD WILBERFORCE. My Lords, this is, unusually, a straight case of an infant trespasser. The six-year-old boy was trespassing on the railway when he came into contact with a live electric rail, was fortunately not killed, but was severely injured. There was no allurement onto the defendant's land; there is no basis, in reality or fiction, by which the child can be treated as a licensee. There was no wilful intention to injure him; nor (I shall return to this) reckless disregard of his presence. At most (and this has been found) there was a lack of care by the board as regards the maintenance of its fences.
We have not, in England, any general law as to public enterprise liability. As regards fencing, such duty as the board has (Railway Clauses (Consolidation) Act 1845, section 68, which, it seems protects cattle but not children) dates from 1845 since when, even after electrification, Parliament has not thought it necessary to impose new obligations on railway companies. So if the plaintiff is to recover, he must rely on our outdated law of fault liability which involves the need to establish a duty of care towards him and a breach of it. At once he is faced by the formidable authority of Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358.
There are perhaps two things about Addie's case which, out of many comments that have been made over the years, are relevant here.
First, the bulk of the criticism has been of it as a decision on its facts. It is claimed that it should have been decided the other way, in favour of the child, as it was decided in the Court of Session, as, on very similar facts, Callan's case three years later was decided in the plaintiff's favour (Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404). The difference of opinion between the Inner House and this House was essentially as to whether the child should have been regarded as a licensee. The Lord President said he should; he compared him with the plaintiff in Lowery v. Walker [1911] A.C. 10 and said, as to the user of the company's premises, that it was substantially acquiesced in and acquiescence is often a form of what may be called an unwilling consent (1928 S.C. 547, 555). This House took a different view: he was, on the sheriff substitute's finding, a trespasser and nothing else. The wheel had been there long before the house in which he lived was built, so that there was no question of a dangerous thing having been placed in his proximity: the only relevant relationship was the occupier/trespasser relationship. I have referred to these factual points because I do not think that we should decide this case by meticulously comparing the facts here with the facts there. What we are concerned with is the principle of law which Addie established - to see what it is and what cases it governs.
The second thing to be said about Addie is that it is a case to be considered in a context, the context of previous and subsequent cases of common law, and the context of bordering but not identical typical situations. This has often been forgotten. The prestige of the learned Law Lords who gave the opinions in that case, and the clarity and emphasis of those opinions has led to its rules being treated as a code of law to be scrupulously applied to every situation where the defendant is an occupier of land whatever may be the set of facts out of which the injury, and the claim for damages, may have arisen. It is often the fate of clear pronouncements - in law as in science - to be treated in this way, with consequences more and more strained as different cases are forced within them by the use of fictions and other devices until there is a bursting of the seams and a cry that this case as a statement of the law must be overruled. That is what we are asked to do here.
I should say at once that, even apart from the argument against this which the Occupiers' Liability Act 1957 provides, I should hesitate to support this course. We should first see whether we can move on from the position taken in 1929 by classical methods of experience, analogy and logic. We should approach this without the too complacent assumption that our present age is humaner than was that of 40 years ago: but we may take the benefit of experience and recognise fresh situations - especially those of extreme danger, which have become typical.
There can be no doubt that the law regarding occupiers' liability forms part of the general law of negligence. The earlier 19th century cases were actions on the case (Deane v. Clayton (1817) 7 Taunt. 489; Lynch v. Nurdin (1841) 1 Q.B. 29) and though attempts were made to treat some of them as based on nuisance this was not a tendency which prevailed.
Since these were what we now call actions in negligence, it was necessary to define the degree of care owed to persons coming on land in particular circumstances, and this led to the emergence, in progressively segregated divisions, of the familiar tripartite classification which in Addie was stated to be exhaustive, and the line separating them an absolutely rigid line ([1929] A.C. 358, 371 per Viscount Dunedin). The first duty of the court, it was said, was to fix once and for all into which class the plaintiff falls. The Scottish courts avoided this rigidity and proceeded upon the general principles governing the law of negligence (Addie's case 1928 S.C. 547, 551 per Lord President Clyde). The formulation by this House in Addie gave rise not only to dissatisfaction in Scotland but to difficulty since human conduct can rarely be squeezed neatly into a predetermined slot; and if this is what courts are told to do, they will find ways, according to their views of the merits, of crossing the lines. So they have found means of converting trespassers into licensees by imputing licences, and in the case of children they have improved their status by a finding of allurement or by straining the facts.
We ought now to ask the question directly, what, in relation particularly to infant trespassers, is the duty of care (see Commissioner of Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274) for the recognition of some duty of care, even towards trespassers, in certain limited cases, is what the imputation of a licence really means. We may, though here we are getting near the dangerous ground of legislation, be readier than our predecessors to see liability for injuries to individuals placed upon society generally, of which the railways board effectively forms part. And if we do not go so far as to recognise that special rules ought to be devised for child trespassers (cf. American Restatement (1934), Torts (2nd) section 339), we can at least accept that fresh and more lethal dangers to their safety have appeared, and come nearer to them, and that somewhere more care has to be used to prevent them being hurt. I say "somewhere" because the occupier of adjoining land is not the only, or indeed the first, person in the line of responsibility. Even today parents have some control and responsibility, and if children are on a playground which someone has provided for the purpose, that person has a responsibility to see that it is safe.
Does, then, Addie contain an exhaustive definition of an occupier's duties to persons on his land? One does not see why, in principle, this should be so. It could be so if the fact of occupation of land were to be the basis of exemption from any greater liability than the relevant rule prescribes. But this idea has been refuted more than once (see Commissioner for Railways v. McDermott [1967] 1 A.C. 169, 186). The correct conception is that stated by the Privy Council when through Viscount Radcliffe the Board said that the Addie rules were expressive of certain consequences as regards proximity and foreseeability which flow from the given relationship (occupier and invitee - licensee - trespasser). (Commissioner for Railways v. Quinlan [1964] A.C. 1054, 1072.) Or, as was put by Barwick C.J., there is
"a quantitative element both in the extent of the foreseeability and of the reasonable steps required to fulfil any resultant duty arising from the circumstances in which the injured person came upon the scene." (Munnings v. Hydro-Electric Commission (1971) 45 A.L.J.R. 378, 382.)
If this is generally so, it must follow that the law can, particularly, take into account other relevant factors, if they exist, which bear upon these matters of foresight and prudence. It does so when in the general case it considers it relevant to know whether the presence of the relevant person was known, "'as good as' knows" Commissioner for Railways v. Quinlan [1964] A.C. 1054, 1076, or "extremely likely" Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404, 410, and it seems a necessary step from this to say that particular circumstances may exist in which an increased duty of "foreseeability" may arise.
There are other indications, in the law as it stands, of the relevance of particular factors as modifying the general rules. First there is the doctrine of allurements. It has been criticised, as a device, like imputed licenses, for escaping from the Addie rules. But it is older than Addie and reflects the perfectly sound conception that as particular things are ("foreseeably") likely to be attractive to children, the occupier owes a duty, if they are dangerous, not to put them in the children's way. The classic case is that of the berries in the park Glasgow Corporation v. Taylor [1922] 1 A.C. 44. Secondly, there is the law as to fencing. In general an occupier is under no duty to fence his land so as to exclude trespassers, a rule of importance to railway companies and of validity as this House has decided (Edwards v. Railway Executive [1952] A.C. 737). The fact, that Parliament has not imposed a duty securely to fence children or others out, is a recognition that a compromise must be struck between the desire to save everyone from every danger and the cost to the community of doing so. It means that there are situations where even children will not recover. But the courts have qualified this exemption by reference to particular circumstances as for example, that persons are known frequently to have access along a track Cooke v. Midland Great Western Railway of Ireland [1909] A.C. 229, Lowery v. Walker [1911] A.C. 10 which, though put upon the imputation of a licence, really reflect the fact that some elementary duty is owed. Similarly, there are the cases of pitfalls - where an occupier makes an excavation near a highway (cf. Prentice v. Assets Co. Ltd. (1889) 17 R. 484) (the same would surely be true of other hazards, for example an electric wire): he is under a duty, even to trespassers, to take some steps to keep them off.
Thirdly, there is the position of contractors carrying out work on land. A number of cases, Davis v. St. Mary's Demolition and Excavation Co. Ltd. [1954] 1 W.L.R. 592, Mooney v. Lanarkshire County Council, 1954 S.C. 245, A. C. Billings & Sons Ltd. v. Riden [1958] A.C. 240, which I need not examine in detail (some of them I think put the duty too high), have established their responsibility in principle, through a duty of care, toward trespassers, including infant trespassers. Their liability should not depend solely upon whether they were, or were not, themselves occupiers of the land, and it would be absurd if there were one law for contractors doing work and another law if the occupier did the same work himself, cf. Buckland v. Guildford Gas Light and Coke Co. [1949] 1 K.B. 410, Creed v. McGeogh & Sons Ltd. [1955] 1 W.L.R. 1005 - both perfectly sound decisions in themselves. This is not to say that the contractor's duty is to be imposed or measured regardless of the fact that the victim may have been a trespasser but it is to say that there may be circumstances in which contractors and occupiers alike may have some (I am not saying the same) responsibility for trespassers' safety, outside the bare Addie principle. It is curious, in fact, that this point escaped attention so long after Callan's case (Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404) and shown how easy it is to reach a just and sensible conclusion once one escapes from a narcotic pre-occupation with the occupier/trespasser relationship.
These are merely examples to illustrate the proposition that Addie is not an all embracing code, but a piece in the larger whole of a man's duty of care to those who may come into his proximity, and may be injured by actions or events occurring on his land.
I have already referred briefly to the historical antecedents of the law of occupiers' liability. It would be possible to show, in my belief, that Addie to some extent represented a step back in the direction of categorisation from an earlier more general attitude to the duty of care. It is more significant for the present case to recall that it occurred precisely at a time when the law of negligence was being put on a generalised basis and that many of the eminent legal authorities of this time were parties, in differing combinations, to Addie, Callan's case (Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404) and Donoghue v. Stevenson [1932] A.C. 562. It is hard to believe that they regarded these cases as inconsistent, or as separating occupiers' cases, as such, from all other situations where care might be needed.
