Acting with Common Humanity
| Published date | 01 July 1972 |
| Date | 01 July 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02357.x |
ACTING
WITH
COMMON
HUMANITY
"
[All] nine judges who have been concerned with the instant
ctm
[sc.
British
Railways Board
v.
Ilerrington
'3
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 Lord Hailsham
L.C.
and Viscount Dunedin in
Addie
V.
Dumbreck
and the way in which those speeches were dealt
with in the Privy Council in the comparatively recent Australian
appeal of
Railway Commissioner
v.
Quinlan
3.'y
THE
obstacle referred to by Lord Diplock was, of course, the insis-
tence by the House of Lords and Privy Council respectively that a11
occupier of land could only be liable to a trespasser injured thereon
if he injured him intentionally
or
acted in reckless disregard of his
pre~ence.~
As
is commonplace this restrictive approach has some-
times been circumvented in the past by classifying the entrant
as
an
implied licensee G-a technique which was viewed sympathetically
by the House of Lords in the instant case but seen as being
''
ripe
for discard." Occasionally the obstacle has been surmounted by
insisting that the partial immunity only applied to so-called
"
QCCU-
pancy
"
as opposed to
"
activity
"
duties
or,
as a variation, that
it
did not preclude the existence of a wider duty of care where there
was some other relevant relationship subsisting between the partics
beyond that of occupier and trespa~ser.~ The former suggested
19721
1
All
M.R.
7.19;
[1972]
2
W.L.R.
537.
E
19291
A.C.
368.
j19721
1
All
E.R.
749,
7876
per
Lord D~plock.
The whole topic has now been conipiehensively suivqed in Kortli,
Occupicrc'
Iiability
(1971),
Chap.
11.
See
c.g.
Coolre
v.
Midland Great Western
Hy.
of
Ireland
[1909]
A.C.
229;
Lou:cry
v.
Walker
[1911] A.C. 10
and
cf.
Edwards
v.
Huilway
Executit,c
[I9531 A.C.
737;
Commissioner
for
&7ihQ~s
V.
Cardy
(1960)
104 C.L.R. 274,
685
per
Ilixon
C.J.
There is a close association with cases where children
have been attracted by
an
"
allurement
":
see
e.9.
Glasgow Carp.
V.
Taylor
;1922]
1
A.C. 44.
Cf.
[1972]
1
All
1b.R.
749, 789F
per
Lord I)iplocl<.>
See
e.g.
Videan
v.
British Transport Cominisszon
[19G3:
2
Q.B.
630;
[lo631
3 All
E.R.
860;
Ihgzett
v.
British
Railways
Ronrd
(1968) 112 S.J.
R23.
'l'hih
*aR
the approach adold,ed
by
the trial Jndge
(Cairns 7.)
in the present
case.
Cf.
T~OI~L~~OII
v.
~~UN~~~~OWII
Ifunicipal
Couticd
(1952)
S7
C.L.R.
619
;
Slunninys
v.
HyJ/o-Electric ComiiLissioil
of
Tasmania
(1971) 45 A.L.J.R.
378.
But
in
both cabes the defendant was
not
the occupier
of
the land over which
the
high
tension electric cables passed, and the plaintiff
waq,
at
mod,
a
technical trespasser
on
the pole itself at the time
of
injury.
[igq A.C. 1054; rig641
1
AH
E.R.
897..
409
410
THE
MODERN
LAW
REVIEW
VOL.
3.5
limitation was unanimously rejected by the House of Lords,Io
although Lord Wilberforce's speech indicates that he, at least,
was
prepared to adopt the latter approach."
