BRITISH RAILWAYS BOARD
v.
HERRINGTON (A.P.) (an infant by his Mother and next friend)
Lord Reid
Lord Morris of
Borth-y-Gest
Lord
Wilberforce
Lord Pearson
Lord Diplock
Lord Reid
my lords,
On 7th June 1965 the Respondent, then a child of six years old, was
playing with other children on National Trust property at Mitcham which
is open to the public. Immediately adjoining this property the Appellants
have an electrified railway line a few yards from the boundary. Their
boundary is marked by a fence which, if it had been in good repair, would
have sufficed to prevent the Respondent from reaching the railway line. But
it was in very bad repair so that when the Respondent strayed away from
his playmates he was able to get through or over it. He then went a few
yards farther and came in contact with the live electrified rail. Fortunately
he was rescued but he had already sustained severe injury. His age was
such that he was unable to appreciate the danger of going on to the railway
line and probably unable to appreciate that he was doing wrong in getting
over the fence.
I have no doubt that if the Appellants owed to potential child trespassers
any duty of care to take steps for their safety, they were in breach of any
such duty. Enquiry soon after the accident showed that this was by no
means the only place where their fence was defective and a well trodden
track leading to the point where the Respondent got on to their property
showed that a considerable number of trespassers must have crossed the line
at this point to other National Trust property on the other side. The
Appellants led no evidence at the trial and it cannot be inferred that they
knew about these trespassers before the accident. The only evidence of
their knowledge was a report produced by them which showed that they
knew that a few weeks before the accident some children had been seen
on the line at some point not very far away. But in my view the evidence
was sufficient to show either that there was no systematic inspection of their
fence or that if there was any system it was not operated or enforced.
The Appellants’ main contention is that they owed no duty to this child.
They found on the leading case of Addie & Sons v. Dumbreck [1929] A.C.
358. The Respondent founds on later authorities and asks us to reconsider
Addie’s case if it cannot be distinguished. He is entitled to say that Addie‘s
case has frequently been criticised. I well remember that this decision, which
reversed the decision of the Court of Session, was much criticised in Scotland
at the time. But no one doubted that it had settled the law. And it has
always been said to have been followed both in England and in Scotland,
although it is not easy to reconcile with it much that has been said in
recent cases.
The speeches in Addie’s case must be read in the light of the facts which
are set out in 1928 Session Cases. Lord President Clyde said, after stating
that the boy was a trespasser, “on the other hand, he was a member of a
” class of persons—to wit, the local community of working-class residents
” of all ages—who, to the knowledge of the defenders, were in the habit of
” resorting to the field (1) as an open space; (2) as a playground; (3) as
” a means of access to chapel and railway station ; and (4)—as regards the
” less well disposed members of the local community—as a means of approach
” to the defenders’ coal bing and wood depot for purposes of depredation.
” Against the latter class the defenders took the usual means of legal pro-
“ tection by frequent prosecutions for theft. Against the former class they
” took no measures of a kind calculated to be effective; and they knew that
” such measures as they did take were quite ineffectual to check the habitual
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” resort of both adults and children to the field and to the immediate neigh-
” bourhood of the haulage system.” (page 553). Then, having said that if the
presence of a trespasser near a dangerous machine is known to the proprietor
he cannot disregard that, he went on: “I am unable to distinguish that
” case from the case in which the proprietor knows of the habitual resort
” of adults or children, or both, to the near neighbourhood of the dangerous
” machine—a habit of resort which makes it to his knowledge likely that one
” or more of such persons may be at the machine when he applies the
” motive power.” (page 554). Later he said: “The intrusion of the local
” public upon the defenders’ field and the site of their haulage system in
” the present case seems to me to have been very similar to the use by the
” local public of an unauthorised short cut in Lowery v. Walker [1911]
” A.C. 10.” (page 555).
The speeches in this House in Addie’s case appear to me to be intended
to lay down a general rule that no occupier is under any duty to potential
trespassers, whether adults or children, to do anything to protect them from
danger on his land however likely it may be that they will come and run
into danger and however lethal the danger may be. I find it impossible to
reconcile these speeches with any idea that the occupier will incur any duty
of care to trespassers by carrying out dangerous operations on his land even
when he knows that trespassers are very likely to come on to his land and
that if they come these operations may cause them injury. If he knows that
trespassers are already on his land then for the first time he does incur a
duty but it is a duty of a very limited kind—a duty not to act with reckless
disregard of their safety.
There was nothing now in that. But the rule was laid down with stark
simplicity and the speeches must have been intended to check a growing
tendency of courts both in England and Scotland to try to soften its impact.
Noble and learned lords appear to have had in mind that occupiers are
entitled to know precisely what their duties are and nothing could be simpler
than the answer which they gave.
But there were already two exceptions to this rule. The first was where
the occupier had put on his land something which was dangerous and was
an allurement to children. That seems to me to be easy to explain. He
ought to know that by putting that allurement there he was in a sense
inviting children to meddle with the dangerous thing, and the law would not
permit him to do that without imposing a duty on him. His liability arose
from his own choice to endanger children in that way.
The second exception is not so easy to explain. If, after a certain point
not easy to define, the occupier continued to stand by and acquiesce in the
coming of trespassers he was held to have given a general permission or
licence to trespassers to continue to do what those trespassers had been doing.
Any “licence” of this kind was purely fictitious. There was no need to find
any evidence that he had in fact consented to the coming of the trespassers
or to the continuance of the trespassing. His inaction in suffering the
trespassing might have been due to many other reasons than his being willing
to allow it. He might prove that there was some other reason but that
would not avail him.
The Court of Session decided Addie’s case on the ground that the child
was a licensee. On (he then current trend of authority I think they were
well entitled to do so. But this House thought otherwise and it appears
to me that their decision must be regarded as an attempt to confine the
doctrine of licence within much narrower limits than had been customary.
Later cases can hardly be said to exhibit loyal acceptance of the Addie
doctrine. In Excelsior Wire Rope Co. v. Callan [1930] A.C. 404 this House
giving extempore judgments dismissed an appeal by the occupier without
hearing the Respondent. There cannot have been any intention to modify
the considered judgments in Addie’s case, and it is perhaps a little surprising
that the House was able so easily to reach a different conclusion. I can only
regard the decision in Callan’s case as founded, rightly or wrongly on the
particular facts of the case. Encouraged by the decision in Callan’s case
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the Court of Appeal were able to decide against the occupier in Mourton v.
Poulter [1930] 2 K.B. 183. In Adams v. Naylor [1944] K.B. 750 there was
a difference of opinion in the Court of Appeal. Scott L.J. decided against
the occupier on grounds that are not easy to state succinctly. Mackinnon L.J.
and Morton J. reluctantly followed Addie.
I need not notice any other cases until Edwards v. Railway Executive
[1952] A.C. 737. There persistent trespassing by children imposed no duty
on the Railway to keep them out or protect them. I think Lord Goddard
accurately stated the law when he said “repeated trespass of itself confers no
” licence … to find a licence there must be evidence either of express
” permission or that the landowner has so conducted himself that he cannot
” be heard to say that he did not give it”
So far Addie stood, disliked but essentially unshaken. A new chapter
opened with Videan v. British Transport Commission [1963] 2 Q.B. 650. A
stationmaster’s child strayed on to the railway and was run over. It was
rightly held that the child was a trespasser and that the authority were not
liable. But some obiter dicta of Lord Denning M.R. appear to me to be
directly contrary to the decision of this House in Addie’s case. Neverthe-
less, they have attracted much support in subsequent cases. Having pointed
out that for child trespassers innocent of any wicked intent the rule in
Addie’s case works most unfairly, he said: “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.” So far I take no
exception. But then he went on to discuss “a new way to mitigate the
” harshness of the old rule”, by confining the old rule to the responsibility
of the occupier for the condition of his premises and inventing a new duty
towards trespassers to conduct his activities on his property with reasonable
care. But in Addie’s case the danger was not in the condition of the pro-
perty ; the mechanism when at rest was quite safe. The danger arose when
Addie’s servant began the operation of setting the mechanism in motion.
If this new theory were right Addie’s case must have gone the other way.
Lord Denning founded the new view on foreseeability. He said: “The
” true principle is this. In the ordinary way the duty to use reasonable
” care extends to all persons lawfully on the land, but it does not extend
” to trespassers, for the simple reason that he cannot ordinarily be expected
” to foresee the presence of a trespasser. But the circumstances may be such
” that he ought to foresee even the presence of a trespasser: and then the
” duty of care extends to the trespasser also.” But in Addie’s case the
presence of the children was not only foreseeable, it was very probable.
Nevertheless, this House held there was no duty.
This House in Addie held that no duty at all arose until the trespassers
were known to be on the land. It is easy to extend that to a case when the
occupier as good as knows, where he shuts his eyes: he will not then be
heard to say that he did not know. But he has no duty to do anything
before the trespasser arrives. If, on the other hand, a duty were to arise
before the trespassers’ arrival, when that arrival is merely foreseeable or
probable, the situation would be very different. The occupier would have
to do what that duty required him to do to prepare for the trespassers’
arrival. But that is precisely what Addie’s case says he need not do. 1
can see no way of bringing in that foreseeability test without reconsidering
and overruling at least that part of the decision in Addie. A duty to act
with humanity towards a trespasser known to be there is one thing. A duty
of care towards probable trespassers is of a different order. It would com-
pletely transform the whole picture and, so far as I can see, completely
supersede the Addie duty in all cases where the arrival of the injured
trespasser had been probable or foreseeable.
It follows that I cannot accept all that was said in the judgment of the
Privy Council in Commissioner for Railways v. Quinlan [1964] AC 1054
as being consistent with the decision in Addie’s case. On page 1076 it is
said, I think rightly. “A person’s knowledge is a question of fact: such a
” fact is a very different thing from the objective question whether there
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” was a reasonable likelihood of someone being present at the relevant time
” and place and whether a person ought to have foreseen that likelihood;
” Given the fact of the knowledge, the occupier comes under the obligation
” not to inflict intentional or reckless injury upon the person of whose
” presence he is aware. This again is a very different thing from an obliga-
” tion to take precautions in advance against the likelihood of a trespasser
” being present.” And then there is a reference to the occupier being in a
position in which he as good as knows that the other is there. So far that
is pure Addie. But the passage on page 1077 appears to me to be incon-
sistent with this. It would seem to say that it is sufficient if the presence
of the trespasser is extremely likely or very probable.
So we are confronted with the position that persistent attempts have been
made to confer on child trespassers greater rights and to impose on occupiers
greater obligations than are to my mind consistent with the decision of this
House in Addie’s case. I shall not deal with the forthright Australian
authorities farther than to say that those attempts are even more persuasive
and far reaching than those in this country. So it appears to me that no
satisfactory solution can be found without a re-examination of the whole
problem and a reconsideration by this House of its decision in Addie’s case.
Child trespassers have for a very long time presented to the Courts an
almost insoluble problem. They could only be completely safeguarded in
one or other of two ways. Either parents must be required always to con-
trol and supervise the movements of their young children, or occupiers of
premises where they are likely to trespass must be required to take effective
steps to keep them out or else to make their premises safe for them if they
come. Neither of these is practicable. The former course was practicable
at one time for a limited number of well-to-day parents but that number
is now small. The latter, if practicable at all, would in most cases impose
on occupiers an impossible financial burden.
Legal principles cannot solve the problem. How far occupiers are to be
required by law to take steps to safeguard such children must be a matter
of public policy. The law was uncertain when Addie’s case was decided.
That decision was intended to make the law certain. It did so. This House
must have taken the view that as a matter of public policy occupiers should
have no duty at all to keep out such children or to make their premises safe
for them. Their only duty was a humanitarian duty not to act recklessly
with regard to children whom they knew to be there.
It may have been arguable forty years ago that that was good public
policy. But for one fact I would think it unarguable today. That is the
fact that only fourteen years ago Parliament when it had an obvious oppor-
tunity to alter that policy failed to do so. The law with regard to occupiers’
liability to persons coming on to their land was then so unsatisfactory that
Parliament found it necessary to pass for England and Wales the Occupiers’
Liability Act, 1957. It imposed a “common duty of care” on occupiers
towards all persons who might lawfully come on to their land. But it
pointedly omitted to alter the existing law as to trespassers. At that time
there was no doubt that Addie’s case had settled the law, and under the
practice then prevailing this House could not alter that decision. The Court
of Appeal had not yet begun to try to modify Addie’s case. As I have
already said, they had no right to do that and I do not think that in 1957
their action could reasonably have been foreseen.
So I find it exceedingly difficult to interpret the silence of Parliament
in the 1957 Act with regard to trespassers in any other way than as an
approval of the existing law with regard to them. And that means an
approval of the decision in Addie’s case.
It is, however, I think just possible to attribute that silence to Parliament
(or those who then advised Parliament) being unable to make up their minds
as to what to put in place of Addie. I say that because when the law of
Scotland on this matter was amended in 1960 Parliament (no doubt acting
on more robust advice from Scotland) did alter the Scots law with regard
to trespassers. It seems unlikely that on a matter of this kind Parliament
would deliberately adopt quite different policies for the two countries. So
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I think I may be justified in attributing to indecision the silence of Parliament
in 1957 with regard to trespassers in England.
The question, then, is to what extent this House sitting in its judicial
capacity can do what Parliament failed to do in 1957. I dislike usurping
the functions of Parliament. But it appears to me that we are confronted
with the choice of following Addie and putting the clock back or drastically
modify the Addie rules. It is suggested that such a modification can be
achieved by developing the law as laid down in Addie’s case without actually
overruling any part of the decision. I do not think that that is possible. It
can properly be said that one is developing the law laid down in a leading
case so long but only so long as the “development” does not require us
to say that the original case was wrongly decided. But it appears to me that
any acceptable “development” of Addie’s case must mean that Addie’s case
if it arose today would be decided the other way. The case for the pursuer
in Addie’s case was stronger on the facts than the case for the present
Respondent and I do not think that we could dismiss this appeal without
holding or at least necessarily implying that Addie’s case was wrongly decided.
1 do not think that it would be satisfactory merely to follow the scheme
of the Scottish Act. That Act provides by section 2 that the care which
an occupier is required to show to a person entering his land (which includes
a trespasser) in respect either of its dangerous state or of dangerous activities
on it shall be “such care as in all the circumstances of the case is reasonable
” to see that the person will not suffer injury or damage by reason of any ” such danger”. That may work satisfactorily where actions for damages
for failure to exercise such care are generally decided by juries. Juries do
not give reasons and so no verdict of a jury can establish a precedent.
But in England such actions are decided by judges who must give reasons
and whose decisions can be the subject of appeal. No doubt if the matter
were left at large in this way a body of case law with regard to the position
of trespassers would develop over the years. The matter would in one form
or another come before this House before very long and some authoritative
guidance would then emerge. But I would not create such a period of
uncertainty if that can be avoided, and I think it can be avoided.
The first matter to be determined is the nature of the duty owed by
occupiers to trespassers. Here I think we can get good guidance from
Addie‘s case. The duty there laid down was a duty not to act recklessly.
Recklessness has, in my opinion, a subjective meaning: it implies culpability.
An action which would be reckless if done by a man with adequate knowledge,
skill or resources might not be reckless if done by a man with less appreciation
of or ability to deal with the situation. One would be culpable, the other not.
Reckless is a difficult word. I would substitute culpable.