I pass over for the moment the Occupiers' Liability Act 1957, in order to refer to four Australian cases, decided in the High Court, which give us valuable guidance in the search for a modern definition, or at least outline, of the duty of care which may be owed to trespassers in cases such as the present. It will be necessary to supplement this by consideration of Quinlan's case [1964] A.C. 1054 in which the Privy Council, on a New South Wales appeal, may appear to have taken a step back. The High Court cases are Thompson v. Bankstown Corporation (1953) 87 C.L.R. 619, Rich v. Commissioner for Railways (N.S.W.) (1959) 101 C.L.R. 135, Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274 and Munnings v. Hydro-Electric Commission (1971) 45 A.L.J.R. 378.
Rich was a level crossing case, Cardy one of a child straying on to an attractive rubbish dump with hot ashes under the surface: Thompson and Munnings are nearer the subject matter of this case, being concerned with high tension electric wires placed in proximity to places where children might be.
Although each case is difficult in its facts and required extensive legal argument, they can fairly be summarised into the generalisation that they reflect a tendency toward the recognition of a duty of care, appropriate to the circumstances, extracted from the situation and shaped by it, independent of such liability as might arise from the relation of occupier and licensee or trespasser. I cite some passages which clearly reflect this. In Thompson (1953) 87 C.L.R. 619, 628 the judgment of Dixon C.J. and Williams J. contained this:
"A man or child may be infringing upon another's possession of land or goods at the time he is injured and it will be no bar to his recovery, if otherwise he can make out the constituent elements of a cause of action."
They cited in support of this Callan's case, Mourton v. Poulter [1930] 2 K.B. 183, Buckland v. Guildford Gas Light and Coke Co. [1949] 1 K.B. 410 and Glasgow Corporation v. Taylor [1922] 1 A.C. 44. In the same case the judgment of Kitto J. contained an even more explicit passage. After mentioning, in terms of acceptance, the cases of Addie and Edwards he said, at pp. 642-643:
"The respondent's contention appears to assume that the rule of law which defines the limits of the duty owed by an occupier to a trespasser goes so far as to provide the occupier with an effective answer to any assertion by the trespasser that during the period of the trespass the occupier owed him a duty of care. The assumption is unwarranted for the rule is concerned only with the incidents which the law attaches to the specific relation of occupier and trespasser. It demands, as Lord Uthwatt said in Read v. J. Lyons & Co. Ltd. [1947] A.C. 156, 185, a standard of conduct which a reasonably-minded occupier with due regard to his own interests might well agree to be fair and a trespasser might in a civilised community reasonably expect. It would be a misconception of the rule to regard it as precluding the application of the general principle of M'Alister (or Donoghue) v. Stevenson [1932] A.C. 562, to a case where an occupier, in addition to being an occupier, stands in some other relation to a trespasser so that the latter is not only a trespasser but is also the occupier's neighbour, in Lord Atkin's sense of the word: see Transport Commissioners of New
South Wales v. Barton (1933) 49 C.L.R. 114, 122, 127 et seq."
The clarity of this passage has caused it to be followed, in analogous situations, in Australia, but it received some criticism based, I think, upon some misunderstanding in Quinlan's case (see below).
The same conception of a duty of care, coexisting with the special duties arising from occupation is developed in his judgment by Fullagar J. in Rich (1959) 101 C.L.R. 135, and again by Dixon C.J. in Cardy (1960) 104 C.L.R. 274. I quote two passages, at p. 286:
"The rule remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from intentional or wanton harm to him. But it recognises that nevertheless a duty exists where to the knowledge of the occupier premises are frequented by strangers or are openly used by other people and the occupier actively creates a specific peril seriously menacing their safety or continues it in existence. The duty may be limited to perils of which the persons so using the premises are unaware and which they are unlikely to expect and guard against. The duty is measured by the nature of the danger or peril but it may, according to circumstances, be sufficiently discharged by warning of the danger, by taking steps to exclude the intruder or by removal or reduction of the danger."
And later:
"In principle a duty of care should rest on a man to safeguard others from a grave danger of serious harm if knowingly he has created the danger or is responsible for its continued existence and is aware of the likelihood of others coming into proximity of the danger and has the means of preventing it or of averting the danger or of bringing it to their knowledge."
There are no doubt words and expressions here which can be discussed, I do not say improved on, for the former Chief Justice is a master of language; but he would himself never claim that every possible case can be included in a formula. The principle is one which I am happy to adopt: Addie's case as the plain general rule; room, in circumstances to be carefully defined, for a special duty of care. The other judgments, particularly that of Fullagar J. repay study: I take my two short excerpts from that of Windeyer J. Of a trespasser he says, at p. 318:
"The trespasser in his relation to the occupier thus really stands outside the law of negligence, for to him, considered simply as an entrant upon the land, the occupier has no duty of care. Such a duty may, however, arise from some circumstances beyond the mere fact of entry, as for example from the occupier's knowledge of the trespasser's presence and of his proximity to dangerous operations. It arises then not as a duty to him as a trespasser, but to him as an individual whose relation to the occupier has become that of a 'neighbour.'"
And later, at p. 321:
"No man has a duty to make his land safe for trespassers. But, if he has made it dangerous and the danger he has created is not apparent, he may have a duty to warn people who might come there of the danger of doing so. Whether there be such a duty in a particular case must depend upon the circumstances, including the likelihood of people coming there. But if they would be likely to come, the duty does not, in my view, disappear because in coming they would be trespassing. It is a duty owed to likely comers, to those who would be intruders as well as to those who would be welcome."
The recognition of a larger area surrounding Addie's case, which I favour, is well summed up in the first two sentences of the latter citation.
Quinlan's case (Commissioner for Railways v. Quinlan [1964] A.C. 1054) has been thought by later Australian cases, and some English authorities, to constitute an obstacle to a wider view of the law as regards trespassers. It was difficult and unusual in its facts, being concerned with a private railway crossing used by the respondent in conditions hard to define. No discussion of it would be fair unless it were squarely recognised that it came down firmly against the view that a duty of care (called in the judgment a "general duty of care") can coexist with the very limited duty to a trespasser stated in Addie's case. But it is important to see what was meant by this disclaimer.
The previous history of the case and form of the direction to the jury show very clearly, and importantly, that what the courts had to consider was whether Quinlan, though a trespasser, might suceed in negligence under "the duty of general care." This the Board rejected on a basis appearing early in the judgment. There is no principle, it is said, to be deduced from Donoghue v. Stevenson which throws any particular light upon the legal rights and duties that arise when a trespasser is injured on a railway level crossing where he has no right to be. More particularly the likelihood of a trespasser being present at some time or another is not sufficient to impose upon the occupier any general duty of care towards such trespasser. It is this proposition which the Board is concerned to justify from the authorities. With this proposition I have no desire to disagree. I would accept that in such a case the rules of Addie's case may adequately govern the situation. The trespasser is just a trespasser and there is no relevant set of circumstances - involving serious risk and proximity - sufficient to call in play a duty of care independent of the occupier-trespasser relationship. Indeed the proposition itself, by referring to "the general duty of care" carries its own affirmation. A general duty, without supporting circumstances giving rise to this duty and measuring its extent, is a meaningless idea. Donoghue v. Stevenson does not evoke it, Addie's case denies it. But it is a very different matter when proved circumstances exist sufficient to place a definable duty (however slight - for example, to warn) upon the person who is responsible of the existence of those circumstances, occupier or not, and I think that the judgment in Quinlan [1964] A.C. 1054, 1074 recognised this when it was, perhaps rather cryptically, said
"that, so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures . . . and the person who is injured - an important qualification - the occupier's duty is limited in the accepted terms."
(Can "a relevant" here be read as "the relevant"?) Whether sufficient circumstances of this kind were to be found in Quinlan's case is not a matter which need concern us. It is only when the judgment is invoked as a denial of the possibility of such circumstances and the correlative duty that I must part company with its interpreters. Further extensive citation is undesirable, but I must mention one passage where reference is made to the extract from the judgment of Kitto J. in Thompson's case (1953) 87 C.L.R. 619 cited above. The criticism made is again [1964] A.C. 1054, 1081 that the limited duty of an occupier to a trespasser cannot coexist with "the wider general duty of care appropriate to the Donoghue v. Stevenson formula": if there is to be another relation, the grounds of it must admit of reasonably precise definition, otherwise it will be impossible to direct juries in an adequate manner.
I think that Kitto J. has here been misunderstood. I do not understand him (or those who have followed him) to be arguing for a general duty of care: nor do I think that he would disagree with the necessity for reasonably precise definition; certainly I would not, and I fully recognise that, unless that is possible, plaintiffs such as the present plaintiff cannot, if they are outside the Addie rules, succeed. As was well said in the High Court, we should not be too ready to erode the general rule of Addie's case by discovering too easily special duties of care. (Munning's case (1971) 45 A.L.J.R. 378, 394, per Walsh J.)
There is one other point discussed in the judgment, upon which I find myself in agreement with the Board - that is the discussion of the (then) recent Court of Appeal case of Videan v. British Transport Commission [1963] 2 Q.B. 650. This, too, was a case of an infant trespassing on a railway and of a rescuer. The infant's claim failed but the majority in the Court of Appeal made (obiter) a distinction between simple occupation of land and the carrying on of operations on land, and held that as regards the latter the occupier's duty as regards a trespasser was "the common duty of care" or a duty to take "reasonable care." This duty arose whenever he "ought to foresee" their presence. The Board criticised this in two respects: first, as regards the words "ought to foresee" which it pointed out begs the whole question at issue - namely, whether there is a duty towards trespassers at all, and imposes far too wide a duty upon occupiers. Secondly - and this is consistent with the Board's general approach - it rejected the imposition of a general or common duty of care; in this I would agree with it but in a full statement of the law it would, in my opinion, be necessary to recognise the possibility both of a duty to foresee and of a special and limited duty of care arising out of and quantitatively measured by particular circumstances (see citations above from Quinlan's case and Munning's case). I think that the judgment of Pearson L.J. in Videan endorses this approach.
