Videan v British Transport Commission
|England & Wales
|THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE PEARSON
|28 May 1963
|Judgment citation (vLex)
| EWCA Civ J0528-1
|Court of Appeal
 EWCA Civ J0528-1
In The Supreme Court of Judicature
Court of Appeal
The Master Of The Rolls, (Lord Denning)
Lord Justice Harman and
Lord Justice Pearson
Mr David Croom-Johnson, Q. C. and Mr Michael Hoare (instructed by Messrs Russell Jones & Walker) appeared on behalf of the Appellants (Plaintiffs).
Mr N. R. Fox-Andrews, Q. C. and Mr C. W. Ross-Munro (instructed by Mr M. H. B. Gilmour) appeared on behalf of the Respondents (Defendants).
There is a small country station at North Tawton on the main line between Okehampton and Exeter. The stationmaster was Mr Videan, who lived in the station house with his wife and four small boys, aged 6, 5, 3 and 2. They had been living there for three years, the youngest being born there. The station house was on the up side of the line, and their garden and chicken run on the other side. There was a footbridge for passengers and a barrow crossing for porters with barrows. Mrs Videan used sometimes to take the pram with a child across the barrow crossing, and one of the staff occasionally took a child across by the hand. But the children by themselves usually went by the footbridge. Mrs Videan said: "The children were always trained to do that. They were not allowed to run about on the tracks…. But they did run out on to the platform. That was quite another matter".
On Sunday morning, 26th July, 1959, the stationmaster was having the day off, and Porter Canniford was in charge. The stationmaster was going to take his family to Exeter for the day. His wife was busy in the house getting everything ready for their outing. The stationmaster was outside playing with the children until the time came to go. Suddenly they found that Richard, the youngest, aged 2 years and 2 months, was missing. The stationmaster looked into the door. His wife said to him, "Where's Richard?" He said, "Isn't he with you?" She said: "Bring him in when you find him. I want to get him ready". The stationmaster went out, through the booking hall into the booking office, and asked Porter Canniford, "Have you seen Richard?" The porter said "No". The stationmaster went out on to the platform followed by the porter. They saw the little boy in the "four foot" of the up line, a little way from the barrow crossing, and at the same moment, on that very line, a trolley coming towards him. It was the sort of trolley railwaymen use nowadays for getting about the line, driven by petrol motor and capable of considerable speeds.
It was then by the home signal, about 120 yards away, coming fast along the line towards the place where the little boy stood.
The stationmaster and the porter held their hands up, signalling the trolley driver to stop. But still he came on. They ran forward. The stationmaster was in front, running as fast as he could; the porter a little behind. The trolley driver started to slow down, but not very much. He seemed not to appreciate the danger. Still he came on. He cannot have seen the child. Only at the last moment did he see him. Only then did he apply his brake. The porter said: "As he got very close, I could see he was really hanging on to the hand-brake, pulling as hard as he could". But it was too late. Then the stationmaster, in a desperate effort to save his son, leaped from the platform on to the line, in the very path of the trolley. He saved his son - it seems that he pushed him down below the trolley - but he was himself killed in the instant. The little boy was badly injured. He was five and a half months in hospital, but has recovered a good deal.
The trolley driver was named Souness. He said he was driving at about 25 miles an hour; and that, just before he got to the home signal, he looked out and saw the stationmaster and porter putting their hands up, running along the platform. He thought they had a message for him. So he changed down into second gear and applied the brakes lightly. Afterwards he happened to look on the track and there he saw the boy. He then applied the brakes as hard as he could. The Judge found that, after seeing the men, Souness travelled for something like a hundred yards before he appreciated that there was an emergency.
The Judge found that Souness was at fault in these respects: (1) In not keeping a proper look-out: "If Souness had been keeping a proper look-out, he would have seen the boy before he saw the men". (2) In travelling too fast: "If hehad been driving at a reasonable speed in the wet conditions he would have slowed down quicker after seeing the men and perhaps would have been driving more slowly before seeing them". (3) He did not apply his brakes hard enough soon enough: "He should have applied the brake hard before he did, and so would probably have avoided running down the boy and his father". I take this to mean that Souness did not take proper heed of the signals of the two men. He should have realised that their signals meant an emergency stop - stop at once - and yet he did not do so.
The widow now claims compensation under the Fatal Accidents Acts in respect of the death of her husband; and the infant Richard, by his mother as his next friend, claims damages for his injuries. If they should succeed the Judge has assessed the widow's compensation at £6,348 and the child's at £400. But the Judge has rejected both claims. He held that, even though Souness was at fault, the child, Richard, has no claim because he was a trespasser; and that the widow, in respect of her husband's death, has no claim either: because the "rescuer can be in no better position than the rescued".
It is, of course, important to decide whether the child was a trespasser or not: for much of the law depends on it. Before 1957 we always had to inquire whether a person coining on to land was an invitee, a licensee or a trespasser. But we have now only to inquire whether he was lawfully there or not. If he was lawfully present, the occupier owes him the common duty of care which is described in the Occupiers Liability Act, 1957. If he was not lawfully there, the occupier owes him the same duty as he has always owed to a trespasser: for the law as to trespassers has not been affected by the 1957 Act.
Mr Croom-Johnson asked us in this case to hold that the two-year old Richard was not a trespasser. He said that, as one of the stationmaster's children, Richard certainly would have a licence to be on the platform, and his straying a fewyards from it on to the line would not make him a trespasser: and he cited , . I cannot accept this view. It seems to me that, when this child strayed from the platform on to the barrow crossing and thence some ten or twelve feet up the line, he was a trespasser: for he went beyond the bounds of any licence that he had. See , , ., , and , .
It has commonly been supposed that the occupier of land owes no duty towards a trespasser to take care for his protection. To make the occupier liable, said Lord Hailsham in , , "there must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser". This rule seems fair enough if you put all trespassers in the same bag as burglars or poachers and treat them all alike. But as soon as you realise that a trespasser may be innocent of any wicked intent - he may be a child too young to do wrong or a grown-up who has lost his way - you find that the rule works most unfairly. Hence the shifts to which generations of judges have been put to escape the rule. They have time and again turned a trespasser into a licensee so as to give him a remedy for negligence when otherwise he would have none. Notably in , , and , , where persons came on the land without any permission in fact, but were held, by a fiction, to be there by the leave and licence of the occupier.
In recent years a new way has been found to mitigate the harshness of the old rule about trespassers. It has been done by observing that it only applies when it is sought to make the occupier liable, as occupier, for the condition of hispremises. It leaves untouched his duty towards his neighbour to conduct his activities with reasonable care. Thus he may be liable as neighbour for negligence when he would not be liable as occupier. I drew attention to this distinction in a speech which I delivered in the House of Lords in , , and it has been made manifest by an illuminating trilogy of cases in the High Court of Australia, namely , , , , and , . But I must needs make it good today.
To do so let me first consider what is the duty owed by a contractor or anyone else (not being the occupier) who conducts activities on land towards a person who is lawfully there. It is settled by the highest authority that a contractor doing work on premises is under a duty to use reasonable care to prevent damage to persons whom he may reasonably expect to be affected by his work. See ...
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