The duty laid down in Addie’s case was a humanitarian duty. Normally
the common law applies an objective test. If a person chooses to assume
a relationship with members of the public, say by setting out to drive a car
or to erect a building fronting a highway, the law requires him to conduct
himself as a reasonable man with adequate skill, knowledge and resources
would do. He will not be heard to say that in fact he could not attain
that standard. If he cannot attain that standard he ought not to assume
the responsibility which that relationship involves. But an occupier does
not voluntarily assume a relationship with trespassers. By trespassing they
force a “neighbour” relationship on him. When they do so he must act
in a humane manner—that is not asking too much of him—but I do not
see why he should be required to do more.
So it appears to me that an occupier’s duty to trespassers must vary
according to his knowledge, ability and resources. It has often been said
that trespassers must take the land as they find it. I would rather say that
they must take the occupier as they find him.
So the question whether an occupier is liable in respect of an accident
to a trespasser on his land would depend on whether a conscientious humane
man with his knowledge, skill and resources could reasonably have been
expected to have done or refrained from doing before the accident some-
thing which would have avoided it. If he knew before the accident that
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there was a substantial probability that trespassers would come I think that
most people would regard as culpable failure to give any thought to their
safety. He might often reasonably think, weighing the seriousness of the
danger and the degree of likelihood of trespassers coming against the burden
he would have to incur in preventing their entry or making his premises
safe, or curtailing his own activities on his land, that he could not fairly
be expected to do anything. But if he could at small trouble and expense
take some effective action again I think that most people would think it
inhumane and culpable not to do that. If some such principle is adopted
there will no longer be any need to strive to imply a fictitious licence.
It would follow that an impecunious occupier with little assistance at
hand would often be excused from doing something which a large organise-
tion with ample staff would be expected to do.
It is always easy to be wise after the event and in judging what ought
to have been done one would have to put out of one’s mind the fact that
an accident had occurred and visualise the position of the occupier before
it had happened. Quite probably this would not be the only point on his
land where trespass was likely. One would have to look at his problem
as a whole and ask whether if he had thought about the matter it would
have been humane or decent of him to do nothing. That may sound a low
standard but in fact I believe that an occupier’s failure to take any preventive
steps is more often caused by thoughtlessness than by any shirking of his
moral responsibility. I think that current conceptions of social duty do
require occupiers to give reasonable attention to their responsibilities as
occupiers, and I see nothing in legal principles to prevent the law from
requiring them to do that.
If I apply that test to the present case I think that the Appellants must
be held responsible for this accident. They brought on to their land in
the live rail a lethal and to a young child a concealed danger. It would
have been very easy for them to have and enforce a reasonable system of
inspection and repair of their boundary fence. They knew that children
were entitled and accustomed to play on the other side of the fence and
must have known, had any of their officers given the matter a thought,
that a young child might easily cross a defective fence and run into grave
danger. Yet they did nothing. I do not think that a large organisation
is acting with due regard to humane consideration if its officers do not pay
more attention to safety. I would not single out the stationmaster for
blame. The trouble appears to have been general slackness in the organic-
station. For that the Appellants are responsible and I think in the circum-
stances culpable. I would therefore hold them liable to the Respondent
and dismiss this appeal.
Lord Morris of Borth-y-Gest
my lords,
On the 7th June (Whit Monday) in the year 1965 a small boy aged six
went to play in a field near Mitcham called Bunces Meadow. He was
with his two brothers who were a little older than he was. Bunces Meadow
is National Trust property which is freely open to the public. Through it
there runs a public path. For a part of its distance the path is a made-up
path having a tar-macadam surface. It continues as a trodden path which
makes a turn to the right. The reason for this is that straight ahead of the
path there is a single line railway track, which runs between Mitcham
Junction and Morden Road Halt. By the side of the track there is a “live”
rail carrying the necessary electric current for trains which are driven along
the track. The path to the right leads to a footbridge over the railway
track. By crossing the railway another National Trust property Morden
Hall Park, is reached.
The trodden path turned to the right near to but before reaching the line
of the fence which had been erected to border the railway track. There
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was a further short stretch of trodden path (which should have been a cul-de-
sac) reaching up to the fence. The fence was a chain link fence four feet
high supported by concrete posts eight feet six inches apart. But at the
very place where the fencing should have debarred a person from going
straight on if he had not previously turned to the right it was defective.
The fence was detached from one of the posts and had been pressed down
so that its top curved down to within about ten inches of the ground. The
lower part of the chain link, which was rusty, was lying on the ground.
The state of affairs was, as the learned judge found, that for some time
before the 7th June people going to Morden Hall Park had been taking
a short-cut. They proceeded straight on and crossed the railway track.
The fence was in so dilapidated a condition that anybody, adult or child,
“could quite easily get across on to the line”.
The three boys played in Bunces Meadow but shortly after noon the
two elder ones missed their young brother. He had wandered off. They
went in search of him. One brother went through what was virtually the gap
in the fencing and then found his young brother on the railway track. He was
between the conductor rail and the running rail. He was lying unconscious.
After help had been secured, a rescue was effected: but that was only after
the boy had been most gravely injured. He suffered very severe burns.
Certain additional facts call for mention. The learned judge was satisfied
by the evidence given by two youths who had visited Bunces Meadow a
number of times in the six weeks previous to the 7th June that the fence
had been in its dilapidated condition for at least several weeks before that
date. The state of the fence and of the path lead the learned judge to
think that the described condition of the fence had probably existed for
months. The Railways Board made no attempt to contravert any of these
conclusions. They thought it prudent not to put any witness in the box.
They decided to give no explanations in regard to any of the documents
which discovery disclosed. Thus, there was a memorandum dated the 17th
April, 1965 (some seven weeks before the accident) from the Station Master’s
office, Mitcham Junction, to the “Line Manager” stating that the guard of
an afternoon train two days previously had reported to the signalman at
Mitcham on arrival at Merton Park that children were on the line between
Mitcham and Morden Road Halt: the memorandum stated that the Mitcham
Police were requested to investigate. There were various memoranda
written on the date of the accident: they recorded that at 3.10 p.m., there
was an examination of the fences in the vicinity of Bunces Meadow: three
places in the vicinity were discovered where children could get on to the
line through the fences. One memorandum was to the “Line Manager”:
another was to the “Ganger” at Mitcham. “Control” had ordered the
Station Master (of Mitcham Junction) to examine the fences and to report and
also to inform the “Ganger” to get the fences repaired immediately. The
“Engineer’s Department” were instructed to make repairs in three places.
A letter of the 11th June from the “Divisional Manager” recorded that
he was advised that the fence at the site of the accident was “in rather a
” bad state” and that there were three different places where children could
get on to the line through the fences: the writer asked that he should
be informed when the repair work was completed: the letter went to the
“Line Manager” with a copy to the Station Master. A memorandum from
the Station Master to the Divisional Manager reported that the Engineers
Department were called out and that the fences were repaired on the day
of the accident.
In view of the evidence which was before the learned judge and in the light
of the documents referred to, it is a matter of some surprise that when a
claim was made it was stated on behalf of the Railways Board that their
engineer had made an inspection of the fence in question on the morning
of the accident and found it in order. “Our evidence quite clearly establishes
“ that the fence was found in good order earlier on the day in question,
” but was found damaged after the accident. Temporary repairs were
” carried out immediately afterwards, followed later by permanent repairs.”
Having regard to the evidence before the learned judge and to the terms
8
of the various internal memoranda it is difficult to understand how the letter
came to be written. There was no evidence either to support it or to
explain it. If there was a system of inspection there must have been a
lamentable failure in its operation. The fact remains that for weeks or
months the fencing was so broken down at a point ahead of a public path
that a person could easily get across to the line: an adult would doubtless
appreciate the risks or perils in so proceeding: a boy aged six would not.
If the facts which I have outlined were put to any well-disposed but fair-
minded member of the public, whether a parent or not, I venture to think
that the response guided by the promptings of common sense would be that
having regard to the dangerous nature of the live rail and its perils for a
small child, the Railways Board were grievously at fault in allowing a fence
at the particular place in question to remain for a long time in a broken
down condition. It must at any time be a matter of regret and of concern
if the answer of the law does not accord with the answer that common sense
would suggest. But the Railways Board assert that the law must refuse the
infant’s claim. In effect they say that he was a legal outcast. In short he
was a trespasser. And they say, “Towards the trespasser the occupier has
” no duty to take reasonable care for his protection or even to protect him
” from concealed danger. The trespasser comes on to the premises at his
“own risk.” (Addie v. Dumbreck [1929] AC 358.) On the authority of
the same case they say that an occupier is only liable to a trespasser where
the injury is due to some wilful act involving something more than the
absence of reasonable care. “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.” So they
say that in the present case there was no wilful act done against the infant:
the Railways Board did not know of his presence and did nothing in
disregard of his presence.
There is always peril in treating the words of a speech or a judgment
as though they were words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the facts
of a particular case. The facts in the present case differ from those in Addie’s
case. In the present case a question arises whether some duty may be
owed to a person before he becomes a trespasser. In that case a question
arose whether a duty was owed to someone who was already a trespasser.
In that case both adults and children often went on to the land in question
though it was made plain to them that they had no right to do so. There
were many gaps in the hedge that surrounded the land. Children did in
tact go and play on the land (in spite of their being periodically driven off):
they played both near the wheel which was there and elsewhere. The
wheel was about one hundred yards within the boundary of the land. The
wheel was not something as inherently dangerous as a live rail which it is
highly perilous to touch. Those who set the wheel in motion did not know
that a four-year old boy had gone to sit on it. He was a trespasser and
he had been warned not to go to the land or to go near to the wheel. But
as those operating the wheel must have known that it was at least a possibility
if not a likelihood that a child would be on or near to the wheel it might
have been held that there was a duty to give some warning or to exercise
some measure of care to see that no one was going to be injured before
the machine was suddenly set in motion. But it was held that there was
no liability for the death of the boy. The law was laid down in the terms
that I have quoted. There have been many expressions of lament that the
claim should not have succeeded as did the claim in Excelsior Wire Rope
Co. Ltd. v. Callan |1930] A.C. 404.
In the present case the boy was injured by coming into contact with
something on the land—the live rail. The live rail was placed where it
was for the legitimate purpose of supplying power for the running of trains.
There was no question of intending to do harm to a trespasser. If the
question is asked—What did the Railways Board do wrong?—the answer
must I think be that they allowed the fence to remain for a long time in
such a state that a child who did not sense danger could quite easily get
9
on to the line and the live rail. Anyone who gave any thought to the matter
would at once appreciate that the purpose of having a fence bordering
on a railway track with a live rail is to warn people that they must proceed
no further and to be to some extent an obstacle to prevent them from so
doing. Anyone would further appreciate that if the fencing had a gap in
it and a gap near to a public path a child might go through the gap and be
in a position of great danger. Not only might a child come into contact
with the live rail: he might be struck by a passing train. So the question
arises whether the Railways Board had any obligation to take thought and
having taken thought to take some action. Is it enough for them to say—
true we could appreciate that if a child stepped over the broken fence he
might get on to the railway track with its live rail and be killed or gravely
hurt but the moment he stepped over the broken fence he would be a
trespasser and “towards the trespasser the occupier has no duty to take
” reasonable care for his protection or even to protect him from concealed
” danger”? Though, generally speaking, an occupier is not obliged to fence
his land and though, generally speaking, there is no obligation to prevent
somebody from becoming a trespasser—are there some circumstances in
which a duty arises to take some action to lessen the risk of peril both
in the case of a potential or prospective trespasser and in the case of someone
who has become a trespasser?
Having posed this question it is to be remembered that in Addie’s case
consideration was given to such cases as Cooke v. Midland Great Western
Railway of Ireland [1909] A.C. 229 and Lowery v. Walker [1911] AC 10
and Latham v. R. Johnson & Nephew Ltd. [19131 1 K.B. 398 and to many
other cases and I think that it must be recognised that it was implicitly
laid down in all the speeches that apart from cases where an occupier
intends to injure a trespasser (as by laying a spring gun) he owes no duty
to a potential or prospective trespasser and that it was expressly and indeed
inexorably laid down that towards an actual trespasser he owes no duty
apart from the duty not maliciously to cause him injury.
The question now arises whether we should depart, as we were invited
to do, from what was laid down in Addle s case or whether in the light of
developments in the law since 1929 there are some modifications which
permissibly can be accepted.
In approaching this question regard must be had to the fact of the enact-
ment of and to the provisions of the Occupiers’ Liability Act of 1957. It
seems to me that Parliament must have decided that problems relating to
trespassers should be left to be decided according to common law principles.
By the Act the “rules” enacted by sections 2 and 3 are to have effect “in
” place of the rules of the common law, to regulate the duty which an
” occupier of premises owes to his visitors in respect of dangers due to the
” state of the premises or to things done or omitted to be done on them”.
To such “visitors” (subject to exceptions) there is a duty to take such care
as in all the circumstances of the case is reasonable to see that the visitor
will be reasonably safe in using the premises for the purpose for which he
is invited or permitted by the occupier to be there. But a trespasser is not
a “visitor”. The term trespasser is a comprehensive word: it covers the
wicked and the innocent: the burglar, the arrogant invader of another’s
land, the walker blithely unaware that he is stepping where he has no
right to walk, or the wandering child—all may be dubbed as trespassers.
When in 1960 the Occupiers’ Liability (Scotland) Act was passed it was
in terms which created a certain duty of care to trespassers. The English
Act was. however, left as it was. It was not amended. It would not, in
my view, be fitting for us to make fundamental changes in the law, according
to our view as to what its terms and policy should be, when Parliament,
apparently deliberately, has refrained from making such changes. We can.
however, ensure that the tide of development of the common law is not
unwarrantably impeded.
If a child is a visitor an occupier must “be prepared for children to be
” less careful than adults” (see section 2 subsection (3) of the English Act).
But apart from any statutory provisions it is a matter of ordinary common
10
knowledge that children will roam and will explore. If a fence marks a
boundary an adult who climbs over it will appreciate what he is doing.
A small boy who finds a part of a fence so dilapidated that there is no
real obstacle to his progress will not or may not know that he is at once
a “trespasser” if he goes on. So the problem raised in this case is whether,
if an occupier has for legitimate reasons (and with no object of hurting
anyone) placed something highly dangerous on his land, he owes any and
what duty to take some steps to lessen the risk that a wandering child may
run into the danger. Though the present case relates to a young child
who obviously may be less perceptive than an adult the kindred question
is raised whether there may be circumstances, if a situation of danger has
been created on land, in which some measure of duty would be owed to
an adult trespasser. Furthermore, though in the present case the place of
real danger was quite close to the boundary of the private land the
question of principle might equally arise if the place of great danger was
not close to such boundary. If a minefield had for legitimate reasons been
created and if it continued in existence I should be sorry to think that an
occupier owed no duty to warn a potential or actual trespasser. In his
powerful dissenting judgment in Adams v. Naylor [1944| 1 K.B. 750 Scott L.J.
saw no reason in principle why an occupier should not be called on to
take all reasonable precautions to keep trespassing children out of a place
where he knows they will be blown up.