How does the matter rest? It is often said that the law on this topic is in confusion, but this is to do it less than justice. When one has eliminated from it complexities of fact situation (were the pedestrians in Lowery v. Walker trespassers or licensees according to the judge's notes, how did the wheel in Addie differ from that in Callan, were the children in Cooke licensees or trespassers?) and when once one has discarded fictions, rules can be seen to emerge from the mists with reasonable clarity, but I emphasise no greater clarity than we ought to expect from the common law, which always leaves a residue to be completed by common sense.
In general, an occupier of land owes no duty to trespassers, or intending trespassers: he is not obliged to make his land safe for their trespassing. If he knows, or "as good as knows" (Quinlan [1964] A.C. 1054, 1076), of the actual presence of a trespasser, he is under a duty - as defined in Addie's case - not to act with the deliberate intention of doing harm to him or to act with reckless disregard of his presence. I must return to this matter of recklessness, but at present it is enough to say that reckless disregard as used by Viscount Hailsham L.C. surely bears its normal meaning in the law -as akin to intentional injury, but instead of intention, not caring whether he does so or not. And this involves knowledge of the trespasser's presence.
I see no reason to discard the alternative test of "extremely likely" (Lord Buckmaster in Callan [1930] A.C. 404, 410), in relation to the trespasser's presence. Apart from its origin it has received support from Dixon C.J. and Windeyer J. ((1960) 104 C.L.R. 274, 286, 320) and other judges as well as the Privy Council in Quinlan. It excludes necessarily any lower duty of foreseeability in the general case by an occupier of trespassers' presence (see Quinlan [1964] A.C. 1054, 1072, 1074).
This is the general rule as stated by Lord Hailsham L.C. I think it is still a sound rule and I think that we must support it.
The question remains whether, in particular circumstances, a man may be under some duty of a particular kind, other than to abstain from wilful injury, or reckless disregard. A test more specific than that of "foresight of likelihood of trespass" and a definition of duty more limited than that of "the common duty of care" is required.
The dangers of too precise, or exhaustive, or codified, a definition are exemplified by Addie's case itself. On the other hand, to adopt the expedient of recoiling upon the comfortable concept of the reasonable man is hardly good enough. It evades the problem by throwing it into the lap of the judge. We must try at least to set up some boundary marks. I think it is safer to proceed by exclusion, and then to the facts of this case. An occupier is not under any general duty to foresee the possibility or likelihood of trespass on his land, or to carry out inspection to see whether trespass is occurring or likely. To suppose otherwise would impose impossible burdens. Nor can a trespasser by giving notice to the occupier that he may trespass at a particular place or time, by that fact create a duty towards him.
An occupier is under no general duty to fence his land against trespassers, or even against child trespassers: and in my opinion, in principle, this exclusion is valid whether or not the occupier is carrying on operations on the land or whether some danger exists through a static condition (e.g. a quarry Holland v. Lanarkshire Middle Ward District Committee, 1909 S.C. 1142). A poisoned pool (United Zinc & Chemical Co. v. Britt (1922) 258 U.S. 268) may give rise to a special duty.
Exceptions may be found (these are only examples) (a) in the case of pitfalls and analogous situations of dangers created near a place where the victim had a right to go, (b) in the case of allurements to children. The principle behind the latter is, in my opinion, not one of imputing a licence, but that of a duty to take reasonable steps not to place in the way of small children potentially hurtful and attractive objects.
In the particular case of railway companies, there is no general duty to erect or maintain fences sufficient to exclude adults or children - the case of Edwards is clear on this point and I respectfully think right: the only duty is to mark off the railway property. If more precautions are needed because of the proximity of a playground they may have to be taken by those in control of the playground, fencing in, rather than fencing out.
Then on the positive side I think that we can best serve the development of the law by concentrating on the particular type of case which has engaged the courts, and on which the law has been tested by experience. Just as in the l9th century the introduction of turntables, attractive to children, accessible and dangerous, gave rise to a jurisprudence known by their name, so we must take account of the placing of electrical conductors above or on the ground all over our overcrowded island and see where this leads as regards foresight and care. The ingredients of such duty as may arise must stem from the inevitable proximity to places of access, including highways, from the continuous nature of the danger, from the lethal danger of contact and from the fact that to children the danger may not be apparent. There is no duty to make the place safe, but a duty does arise because of the existence, near to the public, of a dangerous situation. The greater the proximity, the greater the risk, and correspondingly the need of foresight and a duty of care.
What is the nature of this duty of care? Again, it must be remembered that we are concerned with trespassers, and a compromise must be reached between the demands of humanity and the necessity to avoid placing undue burdens on occupiers. What is reasonable depends on the nature and degree of the danger. It also depends on the difficulty and expense of guarding against it. The law, in this context, takes account of the means and resources of the occupier or other person in control - what is reasonable for a railway company may be very unreasonable for a farmer, or (if this is relevant) a small contractor. If a precedent is needed for this concept of relative responsibility I may venture to refer to the Privy Council judgment in Goldman v. Hargrave [1967] 1 A.C. 645, 663 where in relation to another common law duty it was said (inter alia); ". . . the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances."
My Lords, in my opinion, if the law is such as I have suggested, the law as stated in Addie's case is developed but not denied; not, I venture to think, developed beyond what is permissible and indeed required of this House in its judicial capacity. It was suggested that some difficulty arose from the passing of the Occupiers' Liability Act 1957 the argument being that, as Parliament deliberately changed the law about invitees and licensees but not that concerning trespassers, the House was bound hand and foot by Addie's case at its narrowest. I do not follow this. There might be some force in an argument that for this House to depart from (i.e. overrule) Addie's case would, in effect, be to legislate where Parliament has abstained, but I can see no sense in supposing that when Parliament left the law alone as regards trespassers the intention was to freeze the law as, or as it was taken to be, in 1929. As this Act itself shows, what Parliament left alone in the case of trespassers, while displacing them in the cases of invitees or licensees, were the rules of common law. But the common law is a developing entity as the judges develop it, and so long as we follow the well tried method of moving forward in accordance with principle as fresh facts emerge and changes in society occur, we are surely doing what Parliament intends we should do. So long as liability continues to be based upon fault we may, indeed must, adjust it to reason and experience. I do not think that any argument can be drawn from the passing by the same Parliament three years later of the Occupiers' Liability (Scotland) Act 1961 which (section 2) defined the occupiers' duty towards trespassers as that of such care as in all the circumstances of his case is reasonable. But it is interesting to see that, in a case upon that section which reached this House, recognition was given to the differing standard of care which may be required towards invitees, licensees or trespassers. My noble and learned friend, Lord Reid, expressed this standard in words very appropriate to the issue in this appeal (M'Glone v. British Railways Board, 1966 S.C.(H.L.) 1.
Dealing now with the case of the infant plaintiff. In the Court of Appeal he succeeded on a basis of recklessness - that of the station master at the nearest station who some time before had been informed some six weeks earlier that on one occasion children had been seen somewhere on the line. As to this, unless "recklessness" means "gross carelessness", and in my opinion not even then, there is no basis on which the appellants can be liable for this injury. But I agree with Salmon L.J. and not with the majority in the Court of Appeal that recklessness, in this context, has its classical meaning.
In Quinlan's case the Privy Council suggested that the way ahead lay through an extended scope of wanton and reckless conduct. This may be enough in some cases. but in others, and in a case such as the present, I prefer a direct acceptance of an appropriate duty of care. The use of "recklessness" or imputed recklessness seems to me too like another fiction of the kind it is better to discard. However, if the approach I have suggested is correct, it will follow that a basis exists here upon which, given satisfactory proof, an action in negligence could lie.
I feel bound to say that I have less confidence than your Lordships or the trial judge that the proved facts make the case good. The evidence as to the condition of the fence at the relevant time, the means of access to it and the use of the open spaces on either side of the line ("the meadow was not much used by children" said the only witness) is exiguous. Conclusion upon it can hardly be reached without a degree of strain. Evidence as to the knowledge or lack of it as to the condition of the fence or the so-called path to the fence by the railway board (much less conspicuous than the official path leading to a footbridge over the railway close by, whose existence seems largely to be forgotten) or as to the system of maintenance, or lack of it, hardly exists. That it was necessary to call in aid the fact that six weeks before the accident the presence had been reported of some children of unspecified age, somewhere on the two-mile stretch of the line between Morden and Mitcham (the fact relied on as showing "recklessness") does not reassure me as to the solidity of the case. But there remains the fact of this electrified line lying between two open spaces albeit linked by a bridge and of the broken down chain link fence at a point near to where children might play and I think that there is force in the point that the board, once they knew of the gap, took immediate steps to repair it and indeed contended at one time that it was in repair at the critical time. The case is not therefore (as in Edwards' case) one of a barrier erected in accordance with statute hut in fact inadequate to keep children out, but of a barrier designed to be adequate, in view of the existing risk, and become inadequate through lack of maintenance. The distinction is, I think, a real, as well as a fine one. I am not prepared, especially in view of the judge's finding, to differ from your Lordships' view that, in relation to the special duty of care incumbent on the board in the relevant place, there was a breach of that duty amounting to legal negligence, but I am left with the feeling that cases such as these would be more satisfactorily dealt with by a modern system of public enterprise liability devised by Parliament.
I would dismiss the appeal.
LORD PEARSON. My Lords, in relation to an occupier of premises the position of a trespasser must be radically different from that of a lawful visitor. The broad effect of section 2 of the Occupiers' Liability Act 1957 is that an occupier of premises owes to his lawful visitors, i.e., the persons who come on the premises at his invitation or with his permission, the common duty of care; and that is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there. In my opinion, the occupier of premises does not owe any such duty to a trespasser: he does not owe to the trespasser a duty to take such care as in all the circumstances of the case is reasonable to see that the trespasser will be reasonably safe in using the premises for the purposes for which he is trespassing. That seems to me to be the fundamental distinction, and it should be fully preserved.
