Andrew Scott (Plaintiff) Associated British Ports (First Defendants) British Railways Board (Second Defendants) Michael Swainger (Plaintiff) Associated British Ports (First Defendants) British Railways Board (Second Defendants)
| Jurisdiction | England & Wales |
| Judgment Date | 18 March 1999 |
| Judgment citation (vLex) | [1999] EWHC J0318-6 |
| Date | 18 March 1999 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | 1993-S-No.0387 |
[1999] EWHC J0318-6
In the High Court of Justice
Queen's Bench Division
Sheffield District Registry.
Royal Courts of Justice.
Constitution: Miss A.J. Rafferty Q.C., sitting as a Deputy Judge of the High Court.
1993-S-No.0387
Counsel: Mr. Kieran May for both Plaintiffs
Mr. David Pittaway for both Defendants.
JUDGMENT TO BE HANDED DOWN on
on Thursday 18th March 1999 at 9.45 a.m. in the Royal Courts of Justice.
Confidential to counsel, their instructing solicitors, and the parties.
JUDGMENT.
Andrew Scott (AS) lost a leg as a result of an accident on the Hull Docks Railway in 1988. Michael Swainger (MS) lost a leg and an arm in the same fashion and on the same railway in 1992. Although not initially consolidated these two actions were effectively tried as such by agreement. The sole issue before me was liability. Each accident occurred on the stretch of line between Southcoates Lane to the west and Hedon Road to the south.
In the area of Hull Docks, land is owned by the first defendants Associated British Ports (ABP). The dock railway runs outside the operational area of the docks themselves, and is operated by the second defendant, British Railways Board (BRB). For the purposes of this action they need not be distinguished, and the legacy they inherited from their predecessors need not be rehearsed.
Earlier this century there flourished the passenger railway known as the Withernsea line, running from Withernsea to Hull. It fell prey to the Beeching axe in 1964, its track was lifted in the early 1970's, it's route being informally adopted as a path, and subsequently becoming a cinder track known as "the old Withernsea". The fencing needed when it was a functioning railway dwindled into non-existence over the years. By 1988 when AS was injured few locals could remember any fencing at all.
The two plots of ABP land, A and C, with which we are concerned have as their eastern boundary Southcoates Lane, their northern the old Withernsea, and their southern the Hedon Road. (Plan, Bundle C page 60). Since the closure of the Withernsea railway they have been unfenced to the north, and there is effectively unfettered access from the west, and from the Bilsdale Grove area where a right of way crosses the line. Locals have for some time used the land for walking, exercising dogs, bicycling, and the like.
There existed as part of a public footpath a footbridge over the line at Bilsdale Grove ("the old footbridge") which was so vandalised over a period preceding Andrew Scott's accident as to have become unsafe. In an interim period when it was unusable, the suspended right of way was resited de facto directly across the tracks. Following correspondence between Hull City Council and ABP as to which body should pay how much and for what, the detail of which is not relevant, a new shorter footbridge ("the new footbridge") was built in July 1997 upon the same site.
Two more footpaths feature in the relevant area. One runs from the Holderness drain to the Hedon Road, and another, its status unclear, alongside the maternity hospital to Southcoates Lane Bridge. To gain it locals would regularly cross the tracks rather than follow an orthodox but longer route. Mr. White set out exactly that point in evidence. No-one was surprised.
Running close to the new footbridge is the Holderness Drain, which, as Mr. May for the Plaintiffs explained to us, drains Holderness. To the untutored eye it resembles a small canal, and youngsters use it for bathing. Unfenced and beguiling, it was considered a danger by the two headmasters from whom I heard, Messrs. Salt and Ayton, and they regularly warned pupils of the risks attached to illicit water sports in it.
South of the railway and crossing the Hedon Road is the Delhi Street bridge, a useful landmark for the site of MS's accident. It takes road and foot traffic. The evidence from Mr. Levesley, a retired BR guard, was that it was unusual to see youngsters playing in that area.
Following MS's accident the defendants fenced the area from the New Inn west to the Hedon Road. In September 1992 they began a paling fence, but in February 1993 from Southcoates Lane Bridge to the Delhi Street Bridge at Hedon Road, all on the north side of the railway, they erected the 2.1 m palisade fence which we saw on our view on 24 th February. At the same time they fenced the area south of the Hedon Road as far as the train office (plan Bundle C page 60).