In the early part of the last century, occupiers of land sometimes placed
spring guns on their land: if a trespasser walked against a wire he would
cause a gun to he fired and he might be injured. If an occupier could
do as he liked on and within the confines of his own land why should he
not place such guns? Yet certain trespassers who suffered injury brought
claims. Could such a trespasser recover damages? The Courts held that
he could. There were two reasons. One was that an occupier could not
do indirectly what he could not do directly: if he had been present on his
land and had seen a trespasser he would not have been entitled to fire a
gun at him. So he ought not to cause a gun to be fired indiscriminately
and automatically if and when an intruder walked on the land. The
other reason was that it was contrary to principles of humanity to place a
spring gun of which a trespasser was unaware.
Thus, in 1807 (in Jay v. Whitfield 3 B. & A. 308) a boy who entered the
defendant’s premises for the purpose of cutting a stick was shot by a spring
gun: he recovered £120 damages (before Richards C.B.) for his injury.
It is recorded in one of the cases that it was formerly the practice to give
public notice in market towns if such means of protection as spring guns
had been resorted to. It was the “common understanding of mankind”
that such notice ought to be given. That was before there was any statutory
provision in regard to them.
In Ilon v. Wilkes which was in 1820 (3 B. & Ald. 304) a trespasser who
knew that there were spring guns in a wood (without knowing the actual
particular spots where they were placed) was injured when he trod on a latent
wire and caused a gun to be fired. On the principle volenti non fit injuria
he failed in his claim for damages. But the duty to warn was recognised.
Thus Bayley J. said: “Although it may be lawful to put these instruments
” on a man’s own ground, yet as they are calculated to produce great bodily
” injury to innocent persons (for many trespassers are comparatively innocent)
” it is necessary to give as much notice to the public as you can, so as to put
” people on their guard against the danger.” Best J. spoke with no uncertain
voice when he proclaimed: “Humanity requires that the fullest notice
” possible should be given, and the law of England will not sanction what
“is inconsistent with humanity.” Bayley J. recognised that there may be
circumstances in which there is a duty to prevent injury to a trespasser.
He instanced a situation in which a furious dog was loose in a yard but
where there was notice over the entrance of the presence of the dog. He
said that if a wrong-doer read the notice but then in the absence of the
owner entered the yard he was voluntarily incurring the risk of being injured.
But he expressed a further view for he said: “If, indeed, the master had
” been upon the spot at the time, and had seen the dog running towards the
11
” man, it would have been his duty to have done all in his power to prevent
” the animal from worrying him, and if he had not so done, the party
” injured might have had a right of action.” The passage is of interest as
showing that the learned judge thought that even inaction, when humanitarian
impulses would prompt action, might amount to a breach of a duty owed
to a trespasser.
In the later case, in 1828, of Bird v. Holbrook 4 Bingham 628 a young
man, in order to catch a stray fowl (so as to help the servant of its owner),
went over a wall into the defendant’s garden where he came into contact
with a wire which discharged a gun. He recovered damages in respect
of the injury which he sustained. Best C.J. stoutly proclaimed: “But we
” want no authority in a case like the present; we put it on the principle
” that it is inhuman to catch a man by means which may maim him or
” endanger his life, and, as far as human means can go, it is the object of
” English law to uphold humanity, and the sanctions of religion.”
Burrough J. said—”The Plaintiff was only a trespasser: if the Defendant
” had been present, he would not have been authorised even in taking him
” into custody, and no man can do indirectly that which he is forbidden
” to do directly.” That approach would I think bring the case within the
category of acts done with a “deliberate intention of doing harm to a
” trespasser”. The spring gun would be deliberately placed so that it would
cause injury to any trespasser who might arrive. As Viscount Dunedin
said (at page 376) in Addie’s case—”he may not set a spring gun for that is
” just to arrange to shoot him without personally firing the shot.” Alter-
natively the placing of the spring gun might amount to a “reckless disregard
” of the presence of the trespasser”. It is to be observed that Dixon C.J.
said in Commissioner for Railways (N.S.W.) v. Cardy 104 C.L.R. 274, 285—
“The fixed rule that a trespasser comes at his own risk and that only a
” wilful injury to him is actionable is modified by the assimilation of
” ‘reckless disregard of the presence of the trespasser’ to wilfulness. It
” needs no argument to show that reckless disregard to the presence of a
” man must include not only the case of a man who is there but also of one
” whose coming is expected or foreseen.”
The spring gun would be placed on land because the possible presence of
a trespasser would either be expected or foreseen—and there would be the
circumstance that injury was intended. Though the conditions of danger
on the railway track in the present case were not created with any intention
of doing injury to anyone, if it could be expected or foreseen that some
trespasser (such as a young child) might run into the danger unawares, was
there some and, if so, what duty to take some and what steps to seek to
avert such an occurrence? If humanity is to be a guide should it not operate
to lessen the risk of foreseeable injury from a danger which has been created
even though such injury is not intended?
If the passages to which I have referred show that even in days when
property rights were jealously safeguarded it was firmly recognised that
the dictates of humanity must guide conduct even towards trespassers such
recognition must surely be no less firm today. Indeed, it should be firmer.
It is today basic to our legal thinking that every member of a community
must have regard to the effect upon others of his actions or his inactions.
If in all probability the boy in the present case would not have suffered injury
had the fence been in ordinary repair instead of being left dilapidated for
weeks on end the question might be asked—even so as the boy would be
a trespasser the moment he crossed the line of the fence why and for what
reason should the Railways Board owe him any duty at all beyond that
of not deliberately harming him thereafter or of acting with reckless disregard
of his presence on their land? I would answer for reasons of common sense
and common humanity. The nature and extent of any duty owed will call
for separate consideration. But there must be some circumstances in which,
by reason of them, a duty is owed by an occupier of land to potential
trespassers as well as to actual trespassers of whom he is positively aware.
As my noble and learned friend. Lord Pearson, said in Videan v. British
12
Transport Commission ([1963] 2 Q.B. 650) it is a heresy to suggest that
occupation of land is a ground of exemption from liability: on the contrary
(he said) occupation of land is a possible ground of liability and if a duty
of care is owed then any person to whom it is owed is a neighbour though
the content of the duty will vary according to the circumstances.
If it is asked—why need the Railways Board give any thought to the
question whether a trespasser might come to harm by trespassing on their
land the answer must I think again be that common sense and common
intelligence so direct. What has been called ordinary civilised behaviour
would so prompt. The words of Lord Macnaghten in Cooke v. Midland
Great Western of Ireland [1909] A.C. 229 (while remembering that it was
held that the children in that case were licensees) are apposite—”Would
” not a private individual of common sense and ordinary intelligence, placed
” in the position in which the company were placed, and possessing the
” knowledge which must be attributed to them, have seen that there was a
” likelihood of some injury happening to children resorting to the place
” and playing with the turntable, and would he not have thought it his plain
” duty either to put a stop to the practice altogether, or at least to take
” ordinary precautions to prevent such an accident as that which occurred?”
By taking ordinary thought and exercising “common sense and ordinary
” intelligence”—even apart from the guidance of common humanity—1 think
that the Railways Board would see that in the circumstances of this case
there was a likelihood that some child might pass over the broken down
fence and get on to the track with its live rail and be in peril of serious
injury. Even though the child would be a trespasser ought it not to be
their “plain duty” to repair the fence? That would be a relatively simple
operation not involving any unreasonable demands of time or labour or
expense.
In the classic definition of negligence in 1856 in Blyth v. Birmingham
Waterworks Co. (11 Ex. 781, 784) Alderson B. said that negligence was “the
” omission to do something which a reasonable man guided upon those
” considerations which ordinarily regulate the conduct of human affairs would
” do, or doing something which a prudent and reasonable man would not
” do.” Ought not the “considerations which ordinarily regulate the conduct
” of human affairs” under some circumstances (and I would include those
of the present case) produce the result that some duly is owed by an
occupier of land towards those who if they proceed further may suffer
injury at a time when they are trespassing?
That in a civilised community there is need to take thought as to the
result of acts or omissions has long been recognised. Though in Heaven v.
Pender in 1883 (11 Q.B. D.503) the colleagues of Brett M.R. were unwilling
to concur in “laying down unnecessarily the larger principle” which he
entertained his words may be recalled. He considered that from decided
cases the proposition was to be deduced “that whenever one person is by
” circumstances placed in such a position with regard to another that every
” one of ordinary sense who did think would at once recognise that if he
” did not use ordinary care and skill in his own conduct with regard to those
” circumstances he would cause danger of injury to the person or property
” of the other, a duty arises to use ordinary care and skill to avoid such
” danger.” The Master of the Rolls was of course not considering any
question in regard to trespassers, but the question now arises whether there
are not some trespassers for whom thought must be taken. The stress
placed on the taking of thought by persons of “ordinary sense” is today
constantly reflected in decisions in the courts. Lord Atkin in Donoghue v.
Stevenson [1932] AC 562, 580 said that “You must take reasonable care
” to avoid acts or omissions which you can reasonably foresee would be
” likely to injure your neighbour.” The Corporation in Glasgow Corpora-
tion v. Taylor [1922] 1 AC 44 ought by taking thought to have realised
that the poisonous berries deceptively presented a tempting and harmless
appearance to a young boy who was entitled to be where he was • there was
a case for trial as to whether the Corporation had failed to take certain
precautions that they ought to have taken. In Haley v. London Electricity13
Board [1965] AC 778 it was held that those engaged in operations on the
pavement of a highway ought to have foreseen that blind persons might
walk along the pavement. So, by taking thought, should the danger have
been appreciated of allowing the small child in Carmarthenshire County
Council v. Lewis [1955] AC 549 to be out of care. So, by taking thought,
should the consequences have been realised of failing to exercise reasonable
control in the case Home Office v. Dorset Yacht Co. [1970] A.C. 1004.
I consider that it is abundantly clear that the Railways Board, if they had
taken thought, must have realised that if they allowed the fence to be broken
down at the particular place in question there was a considerable risk that
a small child would pass through it and might as a result either be killed
or come to serious harm. This was not a case in which a child could be
said to have been invited or permitted to proceed with the result that he
would as an invitee or licensee be proceeding towards what could be called
a trap: nor do I think that any temptation to proceed could be said to have
been in response to an allurement.
The present case is to be distinguished on its facts from Edwards v.
Railway Executive [1952] A.C. 737 where the main issue was whether the
boy could be said to have been a licensee. The lay-out of the land was in
that case quite different from that in the present case and the fence in that
case was repaired whenever it was observed to have suffered interference.
There was evidence in that case that on the morning of the accident the
fence was in proper repair.
Could a child such as the boy in the present case be regarded as a
“neighbour”? When Lord Atkin posed the question Who then in law is
my neighbour? he said that the answer seemed to be “persons who are
” so closely and directly affected by my act that I ought reasonably to have
” them in contemplation as being so affected when I am directing my mind
” to the acts or omissions which are called in question.” No one would
suggest that every trespasser is a “neighbour” but within these words was
not the small boy in the present case a neighbour? When the railway track
and its electrified rail were laid and at all times when they were maintained
the risks of injury resulting if there was neither warning nor impediment
such as a fence would provide would be clear to anyone who gave the
mutter a moment’s thought. Yet when the boy went on to the track he
undoubtedly became a trespasser. Does this mean that the strict edict of
Addie’s case prevents any kind of duty from arising towards such a neighbour,
especially as Parliament has not legislated in terms which cover trespassers?
In my view, while it cannot be said that the Railways Board owed a common
duty of care to the young boy in the present case they did owe to him at
least the duty of acting with common humanity towards him. In regard
to the words that I have quoted from Addie’s case I do not think that the
Railways Board (through their servants) did any act with the deliberate
intention of doing harm to the boy: their omission for a long time to repair
the fence and their continuing distribution of electric power along their live
rail did not, in my view, amount to a “reckless disregard of the presence of
” of a trespasser”. If those last quoted words can be said to cover the
likely or expected or anticipated presence of a trespasser then the question
arises whether the lamentable inaction of the Railways Board is to be charac-
terised as “reckless”. As to this I have doubt. The word “reckless”
seems more apposite in reference to positive conduct than to inaction.
The duty that lay upon the Railways Board was a limited one. There
was no duty to ensure that no trespasser could enter upon the land. And
certainly an occupier owes no duty to make his land fit for trespassers to
trespass in. Nor need he make surveys of his land in order to decide
whether dangers exist of which he is unaware. The general law remains that
one who trespasses does so at his peril. But in the present case there were
a number of special circumstances—(a) the place where the fence was faulty
was near to a public path and public ground ; (b) a child might easily pass
through the fence ; (c) if a child did pass through and go on to the track
he would be in grave danger of death or serious bodily harm ; (d) a child
14
might not realise the risk involved in touching the live rail or being in a.
place where a train might pass at speed. Because of these circumstances
(all of them well known and obvious) there was, in my view, a duty which.
while not amounting to the duty of care which an occupier owes to a
visitor, would be a duty to take such steps as common sense or common.
humanity would dictate: they would be steps calculated to exclude or to.
warn or otherwise within reasonable and practicable limits to reduce or
avert danger.
I would adopt the approach of my noble and learned friend, Lord Pearson.
in his judgment in the Court of Appeal in Videan’s case. In agreement with
him, I do not think that there is any sound basis of principle for differentiating
sharply between liability for the static condition of land and liability for
current operations on land. In general, therefore, a trespasser has not
only to take the land as he finds it but the current operations on land as he
finds them. Yet a potential or actual trespasser may on occasion be a
neighbour and, as my noble and learned friend said (at page 678), the
expression “duty to a neighbour” is more appropriately used as an aid
to ascertaining whether or not there is a duty of care owing by one person
to another rather than as a definition of the content of such a duty. So
(at page 680)—” If the person concerned does not know of or have good
” reason to anticipate the presence of the trespasser, that person owes to
” him no duty of care because he is not within the ‘ zone of reasonable
” ‘ contemplation ‘ and is not a ‘neighbour’. If the person concerned knows
” of or has good reason to anticipate the presence of the trespasser, that
” person owes to the trespasser a duty of care which is substantially less
” than the duty of care which is owing to a lawful visitor, because the duty
” to a trespasser is only a duty to treat him with common humanity and
” not a duty to make the land and operations thereon safe for the trespasser
” in his trespassing.”
The case of Commissioner for Railways (N.S.W.) v. Cardy 104 C.L.R. 274
amply repays study. Though the boy who was injured was a trespasser he
recovered damages. In the course of his judgment Dixon C.L. said—
” In principle a duty of care should rest on a man to safeguard others from
” a grave danger of serious harm, if knowingly he has created the danger
” or is responsible for its continued existence and is aware of the likelihood
” of others coming into proximity of the danger and has the means of pre-
” venting it or of averting the danger or of bringing it to their knowledge.”
Windeyer J. expressed the view that the duty of an occupier is rooted at
bottom in his duty to his neighbour in Lord Atkin’s sense and he said
(at page 321)—”No man has a duty to make his land safe for trespassers.
” But, if he has made it dangerous and the danger he has created is not
” apparent, he may have a duty to warn people who might come there of
” the danger of doing so. Whether there be such a duty in a particular
“case must depend upon the circumstances, including the likelihood of
” people coming there. But if they would be likely to come, the duty does
” not, in my view, disappear because in coming they would be trespassing.
” It is a duty owed to likely comers, to those who would be intruders as
” to those who would be welcome.” He further said (at page 322)—”I do
” not see how, speaking generally, there can be a duty either to prevent
” people trespassing or to make the premises safe for those who do. But
” the duty that I think can, in appropriate circumstances, exist is a duty to
” warn persons coming upon premises of hidden dangers they may encounter
” there, when those dangers are not natural features of the land but arise
” from conditions created by the occupier. Such a duty is not necessarily
” discharged by posting notices such as ‘ Trespassers will be prosecuted’ ;
” for the warning required is not that trespassing is not tolerated but that
” entry may be dangerous.”