It does not follow that the occupier never owes any duty to the trespasser. If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated, it is a duty to treat the trespasser with ordinary humanity. Bird v. Holbrook (1828) 4 Bing. 628, 641; Grand Trunk Railway Co. of Canada v. Barnett [1911] A.C. 361, 369; Latham v. R. Johnson & Nephew Ltd. [1913] 1 K.B. 398, 411. But that is a vague phrase. What is the content of the duty to treat the trespasser with ordinary humanity? The authoritative formulation of the duty, as given in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358 is severely restrictive and is, I think, now inadequate. Subject to the difficulty created by that formulation, I think one can deduce from decided cases that, normally at any rate, the occupier is not at fault, he has done as much as is required of him, if he has taken reasonable steps to deter the trespasser from entering or remaining on the premises, or the part of the premises, in which he will encounter a dangerous situation. In simple language, it is normally sufficient for the occupier to make reasonable endeavours to keep out or chase off the potential or actual intruder who is likely to be or is in a dangerous situation. The erection and maintenance of suitable notice boards or fencing or both, or the giving of suitable oral warning, or a practice of chasing away trespassing children, will usually constitute reasonable endeavours for this purpose. Ilott v. Wilkes (1820) 3 B. & Ald. 304; Bird v. Holbrook (1828) 4 Bing. 628, Morran v. Waddell (1883) 11 R. 44, Ross v. Keith (1888) 16 R. 86; Cooke v. Midland Great Western Railway of Ireland [1909] A.C. 229; Lowery v. Walker [1911] A.C. 10, 13-14; Hardy v. Central London Railway Co. [1920] 3 K.B. 459; Mourton v. Poulter [1930] 2 K.B. 183, Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404; Edwards v. Railway Executive [1952] A.C. 737, 744 where Lord Porter said:
"In any case I cannot see that the respondents were under any obligation to do more than keep their premises shut off by a fence which was duly repaired when broken and obviously intended to keep intruders out.";
Perry v. Thomas Wrigley Ltd. [1955] 1 W.L.R. 1164; M'Glone v. British Railways Board, 1966 S.C.(H.L.) 1. If the trespasser, in spite of the occupier's reasonable endeavours to deter him, insists on trespassing or continuing his trespass, he must take the condition of the land and the operations on the land as he finds them and cannot normally hold the occupier of the land or anyone but himself responsible for injuries resulting from the trespass, which is his own wrongdoing. But that statement is subject to this proviso: if the occupier knows or as good as knows that some emergency has arisen whereby the trespasser has been placed in a position of imminent peril, ordinary humanity requires further steps to be taken: the very obvious example is that, if the driver of a train sees a trespasser fallen on the line in front of him, he must try to stop the train. The variety of possible situations is so great that one cannot safely try to formulate for all cases what steps an occupier is required to take for the protection or rescue of a trespasser, but the decided cases show what is required in typical situations, and that I have endeavoured to summarise. In Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274, 286, Dixon C.J. said:
"The duty is measured by the nature of the danger or peril but it may, according to circumstances, be sufficiently discharged by warning of the danger, by taking steps to exclude the intruder or by removal or reduction of the danger."
In the case of the poisonous berries in the public park (Glasgow Corporation v. Taylor [1922] 1 A.C. 44) the simplest and cheapest and most effective way of protecting children who might be tempted to eat them would have been, not the erection of a fence or warning notices, but to dig up and remove the tree or shrub on which the poisonous berries grew. But as an illustration of the duty to trespassers normally being sufficiently discharged by reasonable measures designed to exclude them from the situation of danger, I will cite a passage from the judgment of Windeyer J. in Munnings v. Hydro-Electric Commission (1971) 45 A.L.J.R. 378, 389. He said:
". . . the duty of care that the commission owed to the plaintiff was not a duty to have its pole safe for trespassers. It was a duty which arose from the very fact that it was dangerous to trespassers. High voltage electricity is a highly dangerous thing. To bring such a dangerous thing to a locality frequented by members of the public imposed a duty of care. That duty could be discharged by putting live wires beyond easy reach and not enabling unauthorised persons to come to them."
There are several reasons why an occupier should not have imposed upon him onerous obligations to a trespasser -
(1) There is the unpredictability of the possible trespasser both as to whether he will come on the land at all and also as to where he will go and what he will do if he does come on the land. I enlarged on this point in Videan v. British Transport Commission [1963] 2 Q.B. 650, 679, and I will only summarise it shortly here. As the trespasser's presence and movements are unpredictable, he is not within the zone of reasonable contemplation (Bourhill v. Young [1943] A.C. 92) and he is not a "neighbour" (Donoghue v. Stevenson) to the occupier, and the occupier cannot reasonably be required to take precautions for his safety. Occupiers are entitled to farm lands, operate quarries and factories, run express trains at full speed through stations, fell trees and fire shots without regard to the mere general possibility that there might happen to be in the vicinity a trespasser who might be injured. The occupiers do not have to cease or restrict their activities in view of that possibility, which is too remote to be taken into account and could not fairly be allowed to curtail their freedom of action.
(2) Even when his presence is known or reasonably to be anticipated, so that he becomes a neighbour, the trespasser is rightly to be regarded as an under-privileged neighbour. The reason for this appears, I think, most clearly from a consideration of the analogous position of a lawful visitor who exceeds his authority, going outside the scope of his licence or permission. In Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. [1936] A.C. 65, 69-70 Lord Atkin said:
". . . this duty to an invitee only extends so long as and so far as the invitee is making what can reasonably be contemplated as an ordinary and reasonable use of the premises by the invitee for the purposes for which he has been invited. He is not invited to use any part of the premises for purposes which he knows are wrongfully dangerous and constitute an improper use. As Scrutton L.J. has pointedly said: 'When you invite a person into your house to use the staircase you do not invite him to slide down the bannisters.' (The Calgarth [1926] P. 93, 110.) So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly. In the present case the stevedores knew that they ought not to use the covered hatch in order to load cargo from it; for them for such a purpose it was out of bounds; they were trespassers. The defendants had no reason to contemplate such a use; they had no duty to take any care that the hatch when covered was safe for such a use; they had no duty to warn anyone that it was not fit for such use."
In Munnings v. Hydro-Electric Commission (1971) 45 A.L.J.R. 378, 382 Barwick C.J. said:
"Of course, in determining what ought to have been foreseen, as well as in deciding what steps ought to have been taken or omitted in the particular case, the right, or absence of right of the injured person to have been at the place where he was injured, or at the point from which his injuries stemmed, would be material factors. Though the rigid categories of invitee, licensee and trespasser may not be applicable as such there must remain a quantitative element both in the extent of the foreseeability and of the reasonable steps required to fulfil any resultant duty arising from the circumstances in which the injured person came upon the scene."
(3) It would in many, if not most, cases be impracticable to take effective steps to prevent (instead of merely endeavouring to deter) trespassers from going into or remaining in situations of danger. The cost of erecting and maintaining an impenetrable and unclimbable or, as it has been put, "boy-proof" fence would be prohibitive, if it could be done at all. The cases of M'Glone v. British Railways Board, 1966 S.C.(H.L.) 1, McCarthy v. Wellington City [1966] N.Z.L.R. 481 and Munnings v. Hydro-Electric Commission (1971) 45 A.L.J.R. 378 illustrate the agility, ingenuity and persistence of boy trespassers. As Lord Goddard said in Edwards v. Railway Executive [1952] A.C. 737, 747, referring to the Railway Executive:
"Had they to provide watchmen to guard every place on the railways of the Southern Region where children may and do get on to embankments and lines, railway fares would be a great deal higher than they are already."
(4) There is also a moral aspect. Apart from trespasses which are inadvertent or more or less excusable, trespassing is a form of misbehaviour, showing lack of consideration for the rights of others. It would be unfair if trespassers could by their misbehaviour impose onerous obligations on others. One can take the case of a farmer. He may know well from past experience that persons are likely to trespass on his land for the purpose of tearing up his primroses and bluebells, or picking his mushrooms or stealing his turkeys, or for the purpose of taking country walks in the course of which they will tread down his grass and leave gates open and watch their dogs chasing the farmer's cattle and sheep. It would be intolerable if a farmer had to take expensive precautions for the protection of such persons in such activities.
I have said that an occupier does not owe to a trespasser the "common duty of care," which is now the relevant statutory expression for the occupier's duty to lawful visitors. It can also be said that the occupier does not owe to the trespasser any general duty of care. This question was fully considered and decided in the case of Commissioner for Railways v. Quinlan [1964] A.C. 1054. The question was directly raised by the trial judge's directions to the jury. Viscount Radcliffe said, at pp. 1069-1070:
". . . their Lordships think that there is no doubt that the jury must have received the definite impression that the law that they were to apply to the facts was that, once they thought that there was 'a likelihood' of people coming to the crossing and that the appellant was aware of such a likelihood, the appellant owed a general duty to the respondent as 'a member of the public' to take reasonable precautions to secure his safety, and that this duty was not affected by the fact that the respondent was a trespasser. In their Lordships' opinion this direction was not in accordance with law. . . . The court had . . . ordered a new trial, because in their view the case, if retried, might show that the respondent, though a trespasser, was nevertheless entitled to claim from the appellant the duty of general care and a liability in negligence for a breach of it: such a duty, it was suggested, might be founded on a general principle derived from the House of Lords' decision in Donoghue v. Stevenson [1932] A.C. 562. Their Lordships think this view mistaken. They cannot see that there is any general principle to be deduced from that decision which throws any particular light upon the legal rights and duties that arise when a trespasser is injured on a railway level crossing where he has no right to be: more particularly, they consider that it is not correct in principle to suppose that the mere fact that there was a likelihood, apparent to the occupier, of a trespasser being present on the crossing at some time or another is sufficient to impose upon the occupier any general duty of care towards such a trespasser. The consequences of such a supposition would be far-reaching indeed."
I respectfully agree with that passage.
Viscount Radcliffe also said (p. 1074), referring to what he described as "the accepted formulation of the occupier's duty to a trespasser," that:
". . . what is intended is an exclusive or comprehensive definition of the duty. Indeed, there would be no ,point in it if it were not. It follows then that, so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured - an important qualification - the occupier's duty is limited in the accepted terms."
