British Railways Board v Herrington

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date02 December 1970
Judgment citation (vLex)[1970] EWCA Civ J1202-4
Date02 December 1970

[1970] EWCA Civ J1202-4

In The Supreme Court of Judicature

Court of Appeal.

(Civil Division)

(From: Mr. Justice Cairns — London)


Lord Justice Salmon

Lord Justice Edmund Davies and

Lord Justice Cross

Peter Thomas Herrington (an infant by his mother and next friend Kathleen Louise Herrington)
British Railways Board

Mr. R.A. GATEHOUSE, Q.C. and Mr. ROBERT ALEXANDER (instructed by Mr. Evan Harding) appeared on behalf of the Appellants (Defendants).

Mr. DAVID HUNTER (instructed by Messrs. Parker, Fogg & Pinsent) appeared on behalf of the Respondent (Plaintiff).


An electrified railway line belonging to the defendants, the British Railways Board, runs through Mitcham in Surrey. There is a railway station at Mitcham Junction. The station-master is responsible for a two-mile stretch of this line between Mitcham Junction and Morden Road Halt. Part of this stretch is bounded on one side by Morden Hill Park and on the other by Bunces Meadow. There are houses in the vicinity, and Morden Hill Park and Bunces Meadow are National Trust property freely open to the public. They are each fenced off from the railway line by a chain-link fence 4 feet high supported by concrete posts 8 ft. 6 ins. apart. The meadow was sometimes used by children as a playground. A public road runs along the side of the meadow furthest from the railway line. From this road a gate opens into the meadow. From the gate a path leads directly to the fence bounding the railway line. At a short distance from the line the path turns off at right-angles towards a footbridge but it also continues straight up to the .fence. On the 7th June, 1965, the part of the fence opposite the path was in a dilapidated condition. It had been broken down so that its top was no more than 10 inches from the ground and offered no barrier to the railway line. It had probably been in that condition for several months prior to the 7th June. Directly opposite this dilapidated fence there was a hole in the fence on the Morden Hill Park side of the line. People were using the broken-down part of this fence in Bunces Meadow and the hole in the fence in Morden Hill Park as a short cut across the line.


On the 7th June, 1965, the plaintiff, a little boy who was then 6 years of age, had been playing in Bunces Meadow with his two brothers, who were a few years older than he was. The plaintiff walked over the broken-down fence onto the railway line and came into contact with the live electrified rail. As a result, he suffered very serious injuries and but for the heroism of his rescuers would probably have been killed. It was conceded that the plaintiff was a trespasser on the defendants' property. Onthe 15th April, 1965, about six weeks before this accident, the station-master at Mitcham Junction was notified that children had been seen on the stretch of the line to which I have referred. This appears from the station-master's written memorandum of the 15th April, 1965. The memorandum ends with the words "The Mitcham Police were requested to investigate". No document has been disclosed by the defendants to suggest that the stationmaster took any other action. The clear inference is that he did not do so. Otherwise there would probably be some written record of what he had done. Nor has any document been disclosed by the defendants requiring the fences bounding the line to be inspected regularly or at all. There are no reports prior to the 7th June, 1965, of any inspection ever having taken place. It is plain from these facts, including the fact that the part of the fence in question had probably been broken down for some months prior to the accident, that no system of inspection existed. The plaintiff brought this action claiming damages for negligence against the defendants for, amongst other things, permitting the fence to remain in the dilapidated condition which I have described and failing to take any sufficient steps to inspect, repair or maintain the fence when they knew that it was very likely that children would come on to the line unable to distinguish the live rails from the others, and indeed not knowing what a live rail is. The plaintiff alleged that this constituted negligence and amounted to recklessness on the part of the defendants. The defendants called no evidence.


The learned judge held that the defendants had been negligent in the respects alleged by the plaintiff and that their negligence had caused the accident. He made no finding as to whether or not the defendants' conduct amounted to recklessness. He gave judgment for the plaintiff for £7,440. The defendants now appeal from this judgment on the ground that, since the plaintiff was a trespasser, they owed him no duty in law to take any care for his safety. The plaintiff by a cross-notice seeks to support the judgment on the ground that the learned judge, inaddition to the finding which he made, should have found that the defendants acted not only negligently but also with a reckless disregard for the plaintiff's safety.


