Thomas v British Railways Board
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Scarman,Lord Justice Goff |
| Judgment Date | 30 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0330-5 |
| Date | 30 March 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0330-5
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Judgment of Griffiths, J.
The Master of the Rolls (Lord Denning)
Lord Justice Scarman
and
Lord Justice Goff
Mr. JOHN DAVIES, Q. C. and Mr. ROGER GARFIELD (instructed by Messrs Butt & Bowyer Agents for Messrs Randalls, Bridgend, Glamorgan) appeared on behalf of the Appellants (Plaintiffs)
Mr. IFOR JONES, Q. C. and Mr. Phillip Rees (instructed by Mr. D. H. Regnior) appeared on behalf of the Respondents (First and Second Defendants).
Mr. PETER FALLON, Q. C. and Mr. NIGEL FRICKER (instructed by Messrs Morgan, Bruce & Nichols, Cardiff; appeared on behalf of the Respondents (Third Defendants and Third Party).
INTRODUCTION
The little girl was sitting on the railway-line. She was only two years and two months old. The engine-driver did his utmost to stop the train in time. He very nearly succeeded. But not quite. The front wheels struck the child. Both her legs were cut off, just below the knees.
How had she got on to the railway-line? It was at a place where there was a public footpath across the line. She had toddled along the footpath, and then through a gap where there had been a stile, but it was broken down. Whose duty was it to maintain the stile? In the first place, it was the duty of the Railways Board. But they had got the local Council to take on that duty. So they seek to pass the responsibility on to the Council.
Such simple facts ought not to provoke much legal discussion - let alone much difference of opinion. But they have. The reason is because we do not know at what date the footpath became a public footpath. It is suggested that the responsibility of the Railways Board depends on whether there was a public footpath there before the railway was built over one hundred years ago: or only after it was built. I do not myself accept this view. To my mind it was the duty of the Railways Board in any case to make and maintain a good and sufficient stile at this point: and, not having done so, they are liable.
Now I turn to the details.
THE FACTS
In 1855 some undertakers got powers under an Act of Parliament to make a new railway up the valley of the River Llynvi. It was to serve the ironworks and coal-mines in thevalley. The proposed line cut across some rough pasture land owned by Mr. Traherne. We do not know for sure whether at that time there was a footpath in use across his land. But we do know that in 1860 the Railway Company bought a stretch of Mr. Traherne's land and built a railway-line on it. In 1861 the line was opened for traffic. There is evidence that fifteen years later - by the year 1876 - there was a footpath which went across this rough pasture, then across the railway-line on the level, and up the other side. At some time later this footpath was undoubtedly used by the public at large. So much so that the Railway Company acknowledge that the public now have a public right-of-way on foot across the railway on the level. The Railway Company actually put a stile in the railway fence so that people could get over it and cross the railway on the level. But by 1968 the Railway Company had allowed both fence and stile to get badly out of repair. It was so dilapidated that anyone could walk straight through.
In 1969 the local authority, the Maesteg Urban District Council, developed a big housing estate on the far side of the railway which had previously been the rough pasture. They built nearly 200 houses there, and let them mostly to young couples with small children. In this connection they also bought a strip of land alongside the railway and agreed to make a new fence to separate off the railway. They made a fine new fence with concrete posts and wire mesh which ran along the railway about ten feet from the railway-line. In the fence they made a new stile for people using the footpath.
The stile was completed on 1st April, 1969. It looked I very strong and substantial. There were two side pillars made of brick 5 feet high and 2'6? apart. There were two stepping-slabs made of concrete about 1 foot and 2 feet from the ground respectively, supported on four short brick pillars. Above the stepping-slabs there were two cross-bars made of iron about 3'6? and 4'6? above the ground. From the top step anyone would have to lift his leg about 2'6? to get over the top bar. The stile was all right for men and youths but not fit for old people, little women or small children. The Judge was very critical about it. He said that it was "too narrow, too high and too awkward. It was a bad stile".