There is economy of doctrine, simplicity of principle, in having one exclusive and comprehensive formula defining the duty of occupier to trespasser. But the formula itself has created difficulties and aroused criticism, and I think it is not now adequate or defensible as applying to modern conditions. Before coming to the formula, I will attempt a summary of the principles so far dealt with.
It seems to me that there is rational justification for the common law attitude towards trespassers, in so far as it has recognised that - (a) in relation to an occupier the position of a trespasser is radically different from that of a lawful visitor; (b) the unknown and merely possible trespasser is not a "neighbour" in the sense in which that word "neighbour" was used by Lord Atkin in Donoghue v. Stevenson. and the occupier owes to such a trespasser no duty to take precautions for his safety; and (c) if the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier - (i) does not owe to the trespasser the common duty of care (which is the single statutory substitute for the different duties formerly owing to invitees and licensees); (ii) does not owe to the trespasser a general duty of care; but (iii) does owe to the trespasser a lower and less onerous duty, which has been described as a duty to treat him with ordinary humanity.
So far so good. In so far as those are the rules of the common law on this subject, they seem to be fully acceptable. The difficulty, however, arises from the narrow formulation of the duty to trespassers in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358. Lord Hailsham L.C., after stating the duties of occupiers towards invitees and licensees, said, 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 on to 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."
Viscount Dunedin said, at pp. 376 377:
"In the present case, had the child been a licensee I would have held the defenders liable: secus if the complainer had been an adult. But if the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him: he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found, but they all come under the same head - injury either directly malicious or an acting so reckless as to be tantamount to malicious acting."
The formulation is too narrow and inadequate in at least three respects.
First, it appears to hold the occupier liable only for positive acts and not in respect of omissions. Suppose that the occupier is running an electrified railway, with an exposed live rail, in the vicinity of a public playground, and that he has not provided any warning notice or fence to deter children from straying on to the railway, and in consequence a child strays on to the live rail and is seriously injured. Surely common sense and justice require that the occupier must be held liable in such a case for his nonfeasance. I doubt, however, whether it was intended to confine liability to positive acts. Perhaps the words "act" and "acting" in Addie's case can be interpreted as including omissions.
Secondly, the formulation appears to say that the occupier has no duty to do anything for the protection of trespassers until there is a trespasser actually on the land and the occupier knows he is there. But again the case of a child straying on the live rail of an electrified railway shows that there must be a duty on the occupier to take some steps in advance to deter children from trespassing on the railway.
Thirdly, the formulation makes the occupier liable only in respect of deliberate or reckless acts. I think the word "reckless" in the context does not mean grossly negligent but means that there must be a conscious disregard of the consequences - in effect deciding not to bother about the consequences. Thus a subjective, mental element, a sort of mens rea, is required as a condition of liability. Mere negligence would not be enough to create liability according to this formulation. There would be no duty to take care, but only a duty to abstain from deliberately or recklessly causing injury. That is plainly inadequate.
It must be conceded that Addie's case does not stand alone. There is other authority to the effect that a man trespasses at his own risk and must take the land as he finds it. Hamilton L.J. said in Latham v. R. Johnson & Nephew Ltd. [1913] 1 K.B. 398, 411:
"The rule as to trespassers is most recently indicated in Lowery v. Walker [1911] A.C. 10, 13 and is stated and discussed in Grand Trunk Railway Co. of Canada v. Barnett [1911] A.C. 361. The owner of the property is under a duty not to injure the trespasser wilfully; 'not to do a wilful act in reckless disregard of ordinary humanity towards him'; but otherwise a man 'trespasses at his own risk.' On this point Scots law is the same. In English and Scottish law alike, when people come on the lands of others for their own purposes without right or invitation, they must take the lands as they find them, and cannot throw any responsibility upon the person on whose lands they have trespassed: per Lord Kinnear, Devlin v. Jeffray's Trustees (1902) 5 F. 130, 134."
The rule was applied to child trespassers in Hardy v. Central London Railway Co. [1920] 3 K.B. 459.
Nevertheless the rule was evidently found to be unsatisfactory in cases both before and after Addie's case especially in cases where child trespassers were concerned. Where there had been frequent trespassing and no effective prevention of it, a licence was held to be implied, although there was no voluntary grant of permission. Instances are Cooke v. Midland Great Western Railway of Ireland [1909] A.C. 229; Lowery v. Walker [1911] A.C. 10; Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404. In such cases the licence was a legal fiction by which the harsh rule of law was circumvented and, one may say, eroded. See per Viscount Dunedin in Excelsior Wire Rope Co. Ltd. v. Callan at p. 411 and per Lord Denning in Miller v. South of Scotland Electricity Board, 1958 S.C. (H.L.) 20; and in Videan's case [1963] 2 Q.B. 650, 663. As Dixon C.J. pointed out in Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274, 285, that is how the common law develops. See also Quinlan's case [1964] A.C. 1054, 1083-1084. Also in more recent times there has been another development or attempted development of the law to circumvent the harsh rule in Addie's case. Distinctions have been made (a) between the liability of the occupier and the liability of other persons who carry out active operations on the land; (b) between the liability of the occupier qua occupier and his liability qua operator himself carrying out active operations on the land. The theory is that, whereas the occupier qua occupier has a large measure of exemption from liability in respect of the static condition of the land, the occupier or any other person carrying out active operations on the land has the full duty of care even towards a trespasser under the "neighbour" principle of Donoghue v. Stevenson. Per Lord Denning in Miller's case; Dunster v. Abbott [1954] 1 W.L.R. 58, 62 and Videan's case [1963] 2 Q.B. 650, 664. See also Buckland v. Guildford Gas, Light and Coke Co. [1949] 1 K.B. 410; Davis v. St. Mary's Demolition and Excavation Co. Ltd. [1954] 1 W.L.R. 592 and Creed v. McGeogh & Sons Ltd. [1955] 1 W.L.R. 1005. Reservations or doubts about this theory were expressed in Miller's case 1958 S.C. (H.L.) 20, 35, 36, in Perry v. Thomas Wrigley Ltd. [1955] 1 W.L.R. 1164, 1166 and in Videan's case [1963] 2 Q.B. 650, 678. In so far as the theory has gained acceptance, it constitutes another circumvention and erosion of the rule in Addie's case.
I should, however, make it plain that I do not accept the theory. I doubt whether there is any major distinction for the present purpose (i) between the static condition of the land and active operations on the land (ii) between the occupier and other persons (such as his servants or agents or independent contractors or employees of public authorities) lawfully carrying out operations on the land and having control of the operations and perhaps of the land as well for the time being (iii) between trespass on land and trespass on installations or railway vehicles. Occupation is associated with control and is a ground of liability, not of exemption from liability. The trespasser's movements are unpredictable and he goes into places where he has no business to be and imposes his unwanted presence: these considerations affect what can reasonably be required not only in the case of the occupier but also in the case of such other persons.
It seems to me that the rule in Addie's case has been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law. With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or back yards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass. Also with the progress of technology there are more and greater dangers for them to encounter by reason of the increased use of, for instance, electricity, gas, fast-moving vehicles, heavy machinery and poisonous chemicals. There is considerably more need than there used to be for occupiers to take reasonable steps with a view to deterring persons, especially children, from trespassing in places that are dangerous for them.
In my opinion the Addie v. Dumbreck formulation of the duty of occupier to trespasser is plainly inadequate for modern conditions, and its rigid and restrictive character has impeded the proper development of the common law in this field. It has become an anomaly and should be discarded. But in my opinion the duty of occupier to trespasser should remain limited in the ways that I have endeavoured to indicate.
I need not lengthen this already long opinion by describing again the facts of the present case which have been described by my noble and learned friends. The railway board in the circumstances had a duty to take reasonable steps to deter children from straying from the public space on to the electrified railway line. Obviously, reasonable steps for this purpose included proper maintenance of the fence. But the railway board failed to repair the broken down fence even after they had been notified that children had been seen on the line. There was a clear breach of the duty.
I would dismiss the appeal.
LORD DIPLOCK. My Lords, in a heavily populated suburban area of London there are two public open spaces in which children of all ages are accustomed to play. Between them runs a line of the appellants' railway equipped with live electric rail which would cause serious injury or even death to anyone who came into contact with it. Its dangerous character would not be appreciated by little children. It is within a few yards of the boundary between the railway and one of the open spaces - Bunces Meadow. Along the boundary is a chain-link fence four feet high. But at one point, approached by a well-trodden path across the meadow it had, for several weeks before June 7, 1965, been pressed down to a height of no more than ten inches from the ground. It presented no obstacle to access to the live rail by children too young to appreciate the danger. On June 7, 1965, the respondent, a child aged six years, crossed the fence at this point, came into contact with the live rail and sustained very serious injuries.
If the facts as to the use of the meadow and the condition of the fence which I have just recited were known to those responsible for running the railway, I believe that anyone endowed with common humanity would say that the common law ought to afford to the injured child a legal right to compensation against the railway authorities; and th.at if it did not there was something wrong with the common law.
The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.
A court may take judicial notice that railway lines are regularly patrolled by linesman and gangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.
Even if these inferences are drawn, it is the submission of the appellants that the common law affords no remedy to the injured. Such is said to be the ineluctable consequence of the decision of this House over forty years ago in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929l A.C. 358 and, in particular, is said to follow from the lapidary statement in the speech of Lord Hailsham L.C. 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 on to 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."
Addie's case was one of trespass by a child aged four and a half years. It was decided in the year that I started to read for the Bar. Even at that time it offended against what Lord Atkin, only three years later, was to call "a general public sentiment of moral wrongdoing for which the offender must pay." Donoghue v. Stevenson ([1932] A.C. 562, 580) I well recall the disappointment with which it was received by those who thought that previous cases in this House had shown the common law as moving towards a less draconian treatment of those who trespassed innocently upon other people's land.