The defendants contend that the learned judge's judgment in favour of the plaintiff is contrary to the decision of the House of Lords in Robert Addie & Sons (Collieries) v. Dumbreck (1929 Appeal Cases 358), a case which I confess I am unable to read, forty, years on, without a sense of shock. The plaintiff's son, a boy of 4 years of age, was in a field forming part of a colliery and commonly used as a playground by children. The field was close to the main road and bounded by a hedge in which there was a number of large gaps. In the field there was a large iron wheel, completely unprotected in front, round which there passed a wire cable. Children frequently played around the wheel, which was highly dangerous but attractive to them. At times children were ineffectually warned off this field but they continued to frequent it. Knowing all the facts I have stated, but without taking any steps to find out whether children were playing round the wheel and having every reason to believe that they well might be, the colliery servants started up the machinery which set the wheel in motion. As a result the plaintiff's infant son, who at the time was playing on or near the wheel, was killed. The plaintiff brought an action in Scotland claiming damages in respect of his son's death. The House of Lords held that, the boy being a trespasser, the action failed since there had been no breach of any legal duty owed to him. The test for determining the occupiers' liability to a trespasser was stated as follows: there must be "injury….due to some wilful act involving something more than an 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 to the presence of the trespasser": per the Lord Chancellor at page 365. It is perhaps difficult to understand how the acts of the colliery's servants could, in the circumstances of that case, be regarded as other than reckless. Strangely enough, a year later,in Excelsior Wire Rope Co. v. Callan & Others (1930 Appeal Cases 404), Viscount Dunedin (who was a party to the decision in Addie's case) concluded that the defendants' servants did act in reckless disregard of the presence of a trespasser. I find insuperable difficulty in discerning any real distinction between the facts in Callan's case so far as they concern reckless conduct, and those in Addie's case. I am comforted by the knowledge that Lord Justice Scrutton experienced the same difficulty: see Mourton v. Poulter (1930 2 King's Bench 183, at page 190). The fact that the majority of the House of Lords in Callan's case may not have based their decision on recklessness (certainly Lord Atkin did not do so: see page 413) but based it on the fact that the defendants were not occupiers of the land upon which the accident and the trespass occurred, is beside the point.


Mr. Gatehouse contends that Addie's case is a binding authority for the proposition that no duty of care is owed by an occupier of land to any trespasser and therefore the learned judge was wrong in holding that the defendants were negligent: since the plaintiff was a trespasser (so the argument goes), the defendants owed him no duty of care and accordingly could not be liable to him in negligence. It is to be hoped that the House of Lords, which since 1966 is no longer absolutely bound by its own decisions, may soon have an opportunity of reconsidering the proposition of law accepted as well-established as long ago as the middle of the nineteenth century (see Great Northern Railway Co. v. Harrison (1854) 10 Exchequer 376) and re-stated in Addie's case. The doctrine that a trespasser, however innocent, enters land at his own risk, that in no circumstances is he owed a duty of reasonable or any care by the owners or occupiers of the land however conscious they may be of the likelihood of his presence and of the grave risk of terrible injury to which he will probably be exposed, may have been all very well when rights of property particularly in land, were regarded as more sacrosanct than any other human right. This view was widely held in the nineteenth century and perhaps, even at the beginning of the presentcentury, influenced the minds of those who were then no longer young.


It is difficult to see why today this doctrine should not be buried with the artificial doctrine based on fictitious permission springing from a supposed allurement which was invented by the courts in an attempt to mitigate the harshness and injustice caused by the ancient legal dogma relating to infant trespassers.


Surely the duty of care owed to a trespasser should be the same duty as that owed to anyone else — a duty to take such care (if any) as, in all the circumstances, is reasonable. It has been argued that, if such were the law of England, the position of the...

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