Andrew Scott (Claimant/Appellant) v Associated British Ports and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,LORD JUSTICE MUMMERY,LORD JUSTICE SIMON BROWN |
| Judgment Date | 22 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1122-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/1999/1194 |
| Date | 22 November 2000 |
[2000] EWCA Civ J1122-3
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Miss Ann Rafferty QC
sitting as a Deputy Judge of the High Court)
The Royal Courts of Justice
The Strand
London WC2A
Lord Justice Simon Brown
Lord Justice Mummery
Lord Justice Latham
B3/1999/1194
B3/1999/1195
MR S BROWN QC (instructed by Philip Hamer & Co, 9/11 Scale Lane, Hull) appeared on behalf of the Appellants
MR D PITTAWAY QC (instructed by Constant & Constant, Sea Containers House, 20 Upper Ground, Blackfriars Bridge, London 5EA) appeared on behalf of the Respondents
Wednesday 22 November 2000
: These two appellants sustained serious injuries in two separate accidents on a railway line running from docks at the eastern end of Hull to the main line in Hull itself. Both accidents occurred on a stretch of line which crossed open, disused land and was, to all intents and purposes, unfenced. The appellants claimed damages from the first respondent as owners of the land, and from the second respondents as the operators of the railway. In the first instance, both appellants based their claims in negligence. Ultimately however, they alleged breach of the duties owed to them as trespassers under the Occupiers Liability Act 1984. Their case, put simply, was that the line should have been fenced.
On 18 March 1999 Miss Ann Rafferty QC (as she then was) sitting as a deputy judge of the High Court, dismissed their claims. She held that, on the facts, neither respondent owed any duty to either appellant, that the appellants were fully aware of the risks they took of being injured, so as to preclude them from obtaining any damages on the basis that they had willingly accepted those risks, and that, in any event, fencing would not have prevented either appellant from getting on to the line. She further concluded that, if she were wrong, each appellant was 75 per cent responsible for the injuries that he received.
The first appellant was born on 15 June 1972. He sustained his accident as long ago as 12 April 1988, when he was 15 years of age. He was a pupil at Greatfield School. He and some friend were playing truant on the day in question. In the course of the afternoon some, at least, of the group were sniffing glue amongst some bushes alongside the track. As a freight train passed at a slow speed, which was customary, the first appellant emerged from the bushes and tried to climb on to the access ladder attached to one of the wagons, but fell. His left leg was severed by the train, which did not stop, none of the train crew being aware that there had been an accident. His evidence was that he was doing what a number of other youngsters did, to his knowledge, which was to try to cling to the side of the wagon until the train started to accelerate, when he would have jumped off. This practice was known as "surfing".
In his evidence he said that he did not know that he should not have been on or near the track. But in the witness statement he made after the accident, he described seeing on more than one occasion police jumping from a train called a" Q train" and chasing youths from the area around the line. Anyone caught would be reported to their parents. The deputy judge found, having heard his evidence, that he knew full well that he was a trespasser and should not have been on the line on that day.
The second appellant was born on 18 October 1978. On 16 June 1992, when he was 13, he also was playing truant from Greatfield School with a group of friends. Like the first appellant, he was hiding in undergrowth by the side of the track until a train approached. As it passed, he likewise attempted to climb a ladder on the side of a wagon, but failed to maintain his grip, fell and was so badly injured that one leg and one arm had to be amputated. The deputy judge found that he, too, knew full well that he was a trespasser.
The deputy judge found that the respondents did not know of the practice of "surfing" before the accident of the first appellant. She further found that they were not aware before then of any facts which could have given them reasonable grounds for believing that the practice existed. She accepted, however, that the position was different after the first appellant's accident. She accepted that representatives of the respondents attended schools in the vicinity, particularly Greatfield School, warning pupils of the risks of trespassing on the line and, in particular, trying to "surf" on the wagons. She also accepted that the respondents had received letters from a Mr Johnson and Mr Salter, directors of a company which occupied a yard adjacent to the line, drawing their attention to dangers created by trespassers. In particular, in a letter of 17 June 1971, Mr Salter described gangs of youths jumping aboard trains, and expressing concern that one or more of the youths would get seriously hurt. However, the particular concern that he and his co-director Mr Johnson had was that youths would throw ballast into their yard which was adjacent to the railway line. There was other evidence from a director of another business adjacent to the line, which described youngsters running alongside, grabbing, mounting and running along the top of, sitting on or hanging from the trains, but this evidence came in the form of an unsigned statement which was not tested in evidence.
The deputy judge held that in the light of the evidence she had heard, the respondents did have knowledge of the risk of injury to youngsters resulting from "surfing" at the time of the second appellant's accident. However, she concluded that the second appellant was fully aware from the warnings that had been given to him at school of the dangers of "surfing". She accepted evidence from his peers that they also knew full well of the dangers, and rejected his own evidence to the effect that he did not. Her conclusion in relation to both appellants was as follows:
"These plaintiffs were nearly 16 and nearly 14. They were aware of the danger the line constituted. Neither would have strolled across in front of an approaching train, neither was unaware of the risk he ran by surfing. It is significant that they stand alone in the nature of their action despite the existence of the railway and the running of trains upon it, in the vicinity of at least three schools for a good many years. They had no answer to the point that although the evidence shows the presence on ABP [the first respondents'] land of...
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