If the facts in the instant appeal are compared with those in Addie's case as stated by Lord Hailsham L.C., at pp. 359-360, I do not think it possible to say that, judged by current standards of behaviour, the conduct of those engaged in operating the appellants' railway in the instant case was any more blameworthy than the conduct of those engaged in running the colliery of the successful appellant in Addie's case. Yet all nine judges who have been concerned with the instant case in its various stages are convinced that the plaintiff's claim ought to succeed, and, if I may be permitted to be candid, are determined that it shall. The problem of judicial technique is how best to surmount or to circumvent the obstacle presented by the speeches of the Lord Chancellor and Viscount Dunedin in Addie's case, and the way in which those speeches were dealt with in the Privy Council in the comparatively recent Australian appeal of Commissioner for Railways v. Quinlan [1964] A.C. 1054.
By the time that Addie's case was decided the law as to an occupier's duty towards trespassers had made some advance since Best C.J. in Bird v. Holbrook (1828) 4 Bing. 628 had laid it down that an occupier was not entitled intentionally and maliciously to injure a trespasser. For present purposes the significance of that case, which arose out of setting of spring guns to injure trespassers, is two-fold. First, it recognised that the duty, whatever its content, was owed by the occupier to an unknown but expected trespasser as well as to a trespasser actually known to the occupier to be trespassing on his land. Secondly, Best C.J. based the duty upon its being the object of English law to uphold humanity. This expression found its echo in Lord Robson's reference in Grand Trunk Railway Co. of Canada v. Barnett [1911] A.C. 361, 370 to "a wilful or reckless disregard of ordinary humanity" which was adopted by Lord Sumner, then Hamilton L.J., as the definition of the duty of an occupier to a trespasser, in his judgment in Latham v. R. Johnson & Nephew Ltd. [1913] 1 K.B. 398, 441 - a judgment which was expressly approved by both the Lord Chancellor and Viscount Dunedin in Addie's case.
But attention had been diverted from the development of the content of an occupier's duty towards trespassers by the adoption of the technique of re-classifying as "licensees" persons whom the occupier had not made sufficiently effective efforts to exclude from his land, so as to give them the benefit of the ready-made duty of care for their safety owed at common law by an occupier to those who, in reality, entered upon his land by his permission and not against his will. This technique had been accepted without adverse comment in cases in this House itself. Cooke v. Midland Great Western Railway of Ireland [1909] A.C. 229 and Lowery v. Walker [1911] A.C. 10 are noteworthy examples. The resulting duty may be briefly summarised as a duty to take reasonable steps to enable the licensee to avoid a danger known to the occupier.
In Addie's case the First Division of the Court of Session had departed from this technique and sought to recognise as a separate category of persons to whom a duty was owed, members of a class whom the occupier knew to be in the habit of resorting to his land without his permission. The majority had held that to such trespassers the occupier owed a duty to take reasonable steps to deter their intrusion if it was likely to result in serious injury to them. The decision of this House in Addie's case was primarily directed to asserting the propositions: that persons present upon an occupier's land could be assigned to one of three mutually exclusive categories only, viz. invitees, licensees and trespassers; that there was no sub-division of the category of trespassers; and that the duty owed by an occupier to a person on his land was determined solely by the category into which that person fell. In order to decide the appeal, however, it was also necessary to state the content of the duty towards trespassers - the category into which it was held that the respondent fell - in order to determine whether the appellant was in breach of it. This the Lord Chancellor did in the passage that I have cited.
In Addie's case the child had not been found by the Court of Session to be a licensee. The decision of this House did not therefore directly impugn the technique of inferring the tacit permission of the occupier to an intruder's presence on his land from his failure to take effective steps to manifest to the intruder his objection to it. Indeed Addie's case appeared to confirm this as the only way of mitigating the lot of meritorious trespassers; though the actual decision on the facts showed a greater reluctance to make use of it than had been evinced by the members of this House who had decided Lowery v. Walker.
The technique accordingly continued to be used. Appellate courts confined themselves to preventing what was felt to be its misuse - as this House did in Edwards v. Railway Executive [1952] A.C. 737. Lord Porter there refers to it in terms as "the doctrine of implied licence" and says, at p. 744, that:
"where the owner [sc. occupier] of the premises knows that the public or some portion of it is accustomed to trespass over his land he must take steps to show that he resents and will try to prevent the invasion"
if he is to avoid the implication. Lord Goddard, with whose speech my noble and learned friend, Lord Reid, agreed, based the implied licence on estoppel, at p. 747: the occupier must have "so conducted himself that he cannot be heard to say that he did not give it" (sc. permission to go upon his land). Lord Oaksey said, at p. 748:
"The circumstances must be such that the suggested licensee could have thought and did think that he was not trespassing but was on the property in question by the leave and licence of its owner."
It is implicit in each of these statements that even when there is no real consent by the occupier to a person's entry on his land, there may be circumstances in which a mere failure to take reasonable steps to deter entry will confer upon a person entering, the same common law rights as respects his personal safety as if he had been the occupier's licensee.
That the "licence" treated as having been granted in such cases was a legal fiction employed to justify extending to meritorious trespassers, particularly if they were children, the benefit of the duty which at common law an occupier owed to his licensees, was explicitly acknowledged by Dixon C.J. in Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274. What he said on this topic was approved by the Privy Council in Commissioner for Railways v. Quinlan [1964] A.C. 1054, 1083 who added:
". . . those conceptions of licence or permission, . . . are virtually without meaning, at any rate as applied to small children."
The facts in Lowery v. Walker [1911] A.C. 10 stated at the beginning of the report show that in the case of adults the so-called "licence" could be equally fictitious.
By use of the fiction of a "licence" to persons who would otherwise be trespassers the courts were enabled to recognise that there were circumstances which imposed upon an occupier a duty either (a) to take reasonable steps to deter such persons from entering upon a part of his land where he knew they would be exposed to serious risk of personal injury; or, if he did not do so, (b) to take reasonable steps to enable them to avoid the danger. Breach of the former duty entitled them to the status of "licensees"; the acquisition of that status entitled them to the benefit of the latter duty. Once the circumstances which impose these duties have been identified in a sufficient number of cases to form a body of precedent upon their own, the fiction has served its purpose in the development of the common law and is ripe for discard. The misfortune of Addie's case was that the majority of the Court of Session tried to discard the fiction before the time was ripe to do so. The need to retain it persisted so long as it continued to be accepted doctrine that a duty to regulate one's conduct towards one's neighbour so as to reduce the risk of injuring him, could only arise if there were some pre-existing legal relationships between the parties which fell within some category already recognised at common law. This obstacle to the rational development of an occupier's duty towards trespassers was penetrated by the decision of this House in Donoghue v. Stevenson [1932] A.C. 562 and broken down by Bourhill v. Young [1943] A.C. 92. The significance of these two cases for present purposes is not the content of the duty there discussed but the recognition that conduct likely to cause injury to another person could in itself create the legal relationship between the parties to which the duty attached.
It is surely time now for this House to follow the example of Dixon C.J. and of the Privy Council in Quinlan's case and to discard the fiction of a "licence" to meritorious trespassers. Once the conduct of the occupier is recognised as being capable in itself of creating a legal relationship to another person which attracts duties owed to that person in respect of his safety, it is no longer necessary in cases where that conduct attracts a duty to take reasonable steps to deter another person from entering a dangerous part of the occupier's land, to sub-divide his duties to that person into a duty to deter his entry, a breach of which gives rise to a subsequent duty to take reasonable steps to enable him to avoid the danger. To deter his entry is merely one way of enabling him to avoid the danger. The whole duty can be described as a duty to take reasonable steps to enable him to avoid the danger.
My Lords, this approach clearly runs counter to that of this House in Addie's case. It rejects categorisation of the injured person as a trespasser or licensee as the source of any duty owed to him by the occupier to take steps for his safety and looks instead to the conduct of the occupier as creating the relevant relationship. Addie's case asserts the necessity for such categorisation, but by leaving intact the technique of inferring a licence by the occupier to a person to whose presence on his land he does not really consent, it transfers from the category of trespassers to that of licensees, persons who for the purposes of all other incidents of the legal relationship between them and the occupier, except his duty to take steps for their safety, would remain in the category of trespassers. But, as each of the previous citations from the speeches in Edwards' case confirms the criteria for eligibility for transfer from one category to the other depended upon the conduct of the occupier. So, even upon this approach, the inquiry necessarily started with an examination of the occupier's conduct before the person subsequently injured enters upon his land. These criteria were not defined or analysed in the speeches in this House in Addie's case. It simply held that the particular facts found in that case did not justify treating the trespassing child as if she were a licensee.
My Lords, this House has since 1966 abandoned its former practice of adhering rigidly to the ratio decidendi of its previous decisions. There is no longer any need to discuss whether to discard the fiction of a so-called "licence" to enter granted by the occupier of land to the person who suffers personal injury on it, should be characterised as over-ruling Addie's case or as doing no more than explaining its reasoning in terms which are in harmony with the general development of legal concepts since 1929 as to the source of one man's duty to take steps for the safety of another. For my part I would reject the fiction and direct attention to the kind of conduct of an occupier of land which attracts the duty to take reasonable steps to enable a person who enters on his land without his actual consent, to avoid a danger of which the occupier knows.
I come now to Quinlan's case. Owing to the way in which it had proceeded in the courts of New South Wales, no question arose in the Privy Council as to the status of Mr. Quinlan as a "trespasser" upon the level crossing where he was injured. The judgment of the Board was mainly directed to rejecting the proposition that there were circumstances in which a person entitled only to the status of "trespasser" might be owed by the occupier upon whose land he was trespassing the common duty of care laid down in Donoghue v. Stevenson - which was higher duty than that which is owed by an occupier of land to his licensees in Australia where the common law has not been replaced by statutory provisions such as those to be found in the English Occupiers' Liability Act 1957. In the course of examining three recent decisions of the High Court of Australia on which the rejected proposition was said to be based, the Privy Council expressly approved the actual decision in Cardy's case upon the ground that, at p. 1083:
"The circumstances seemed to place the case squarely among those 'children's cases,' in which an occupier who had placed a dangerous 'allurement' on his land is liable for injury caused by it to a straying child."
