British Railways Board v Herrington

JurisdictionUK Non-devolved
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Wilberforce,Lord Pearson,Lord Diplock
Judgment Date16 February 1972
Judgment citation (vLex)[1972] UKHL J0216-1
Date16 February 1972
CourtHouse of Lords
British Railways Board
Herrington (A.P.) (an Infant by His Mother and Next Friend)

[1972] UKHL J0216-1

Lord Reid

Lord Morris of Borth-y-Gest

Lord Wilberforce

Lord Pearson

Lord Diplock

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause British Railways Board against Herrington (A.P.) (an infant suing by his Mother and next friend Kathleen Louise Herrington), that the Committee had heard Counsel as well on Tuesday the 9th, as on Wednesday the 10th, Thursday the 11th, Monday the 15th, Tuesday the 16th, Wednesday the 17th and Monday the 22d days of November last, upon the Petition and Appeal of British Railways Board (a Corporate body), whose Principal Office is situate at 222 Marylebone Road, London, N.W.1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 2d of December 1970, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Peter Thomas Herrington (an infant suing by his Mother and next friend Kathleen Louise Herrington), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 2d day of December 1970 complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Costs of the Respondent in this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,


On 7th June 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. Enquiry 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 of Addie & Sons 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 Session Cases. Lord President Clyde said, after stating that the boy was a trespasser, "on the other hand, he was a member of a class of persons—to wit, the local community of working-class residents of all ages—who, to the knowledge of the defenders, were in the habit of resorting to the field (1) as an open space; (2) as a playground; (3) as a means of access to chapel and railway station; and (4)—as regards the less well disposed members of the local community—as a means of approach to the defenders' coal bing and wood depot for purposes of depredation. Against the latter class the defenders took the usual means of legal protection by frequent prosecutions for theft. Against the former class they took no measures of a kind calculated to be effective; and they knew that such measures as they did take were quite ineffectual to check the habitual resort of both adults and children to the field and to the immediate neighbourhood of the haulage system." (page 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:

"I am unable to distinguish that case from the case in which the proprietor knows of the habitual resort of adults or children, or both, to the near neighbourhood of the dangerous machine—a habit of resort which makes it to his knowledge likely that one or more of such persons may be at the machine when he applies the motive power."


(page 554). Later he said:

"The intrusion of the local public upon the defenders' field and the site of their haulage system in the present case seems to me to have been very similar to the use by the local public of an unauthorised short cut in Lowery v. Walker [1911] A.C. 10." (page 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. v. Callan [1930] A.C. 404 this House giving extempore 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...

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