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British Railways Board -v- Herrington

Court: House of Lords

Date: 16 February 1972

Coram: Lord Reid, Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Pearson and Lord Diplock

References: [1972] 2 WLR 537

Cur Ad Vult


Feb. 16.


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:

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:

Later he said, at p. 555:

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:

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:

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:

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:

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

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.


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;

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,