For the reasons which I have given I consider that the learned judge
was warranted in deciding that the plaintiff was entitled to recover. My
approach involves some departure from some of what was said in Quinlan’s
case. It involves also that, on its facts, the decision in Addie’s case should
in my view have been the other way. The Colliery Company knew that
15
young children were in the habit of playing on the ground near to the wheel
in question and knew that, though at times there were warnings, children
continued to frequent the place. They knew that children might be or
were likely to be there. I consider that with such knowledge they should
have taken reasonable care to avoid the risk of a child trespasser being
killed or injured by reason of the wheel being suddenly and blindly put to
work. It follows that I consider that the case was wrongly decided.
I would dismiss the appeal.
Lord Wilberforce
my lords,
This is, unusually, a straight case of an infant trespasser. The six year
old boy was trespassing on the railway when he came into contact with a
live electric rail, was fortunately not killed, but was severely injured. There
was no allurement on to the defendant’s land; there is no basis, in reality
or fiction, by which the child can be treated as a licensee. There was no
wilful intention to injure him; nor (I shall return to this) reckless disregard
of his presence. At most (and this has been found) there was a lack of
care by the Board as regards the maintenance of its fences.
We have not, in England, any general law as to public enterprise liability.
As regards fencing, such duty as the Board has (Railway Clauses (Con-
solidation) Act, 1845, section 68, which, it seems protects cattle but not
children) dates from 1845 since when, even after electrification, Parliament
has not thought it necessary to impose new obligations on railway com-
panies. So if the plaintiff is to recover, he must rely on our outdated law
of fault liability which involves the need to establish a duty of care towards
him and a breach of it. At once he is faced by the formidable authority
of Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] AC 358.
There are perhaps two things about Addie’s case which, out of many
comments that have been made over the years, are relevant here.
First, the bulk of the criticism has been of it as a decision on its facts.
It is claimed that it should have been decided the other way, in favour of
the child, as it was decided in the Court of Session, as, on very similar facts,
Callan’s case three years later was decided in the plaintiff’s favour (Excelsior
Wire Rope Co. v. Callan [1930] A.C. 404). The difference of opinion
between the Inner House and this House was essentially as to whether the
child should have been regarded as a licensee. The Lord President said
he should—he compared him with the plaintiff in Lowery v. Walker ([1911]
A.C. 10) and said, as to the user of the company’s premises, that it was
substantially acquiesced in and acquiescence is often a form of what may
be called an unwilling consent (l.c.p.555). This House took a different
view: he was, on the Sheriff Substitute’s finding, a trespasser and nothing
else. The wheel had been there long before the house in which he lived
was built, so that there was no question of a dangerous thing having been
placed in his proximity: the only relevant relationship was the occupier/
trespasser relationship. I have referred to these factual points because I
do not think that we should decide this case by meticulously comparing the
facts here with the facts there. What we are concerned with is the principle
of law which Addie established—to see what it is and what cases it governs.
The second thing to be said about Addle is that it is a case to be con-
sidered in a context, the context of previous and subsequent cases of
common law, and the context of bordering but not identical typical situa-
tions. This has often been forgotten. The prestige of the learned law
Lords who gave the opinions in that case, and the clarity and emphasis of
those opinions has led to its rules being treated as a code of law to be
scrupulously applied to every situation where the defendant is an occupier
of land whatever may be the set of facts out of which the injury, and
the claim for damages, may have arisen. It is often the fate of clear pro-
nouncements—in law as in science—to be treated in this way, with con-
sequences more and more strained as different cases are forced within them
16
by the use of fictions and other devices until there is a bursting of the seams
and a cry that this case as a statement of the law must be overruled. That
is what we are asked to do here.
I should say at once that, even apart from the argument against this which
the Occupiers Liability Act, 1957, provides, I should hesitate to support
this course. We should first see whether we can move on from the position
taken in 1929 by classical methods of experience, analogy and logic. We
should approach this without the too complacent assumption that our present
age is humaner than was that of 40 years ago: but we may take the benefit
of experience and recognise fresh situations—especially those of extreme
danger, which have become typical.
There can be no doubt that the law regarding occupiers’ liability forms
part of the general law of negligence. The earlier 19th century cases were
actions on The case (Deane v. Clayton (1817) 7 Taunt 489. 4., Lynch v.
Nurdin (1841) 1 Q.B. 29) and though attempts were made to treat some
of them as based on nuisance this was not a tendency which prevailed.
Since these were what we now call actions in negligence, it was necessary
to define the degree of care owed to persons coming on land in particular
circumstances, and this led to the emergence, in progressively segregated
divisions of the familiar tripartite classification—which in Addie was stated
to be exhaustive, and the line separating them an absolutely rigid line ([1929]
A.C p. 371 per Viscount Dunedin). The first duty of the court, it was said,
was to fix once and for all into which class the plaintiff falls. The Scottish
Courts avoided this rigidity and proceeded upon the general principles
governing the law of negligence (Addie’s case 1928 S.C. 547, 551 per Lord
President Clyde). The formulation by this House in Addie gave rise not
only to dissatisfaction in Scotland but to difficulty since human conduct can
rarely be squeezed neatly into a predetermined slot ; and if this is what
courts are told to do, they will find ways, according to their views of the
merits, of crossing the lines. So they have found means of converting
trespassers into licensees by imputing licences, and in the case of children
they have improved their status by a finding of allurement or by straining
the facts.
We ought now to ask the question directly, what, in relation particularly to
infant trespassers, is the duty of care (See Commissioner of Railways (N.S.W.)
v. Cardy 104, C.L.R. 274) for the recognition of some duty of care, even
towards trespassers, in certain limited cases, is what the imputation of a
licence really means. We may, though here we are getting near the dangerous
ground of legislation, be readier than our predecessors to see liability for
injuries to individuals placed upon society generally, of which the Railways
Board effectively forms part. And if we do not go so far as to recognise
that special rules ought to be devised for child trespassers (c.f. American
Restatement, Torts (2nd) section 339), we can at least accept that fresh and
more lethal dangers to their safety have appeared, and come nearer to them,
and that somewhere more care has to be used to prevent them being hurt.
I say “somewhere” because the occupier of adjoining land is not the only,
or indeed the first, person in the line of responsibility. Even today parents
have some control and responsibility, and if children are on a playground
which someone has provided for the purpose, that person has a responsibility
to see that it is safe.
Does, then, Addie contain an exhaustive definition of an occupier’s duties
to persons on his land? One does not see why, in principle, this should
be so. It could be so if the fact of occupation of land were to be the basis
of exemption from any greater liability than the relevant rule prescribes.
But this idea has been refuted more than once (see Commissioner for Rail-
ways (N.S.W.) v. McDermott [1967] AC 169, 186). The correct conception
is that stated by the Privy Council when through Viscount Radcliffe the
Board said that the Addie rules were expressive of certain consequences
as regards proximity and foreseeability which flow from the given relationship
(occupier and invitee—licensee—trespasser). (Commissioner for Railways
(N.S.W.) v. Quinlan [1964] AC 1054, 1072.) Or, as was put by Barwick
C.J. there is “a quantitative element both in the extent of the foreseeability
17
” and of the reasonable steps required to fulfil any resultant duty arising
” from the circumstances in which the injured person came on the scene “.
(Munnings v. Hydroelectric Commission of Tasmania [1971] AJ.L.R. 378,
382.) If this is generally so, it must follow that the law can, particularly,
take into account other relevant factors, if they exist, which bear upon these
matters of foresight and prudence. It does so when in the general case it
considers it relevant to know whether the presence of the relevant person
was known, “as good as known” Commissioner for Railways v. Quinlan
[1964] AC 1054 and 1076, or “extremely likely” Excelsior Wire Rope Co. v.
Gallon [1930] A.C. 404, 410, and it seems a necessary step from this to say
that particular circumstances may exist in which an increased duty of
“foreseeability” may arise.
There are other indications, in the law as it stands, of the relevance of
particular factors as modifying the general rules. First there is the doctrine
of allurements. It has been criticised, as a device, like imputed licenses, for
escaping from the Addie rules. But it is older than Addie and reflects the
perfectly sound conception that as particular things are (“foreseeably”)
likely to be attractive to children, the occupier owes a duty, if they are
dangerous, not to put them in the children’s way. The classic case is that
of the berries in the park Glasgow Corporation v. Taylor [1922] 1 AC 44.
Secondly, there is the law as to fencing. In general an occupier is under
no duty to fence his land so as to exclude trespassers, a rule of importance
to Railway Companies and of validity as this House has decided (Edwards v.
Railway Executive [1952] A.C. 737). The fact, that Parliament has not
imposed a duty securely to fence children or others out, is a recognition
that a compromise must be struck between the desire to save everyone
from every danger and the cost to the community of doing so. It means that
there are situations where even children will not recover. But the courts
have qualified this exemption by reference to particular circumstances as,
for example, that persons are known frequently to have access along a track
Cooke v. Midland G.W. Railway of Ireland [1909] A.C. 229, Lowery v.
Walker [1911] AC 10 which, though put upon the imputation of a licence,
really reflect the fact that some elementary duty is owed. Similarly, there
are the cases of pitfalls—where an occupier makes an excavation near a
highway (cf. Prentice v. Assets Co. 17 R. 484) (the same would surely be
true of other hazards, e.g. an electric wire): he is under a duty, even to
trespassers, to take some steps to keep them off.
Thirdly, there is the position of contractors carrying out work on land.
A number of cases Davis v. St. Mary’s Demolition & Excavation Co. Ltd.
[1954] 1 W.L.R. 592, Morney v. Lanarkshire County Council [1954] S.C. 245.
A. G. Billings & Sons Ltd. v. Riden [1958] AC 240, which I need not
examine in detail—(some of them I think put the duty too high), have
established their responsibility in principle, through a duty of care, toward
trespassers, including infant trespassers. Their liability should not depend
solely upon whether they were, or were not, themselves occupiers of the
land, and it would be absurd if there were one law for contractors doing
work and another law if the occupier did the same work himself cf. Buckland
v. Guild ford Gas Light & Coke Co. [1949] 1 K.B. 410, Creed v. McGeogh
& Sons [1955] 1 W.L.R. 1005—both perfectly sound decisions in themselves.
This is not to say that the contractor’s duty is to be imposed or measured
regardless of the fact that the victim may have been a trespasser, but it
is to say that there may be circumstances in which contractors and occupiers
alike may have some (I am not saying the same) responsibility for trespassers’
safety, outside the bare Addie principle. It is curious, in fact, that this point
escaped attention so long after Callan’s case—(Excelsior Wire Rope Co. v.
Callan [1930] A.C. 405)—had shown how easy it is to reach a just and sensible
conclusion once one escapes from a narcotic preoccupation with the
occupier / trespasser relationship.
These are merely examples to illustrate the proposition that Addie is not
an all embracing code, but a piece in the larger whole of a man’s duty of
care to those who may come into his proximity, and may be injured by
actions or events occurring on his land.
18
I have already referred briefly to the historical antecedents of the law
of occupiers’ liability. It would be possible to show, in my belief, that Addie
to some extent represented a step back in the direction of categorisation
from an earlier more general attitude to the duty of care. It is more
significant for the present case to recall that it occurred precisely
at a time when the law of negligence was being put on a generalised basis
and that many of the eminent legal authorities of this time were parties,
in differing combinations, to Addie, Callan’s case (Excelsior Wire Rope Co.
v. Callan [1930] A.S. 405) and Donoghue v. Stevenson [1932] AC 562.
It is hard to believe that they regarded these cases as inconsistent, or as
separating occupiers’ cases, as such, from all other situations where care
might be needed.
I pass over for the moment the Occupiers Liability Act, 1957, in order
to refer to four Australian cases, decided in the High Court, which give
us valuable guidance in the search for a modern definition, or at least
outline of the duty of care which may be owed to trespassers in cases such
as the present. It will be necessary to supplement this by consideration of
Quinlan’s case in which the Privy Council, on a New South Wales Appeal,
may appear to have taken a step back. The High Court cases are Thompson
v. Bankstown Corporation (1953) 87 C.L.R. 619, Rich v. Commissioner for
Railways (N.S.W.) (1959) 101 C.L.R. 135, Commissioner for Railways
(N.S.W.) v. Cardey (1959-60) 104 C.L.R. 274 and Munnings v. Hydro-Electric
Commission (1971) A.J.L.R. 378.
Rich was a level crossing case, Cardey one of a child straying on to an
attractive rubbish dump with hot ashes under the surface: Thompson and
Munnings are nearer the subject matter of this case being concerned with high
tension electric wires placed in proximity to places where children might be.
Although each case is difficult in its facts and required extensive legal
argument, they can fairly be summarised into the generalisation that they
reflect a tendency toward the recognition of a duty of care, appropriate
to the circumstances, extracted from the situation and shaped by it,
independent of such liability as might arise from the relation of occupier
and licensee or trespasser. I cite some passages which clearly reflect this.
In Thompson the judgment of Dixon C.J. and Williams J. contained this:
” A man or child may be infringing upon another’s possession of land or
” goods at the time he is injured and it will be no bar to his recovery if
” otherwise he can make out the constituent elements of a cause of action.”
They cited in support of this Gallons case, Mourton v. Poulter [1932] K.B.
183, Buckland v. Guildford Gas Light & Coke Co. [1949] 1 K.B. 410 and
Glasgow Corporation v. Taylor [1922] 1 AC 44. In the same case the
judgment of Kitto J. contained an even more explicit passage. After
mentioning, in terms of acceptance, the case of Addie and Edwards he said:
” The respondent’s contention appears to assume that the rule of law which
” defines the limits of the duty owed by an occupier to a trespasser goes
” so far as to provide the occupier with an effective answer to any assertion
” by the trespasser that during the period of the trespass the occupier owed
” him a duty of care. The assumption is unwarranted, for the rule is con-
” cerned only with the incidents which the law attaches to the specific relation
” of occupier and trespasser. It demands, as Lord Uthwatt said in Read
” v. J. Lyons & Co. Ltd. a standard of conduct which a reasonably-minded
” occupier with due regard to his own interests might well agree to be fair
” and a trespasser might in a civilised community reasonably expect. It would
” be a misconception of the rule to regard it as precluding the application
” of the general principle of M’Alister (or Donoghue) v. Stevenson, to a
” case where an occupier, in addition to being an occupier, stands in some
” other relation to a trespasser so that the latter is not only a trespasser but
” is also the occupier’s neighbour, in Lord Atkin’s sense of the word: see
” Transport Commissioners of New South Wales v. Barton.” The clarity
of this passage has caused it to be followed, in analogous situations, in
Australia, but it received some criticism based I think upon some misunder-
standing in Quinlan’s case (see below).
19
The same conception of a duty of care, coexisting with the special duties
arising from occupation is developed in his judgment of Fullagar J. in
Rich, and again by Dixon C.J. in Cardey. I quote two passages: ” The rule
” remains that a man trespasses at his own risk and the occupier is under
” no duty to him except to refrain from intentional or wanton harm to him.