It was in the context of such cases that the Privy Council recognised the unreality of the "licence" to the straying child. But although recognising the "licence" as a fiction, they accepted the correctness of the conclusions as to the legal consequences of the conduct of the occupier which had hitherto previously been accepted as constituting an implied "licence" to the person trespassing and so entitling him to the benefit of the higher duty owed by an occupier to take steps for the safety of his licensees.
My Lords, Quinlan's case is authority for the proposition that an occupier does not owe to a person who is unlawfully upon his land the common duty of care and foresight as respects dangerous activities which he carries out there, that he owes to persons who are lawfully present there, as was the successful plaintiff in the contrasting Australian level-crossing case (Commissioner for Railways v. McDermott [1967] 1 A.C. 169) which came to the Privy Council a few years later.
I have no quarrel with Quinlan's case as an authority for this proposition. What I regard as defective in its reasoning is that, although it is recognised that, in the case of children at any rate, their categorisation as "licensees" instead of "trespassers" was a mere legal fiction, it failed to recognise that it was a necessary corollary that "the general formula as laid down in Addie's case" was not, as had been stated earlier in the judgment, "an exclusive or comprehensive" statement of the duty owed by an occupier to those who entered on his land, otherwise than in the exercise of a legal right or with his actual consent.
But although the Addie test (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) was accepted as being exclusive or comprehensive, the Privy Council went on to say, at p. 1084:
"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."
A formula which is both exclusive and expansive seems to me, as a matter of linguistics, to be a contradiction in terms. For my part I would not follow the alternative route thus hinted at by which an amelioration of the law in favour of meritorious trespassers might be attained. I think it preferable to seek to identify the underlying principles which had been tacitly accepted in Addie's case as justifying exclusion from the category of intruders to whom the Addie test applies, those persons to whom judges have hitherto managed to ascribe the status of licensee without acknowledging the fictitious character of their imputed "licence" from the occupier.
Any duty imposed by common law upon one person to take steps to avoid harming another arises out of some relationship recognised by the common law as subsisting between the two persons. Where the harm to be avoided is personal injury a necessary characteristic of the relationship is one of physical proximity between the person to whom the duty is owed and the person by whom the duty is owed or something whose dangerous condition that person has played a part in creating or continuing. Where the dangerous thing is situate upon land in private occupation and is dangerous only to persons who come onto the land, the necessary characteristic of proximity between the occupier of the land and a person who sustains harm from the dangerous thing is created by that person's own act in coming onto the land.
There is thus a relevant distinction between a person who is lawfully upon the occupier's land with the occupier's consent and a trespasser. In the case of the former the occupier has consented to the creation of the relationship from which the duty flows; in the case of the trespasser the relationship has been forced upon the occupier against his will and as the result of a legal wrong inflicted on him by the trespasser himself.
This distinction, as it seems to me, supplies the jurisprudential basis for the proposition, implicit in the Scots cases about fencing land against trespassers, which were cited with approval by Viscount Dunedin in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358, 374-376, and explicit in Quinlan's case [1964] A.C. 1054, that the occupier is not under any duty to take any precautions in advance to acquaint himself as to the likelihood or otherwise of trespassers coming onto any part of his land. He is entitled to assume that persons will not inflict a wrong upon him unless he has actual knowledge of the likelihood that they will do so. It would be an unjustifiable burden for the law to impose upon an occupier for the benefit of wrongdoers, a duty to make inspections and inquiries in order to ascertain whether or not trespassers were likely to come onto his land. So in the ordinary case of a person to whom the occupier has not given permission to come upon his land, keeping the danger within the boundaries of his own land is itself a fulfilment of any duty he may owe to such a person to take reasonable steps to enable him to avoid such danger. The test of whether an occupier is under any duty to a trespasser to do more than to keep the danger within the boundaries of his land is whether he is actually aware of facts which make it likely that some trespasser will come onto that part of his land where the danger is. It is not what the occupier would have been aware of if he had exercised more diligence or foresight than he did.
My Lords, the degree of expectation that a trespasser will come upon his land that is sufficient to impose upon him a duty to take any additional steps to enable such a trespasser to avoid the danger and whether there are any elements in it which require recourse to the standards of a reasonable man, can best be discussed after considering what is the content of that duty when it arises.
The duty at common law owed by an occupier to a licensee as it was explained a hundred years ago by Willes J. in the two leading cases of Indemaur v. Dames (1866) L.R. 1 C.P. 274 and Gautret v. Egerton (1867) L.R. 2 C.P. 371 was restricted to a duty to warn the licensee of traps or concealed dangers actually known to the occupier but not to the licensee. What constituted an adequate warning depended on the circumstances, including the age and understanding of the licensee. Since the licensee. unlike the invitee, came on to the premises for his own purposes it was his own responsibility to avoid dangers of which he knew or could have known by the exercise of reasonable care himself. It is for this reason that I have summarised the duty as a duty to take reasonable steps to enable a licensee to avoid a danger known by the occupier to exist upon his land.
The result of the technique of imputing a "licence" to trespassers of a class whom the occupier knew were in the habit of coming on to his land was to extend to them the benefit of this duty. In contrast to the common law duty owed by an occupier to an invitee the test of a breach of the duty was in modern legal parlance "subjective" rather than "objective." The duty to warn extended to concealed dangers of which the occupier actually knew and not to those of which he did not know, although he would have done if he had exercised more diligence in inspecting his land than he did
This "subjective" duty was owed by an occupier to licensees of whose actual presence on the land and consequent exposure to danger he was unaware but ought to have foreseen because he had given them permission to go there. As respects licensees of whose presence and exposure to danger he was actually aware the content of his duty as I have summarised it differs very little in substance from Lord Hailsham L.C.'s description in Addie's case of conduct of an occupier which renders him liable to a trespasser leaving aside intentional injury. He stated the occupier's duty to a trespasser whom he knew to be present, in the negative form of a duty to refrain from doing an act "with reckless disregard of the presence of the trespasser," whereas I have summarised the occupier's duty to a trespasser whom he knows to be exposed to danger, in the positive form of a duty to take reasonable steps to enable the trespasser to avoid the danger. But positive and negative descriptions of duties of this kind may be ways of describing the two sides of the same coin. In the passage immediately before that which I have quoted Lord Hailsham L.C. had stated the occupier's duty to his licensee in the negative form [1929] A.C. 358, 365:
". . . he is bound not to create a trap or to allow a concealed danger to exist upon the said premises, . . . which is known - or ought to be known - to the occupier"
though the inclusion of the words "or ought to be known" does, I think, overstate the accepted definition of the common law duty to licensees.
It is possible to conceive of circumstances where the concealed danger is due to the natural condition of the land, but all the actual cases in the books are about man-made dangers and it is to these that the language of the judgments is directed. Man-made danger may be the result of an act done while the trespasser is actually present on the land, as was the case in Addie's case itself, or an act done before the trespasser came on to the land. It can hardly be supposed that Lord Hailsham L.C. intended to draw a distinction between the liability of the occupier for setting the haulage machinery in motion when the child was known to be close to the pulley wheel and allowing it to continue in motion after the child was known to have approached the wheel. In either case his conduct would manifest "a reckless disregard of ordinary humanity." In the context of recklessness of conduct there is no rational distinction between activity and inactivity.
The practical effect of the technique of imputing a "licence" to trespassers of whose actual presence on the land the occupier was not aware was thus to put them in the same position vis-a-vis the occupier as if he had actually known of their presence and consequent exposure to a concealed danger of which he had actual knowledge.
Actual knowledge of a concealed danger, however, may involve two different mental elements: actual knowledge of an activity carried out upon the land or of its physical condition, which constitutes a concealed danger to a person on the land; and actual appreciation that the known activity or condition does constitute a concealed danger. The relevance of this analysis, particularly in cases in which any activities on the land are carried out by servants of the occupier for whose fault he is vicariously liable, does not appear to have been appreciated until comparatively recently, when the current vogue for classifying the tests of legal duties as either "subjective" or "objective" made it desirable to identify who the relevant "subject" was. It played no part in judicial reasoning at the time of Addie's case. The possibility of drawing a distinction between knowledge of physical facts and appreciation of danger was first suggested in argument in Baker v. Bethnal Green Borough Council [1945] 1 All E.R. 135. It was eventually accepted by the Court of Appeal in Hawkins v. Purley and Coulsdon Urban District Council [1954] 1 Q.B. 319 in order to impose upon a corporation as occupier liability based upon the actual knowledge of the physical facts from which the danger arose. It was held that although the test of knowledge of the physical facts which constituted the concealed danger was subjective (did the occupier either personally or vicariously by his servants actually know them?), the test of appreciation of the danger resulting from the known facts was objective (would a reasonable man possessed of that knowledge of the physical facts appreciate the danger?).
If this can be characterised as an enlargement rather than a mere explanation by judicial decision of an occupier's duty to his licensees it was a development which had taken place before the Occupiers' Liability Act 1957 had substituted a statutory duty of care for the common law duty previously owed to licensees. That Act did not touch the occupier's duty to trespassers at common law. It left it to continue to be developed by judicial decision. Actual knowledge of concealed danger is a factor common to the duty previously owed at common law by an occupier to his licensees and to the duty still owed by an occupier to trespassers.
There is, in any event, a certain artificiality in ascribing an appreciation of risk to a fictitious person, a corporation - as this defendant is and as nowadays most defendants are. Knowledge of facts calls for the use of eyes and ears; and these a corporation has through its employees, even the humblest. If any of them learns of the facts in the course of his employment his knowledge is the knowledge of the corporation. But appreciation of risk of danger calls for the exercise of intelligent judgment; and it is the judgment of the corporation itself which is relevant. What human minds are to be treated as those of the corporation for the purpose of exercising that judgment? To take an example of what may have been the facts of the present case if the appellants had chosen to disclose them. The linesman when he saw the broken fence may have appreciated the risk of danger to trespassing children but have failed to report the state of the fence out of laziness or forgetfulness. Or, whether or not he himself appreciated the risk, he may have reported the state of the fence in terms which did not draw the attention of the recipient of his report to the danger involved. Or the recipient may himself have appreciated the risk but to save himself trouble decided to do nothing about it. And so on up the chain of responsibility to the employee of the corporation endowed with authority to order the fence to be repaired. Is appreciation of the risk by any one employee in this chain to be treated as appreciation of risk by the corporation itself?
