McGlone v British Railways Board

JurisdictionEngland & Wales
JudgeLord Pearce,Lord Reid,Lord Morris of Borth-y-Gest,Lord Pearson
Judgment Date27 October 1965
Judgment citation (vLex)[1965] UKHL J1027-2
CourtHouse of Lords
Docket NumberNo. 1.
Date27 October 1965

[1965] UKHL J1027-2

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Lord Guest

Lord Pearce

Lord Pearson

McGlone (A.P.)
and
British Railways Board

Upon Report from the Appellate Committee, to whom was referred the Cause McGlone (A.P.) against British Railways Board, that the Committee had heard Counsel, as well on Monday the 19th as on Tuesday the 20th, days of July last, upon the Petition and Appeal of Andrew McGlone (Assisted Person), residing at 2 Cairns-well Place, Halfway, Cambuslang (as tutor and administrator-at-law of his pupil child, Thomas McGlone, residing with him), praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 22d of December 1964, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner 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 the British Railways Board, 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 Interlocutor of the 22d day of December 1964, 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 Appellant (an Assisted Person) do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments:

And it is further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary:

And it is also further Ordered, That the Costs incurred by the said Appellant in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice (Scotland) Act, 1949, as amended by the Legal Aid (Scotland) Act 1960.

Lord Reid

My Lords,

1

In this case the Appellant sues under the Occupiers Liability (Scotland) Act 1960 for damages in respect of injuries suffered by his pupil son on premises occupied by the Respondent. The Lord Ordinary held the Respondent liable and assessed damages at £1,500 but he also held the child to be two-thirds to blame and accordingly he awarded to the Pursuer the sum of £500. Division held that the Respondent was not liable and granted Decree of Absolvitor.

2

The Respondent's railway line at Kirkhill passes through a cutting before entering a tunnel. At the point where the accident occurred there is a vertical wall rising some 8 ft. on the south side of the line and above that there is a steeply sloping bank running up to a public footpath. The fence which divides the Respondent's property from this footpath was in bad repair and it is not disputed that children from a neighbouring housing estate were in the habit of playing on this bank. Some months before the accident the line was electrified and a booster transformer was erected on a concrete platform at the foot of this bank near the top of the vertical wall. It consisted of a structure about 20 ft. high; at a height of about 9 ft. one live wire was attached to this structure and another was attached to it at a point several feet higher up. The voltage was 2,500. The Respondent surrounded this structure and platform on three sides by a strongly constructed meshed fence at least 6 ft. high but there was no fence on the side nearest the railway line. When railway servants had occasion to visit this transformer they climbed up from the railway line by means of a ladder and had free access to it. The sides of the meshed fence running down towards the line did not reach the vertical wall and there were gaps on each side of about 4 or 5 feet between the ends of the fence and the vertical wall. These gaps were each closed by five strands of barbed wire running fan-wise from a point on the ground at the top of the wall to various points at the ends of the meshed fence. There were small notices attached to the fence bearing the words "Danger—Overhead live wires".

3

On the 16th June, 1962, the Appellant's son, aged 12, and another boy of about the same age were playing on the bank near the transformer and the Appellant's son decided to climb the transformer structure. It is not clear how he got through the barbed wire but that could easily be done by an active boy. He climbed upwards past the first live wire but somehow his arm came into contact with the uppermost live wire and he sustained severe burning from electric shock. He was able to scramble down and his companion helped him to return through the barbed wire fence. He was taken to hospital and his injuries proved to be rather serious.

4

The question is whether the steps which the Respondent took to fence this transformer were adequate to discharge their duty which is now statutory.

5

Section 2 of the Act provides:

"The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."

6

I do not think it necessary or helpful in this case to discuss the state of the law before this Act was passed. One thing, however, is clear. This section renders the decision of this House in Dumbreck v. Addie & Sons (Collieries) 1929 S.C. (H.L.) 51 no longer authoritative. It abolishes the categories of invitee, licensee and trespasser and it imposes on occupiers a higher liability to trespassers than that laid down in Dumbreck' case. But I do not intend to consider whether or not this section confers on trespassers greater rights than they were thought to have had before that decision. The wealth of authority discussed in the Court of Session in that case ( 1928 S.C. 547) shews that the law was then far from clear and I have not attempted to form any view as to how this case would have been treated before Dumbreck's case was decided.

7

The section applies both to trespassers and to persons entering property by invitation or licence express or implied. But that does not mean that the occupier must always shew equal care for the safety of all such persons. The care required is such care as is reasonable and it may be reasonable to require a greater degree of care in one such case than in another. In deciding what degree of care is required, in my view regard must be had both to the position of the occupier and to the position of the person entering his premises and it may often be reasonable to hold that an occupier must do more to protect a person whom he permits to be on his property than he need do to protect a person who enters his property without his permission. Trespassers on the steep bank were so frequent that I would be prepared, if necessary, to hold that licence to play on the bank could be implied. Certainly the Respondent ought to have expected that boys would play on it near this transformer and the Respondent's witness admitted that, when such apparatus is erected at places open to the public, means are taken to warn people against climbing transformers. The question here is whether the means which were taken were sufficient to discharge the statutory duty.

8

The Appellant pleaded that it was the Respondent's duty to surround the transformer by a fence adequate to prevent children from doing what this boy did. But that would mean that whenever an occupier brings a highly dangerous object on to his land where children are accustomed to be, he must surround it by an impenetrable and unclimbable fence. That appears to me to be quite unreasonable and the Lord Ordinary did not go nearly so far as that. It would mean that here there would have had to be a locked gate in a fence next the railway so that railway servants could enter when necessary. We do not know whether that would have been so inconvenient as to prevent railway servants from having access to the transformer in a case where such access might be urgently necessary. The Lord Ordinary did not hold that there should have been a fence on the side next the railway, but, as I read his judgment, he decided against the Respondent on a ground which only emerged in the course of the Proof. In the course of his evidence the Pursuer suggested that the gaps between the ends of the meshed fence and the vertical wall should have been closed by prolonging the sides of the meshed fence to the top of the wall. No objection was taken at that stage. Then, when the injured boy gave evidence he was cross-examined as to whether such prolongation of the meshed fence would have kept him out. I agree with the Lord President that this ground of fault was not covered by the Pursuer's Record and if objection had been taken timeously I think that it ought to have been sustained leaving the Pursuer to amend his Record if so advised. But no objection...

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