” But it recognises that nevertheless a duty exists where to the knowledge
” of the occupier premises are frequented by strangers or are openly used
” by other people and the occupier actively creates a specific peril seriously
” menacing their safety or continues it in existence. The duty may be
” limited to perils of which the person so using the premises are unaware
” and which they are unlikely to expect and guard against. The duty is
” measured by the nature of the danger or peril but it may, according to
” circumstances, be sufficiently discharged by warning of the danger, by taking
” steps to exclude the intruder or by removal or reduction of the danger.”
And later: ” In principle a duty of care should rest on a man to safeguard
” others from a grave danger of serious harm is knowingly he has created
” the danger or is responsible for its continued existence and is aware of the
” likelihood of others coming into proximity of the danger and has the
” means of preventing it or of averting the danger or of bringing it to their
” knowledge.” There are no doubt words and expressions here which can be
discussed, I do not say improved on, for the former Chief Justice is a master
of language; but he would himself never claim that every possible case
can be included in a formula. The principle is one which I am happy to
adopt: Addie’s case as the plain general rule; room, in circumstances to be
carefully defined, for a special duty of care. The other judgments, particu-
larly that of Fullagar J. repay study: I take my two short excerpts from
that of Windeyer J. Of a trespasser he says: ” The trespasser in relation
” to the occupier thus really stands outside the law of negligence, for to
” him, considered simply as an entrant upon the land, the occupier has no
” duty of care. Such a duty may, however, arise from some circumstances
” beyond the mere fact of entry, as for example from the occupier’s know-
” ledge of the trespasser’s presence and of his proximity to dangerous opera-
” tions. It arises then not as a duty to him as a trespasser, but to him as
” an individual whose relation to the occupier has become that of a
“‘neighbour’.” And later: “No man has a duty to make his land safe
” for trespassers. But, if he has made it dangerous and the danger he has
” created is not apparent, he may have a duty to warn people who might
” come there of the danger of doing so. Whether there be such a duty
” in a particular case must depend upon the circumstances, including the
” likelihood of people coming there. But if they would be likely to come,
” the duty does not, in my view, disappear because in coming they would
” be trespassing. It is a duty owed to likely comers, to those who would
” be intruders as well as to those who would be welcome.” The recognition
of a larger area surrounding Addie’s case, which I favour, is well summed up
in the first two sentences of the latter citation.
Quinlan’s case (Commissioners for Railways (N.S.W.) v. Quinlan [1964]
A.C. 1054) has been thought by later Australian cases, and some English
authorities, to constitute an obstacle to a wider view of the law as regards
trespassers. It was difficult and unusual in its facts, being concerned with a
private railway crossing used by the Respondent in conditions hard to
define. No discussion of it would be fair unless it were squarely recognised
that it came down firmly against the view that a duty of care (called in
the judgment a ” general duty of care “) can coexist with the very limited
duty to a trespasser stated in Addie’s case. But it is important to see what
was meant by this disclaimer.
The previous history of the case and the form of the direction to the jury
show very clearly, and importantly, that what the courts had to consider
was whether Quinlan, though a trespasser, might succeed in negligence under
” the duty of general care “. This the Board rejected on a basis appearing
early in the judgment. There is no principle, it is said, to be deduced
from Donoghue v. Stevenson which throws any particular light upon the
legal rights and duties that arise when a trespasser is injured on a railway
20
level crossing where he has no right to be. More particularly the likelihood
of a trespasser being present at some time or another is not sufficient to
impose upon the occupier any general duty of care towards such a trespasser.
It is this proposition which the Board is concerned to justify from the
authorities. With this proposition I have no desire to disagree. I would
accept that in such a case the rules of Addie’s case may adequately govern
the situation. The trespasser is just a trespasser and there is no relevant set
of circumstances—involving serious risk and proximity—sufficient to call in
play a duty of care independent of the occupier-trespasser relationship. Indeed
the proposition itself, by referring to ” the general duty of care ” carries its
own affirmation. A general duty, without supporting circumstances giving
rise to this duty and measuring its extent, is a meaningless idea. Donoghue
v. Stevenson does not evoke it, Addie’s case denies it. But it is a very
different matter when proved circumstances exist sufficient to place a definable
duty (however slight—for example to warn) upon the person who is respon-
sible for the existence of those circumstances, occupier or not, and I think
that the judgment in Quinlan recognised this when it was, perhaps rather
cryptically, said ” that so long as the relationship of occupier and trespasser
” is or continues to be a relevant description of the relationship between the
” person who injures . . . and the person who is injured—an important
” qualification—the occupier’s duty is limited in the accepted terms “. (Can
” a relevant ” here be read as ” the relevant “?) Whether sufficient circum-
stances of this kind were to be found in Quinlan’s case is not a matter which
needs concern us. It is only when the judgment is invoked as a denial of the
possibility of such circumstances and the correlative duty that I must part
company with its interpreters.
Further extensive citation is undesirable, but I must mention one passage
where reference is made to the extract from the judgment of Kitto J. in
Thompson’s case cited above. The criticism made is again that the limited
duty of an occupier to a trespasser cannot coexist with ” the wide general
” duty of care appropriate to the Donoghue v. Stevenson formula “: if
there is to be another relation the grounds of it must admit of reasonably
precise definition otherwise it will be impossible to direct juries in an
adequate manner.
1 think that Kitto J. has here been misunderstood. I do not understand
him (or those who have followed him) to be arguing for a general duty of
care: nor do I think that he would disagree with the necessity for reason-
ably precise definition ; certainly I would not, and I fully recognise that,
unless that is possible, plaintiffs such as the present plaintiff cannot, if they
are outside the Addie rules, succeed. As was well said in the High Court,
we should not be too ready to erode the general rule of Addie’s case by
discovering loo easily special duties of care. (Munning’s case (u.s.) per
Walsh J. at p. 394.)
There is one other point discussed in the judgment, upon which I find
myself in agreement with the Board—that is the discussion of the (then)
recent Court of Appeal case of Videan v. British Transport Commission
[19631 2 Q.B. 650. This, too, was a case of an infant trespassing on a
railway and of a rescuer. The infant’s claim failed but the majority in the
Court of Appeal made (obiter) a distinction between simple occupation of
land and the carrying on of operations of land, and held that as regards
the latter the occupier’s duty as regards a trespasser was “the common
” duty of care ” or a duty to take ” reasonable care “. This duty arose
whenever he ” ought to foresee ” their presence. The Board criticised this
in two respects: first, as regards the words ” ought to foresee ” which it
pointed out begs the whole question at issue—namely, whether there is a
duty towards trespassers at all, and imposes far too wide a duty upon
occupiers. Secondly—and this is consistent with the Board’s general
approach—it rejected the imposition of a general or common duty of care-
in this I would agree with it but in a full statement of the law it would,
in my opinion, be necessary to recognise the possibility both of a duty to
foresee and of a special and limited duty of care arising out of and quan-
titatively measured by particular circumstances <see citations above from
21
Quinlan’s case and Munning’s case). I think that the judgment of Pearson
L.J. in Videan endorses this approach.
How does the matter rest? It is often said that the law on this topic
is in confusion, but this is to do it less than justice. When one has elimi-
nated from it complexities of fact situation (were the pedestrians in Lowery
v. Walker trespassers or licensees according to the judge’s notes, how did
the wheel in Addie differ from that in Callan, were the children in Cooke
licensees or trespassers?) and when once one has discarded fictions, rules
can be seen to emerge from the mists with reasonable clarity, but I emphasise
no greater clarity, than we ought to expect from the common law, which
always leaves a residue to be completed by common sense.
In general, an occupier of land owes no duty to trespassers, or intending
trespassers: he is not obliged to make his land safe for their trespassing.
If he knows, or “as good as knows” (Quinlan at p. 1070) of the actual
presence of a trespasser, he is under a duty—as defined in Addie’s case—
not to act with the deliberate intention of doing harm to him or to act with
reckless disregard of his presence. I must return to this matter of reckless-
ness, but at present it is enough to say that reckless disregard as used by
Viscount Hailsham surely bears its normal meaning in the law—as akin
to intentional injury, but instead of intention, not caring whether he does
so or not. And this involves knowledge of the trespasser’s presence.
I see no reason to discard the alternative test of ” extremely likely ” (Lord
Buckmaster in Callan [1930] A.C. 404, 410), in relation to the trespasser’s
presence. Apart from its origin it has received support from Dixon C.J.
and Windeyer J. (104 C.L.R. 274, 286, 320) and other judges as well as the
Privy Council in Quinlan. It excludes necessarily any lower duty of fore-
seeability in the general case by an occupier of trespassers’ presence (see
Quinlan l.c.p.1072, 1074).
This is the general rule as stated by Viscount Hailsham L.C. I think it
is still a sound rule and I think that we must support it.
The question remains whether, in particular circumstances, a man may be
under some duty of a particular kind, other than to abstain from wilful
injury, or reckless disregard. A test more specific than that of ” foresight
of likelihood of trespass ” and a definition of duty more limited than that of
” the common duty of care ” is required.
The dangers of too precise, or exhaustive or codified, a definition are
exemplified by Addie’s case itself. On the other hand, to adopt the expedient
of recoiling upon the comfortable concept of the reasonable man is hardly
good enough. It evades the problem by throwing it into the lap of the judge.
We must try at least to set up some boundary marks. I think it is safer to
proceed by exclusion, and then to the facts of this case. An occupier is
not under any general duty to foresee the possibility or likelihood of trespass
on his land, or to carry out inspection to see whether trespass is occurring
or likely. To suppose otherwise would impose impossible burdens. Nor
can a trespasser by giving notice to the occupier that he may trespass at a
particular place or time, by that fact create a duty towards him.
An occupier is under no general duty to fence his land against trespassers,
or even against child trespassers: and in my opinion, in principle, this
exclusion is valid whether or not the occupier is carrying on operations on
the land or whether some danger exists through a static condition (e.g. a
quarry Holland v. Lanarkshire Middle Ward District Committee [1909] S.C.
1142). A poisoned pool (258 U.S. 268) may give rise to a special duty.
Exceptions may be found (these are only examples) (a) in the case of
pitfalls and analogous situations of dangers created near a place where the
victim had a right to go, (b) in the case of allurements to children. The
principle behind the latter is. in my opinion, not one of imputing a licence,
but that of a duty to take reasonable steps not to place in the way of small
children potentially hurtful and attractive objects.
In the particular case of railway companies, there is no general duty to
erect or maintain fences sufficient to exclude adults or children—the case of
Edwards is clear on this point and I respectfully think right: the only duty
22
is to mark off the railway property. If more precautions are needed because
of the proximity of a playground they may have to be taken by those in
control of the playground, fencing in, rather than fencing out.
Then on the positive side I think that we can best serve the development
of the law by concentrating on the particular type of case which has engaged
the courts, and on which the law has been tested by experience. Just as in
the 19th century the introduction of turntables, attractive to children,
accessible and dangerous, gave rise to a jurisprudence known by their name.
so we must take account of the placing of electrical conductors above or on
the ground all over our overcrowded island and see where this leads as
regards foresight and care. The ingredients of such duty as may arise
must stem from the inevitable proximity to places of access, including
highways, from the continuous nature of the danger, from the lethal danger
of contact and from the fact that to children the danger may not be apparent.
There is no duty to make the place safe, but a duty does arise because of
the existence, near to the public, of a dangerous situation. The greater
the proximity, the greater the risk, and correspondingly the need of foresight
and a duty of care.
What is the nature of this duty of care? Again, it must be remembered
that we are concerned with trespassers, and a compromise must be reached
between the demands of humanity and the necessity to avoid placing undue
burdens on occupiers. What is reasonable depends on the nature and degree
of the danger. It also depends on the difficulty and expense of guarding
against it. The law, in this context, takes account of the means and resources
of the occupier or other person in control—what is reasonable for a railway
company may be very unreasonable for a farmer, or (if this is relevant)
a small contractor. If a precedent is needed for this concept of relative
responsibility I may venture to refer to the Privy Council judgment in
Goldman v. Hargrave [1967] AC 645, 663 where in relation to another
common law duty it was said (inter alia) ” the standard ought to be to require
” of the occupier what it is reasonable to expect of him in his individual
” circumstances.”
My Lords, in my opinion, if the law is such as I have suggested, the law
as stated in Addie’s case is developed but not denied ; not, I venture to
think, developed beyond what is permissible and indeed required of this
House in its judicial capacity. It was suggested that some difficulty arose
from the passing of the Occupiers Liability Act, 1957, the argument being
that, as Parliament deliberately changed the law about invitees and licensees
but not that concerning trespassers, the House was bound hand and foot by
Addie’s case at its narrowest. I do not follow this. There might be some
force in an argument that for this House to depart from (i.e. overrule) Addie’s
case would, in effect, be to legislate where Parliament has abstained, but I
can see no sense in supposing that when Parliament left the law alone as
regards trespassers the intention was to freeze the law as or as it was taken
to be in 1929. As this Act itself shows, what Parliament left alone in the
case of trespassers, while displacing them in the cases of invitees or licensees,
were the rules of common law. But the common law is a developing entity
as the judges develop it, and so long as we follow the well tried method
of moving forward in accordance with principle as fresh facts emerge and
changes in society occur, we are surely doing what Parliament intends we
should do. So long as liability continues to be based upon fault we may,
indeed must, adjust it to reason and experience. I do not think that any
argument can be drawn from the passing by the same Parliament three years
later of the Occupiers’ Liability (Scotland) Act, 1961, which (section 2)
defined the occupiers’ duty towards trespassers as that of such care as in
all the circumstances of his case is reasonable. But it is interesting to see
that, in a case upon that section which reached this House, recognition was
given to the differing standard of care which may be required towards
invitees, licensees or trespassers. My noble and learned friend, Lord Reid,
expressed this standard in words very appropriate to the issue in this appeal
(M’Glone v. British Railways Board [1966] SC 1.11).
23
Dealing now with the case of the infant plaintiff. In the Court of Appeal
he succeeded on a basis of recklessness—that of the stationmaster at the
nearest station who some time before had been informed some six weeks
earlier that on one occasion children had been seen somewhere on the line.
As to this, unless ” recklessness ” means ” gross carelessness “—and in my
opinion not even then, there is no basis on which the Appellants can be
liable for this injury. But I agree with Salmon L.J. and not with the majority
in the Court of Appeal that recklessness, in this context, has its classical
meaning.
In Quinlan’s case the Privy Council suggested that the way ahead lay
through an extended scope of wanton and reckless conduct. This may be
enough in some cases, but in others, and in a case such as the present, I
prefer a direct acceptance of an appropriate duty of care. The use of
” recklessness ” or imputed recklessness seems to me too like another fiction
of the kind it is better to discard. However, if the approach I have suggested
is correct, it will follow that a basis exists here upon which, given satisfactory
proof, an action in negligence could lie.
