Titchener v British Railways Board
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Chancellor,Lord Hailsham of St. Marylebone,Lord Roskill,Lord Keith of Kinkel,Lord Fraser of Tullybelton |
| Judgment Date | 24 November 1983 |
| Date | 1983 |
| Court | House of Lords |
[1983] UKHL J1124-3
House of Lords
Lord Chancellor
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Roskill
Lord Bridge of Harwich
Lord Hailsham of St. Marylebone ( Lord Chancellor)
My Lords,
I have read in draft the speech about to be delivered by my noble and learned friend Lord Fraser of Tullybelton. I entirely agree with his conclusion that this appeal must be dismissed, and with the train of reasoning by which he would arrive at this conclusion.
To my mind the crucial fact in this appeal was that no averment was or could have been made against the respondent Board that the train which struck the appellant was being driven otherwise than in a perfectly proper manner. If such an averment had been made and proved the respondent Board would have been liable on the lines of the well known passage of Denning L.J.'s judgment in Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B., 264 at p. 271. But, on the facts and evidence in this case, once it was accepted that there was no negligence on the part of the driver of the train, it seems to me that the pursuer's claim, which was based solely on the condition of the fence was doomed to failure, if only because, on her own admissions, she had voluntarily accepted the risk whatever it was which she incurred by crossing the line, provided only that it was a "risk of danger from the running of the railway in the ordinary and accustomed way".
On this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent Board owed no duty to the appellant, or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent Board, or alternatively that, having assumed the risk involved, the respondent Board was covered by the doctrine volenti non fit injuria.
But I must take leave respectfully to add that the condition of the boundary fence as depicted by the evidence left much to be desired. The line was a suburban line passing through a populated area. Trains crossed by at intervals of about twenty minutes. There was evidence that at least one small child had been killed at approximately the same spot. Quite apart from the danger to children straying, there could well have been a danger to passengers in trains had children, animals or vandals come on to the line and created an obstruction on it. It follows that had the facts of the case been other than what they were, it would be unsafe for the respondent Board to assume that they would have been immune from liability from the state of the fence from a different claimant had another and different accident occurred.
My Lords,
On 23rd February 1974 about 11 p.m. the appellant, who was then aged fifteen, was struck by a train on the respondents' railway line, between Shettleston and Carntyne stations in Glasgow. She was in the company of a young man, named John Grimes, aged sixteen, who was also struck by the train. John Grimes was killed, and the appellant suffered very serious injuries, some of which will leave permanent effects upon her. In this action, the appellant sues the respondents for damages under the Occupier's Liability (Scotland) Act 1960. Her case is that the accident was caused by the negligence of the respondents in failing to maintain the fence along their railway in a reasonable state of repair. The respondents deny that they owed a duty to the appellant to maintain the fence in good condition. They also deny liability on other grounds to which I shall return, and they pleaded that the appellant's averments were irrelevant. A proof before answer was heard by the Lord Ordinary (Lord Ross), who assoilzied the defenders. An Extra Division of the Inner House, (Lords Hunter, Avonside and Grieve), dismissed the appellant's appeal and adhered to the Lord Ordinary's interlocutor. The appellant has now appealed to this House.
The accident occurred at a place where the railway line runs through a built-up and populous area of Glasgow. It runs approximately east and west, and the train which struck the appellant was travelling westwards from Shettleston towards Carntyne. The exact point where the accident occurred was not established, but the Lord Ordinary found that it was about a quarter-of-a-mile west of Shettleston station in the vicinity of a bridge by which the line crosses over Earnside Street. Earnside Street runs approximately north and south, and passes under the railway at right angles. For a person walking northwards in Earnside Street towards the railway bridge, there was a fence, for which the respondents had no responsibility, on the right-hand side. At right angles to that fence there was another fence, for which the respondents were responsible, running along the south side of the railway both east and west of the bridge. The latter fence was made of sleepers standing upright in the ground, but at the time of the accident, and apparently for some years before that, there were gaps in it. In particular there was a gap between the sleeper fence to the east of the bridge and the fence along the east side of Earnside Street, the gap being wide enough for a gap from Earnside Street a person would have to climb a slope up to the embankment on which the railway ran. There was a rough path up the slope leading to the gap in the fence. Having passed through the gap a person could either cross the railway lines, and go through any one of several gaps in the fence on the north side of the railway or he could walk along the line in either direction. The route across the line was used to some extent as a short cut to a housing area further to the north. It was also used as a short cut to a brickworks which lay immediately to the north of the railway line, and to the east of the bridge. This brickworks was a popular resort for courting couples. There was no necessity to walk across the line in order to reach the housing estate or the brickworks; the proper way was to continue along Earnside Street and under the railway bridge, but that route was apparently rather longer than the short cut and was also liable to flooding. The Lord Ordinary concluded after a careful review of the evidence that "there was a certain amount of passage across the railway line on both the east and west sides of the bridge". He also concluded that the respondents "must have been aware that people from time to time did cross the line in the vicinity of the bridge".
The appellant has no recollection of the accident or of the events immediately before it, as she suffers from post-traumatic amnesia. Her last recollection before the accident is of events in the morning of 23rd February, some twelve hours earlier. But she is familiar with the neighbourhood of Earnside street and she gave evidence, apparently very frankly, about having crossed the railway line with John Grimes, on the way to and from the brickworks, on several previous occasions. There were no eye-witnesses of the accident, but several witnesses gave evidence of having seen the appellant and John Grimes together earlier in the evening up till about 10 p.m. The Lord Ordinary's findings about the time and place of the accident, and how it occurred, were based partly on the evidence of these witnesses, partly on the appellant's own evidence of her previous visits to the brickworks and partly on the real evidence found after the accident. There was evidence from one of the respondents' witnesses that at off-peak times there were three trains per hour in each direction on this line.
I did not understand counsel for either party to criticise the Lord Ordinary's findings of fact as being erroneous, but counsel for the respondents submitted to the Division, and more briefly to this House, that they did not go far enough to entitle him to hold that the...
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