The stile did not last long. Only about ten days. Then it was demolished. We do not know by whom, or why. The Judge said: "It may have been pure vandalism: it may have been exasperation which led some user of the stile to destroy it". By Monday, 13th April, a railway man saw it and noticed that the top concrete step had been knocked down. In the next day or two both concrete steps and the short brick pillars had been knocked out of the way. This demolition left it easy for children to walk straight through, and for adults to pass under the iron bars, just ducking their heads.
The stile had only been down a week when the accident happened. Mrs. Thomas, the child's mother, was in one of the new Council houses, No.161 Cae Tinker, Maesteg. She was doing her washing. Then going back and forth from the washing-machine to the clothes-line. Her two little girls, aged 3 and 2, were playing in the little yard. Then, whilst the mother was inside for a few minutes, the younger child, Ceri, aged only two years and two months, must have toddled out, gone up several steps, across a bank, through the open gap (where the stile had been), made her way to the line itself, and sat down on it.
It was just after half past 10 in the morning. Coming round a bend 300 yards away came a diesel train of one coach,driven by David Sees. He was going at the regulation 30 miles an hour. Then he saw something on the line, but it was so small that he took it to be a piece of paper or litter. He sounded his horn and reduced his speed. Then he saw some movement. He immediately applied his brakes fully and sounded his horn continuously. But he just failed to stop in time, The front wheels ran over the legs of the little girl and cut them both off just below the knee.
It was suggested that the engine-driver was negligent. The Judge rejected the suggestion. We were asked to reverse him. But we cannot possibly do so. The Judge had the evidence of the driver, he himself had a view and rode on the train himself. His judgment on this point must stand.
Now I turn to the law about the stile.
THE LAW
This railway was built under the Llynvi Valley Railway Act, 1855, which incorporated the Railways Clauses Consolidation Act, 1845. Seeing that the footpath has been there for 100 years (since 1876 at least), and has been used by the public as of right for the last 60 years (as was testified by users), we must find a lawful origin for it. The Judge was persuaded that there was no public footpath there at the time when the railway was built: because there was no mention of it in the book of reference or the deposited plan. But the Judge was not referred to the settled principle that, where there has been long-continued user in assertion of a right, it is to be presumed that the right had a legal origin: and that the Courts will presume that those circumstances existed which were necessary to the creation of that right, see Clippens Oil Co. v. Edinburgh and District Water Trustees (1904) A. C. 64.
Applying that principle, we ought to presume that there was a public footpath at this point at the time that the railway was built and that it was by some oversight that there was no mention of it in the book of reference or deposited plan. This presumption is aided by the circumstance that, for nearly 100 years after this railway was built, it was believed that, after a railway was built, a Railway Company could not dedicate to the public a right of way over its lines of railway - see Mulliner v. Midland Railway (1879) 11 Ch. D. at p. 619: Great Central Railway v. Balby-with-Hexthorpe U. D. C. (1912) 2 Ch. at pages 121 and 122. In my Chambers in the Temple we did much work for the Railway Companies: and we accepted that proposition as axiomatic. If there could not be a later dedication, the public footpath must have been there at the time when the railway was built. And, on that footing, the Railway Company would come under an obligation to "make and maintain at all times a good and sufficient stile on each side of the railway"- see Section 61 of the 1845 Act.
The legal position was altered by the decision of the House of Lords in British Transport Commission v. Westmoreland Council (1958) A. C. 126, when it was held that a railway company was able to dedicate a public right of way over its lines of railway provided that such dedication was not incompatible with the user of the railway, see especially what Lord Radcliffe said at page 153. This decision opens up another way in which there may have been a lawful origin for a public footpath at this point. It may have started as a private footpath for the accommodation of the owners or occupiers of the adjoining lands (and the stile made for them under Section 68), and then it may have been used so much by the public generally that they acquireda public right of way over it, just as they did over the bridge in British Transport Commission v. Westmoreland County Council (1958) A. C....
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