I feel bound to say that I have less confidence than your Lordships or
the trial judge that the proved facts make the case good. The evidence as
to the condition of the fence at the relevant time, the means of access to it
and the use of the open spaces on either side of the line (” the meadow was
‘ not much used by children ” said the only witness) is exiguous. Conclusion
upon it can hardly be reached without a degree of strain. Evidence as to
the knowledge or lack of it as to the condition of the fence or the so-called
path to the fence by the Railway Board (much less conspicuous than the
official path leading to a footbridge over the railway close by, whose
existence seems largely to be forgotten) or as to the system of maintenance,
or lack of it, hardly exists. That it was necessary to call in aid the fact
that six weeks before the accident the presence had been reported of some
children of unspecified age, somewhere on the two-mile stretch of the line
between Morden and Mitcham (the fact relied on as showing ” recklessness “)
does not reassure me as to the solidity of the case. But there remains the
fact of this electrified line lying between two open spaces albeit linked by
a bridge and of the broken down chain link fence at a point near to where
children might play and I think that there is force in the point that the
Board, once they knew of the gap, took immediate steps to repair it and
indeed contended at one time that it was in repair at the critical time. The
case is not therefore (as in Edwards’ case) one of a barrier erected in accord-
ance with statute but in fact inadequate to keep children out, but of a
barrier designed to be adequate, in view of the existing risk, and become
inadequate through lack of maintenance. The distinction is, I think, a real.
as well as a fine one. I am not prepared, especially in view of the judge’s
finding, to differ from your Lordships’ view that, in relation to the special
duty of care incumbent on the Board in the relevant place, there was a
breach of that duty amounting to legal negligence, but I am left with the
feeling that cases such as these would be more satisfactorily dealt with by
a modern system of public enterprise liability devised by Parliament.
I would dismiss the appeal.
Lord Pearson
my lords,
In relation to an occupier of premises the position of a trespasser must
be radically different from that of a lawful visitor. The broad effect of
section 2 of the Occupiers’ Liability Act, 1957, is that an occupier of
premises owes to his lawful visitors, i.e. the persons who come on the
premises at his invitation or with his permission, the common duty of care;
and that is a duty to take such care as in all the circumstances of the case
is reasonable to see that the visitor will be reasonably safe in using the
premises for the purposes for which he is invited or permitted to be there.
24
In my opinion, the occupier of premises does not owe any such duty to a
trespasser: he does not owe to the trespasser a duty to take such care as in
all the circumstances of the case is reasonable to see that the trespasser
will be reasonably safe in using the premises for the purposes for which he is
trespassing. That seems to me to be the fundamental distinction, and it
should be fully preserved.
It does not follow that the occupier never owes any duty to the trespasser.
If the presence of the trespasser is known to or reasonably to be anticipated
by the occupier, then the occupier has a duly to the trespasser, but it is a
lower and less onerous duty than the one which the occupier owes to a
lawful visitor. Very broadly stated, it is a duty to treat the trespasser with
ordinary humanity. Bird v. Holbrook (1828) 2 Bing. 628, 641 ; Grand
Trunk Railway Company of Canada v. Barnett [1911] A.C.(J.C) 361, 369;
Latham v. Johnson [1913] 1 K.B. 398, 411. But that is a vague phrase.
What is the content of the duty to treat the trespasser with ordinary
humanity? The authoritative formulation of the duty, as given in Robert
Acidic and Sons (Collieries) v. Dumbreck [1929] AC 358 is severely
restrictive and is, I think, now inadequate. Subject to the difficulty created
by that formulation, I think one can deduce from decided cases that,
normally at any rate, the occupier is not at fault, he has done as much as
is required of him, if he has taken reasonable steps to deter the trespasser
from entering or remaining on the premises, or the part of the premises,
in which he will encounter a dangerous situation. In simple language, it is
normally sufficient for the occupier to make reasonable endeavours to keep
out or chase off the potential or actual intruder who is likely to be or is
in a dangerous situation. The erection and maintenance of suitable notice
boards or fencing or both, or the giving of suitable oral warning, or a
practice of chasing away trespassing children, will usually constitute reason-
able endeavours for this purpose. Ilott v. Wilkes (1820) 2 B. and Ald. 304;
Bird v. Holbrook (1828) 2 Bing 628; Morran v. Waddell (1883) 11 R.44;
Ross v. Keith (1888) 16 R.56; Cooke v. Midland Great Western Railway
[1909] A.C. 229 ; Lowery v. Walker [1911] AC 10, 13-14 ; Hardy v. Central
London Railway Co. [19201 3 K.B. 459 C.A. ; Mourton v. Poulter [1930]
2 K.B. 183 ; Excelsior Wire Rope Co. v. Callan [1930] A.C. 404; Edwards
v. Railway Executive [1952] A.C. 737 at page 744 (where Lord Porter said:
” In any case I cannot see that the respondents were under any obligation
” to do more than keep their premises shut off by a fence which was duly
” repaired when broken and obviously intended to keep intruders out.”);
Perry v. Thomas Wrigley [1955] 1 W.L.R. 1164; M’Glone v. British Rail-
ways Board [1966] S.C. (H.L.)l. If the trespasser, in spite of the occupier’s
reasonable endeavours to deter him, insists on trespassing or continuing his
trespass, he must take the condition of the land and the operations on the
land as he finds them and cannot normally hold the occupier of the land
or anyone but himself responsible for injuries resulting from the trespass,
which is his own wrongdoing. But that statement is subject to this pro-
viso: if the occupier knows or as good as knows that some emergency
has arisen whereby the trespasser has been placed in a position of imminent
peril, ordinary humanity requires further steps to be taken: the very obvious
example is that, if the driver of a train sees a trespasser fallen on the line
in front of him, he must try to stop the train. The variety of possible
situations is so great that one cannot safely try to formulate for all cases
what steps an occupier is required to take for the protection or rescue of
a trespasser, but the decided cases show what is required in typical situations,
and that I have endeavoured to summarise. In Commissioner for Rail-
ways (N.S.W.) v. Cardy (1959-60) 104 C.L.R. 274 at page 286, Dixon C.J.
said ” The duty is measured by the nature of the danger or peril but it may,
” according to circumstances, be sufficiently discharged by warning of the
” danger, by taking steps to exclude the intruder or by removal or reduction
” of the danger.” In the case of the poisonous berries in the public park
(Glasgow Corporation v. Taylor [1922] 2 A.C. 44) the simplest and cheapest
and most effective way of protecting children who might be tempted to
eat them would have been, not the erection of a fence or warning notices,
but to dig up and remove the tree or shrub on which the poisonous berries
25
grew. But as an illustration of the duty to trespassers normally being suffi-
ciently discharged by reasonable measures designed to exclude them from
the situation of danger, I will cite a passage from the judgment of
Windeyer J. in Munnings v. Hydro-Electric Commission (1971) 45 A.L.J.R.
378 at page 389. He said ” The duty of care that the Commission owed
” to the plaintiff was not a duty to have its pole safe for trespassers. It
” was a duty which arose from the very fact that it was dangerous to tres-
” passers. High voltage electricity is a highly dangerous thing. To bring
” such a dangerous thing to a locality frequented by members of the public
” imposed a duty of care. That duty could be discharged by putting live
” wires beyond easy reach and not enabling unauthorised persons to come
” to them.”
There are several reasons why an occupier should not have imposed upon
him onerous obligations to a trespasser—
(1) There is the unpredictability of the possible trespasser both as to
whether he will come on the land at all and also as to where he will go
and what he will do if he does come on the land. I enlarged on this point
in Videan v. British Transport Commission [1963] 2 Q.B. 650, 679, and I
will only summarise it shortly here. As the trespasser’s presence and move-
ments are unpredictable, he is not within the zone of reasonable contempla-
tion (Hay or Bourhill v. Young) and he is not a ” neighbour ” (Donoghue v.
Stevenson) to the occupier, and the occupier cannot reasonably be required
to take precautions for his safety. Occupiers are entitled to farm lands,
operate quarries and factories, run express trains at full speed through
stations, fell trees and fire shots without regard to the mere general possibility
that there might happen to be in the vicinity a trespasser who might be
injured. The occupiers do not have to cease or restrict their activities in
view of that possibility, which is too remote to be taken into account and
could not fairly be allowed to curtail their freedom of action.
(2) Even when his presence is known or reasonably to be anticipated, so
that he becomes a neighbour, the trespasser is rightly to be regarded as an
under-privileged neighbour. The reason for this appears, I think, most
clearly from a consideration of the analogous position of a lawful visitor who
exceeds his authority, going outside the scope of his licence or permission.
In Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. (1936] A.C. 65 at pages 69-70
Lord Atkin said: ” This duty to an invitee only extends so long as and so far
” as the invitee is making what can reasonably be contemplated as an ordinary
” and reasonable use of the premises by the invitee for the purposes for
” which he has been invited. He is not invited to use any part of the premises
” for purposes which he knows are wrongfully dangerous and constitute an
” improper use. As Scrutton L.J. has pointedly said: ‘When you invite a
‘ person into your house to use the staircase you do not invite him to slide
” ‘ down the bannisters ‘. The Calgarth [1926] P. 93, 110. So far as he sets
” foot on so much of the premises as lie outside the invitation or uses them
” for purposes which are alien to the invitation he is not an invitee but a
” trespasser, and his rights must be determined accordingly. In the present
” case the stevedores knew that they ought not to use the covered hatch in
” order to load cargo from it: for them for such a purpose it was out of
” bounds. They were trespassers. The defendants had no reason to con-
” template such a use; they had no duty to take any care that the hatch
” when covered was safe for such a use; they had no duty to warn anyone
” that it was not fit for such use.”
In Munnings and Another v. Hydro-Electric Commission (1971) 45
Australian Law Journal Reports p. 378 at p. 382 Barwick C.J. said ” Of
” course in determining what ought to have been foreseen, as well as in
” deciding what steps ought to have been taken or omitted in the particular
” case, the right, or absence of right, of the injured person to have been at
” the place where he was injured, or at the point from which his injuries
” stemmed, would be material factors. Though the rigid categories of invitee,
” licensee and trespasser may not be applicable as such, there must remain
” a quantative element both in the extent of the foreseeability and of the
26
” reasonable steps required to fulfil any resultant duty arising from the
” circumstances in which the injured person came upon the scene.”
-
It would in many, if not most, cases be impracticable to take effective
steps to prevent (instead of merely endeavouring to deter) trespassers from
going into or remaining in situations of danger. The cost of erecting and
maintaining an impenetrable and unclimbable or, as it has been put, ” boy-
” proof” fence would be prohibitive, if it could be done at all. The cases
of M’Glone v. British Railways Board (supra.), McCarthy v. Wellington City
[1966] N.Z.L.R. 481 and Munnings and Another v. Hydro-Electric Com-
mission (supra.) illustrate the agility, ingenuity and persistence of boy
trespassers. As Lord Goddard said in Edwards v. Railway Executive [1952]
A.C. 737 at p. 747, referring to the Railway Executive: “Had they to
” provide watchmen to guard every place on the railways of the Southern
” Region where children may and do get on to embankments and lines,
” railway fares would be a great deal higher than they are already.” -
There is also a moral aspect. Apart from trespasses which are
inadvertent or more or less excusable, trespassing is a form of misbehaviour,
showing lack of consideration for the rights of others. It would be unfair
if trespassers could by their misbehaviour impose onerous obligations on
others. One can take the case of a farmer. He may know well from past
experience that persons are likely to trespass on his land for the purpose
of tearing up his primroses and bluebells, or picking his mushrooms or
stealing his turkeys, or for the purpose of taking country walks in the course
of which they will tread down his grass and leave gates open and watch
their dogs chasing the farmer’s cattle and sheep. It would be intolerable
if a farmer had to take expensive precautions for the protection of such
persons in such activities.
I have said that an occupier does not owe to a trespasser the ” common
” duty of care “, which is now the relevant statutory expression for the
occupier’s duty to lawful visitors. It can also be said that the occupier does
not owe to the trespasser any general duty of care. This question was fully
considered and decided in the case of Commissioner for Railways v. Quinlan
[1964] AC 1054 J.C. The question was directly raised by the trial judge’s
directions to the jury. Viscount Radcliffe said at pp. 2069-70 “Their
” Lordships think that there is no doubt that the jury must have received
” the definite impression that the law that they were to apply to the facts
” was that, once they thought that there was a ‘ likelihood ‘ of people
” coming to the crossing and that the appellant was aware of such a likeli-
” hood, the appellant owed a general duty to the respondent as ‘ a member
‘ of the public ‘ to take reasonable precautions to secure his safety, and
” that this duty was not affected by the fact that the respondent was a
” trespasser. In their Lordships’ opinion this direction was not in accordance
” with law …. The Court . . . had ordered a new trial, because in their
” view the case, if re-tried, might show that the respondent, though a tres-
” passer, was nevertheless entitled to claim from the appellant the duty of
” general care and a liability in negligence for a breach of it: such a duty,
” it was suggested, might be founded on a general principle derived from
“the House of Lords’ decision in Donoghue v. Stevenson [1932] AC 562.
” Their Lordships think this view mistaken. They cannot see that there
” is any general principle to be deduced from that decision which throws
” any particular light upon the legal rights and duties that arise when a
” trespasser is injured on a railway level crossing where he has no right
” to be: more particularly, they consider that it is not correct in principle
” to suppose that the mere fact that there was a likelihood, apparent to the
” occupier, of a trespasser being present on the crossing at some time or
” another is sufficient to impose upon the occupier any general duty of care
” towards such a trespasser. The consequences of such a supposition would
” be far-reaching indeed.” I respectfully agree with that passage.
Viscount Radcliffe also said, referring to what he described as “the
” accepted formulation of the occupier’s duty to a trespasser”, that “What
” is intended is an exclusive or comprehensive definition of the duty. Indeed
” there would be no point in it if it were not. It follows then that so long
27
” as the relationship of occupier and trespasser is or continues to be a
” relevant description of the relationship between the person who injures
” or brings about injury and the person who is injured—an important quali-
” fication—the occupier’s duty is limited in the accepted terms.”
There is economy of doctrine, simplicity of principle, in having one
exclusive and comprehensive formula defining the duty of occupier to
trespasser. But the formula itself has created difficulties and aroused criti-
cism, and I think it is not now adequate or defensible as applying to modern
conditions. Before coming to the formula, I will attempt a summary of the
principles so far dealt with.
It seems to me that there is rational justification for the common law
attitude towards trespassers, in so far as it has recognised that—
-
in relation to an occupier the position of a trespasser is radically
different from that of a lawful visitor; -
the unknown and merely possible trespasser is not a ” neighbour ”
in the sense in which that word ” neighbour” was used by Lord
Atkin in Donoghue v. Stevenson, and the occupier owes to such a
trespasser no duty to take precautions for his safety ; and -
if the presence of the trespasser is known to or reasonably to be
anticipated by the occupier, then the occupier—
(i) does not owe to the trespasser the common duty of care
(which is the single statutory substitute for the different duties
formerly owing to invitees and licensees);
(ii) does not owe to the trespasser a general duty of care ; but
(iii) does owe to the trespasser a lower and less onerous duty,
which has been described as a duty to treat him with ordinary
humanity.
So far so good. In so far as those are the rules of the common law on this
subject, they seem to be fully acceptable. The difficulty, however, arises
from the narrow formulation of the duty to trespassers in Robert Addie &
Sons (Collieries) v. Dumbreck [1929] AC 358. At page 365 Lord Hailsham
L.C., after stating the duties of occupiers towards invitees and licensees,
said: ” Towards the trespasser the occupier has no duty to take reasonable
” care for his protection or even to protect him from concealed danger.
” The trespasser comes on to the premises at his own risk. An occupier
” is in such a case liable only where the injury is due to some wilful act
” involving something more than the absence of reasonable care. 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.”
