Greenhalgh v British Railways Board
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0509-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1969 |
[1969] EWCA Civ J0509-1
In The Supreme Court of Judicature
Court of Appeal.
Appeal of defendants from judgment of Mr. Justice Lloyd-Jones, without a jury, Manchester, dated May 10th, 1968.
Mr. H.E. FRANCIS, Q.C., and Mr. GLIDEWELL (instructed by Mr. M.H.B. Gilmour) appeared for the appellant defendants.
Mr. D.B. McNEILL, Q.C, and Mr. H. GORE (instructed by Messrs. Leslie Lever & Co., Manchester) appeared for the respondent plaintiff.
THE MASTER OF THE ROLLS: We need not trouble you, Mr. Francis.
On 21st December, 1963, Mrs. Greenhalgh was walking over an old railway bridge in Lancashire, near Little Hulton. There were potholes on the bridge. She tripped and fell and hurt her elbow Fortunately her injuries were not serious. Now she sues the British Railways Board, claiming that they are responsible. The Judge has found in her favour and awarded her £400. The Board appeals to this Court.
About 1873 a single-line railway was built near Little Hulton to carry coal. It was built in pursuance of statutory powers. The Company made a cutting which severed the lands of the owners. So the Company came under the obligations imposed by Section 68 of the Railways Clauses Consolidation Act, 1845- The Company had to make an accommodation bridge over the railway. There was no public highway there previously. So it was not a public bridge within Section 46 of the 1845 Act. It was simply an accommodation bridge under Section 68 which provides that: "The Company shall make and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway; (that is to say) such and so many convenient gates, bridges, arches, culverts, and passages over, under, or by the sides of or leading to or from the railway as shall be necessary for to purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made".
So the bridge was built nearly 100 years ago. It was used, no doubt, for many years only by the owners of the adjoining farmlands. They used to take their carts and waggons over it. But the district developed. The population increased. People began to use the bridge as a footpath. So much so that in time the public acquired a right of footway across the bridge. And this public right was confirmed by the definitive map which was prepared in 1953 under the National Parks and Access to theCountryside Act, 1949. The definitive map and the accompanying statement showed a public footpath across this old bridge. It is conclusive evidence that there was a public footpath and a public right of way on foot across the bridge, see Section32(4) of the 1949 Act.
During the last ten or fifteen years the local authority, the Worsley Urban District Council, have built large housing estates on the land on either side of the old mineral railway. On one side of it they have put up 1236 dwellings; and on the other side 391 dwellings. During the construction of these housing estates the local authority, or their contractors, used this accommodation bridge a great deal for their heavy lorries, and so forth. After the housing estates were built it has been used by all kinds of traffic to and from the houses. The people who live there use it on foot as well. It is clear that this greatly increased the burden on the bridge. It was so heavy that I have no doubt that the Railway Company or their successors could have objected to it and obtained an injunction to stop it. That is shown by the case of Taff Vale Railway Co. v. Canning (1909 2 Ch. 48). But the company did not take objection. They just submitted to it. There was some desultory correspondence with the local Council about the maintenance of the bridge, but it came to nothing.
There was a further important matter. The local authority made excellent approach roads right up to the accommodation bridge on both sides: but left the bridge itself out of repair. So that motor traffic, and people on foot, had good approaches on either side, but then a very bad surface over the bridge itself. The Local Authority did nothing to repair it. Nor did the railway authority. It was full of potholes. So it was when in December 1963 Mrs. Greenhalgh walked over the bridge and fell. She lived in one of the houses on the new housing estate of Spa Crescent. It was quite a long way from the bridge.
Such being the facts, I turn to the arguments put on behalfof Mrs. Greenhalgh. In the first place, it was said that the Railways Board owed a duty to Mrs. Greenhalgh under Section 68 of the Railways Clauses Consolidation Act 1845, which I have read. Under Section 68 the Railway Board owed a duty to the "owners and occupiers of lands adjoining the railway", but to no others. Her house in Spa Crescent did not bring her into that category. It was too far away from the bridge to be considered to be "adjoining lands". That is conceded. But it is said on her behalf that her user of the approach roads brought her within that category. The approach roads were "adjoining lands": and it is said that, as she was lawfully using them, the Board owed a duty to her. In support of this contention, reliance was placed on an observation of Baron Bramwell in the case of Dawson v. The Midland Railway; Company, (1872 Law Reports, 8 Exch. at page 9): "The statute appears to me to be for the benefit of all persons who are lawfully using adjoining land". Those words were used in a case where the. Railway Company had failed to maintain a fence alongside the railway. A man had lawfully put his horse out to graze in a field next to the railway. It strayed through a defective fence on to the line and was killed. Further support was sought from other cases where animals were being driven lawfully along a highway which ran alongside the railway. They escaped through a defective fence and were run over by a train. The Company was held liable, see The Manchester, Sheffield and Lincolnshire Railway Company v. Wallis, (1854, 14 Common Bench at page 213), 38 applied in Midland Railway v. Daykin, (1855 17 C.B. page 125). But those fencing cases seem to me to be entirely different. The very object of a fence is to keep cattle from straying on the line: and naturally enough, the Courts held that the Company were under a duty to all cattle lawfully on adjoining land, no matter whether it was a highway or a field. But it is different with an accommodation bridge. The object of a bridge is so that the owners and occupiers of adjoining lands, and those authorised by them, can use it. There is a duty tothem: but not to any other person who may happen to use the bridge. There was certainly no duty to such a person in the days before there was a public footpath across the bridge. And the duty of the Railway Company is not to be increased simply because the public choose to use it as...
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...over whose land the easement is exercisable, Mr Newman has to face the difficulty created by the decision of this Court in Greenhalgh v. British Railways Board (1969) 2 Q.B. 286, a case in which the Plaintiff was injured by the defective surface of the Defendant's bridge over which she was ......
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