One possible solution in the case of a corporation is to apply the objective standard of the reasonable man, by attributing to the fictitious person, the a fictitious mind and judgment of a reasonable man. It would, however, be more consistent with the way in which English law develops, to apply to "actual knowledge of a danger" as a factor in the duty of an occupier to trespassers the same analysis as was adopted in relation to the occupier's duty at common law to his licensees. This avoids differentiating between the real and the fictitious person as occupier and solves the metaphysical difficulties of ascribing to the latter an actual appreciation of the risk. To see the danger signal yet not to take the trouble to give some thought to it is conduct which the law ought to condemn.
My Lords, I conclude therefore that there is no duty owed by an occupier to any trespasser unless he actually knows of the physical facts in relation to the state of his land or some activity carried out upon it, which constitute a serious danger to persons on the land who are unaware of those facts. He is under no duty to any trespasser to make inspections or inquiries to ascertain whether there is any such danger. Where he does know of physical facts which a reasonable man would appreciate involved danger of serious injury to the trespasser his duty is to take reasonable steps to enable the trespasser to avoid the danger. What constitute reasonable steps will depend upon the kind of trespasser to whom the duty is owed. If the duty is owed to small children too young to understand a warning notice the duty may require the provision of an obstacle to their approach to the danger sufficiently difficult to surmount as to make it clear to the youngest unaccompanied child likely to approach the danger, that beyond the obstacle is forbidden territory.
Such being, as I would hold, the content of the occupier's duty to a trespasser, I return to the consideration of the class of trespassers to whom the duty is owed and, in particular, to the degree of expectation on the part of the occupier that the trespassers will come on to his land which, in the absence of actual knowledge of his presence, is sufficient to give rise to the duty. It is a problem which does not arise in the case of licensees to whom he has given permission to come there.
In Quinlan's case a variety of expressions were used to describe the necessary degree of expectation. The occupier must "as good as know" that the trespasser is present at the time of the injury. His presence must be fairly described as "extremely likely" or "very probable." I do not find these latter phrases helpful save as a warning that the presence of trespassers being unpredictable as compared with that of licensees, this unpredictability must not be allowed to impose upon the occupier a duty to give his mind to all the possible circumstances in which a trespasser might come on to his land. If this branch of the law is based upon "ordinary humanity" it would seem evident that there must be a relationship between the degree of expectation and the degree of danger. In the case of a minefield, as in Adams v. Naylor [1944] K.B. 750, or a live electric rail, an ordinarily humane man would regard it as incumbent upon him to take precautions to protect intruders against the mortal danger which these objects present although the likelihood of there being intruders was much less than that which would cause him to take precautions to protect intruders against more innocuous perils. Furthermore, the relevant likelihood is that of the trespasser's presence at the place and time of danger. If the danger is created by an occasional or intermittent activity upon the land, such as putting machines or vehicles in motion, the test of the creation of the occupier's liability to the injured trespasser is his expectation of a trespasser's presence at the point of danger at that moment of activity. Whereas if the danger lies in some permanent condition of the land, such as a live rail, the test is his expectation of some trespasser's presence at the point of danger at any time while that condition continues to exist. Thirdly, in the case of children, the degree of attractiveness to children of something present on the land, is relevant to the occupier's expectation that child trespassers will come on to his land and will approach the point of danger, as well as being relevant to the kind of precaution he must take to protect them from the danger.
My Lords, an occupier's expectation of a trespasser's presence, like his knowledge of a concealed danger, also involves two mental elements: actual knowledge of physical facts which indicate that trespassers are likely to come on to the land; and appreciation of the resulting likelihood. For reasons similar to those which I have indicated I think that, as the law has now developed, the test of appreciation of the likelihood of trespass is whether a reasonable man knowing only the physical facts which the occupier actually knew, would appreciate that a trespasser's presence at the point and time of danger was so likely that in all the circumstances it would be inhumane not to give to him effective warning of the danger or, in the case of a child too young to understand a warning, not to take steps to convey to his infant intelligence that he must keep away. I do not think that a judge or jury would find any difficulty in applying this test.
I would then seek to summarise the characteristics of an occupier's duty to trespassers on his land which distinguishes it from the statutory "common duty of care" owed to persons lawfully on his land under the Occupiers' Liability Act 1957 and from the common law duty of care owed by one man to his "neighbour," in the Atkinian sense, where the relationship of occupier and trespasser does not subsist between them. To do so does involve rejecting Lord Hailsham L.C.'s formulation of the duty in Addie's case as amounting to an exclusive or comprehensive statement of it as it exists today. It takes account, as this House as the final expositor of the common law should always do, of changes in social attitudes and circumstances and gives effect to the general public sentiment of what is "reckless" conduct as it has expanded over the forty years which have elapsed since the decision in that case.
First: The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or of facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger. He is under no duty to the trespasser to make any inquiry or inspection to ascertain whether or not such facts do exist. His liability does not arise until he actually knows of them.
Secondly: Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser's presence or the risk to him involved, does not absolve the occupier from his duty to the trespasser if a reasonable man possessed of the actual knowledge of the occupier would recognise that likelihood and that risk.
Thirdly: The duty when it arises is limited to taking reasonable steps to enable the trespasser to avoid the danger. Where the likely trespasser is a child too young to understand or heed a written or a previous oral warning, this may involve providing reasonable physical obstacles to keep the child away from the danger.
Fourthly: The relevant likelihood to be considered is of the trespasser's presence at the actual time and place of danger to him. The degree of likelihood needed to give rise to the duty cannot, I think, be more closely defined than as being such as would impel a man of ordinary humane feelings to take some steps to mitigate the risk of injury to the trespasser to which the particular danger exposes him. It will thus depend on all the circumstances of the case: the permanent or intermittent character of the danger; the severity of the injuries which it is likely to cause; in the case of children, the attractiveness to them of that which constitutes the dangerous object or condition of the land; the expense involved in giving effective warning of it to the kind of the trespasser likely to be injured, in relation to the occupier's resources in money or in labour.
My Lords, upon the findings of the trial judge in the instant appeal, I find no difficulty in inferring that through the eyes or ears of one or other of their servants the appellant board did know the physical facts that made it likely that little children playing in Bunces Meadow would trespass on their line and, if they did so, would run a serious risk of grave if not mortal injury from the electric rail. Breach of the other characteristics of the duty which then arose, is in my view, established. I would, therefore, dismiss this appeal.
It might, however, leave this branch of the common law of England still in confusion if this House did not state categorically the respects in which the test of an occupier's duty to a trespasser differs from that stated by the majority of the Court of Appeal in Videan v. British Transport Commission [1963] 2 Q.B. 650 and reiterated by the whole court in Kingzett v. British Railways Board (1968) 112 S.J. 625 despite the intervening adverse comment by the Privy Council in Quinlan's case.
In the instant case the trial judge felt that he was bound to follow the reasoning of Videan's case and Kingzett's case. The Court of Appeal felt able to decide it without recourse to Videan's case, by treating the stationmaster's failure to do anything except to warn the police when children had trespassed on the land two months before, as falling within Lord Hailsham L.C.'s formula in Addie's case as "an act done with reckless disregard of the presence of a trespasser." This was, I think, unduly censorious of the station-master as an individual. It was unnecessary to apportion among its individual servants the blame which lay upon the incorporated board. The reckless act was that of the fictitious person, the board itself, in allowing the deadly current to flow through the live rail when, through one or more of its servants it knew the physical facts which made it likely that a little child would stray from Bunces Meadow and come in contact with the rail.
The test propounded by the majority of the Court of Appeal in Videan's case is, in my view, wrong in three respects.
(1) It draws an unwarrantable distinction between a "static" condition of the occupier's land and an "activity" which the occupier carries out on it. In respect of activities of the occupier on the land it accords the trespasser the status of "neighbour" vis-a-vis the occupier despite the fact that he has forced this relationship upon the occupier against the latter's will and by a wrongful act done to the occupier.
(2) It treats the source of the relationship which gives rise to the occupier's duty towards a trespasser in respect of "activities" as mere foreseeability of the trespasser's presence, just as in the case of someone lawfully on his land. This suggests that there is some duty on the occupier to make inspections or inquiries in order to acquaint himself of the likelihood of a trespasser's coming on to his land. There is no such duty.
(3) It treats the duty of the occupier to the trespasser in respect of "activities" as identical with his duty to persons lawfully on his land instead of the more restricted duty to take reasonable steps to enable the trespasser to avoid concealed dangers resulting from the existence of facts actually known to the occupier.
In the instant appeal your Lordships are concerned only with the liability of an occupier of land towards a trespasser whose presence on the land is a legal wrong committed by the trespasser upon the occupier himself. This is not necessarily the same as the liability of some other person, who carries on an activity on the land with the permission of the occupier, towards a person who, though a trespasser vis-a-vis the occupier, commits no legal wrong upon him who carries on the activity. There are three cases at first instance in which it has been held by judges of great eminence that a contractor. who is not the occupier of land, owes to trespassers on the land the ordinary common law duty of care owed by one man to his neighbour. That he is a trespasser vis-a-vis the occupier was treated as relevant only to the foreseeability of his presence. (See Buckland v. Guildford Gas, Light and Coke Co. [1949] 1 W.L.R. 410; Davis v. St. Mary's Demolition and Excavation Co. Ltd. [1954] 1 W.L.R. 592; Creed v. McGeogh & Sons Ltd. [1955] 1 W.L.R. 1005.) In Videan's case [1963] 2 Q.B. 650, 664 it was asserted baldly that there was neither rhyme nor reason why the occupier's liability to a trespasser should differ from that of a contractor. There is at least one possible reason in logic and in law. Disapproval of the ratio decidendi of Videan's case does not necessarily involve any conflict with the decisions in the three contractor's cases to which I have referred. The instant case is not an appropriate one in which to deal with the liability to trespassers of persons who are not the occupiers of the land on which the trespass is committed.
ORDER
Appeal dismissed.