Lord Dunedin said at pages 376-7: ” In the present case, had the child
” been a licensee I would have held the defenders liable: secus if the com-
” plainer had been an adult. But if the person is a trespasser, then the
” only duty the proprietor has towards him is not maliciously to injure
” him: he may not shoot him ; he may not set a spring gun, for that is
” just to arrange to shoot him without personally firing the shot. Other
” illustrations of what he may not do might be found, but they all come
” under the same head—injury either directly malicious or an acting so
” reckless as to be tantamount to malicious acting.”
The formulation is too narrow and inadequate in at least three respects.
First, it appears to hold the occupier liable only for positive acts and not
in respect of omissions. Suppose that the occupier is running an electrified
railway, with an exposed live rail, in the vicinity of a public playground,
and that he has not provided any warning notice or fence to deter children
from straying on to the railway, and in consequence a child strays on to
the live rail and is seriously injured. Surely common sense and justice
require that the occupier must be held liable in such a case for his non-
feasance. I doubt, however, whether it was intended to confine liability to
positive acts. Perhaps the words ” act” and ” acting ” in Addie v. Dumbreck
can be interpreted as including omissions.
28
Secondly, the formulation appears to say that the occupier has no duty
to do anything for the protection of trespassers until there is a trespasser
actually on the land and the occupier knows he is there. But again the case
of a child straying on the live rail of an electrified railway shows that there
must be a duty on the occupier to take some steps in advance to deter
children from trespassing on the railway.
Thirdly, the formulation makes the occupier liable only in respect of
deliberate or reckless acts. I think the word ” reckless ” in the context does
not mean grossly negligent but means that there must be a conscious disregard
of the consequences—in effect deciding not to bother about the consequences.
Thus a subjective, mental element, a sort of mens rea, is required as a
condition of liability. Mere negligence would not be enough to create
liability, according to this formulation. There would be no duty to take
care, but only a duty to abstain from deliberately or recklessly causing injury.
That is plainly inadequate.
It must be conceded that Addie v. Dumbreck does not stand alone. There
is other authority to the effect that a man trespasses at his own risk and
must take the land as he finds it. Hamilton L.J. said in Latham v. Johnson
[19131 1 K.B. 398 at page 411: ” The rule as to trespassers is most recently
” indicated in Lowery v. Walker and is stated and discussed in Grand Trunk
” Railway of Canada v. Barnett. The owner of the property is under a duty
” not to injure the trespasser wilfully: ‘ not to do a wilful act in reckless
“‘ disregard of ordinary humanity towards him ‘; but otherwise a man
” ‘ trespasses at his own risk ‘. On this point Scots law is the same. In
” English and Scottish law alike, when people come on the lands of others
” for their own purposes without right or invitation, they must take the lands
” as they find them, and cannot throw any responsibility upon the person
” upon whose lands they have trespassed: per Lord Kinnear, Devlin v.
” Jeffray’s Trustees.” The rule was applied to child trespassers in Hardy v.
Central London Railway Company [1920]1 3 K.B. 459 C.A.
Nevertheless the rule was evidently found to be unsatisfactory in cases
both before and after Addie v. Dumbreck (supra.) especially in cases where
child trespassers were concerned. Where there had been frequent trespassing
and no effective prevention of it, a licence was held to be implied, although
there was no voluntary grant of permission. Instances are Cooke v. Midland
Railway Co. [1909] A.C. 229; Lowery v. Walker [1911] AC 10; Excelsoir
Wire Rope Co. v. Callan [1930] A.C. 404. In such cases the licence was a
legal fiction by which the harsh rule of law was circumvented and, one may
say, eroded. See per Lord Dunedin in Excelsior Wire Rope v. Callan (supra.)
at page 411 and per Lord Denning in Miller v. South of Scotland Electricity
Board 1958 S.C. (H.L.) 20; and in Videan’s case (supra.) at page 663. As
Dixon C.J. pointed out in Commissioner for Railways (N.S.W.) v. Cardy
(1959-60) 104 C.L.R. 274, 285, that is how the common law develops. See
also Quinlan’s case [1964] AC 1054, 1083-4. Also in more recent times
there has been another development or attempted development of the law
to circumvent the harsh rule in Addie v. Dumbreck. Distinctions have been
made (a) between the liability of the occupier and the liability of other persons
who carry out active operations on the land ; (b) between the liability of
the occupier qua occupier and his liability qua operator himself carrying
out active operations on the land. The theory is that, whereas the occupier
qua occupier has a large measure of exemption from liability in respect of
the static condition of the land, the occupier or any other person carrying
out active operations on the land has the full duty of care even towards
a trespasser under the “neighbour” principle of Donoghue v. Stevenson
(supra.). Per Lord Denning in Miller’s case (supra.); Dunster v. Abbott
[1953] 2 All E.R. 1572, 1574 and Videan’s case (supra.) at page 664. See
also Buckland v. Guildford [1949] 1 K.B. 410, Davis v. St. Mary’s Demolition
Co. Ltd. [1954] 1 W.L.R. 592 and Creed v. McGeogh [1955] 1 W.L.R. 1005.
Reservations or doubts about this theory were expressed in Miller’s case
(supra.) at pages 35 and 36, in Perry v. Thomas Wrigley (supra.) at page 1166
and in Videan’s case (supra.) at page 678. In so far as the theory has gained
29
acceptance, it constitutes another circumvention and erosion of the rule in
Addie v. Dumbreck.
I should, however, make it plain that I do not accept the theory. I doubt
whether there is any major distinction for the present purpose (i) between
the static condition of the land and active operations on the land (ii)
between the occupier and other persons (such as his servants or agents or
independent contractors or employees of public authorities) lawfully carry-
ing out operations on the land and having control of the operations and
perhaps of the land as well for the time being (iii) between trespass on land
and trespass on installations or railway vehicles. Occupation is associated
with control and is a ground of liability, not of exemption from liability.
The trespasser’s movements are unpredictable and he goes into places where
he has no business to be and imposes his unwanted presence: these con-
siderations affect what can reasonably be required not only in the case of
the occupier but also in the case of such other persons.
It seems to me that the rule in Addie v. Dumbreck has been rendered
obsolete by changes in physical and social conditions and has become an
incumbrance impeding the proper development of the law. With the in-
crease of the population and the larger proportion living in cities and towns
and the extensive substitution of blocks of flats for rows of houses with
gardens or back yards and quiet streets, there is less playing space for
children and so a greater temptation to trespass. There is less supervision
of children, so that they are more likely to trespass. Also with the progress
of technology there are more and greater dangers for them to encounter by
reason of the increased use of, for instance, electricity, gas, fast-moving
vehicles, heavy machinery and poisonous chemicals. There is considerably
more need than there used to be for occupiers to take reasonable steps with
a view to deterring persons, especially children, from trespassing in places
that are dangerous for them.
In my opinion the Addie v. Dumbreck formulation of the duly of occupier
to trespasser is plainly inadequate for modern conditions, and its rigid and
restrictive character has impeded the proper development of the common
law in this field. It has become an anomaly and should be discarded. But
in my opinion the duty of occupier to trespasser should remain limited in
the ways that I have endeavoured to indicate.
I need not lengthen this already long opinion by describing again the
facts of the present case which have been described by my noble and
learned friends. The Railway Board in the circumstances had a duty to
take reasonable steps to deter children from straying from the public space
on to the electrified railway line. Obviously, reasonable steps for this pur-
pose included proper maintenance of the fence. But the Railways Board
tailed to repair the broken down fence even after they had been notified
that children had been seen on the line. There was a clear breach of the
duty.
I would dismiss the appeal.
Lord Diplock
my lords,
In a heavily populated suburban area of London there are two public
open spaces in which children of all ages are accustomed to play. Between
them runs a line of the Appellants’ railway equipped with live electric rail
which would cause serious injury or even death to anyone who came into
contact with it. Its dangerous character would not be appreciated by little
children. It is within a few yards of the boundary between the railway and
one of the open spaces—Bunce’s Meadow. Along the boundary is a chain-
link fence four feet high. But at one point, approached by a well-trodden
path across the meadow it had, for several weeks before 7th June, 1965,
been pressed down to a height of no more than ten inches from the ground
It presented no obstacle to access to the live rail by children too young to
30
appreciate the danger. On 7th June, 1965, the Respondent, a child aged
six years, crossed the fence at this point, came into contact with the live rail
and sustained very serious injuries.
If the facts as to the use of the meadow and the condition of the fence
which I have just recited were known to those responsible for running
the railway, I believe that anyone endowed with common humanity would
say that the common law ought to afford to the injured child a legal right
to compensation against the railway authorities ; and that if it did not
there was something wrong with the common law.
The Appellants, who are a public corporation, elected to call no witnesses,
thus depriving the court of any positive evidence as to whether the condition
of the fence and the adjacent terrain had been noticed by any particular
servant of theirs or as to what he or any other of their servants either
thought or did about it. This is a legitimate tactical move under our
adversarial system of litigation. But a defendant who adopts it cannot
complain if the court draws from the facts which have been disclosed all
reasonable inferences as to what are the facts which the defendant has chosen
to withhold.
A court may lake judicial notice that railway lines are regularly patrolled
by linesmen and gangers. In the absence of evidence to the contrary, it is
entitled to infer that one or more of them in the course of several weeks
noticed what was plain for all to see. Anyone of common sense would
realise the danger that the state of the fence so close to the live rail created
for little children coming to the meadow to play. As the Appellants elected
to call none of the persons who patrolled the line there is nothing to rebut
the inference that they did not lack the common sense to realise the danger.
A court is accordingly entitled to infer from the inaction of the Appellants
that one or more of their employees decided to allow the risk to continue
of some child crossing the boundary and being injured or killed by the
live rail rather than to incur the trivial trouble and expense of repairing
the gap in the fence.
Even if these inferences are drawn, it is the submission of the Appellants
that the common law affords no remedy to the injured. Such is said to be
the ineluctable consequence of the decision of this House over forty years
ago in Addie v. Dumbreck ([1929] AC 358) and, in particular, is said to
follow from the lapidary statement in the speech of Viscount Hailsham—
” Towards the trespasser the occupier has no duty to take reasonable
” care for his protection or even to protect him from concealed danger.
” The trespasser comes on to the premises at his own risk. An
” occupier is in such a case liable only where the injury is due to some
” wilful act involving something more than the absence of reasonable
” care. 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.”
Addie v. Dumbreck was a case of trespass by a child aged four and a half
years. It was decided in the year that I started to read for the Bar. Even
at that time it offended against what Lord Atkin, only three years later, was
to call ” a general public sentiment of moral wrongdoing for which the
“offender must pay,” Donoghue v. Stevenson ([1932] AC 562 at p. 580)
I well recall the disappointment with which it was received by those who
thought that previous cases in this House had shown the common law as
moving towards a less draconian treatment of those who trespassed innocently
upon other people’s land.
If the facts in the instant appeal are compared with those in Addie v.
Dumbreck as stated by the Lord Chancellor (pp. 359-60) I do not think it
possible to say that, judged by current standards of behaviour, the conduct
of those engaged in operating the appellants’ railway in the instant case
was any more blameworthy than the conduct of those engaged in running
the colliery of the successful appellant in Addie v. Dumbreck Yet all nine
judges who have been concerned with the instant case in its various stages
are convinced that the plaintiff’s claim ought to succeed; and, if I may
be permitted to be candid, are determined that it shall. The problem of
31
judicial technique is how best to surmount or to circumvent the obstacle
presented by the speeches of the Lord Chancellor and Viscount Dunedin
in Addie v. Dumbreck, and the way in which those speeches were dealt with
in the Privy Council in the comparatively recent Australian appeal of
Commissioner of Railways v. Quinlan ([1964] AC 1054).
By the time that Addie v. Dumbreck was decided the law as to an occu-
pier’s duty towards trespassers had made some advance since Best CJ. in
Bird v. Holbrook ([1828] 4 Bing. 628) had laid it down that an occupier
was not entitled intentionally and maliciously to injure a trespasser. For
present purposes the significance of that case, which arose out of setting
of spring guns to injure trespassers, is two-fold. First, it is recognised that
the duty, whatever its content, was owned by the occupier to an unknown
but expected trespasser as well as to a trespasser actually known to the
occupier to be trespassing on his land. Secondly, Best C.J. based the duty
upon its being the object of English law to uphold humanity. This expression
found its echo in Lord Robson’s reference in Grand Trunk Railway v.
Burnett ([1911] AC 361 at p. 370) to “a wilful or reckless disregard of
ordinary humanity, which was adopted by Lord Sumner, then Hamilton
L.J., as the definition of the duty of an occupier to a trespasser, in his
judgment in Latham v. R. Johnson & Nephew Ltd. ([I913] 1 K.B. 398 at
p. 341)—a judgment which was expressly approved by both the Lord
Chancellor and Viscount Dunedin in Addie v. Dumbreck.
But attention had been diverted from the development of the content of
an occupier’s duty towards trespassers by the adoption of the technique of
re-classifying as ” licensees” persons whom the occupier had not made
sufficiently effective efforts to exclude from his land, so as to give them the
benefit of the ready-made duty of care for their safety owed at common
law by an occupier to those who, in reality, entered upon his land by his
permission and not against his will. This technique had been accepted
without adverse comment in cases in this House itself. Cooke v. Midland
(Great Western Railway of Ireland ([1909] A.C. 229) and Lowery v. Walker
([1911] AC 10) are noteworthy examples. The resulting duty may be
briefly summarised as a duty to take reasonable steps to enable the licensee
to avoid a danger known to the occupier.
In Addie v. Dumbreck the First Division of the Court of Session had
departed from this technique and sought to recognise as a separate category
of persons to whom a duty was owed, members of a class whom the occupier
knew to be in the habit of resorting to his land without his permission. The
majority had held that such trespassers the occupier owed a duty to take
reasonable steps to deter their intrusion if it was likely to result in serious
injury to them. The decision of this House in Addie v. Dumbreck was
primarily directed to asserting the propositions: that persons present upon
an occupier’s land could be assigned to one of three mutually exclusive
categories only, viz. invitees, licensees and trespassers : that there was no
sub-division of the category of trespassers ; and that the duty owed by an
occupier to a person on his land was determined solely by the category into
which that person fell. In order to decide the appeal, however, it was also
necessary to state the content of the duty towards trespassers—the category
into which it was held that the respondent fell—in order to determine whether
the appellant was in breach of it. This the Lord Chancellor did in the passage
that I have cited.
In Addie v. Dumbreck the child had not been found by the Court of
Session to be a licensee. The decision of this House did not therefore directly
impugn the technique of inferring the tacit permission of the occupier to an
intruder’s presence on his land from his failure to take effective steps to
manifest to the intruder his objection to it. Indeed Addie v. Dumbreck
appeared to confirm this as the only way of mitigating the lot of meritorious
trespassers; though the actual decision on the facts showed a greater
reluctance to make use of it than had been evinced by the members of this
House who had decided Lowery v. Walker.
The technique accordingly continued to be used. Appellate courts con-
fined themselves to preventing what was felt to be its misuse—as this House
32
did in Edwards v. Railway Executive ([1952] A.C. 787). Lord Porter there
refers to it in terms as ” the doctrine of implied licence ” and says that ” where
” the owner (sc. occupier) of the premises knows that the public or some
” portion of it is accustomed to trespass over his land he must take steps
” to show that he resents and will try to prevent the invasion ” if he is to
avoid the implication. Lord Goddard, with whose speech my noble and
learned friend Lord Reid agreed, based the implied licence on estoppel:
the occupier must have ” so conducted himself that he cannot be heard
” to say that he did not give it” (sc. permission to go upon his land), Lord
Oaksey said ” The circumstances must be such that the suggested licensee
” could have thought and did think that he was not trespassing but was on
” the property in question with the leave and licence of the owner “.