Again the difficulty has been overcome by simply holding that
the occupier
had
acted in reckless disregard of the trespasser's
presence. Hence in the present case the Court
of
Appeal
so
labelled
the defendant Board's conduct
in
failing to repair the dilapidated
fence thus allowing the infant trespasser through onto the electrified
railway line.12 The House of Lords was unable to agree with this
conclusion
or,
indeed, with the assumption of the majority of the
Court of Appeal that
"
reckless disregard
"
meant simply gross
carelessne~s.~~
As
befits a court now largely freed from the
shackles of precedent, the House preferred, rather,
to
reistate the law
in a way which was variously described as a
"
development
"
of
Addie's
ease
l4
or
a departure from it.15 Any change in the law has,
however, been a strictly limited one stopping well short of a straight-
forward adoption of the neighbour principle.1e
The general picture which emerges is
that
an
occupier will owe a duty to a trespasser whose presence
is,
in
the words of Lord Pearson,
"
known to him
or
reasonably to be
When
is
a
duty owed?
10
C].
[1972j
1
All
E.R.
749,
7551;
(Lord Iieid);
ibid.
at
1).
7ti7J
(Lord Morris);
p.
7853
(Lord Pearson); p.
776A
(Lord Wilberforce); p.
797C
(Lord Diplock).
11
Cf.
ibid.
at
p.
772C where his Lordship complains of
a
"
narcotic preoccupation
with the o&upier/trespasser relationihip,"-and at p.
774B
wh& he adopts
the principle t,hat there is,," room, in circumstances to he carefully defined,
for
a
special duty of care. There
is
an
obvious difficulty in reconciling this
approach with
Quinlan's
case (above, note
3).
His Lordship sought to meet
it by pointing out
(a:,
p.
775D) that
4p"
Privy Council only insisted that the
"
reckless disregard test
was
an
exclusive or comprehensive definition
of
lhe duty
"
for
"
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
.
.
.":
cf.
[1964]
1
XI1
E.H.
897,
SOBG.
See
also
Munnings
v.
HydTo-Electric
Con~nission
(1.971) 45
A.L.J.H.
378, 390
(Windeyer
J.);
p.
394
(Walsh
J.)
and p.
397
(Gibhs
J.)
Commissioner
for
12ailways
v.
McUcrmott [1967]
1
A.C.
169; [1966]
2
All
E.R.
162
(P.C.)
is dificult to reconcile with the reasoning in
Quinlan.
12
'19711
1
All
E.R.
8'37; [1971]
2
W.L.R.
477
and,
in
general, C.
J.
Miller
11971) 39
M.L.H.
458.
See
also
Ezcelsior
Wire
Rope
Co.
Ltd.
V.
Callan
[1930]
A.C.
404;
illourton
v.
Poulter
[1930]
2
K.B.
183.
1s
Cf.
[1972]
1
All
E.R.
749, 7843,
"
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-.
. .
a
sort of
mens Tea
is required
as
a
con-
dition of liability"
per
Lord Pearson. See also
ibid.
at
p.
758B
(Lord Reid);
7763
(Lord Wilberforce). Lord Morris was
of
the opinion that the word
"
reckless
"
envisaged positive conduct rather
t.han
inaction
:
cf. ibid.
at
p.
7673.
1,s
Cf.
ibid.
at
p.
762H
(Lord Morris), and p. 7788 (Lord WilLerforce).
15
Cf.
ibid.
at
p.
7576
(Lord Reid) and at p. 786C (Lord Peerson). Lord Diplock
found it unnecessary to decide whether
Addie
was
being overruled:
cf.
ibid.
at
p.
790F.
1';
Hence Lord Pearson,
c.g.
stressed that the occupier did
not
''
owe
to
the
trespasser
a
duty to take such care as in all the circumstances
of
the case is
reasonable
.
. .":
ibid.
at
p.
779F.
Lord Wilberforce similarly thought it
necessary to adopt a test
''
more specific than that
of
'
foresight, of likelihood
of
trespass
'
nnd a ilcfinition of duty more limited than that
of
the common
ilutp
of
care
*
. .
.":
ibid.
at p.
776G.
See
also
TJord
Diplock
at
p.
791C.
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