I was greatly helped by the view which Mr. May suggested and which Mr. Robinson organised on 24 th February 1999.
The first plaintiff in time is Andrew Scott. Now 26, when a child of 15, on April 12th 1988 he played truant from Greatfield School in Hull with a number of friends. They spent the morning chatting and avoiding detention, having got their tick in the register. They returned to get their afternoon tick, and then walked to the area of the accident, using the old Withernsea. They positioned themselves near the Bilsdale Grove portion of track.
Although some of the group were sniffing glue AS said he and one maybe two others did not. A couple of their friends went further on down the track, bought the glue, and brought it back to the others. Upon hearing the freight train approaching along the dock railway, he emerged from the bushes, where the non-sniffers had been whilst the sniffers sniffed, and decided to reach for the ladder mounted on the side of one of the wagons. It is difficult to see the young man who gave evidence before me withstanding peer group pressure, aged 15, and declining to sniff glue. The witness statement of his friend Windross (Bundle A page 206) is graphic in its description of Andrew Scott being far worse "on the glue" than the others, and I am persuaded that he did sniff glue. He recalls stretching out his arms, but then blackness descended. His left leg was severed by the train, which did not stop, there being no indication to the crew that there had been any incident. Grasping the access ladder attached to a moving wagon is known as train surfing ("surfing").
On one or two earlier occasions AS had surfed a train, but at least one had been a run up to and a sitting upon a flatback, which was easier. He and his friends were representative of their peers. He described himself and them as "usual", in the sense that one would see "kids jumping on the back".
He said he knew that youngsters regularly played on or near the railway and surfed the trains, not thinking for a moment of what the consequences might be. He saw no-one to tell them off, and no train ever stopped. Typically a youngster would travel ten to fifteen feet upon the train, jumping off before it gathered speed.
Mr. Leslie Levesley had spent his working life on the railways, as fireman or guard, and the last five or so years saw him on the dock railway. He told of proper procedure where youngsters seen trespassing, which included reports to the signalman, or to British Rail ("BR"), or stopping the train and fruitlessly chasing. This may have been best practice but perhaps not always adopted, given that no youngster spoke of it.
On 16 th June 1992 the second defendant Michael Swainger (MS) then aged a little short of 14 years, truanted from Greatfield school with a group of friends. They gained the area of the railway near the Delhi Street bridge over the Hedon Road. MS said the lads threw stones at targets on the lines, or that he awaited the disappearance of glue sniffers so as safely to make his way home. His peers, however, accepted in their witness statements that he had, with them, hidden in undergrowth for some twenty minutes until a train approached. I find this account more realistic. As the train approached, he tried to grasp a ladder which he thought was fixed at right angles to the wagon, but which I accept was flush to the side, failed to maintain his grip, fell, and was so badly injured as to require amputation of one leg and arm.
ABP by way of Mr. George Robinson the Deputy Ports Manager established that there was not only no permission for these plaintiffs to go onto the railway line, but also none for them to enter the land. Each claimed he was unaware that he should not have been on the land and I accept that. I am not however persuaded that there existed an implied licence to enter. It would however defy common sense to conclude that they were unaware they were trespassing when they neared the track and surfed the train. AS agreed his witness statement described police more than once jumping from a train, called a "Q" train, and chasing youths. If caught, they would be reported to their parents. He always escaped the pursuing officers. In evidence he thought he had muddled British Transport Police ("BTP") officers with BR employees, and that no train had ever stopped nor had BR staff chased youths away. MS accepted that he knew walking along the track was wrong, and I reject his following claim that had a train approached him were he on the track he would not have been aware of the danger to him. I am in no doubt that each was and knew himself to be a trespasser.
In British Railways Board v Herrington (1972) All ER 749 the House of Lords dealt with the problem of the stringent test contained within R. Addie and Sons (Collieries) v Dumbreck (1929) All ER Rep., that an occupier had a duty merely to avoid acting with the deliberate intention to do harm to a trespasser or with reckless disregard of his presence. In Herrington Lord Reid, grappling with the public policy considerations of a child as trespasser, thought that an occupier, who does not assume but has thrust...
To continue reading
Request your trial