It is implicit in each of these statements that even when there is no real
consent by the occupier to a person’s entry on his land, there may be circum-
stances in which a mere failure to take reasonable steps to deter entry will
confer upon a person entering, the same common law rights as respects his
personal safety as if he had been the occupier’s licensee.
That the ” licence ” treated as having been granted in such cases was a
legal fiction employed to justify extending to meritorious trespassers, particu-
larly if they were children, the benefit of the duty which at common law an
occupier owed to his licensees, was explicitly acknowledged by Dixon C.J.
in Commissioner for Railways v. Cardy ([I960] 104 C.L.R. 274). What he
said on this topic was approved by the Privy Council in Quinlan v. Com-
missioner for Railways (1964 AC 1054 at p. 1083) who added “those
” conceptions of licence or “permission . . . are virtually without meaning
” at any rate as applied to children “. The facts in Lowery v. Walker
(ubi. sup.) stated at the beginning of the report show that in the case of adults
the so-called ” licence ” could be equally fictitious.
By use of the fiction of a ” licence ” to persons who would otherwise
be trespassers the courts were enabled to recognise that there were circum-
stances which imposed upon an occupier a duty either (a) to take reasonable
steps to deter such persons from entering upon a part of his land where he
knew they would be exposed to serious risk of personal injury ; or, if he
did not do so, (b) to take reasonable steps to enable them to avoid the
danger. Breach of the former duty entitled them to the status of
” licensees ” ; the acquisition of that status entitled them to the benefit of
the latter duty. Once the circumstances which impose these duties have
been identified in a sufficient number of cases to form a body of precedent
upon their own. the fiction has served its purpose in the development of
the common law and is ripe for discard. The misfortune of Addie \.
Dumbreck was that the majority of the Court of Session tried to discard
the fiction before the time was ripe to do so. The need to retain it persisted
so long as it continued to be accepted doctrine that a duty to regulate
one’s conduct towards one’s neighbour so as to reduce the risk of injuring
him, could only arise if there were some pre-existing legal relationships
between the parties which fell within some category already recognised
at common law. This obstacle to the rational development of: an occu-
pier’s duty towards trespassers was penetrated by the decision of this House
in Donoghue v. Stevenson ([1932] AC 562) and broken down by Bourhill
v. Young ([1943] AC 92). The significance of these two cases for present
purposes is not the content of the duty there discussed but the recognition
that conduct likely to cause injury to another person could in itself create
the legal relationship between the parties to which the duty attached.
It is surely time now for this House to follow the example of Dixon C.J.
and of the Privy Council in Quinlan’s case and to discard the fiction of a
” licence ” to meritorious trespassers. Once the conduct of the occupier is
recognised as being capable in itself of creating a legal relationship to
another person which attracts duties owed to that person in respect of his
safety, it is no longer necessary in cases where that conduct attracts a duty
to take reasonable steps to deter another person from entering a dangerous
part of the occupier’s land, to sub-divide his duties to that person into a
duty to deter his entry, a breach of which gives rise to a subsequent duty
to take reasonable steps to enable him to avoid the danger. To deter his
33
entry to merely one way of enabling him to avoid the danger. The
whole duty can be described as a duty to take reasonable steps to enable
him to avoid the danger.
My Lords, this approach clearly runs counter to that of this House in
Addie v. Dumbreck. It rejects categorisation of the injured person as a
trespasser or licensee as the source of any duty owed to him by the occupier
to take steps for his safety and looks instead to the conduct of the occupier
as creating the relevant relationship. Addie v. Dumbreck asserts the neces-
sity for such categorisation; but by leaving intact the technique of inferring
a licence by the occupier to a person to whose presence on his land he does
not really consent, it transfers from the category of trespassers to that of
licensees persons who for the purposes of all other incidents of the legal
relationship between them and the occupier, except his duty to take steps
for their safety, would remain in the category of trespassers. But, as each
of the previous citations from the speeches in Edward’s case confirms, the
criteria for eligibility for transfer from one category to the other depended
upon the conduct of the occupier. So, even upon this approach, the inquiry
necessarily started with an examination of the occupier’s conduct before
the person subsequently injured enters upon his land. These criteria were
not defined or analysed in the speeches in this House in Addie v. Dumbreck.
It simply held that the particular facts found in that case did not justify
treating the trespassing child as if she were a licensee.
My Lords, this House has since 1966 abandoned its former practice of
adhering rigidly to the ratio decidendi of its previous decisions. There is
no longer any need to discuss whether to discard the fiction of a so-called
” licence” to enter granted by the occupier of land to the person who
suffers personal injury on it, should be characterised as over-ruling Addie
v. Dumbreck or as doing no more than explaining its reasoning in terms
which are in harmony with the general development of legal concepts since
1929 as to the source of one man’s duty to take steps for the safety of
another. For my part I would reject the fiction and direct attention to
the kind of conduct of an occupier of land which attracts the duty to take
reasonable steps to enable a person who enters on his land without his actual
consent, to avoid a danger of which the occupier knows.
1 come now to Quinlan’s case. Owing to the way in which it had pro-
ceeded in the courts of New South Wales, no question arose in the Privy
Council as to the status of Mr. Quinlan as a ” trespasser ” upon the level
crossing where he was injured- The judgment of the Board was mainly
directed to rejecting the proposition that there were circumstances in which
a person entitled only to the status of ” trespasser ” might be owed by the
occupier upon whose land he was trespassing the common duty of care
laid down in Donoghue v. Stevenson—which was higher duty than that
which is owed by an occupier of land to his licensees in Australia where
the common law has not been replaced by statutory provisions such as those
to be found in the English Occupier’s Liability Act. 1957. In the course
of examining three recent decisions of the High Court of Australia on which
the rejected proposition was said to be based, the Privy Council expressly
approved the actual decision in Cardy’s case upon the ground that ” the
” circumstances seemed to place the case squarely among those ‘ children’s
” cases’ in which an occupier who had placed a dangerous ‘ allurement’ on
” his land is liable for injury caused by it to a straying child “. It was in
the context of such cases that the Privy Council recognised the unreality
of the “licence” to the straying child. But although recognising the
” licence ” as a fiction, they accepted the correctness of the conclusions as to
the legal consequences of the conduct of the occupier which had hitherto
previously been accepted as constituting an implied ” licence ” to the person
trespassing and so entitling him to the benefit of the higher duty owed by
an occupier to take steps for the safety of his licensees.
My Lords, Quinlan’s case is authority for the proposition that an occupier
does not owe to a person who is unlawfully upon his land the common duty
of care and foresight as respects dangerous activities which he carries out
there, that he owes to persons who are lawfully present there, as was the
34
successful plaintiff in the contrasting Australian level-crossing case (Com-
missioner of Railways v. McDermott [1967] AC 169) which came to the
Privy Council a few years later.
I have no quarrel with Quinlan’s case as an authority for this proposition.
What I regard as defective in its reasoning is that, although it is recognised
that, in the case of children at any rate, their categorisation as ” licensees ”
instead of ” trespassers ” was a mere legal fiction, it failed to recognise that
it was a necessary corollary that ” the general formula as laid down in
” Addie’s case” was not, as had been stated earlier in the Judgment, “an
” exclusive or comprehensive ” statement of the duty owed by an occupier
to those who entered on his land, otherwise than in the exercise of a legal
right or with his actual consent.
But although the Addie test (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) was accepted as
being exclusive or comprehensive, the Privy Council went on to say ” That
” formula may embrace an extensive and, it may be, an expansive inter-
” pretation of what is wanton or reckless conduct towards a trespasser in
” any given situation and in the case of children it will not preclude full
” weight being given to any reckless lack of care in allowing things naturally
” dangerous to them to be accessible in their vicinity “.
A formula which is both exclusive and expansive seems to me, as a matter
of linguistics, to be a contradiction in terms. For my part I would not
follow the alternative route thus hinted at by which an amelioration of the
law in favour of meritorious trespassers might be attained. I think it prefer-
able to seek to identify the underlying principles which had been tacitly
accepted in Addie v. Dumbreck as justifying exclusion from the category of
intruders to whom the Addie test applies, those persons to whom judges
have hitherto managed to ascribe the status of licensee without acknowledging
the fictitious character of their imputed ” licence ” from the occupier.
Any duty imposed by common law upon one person to take steps to
avoid harming another arises out of some relationship recognised by the
common law as subsisting between the two persons. Where the harm to be
avoided is personal injury a necessary characteristic of the relationship is
one of physical proximity between the person to whom the duty is owed
and the person by whom the duty is owed or some thing whose dangerous
condition that person has played a part in creating or continuing. Where
the dangerous thing is situate upon land in private occupation and is
dangerous only to persons who come on to the land, the necessary charac-
teristic of proximity between the occupier of the land and a person who
sustains harm from the dangerous thing is created by that person’s own act
in coming on to the land.
There is thus a relevant distinction between a person who is lawfully
upon the occupier’s land with the occupier’s consent and a trespasser. In
the case of the former the occupier has consented to the creation of the
relationship from which the duty flows; in the case of the trespasser the
relationship has been forced upon the occupier against his will and as the
result of a legal wrong inflicted on him by the trespasser himself.
This distinction, as it seems to me, supplies the jurisprudential basis for
the proposition, implicit in the Scots cases about fencing land against tres-
passers, which were cited with the approval by Viscount Dunedin in Addie
v. Dumbreck (ubi. sup. at pp. 374-6), and explicit in Quinlan’s case (ubi.
sup. at p. 1076), that the occupier is not under any duty to take any pre-
cautions in advance to acquaint himself as to the likelihood or otherwise
of trespassers coming on to any part of his land. He is entitled to assume
that persons will not inflict a wrong upon him unless he has actual knowledge
of the likelihood that they will do so. It would be an unjustifiable burden
for the law to impose upon an occupier for the benefit of wrongdoers, a
duty to make inspections and inquiries in order to ascertain whether or
not trespassers were likely to come on to his land. So in the ordinary case
of a person to whom the occupier has not given permission to come upon
his land, keeping the danger within the boundaries of his own land is itself
35
a fulfilment of any duty he may owe to such a person to take reasonable
steps to enable him to avoid such danger. The test of whether an occupier
is under any duty to a trespasser to do more than to keep the danger within
the boundaries of his land is whether he is actually aware of facts which
make it likely that some trespasser will come on to that part of his land
where the danger is. It is not what the occupier would have been aware
of if he had exercised more diligence or foresight than he did.
My Lords, the degree of expectation that a trespasser will come upon
his land that is sufficient to impose upon him a duty to take any additional
steps to enable such a trespasser to avoid the danger and whether there are
any elements in it which require recourse to the standards of a reasonable
man, can best be discussed after considering what is the content of that duty
when it arises.
The duty at common law owed by an occupier to a licensee as it was
explained a hundred years ago by Willis J. in the two leading cases of
Indermaur v. Dames (L.R. 1 C.P. 274) and Gautret v. Egerton (L.R. 2
C.P. 371) was restricted to a duty to warn the licensee of traps or concealed
dangers actually known to the occupier but not to the licensee. What
constituted an adequate warning depended on the circumstances, including
the age and understanding of the licensee. Since the licensee, unlike the
invitee, came on to the premises for his own purposes it was his own
responsibility to avoid dangers of which he knew or could have known by
the exercise of reasonable care himself. It is for this reason that I have
summarised the duty as a duty to take reasonable steps to enable a licensee
to avoid a danger known by the occupier to exist upon his land.
The result of the technique of imputing a ” licence ” to trespassers of a
class whom the occupier knew were in the habit of coming on to his land
was to extend to them the benefit of this duty. In contrast to the common
law duty owed by an occupier to an invitee the test of a breach of the duty
was in modern legal parlance ” subjective ” rather than ” objective “. The
duty to warn extended to concealed dangers of which the occupier actually
knew and not to those of which he did not know, although he would have
done if he had exercised more diligence in inspecting his land than he did.
This ” subjective ” duty was owed by an occupier to licensees of whose
actual presence on the land and consequent exposure to danger he was
unaware but ought to have foreseen because he had given them permission
to go there. As respects licensees of whose presence and exposure to danger
he was actually aware the content of his duty as I have summarised it differs
very little in substance from Viscount Hailsham’s description in Addie v.
Dumbreck of conduct of an occupier which renders him liable to a trespasser
heaving aside intentional injury. He stated the occupier’s duty to a trespasser
whom he knew to be present, in the negative form of a duty to refrain
from doing an act ” with reckless disregard of the presence of the trespasser “,
whereas I have summarised the occupier’s duty to a trespasser whom he
knows to be exposed to danger, in the positive form of a duty to take
reasonable steps to enable the trespasser to avoid the danger. But positive
and negative descriptions of duties of this kind may be ways of describing
the two sides of the same coin. In the passage immediately before that
which I have quoted Viscount Hailsham had stated the occupier’s duty to
his licensee in the negative form: ” He is bound not to create a trap or to
” allow a concealed danger to exist upon the said premises which is known—
” or ought to be known—to the occupier “—though the inclusion of the
words ” or ought to be known ” does, I think, overstate the accepted definition
of the common law duty to licensees.
It is possible to conceive of circumstances where the concealed danger
is due to the natural condition of the land, but all the actual cases in the
books are about man-made dangers and it is to these that the language of
the judgments is directed. Man-made danger may be the result of an act
done while the trespasser is actually present on the land, as was the case in
Addie v. Dumbreck itself, or an act done before the trespasser came on to
the land. It can hardly be supposed that Viscount Hailsham intended to
draw a distinction between the liability of the occupier for setting the haulage
36
machinery in motion when the child was known to be close to the pulley
wheel and allowing it to continue in motion after the child was known to
have approached the wheel. In either case his conduct would manifest
” a reckless diregard of ordinary humanity “. In the context of recklessness
of conduct there is no rational distinction between activity and inactivity.
The practical effect of the technique of imputing a ” licence ” to trespassers
of whose actual presence on the land the occupier was not aware was thus
to put them in the same position vis-a-vis the occupier as if he had actually
known of their presence and consequent exposure to a concealed danger of
which he had actual knowledge.
Actual knowledge of a concealed danger, however, may involve two
different mental elements: actual knowledge of an activity carried out upon
the land or of its physical condition, which constitutes a concealed danger
to a person on the land ; and actual appreciation that the known activity
or condition does constitute a concealed danger. The relevance of this
analysis, particularly in cases in which any activities on the land are carried
out by servants of the occupier for whose fault he is vicariously liable, does
not appear to have been appreciated until comparatively recently, when
the current vogue for classifying the tests of legal duties as either ” subjective ”
or ” objective ” made it desirable to identify who the relevant ” subject”
was. It played no part in judicial reasoning at the time of Addie v.
Dumbreck. The possibility of drawing a distinction between knowledge of
physical facts and appreciation of danger was first suggested in argument in
Baker v. Bethnal Green Borough Council ([1945] 1 All E.R. 135). It was
eventually accepted by the Court of Appeal in Hawkins v. Purley and
Coulsdon U.D.C. ([1954] 1 Q.B. 349) in order to impose upon a corporation
as occupier liability based upon the actual knowledge of the physical facts
from which the danger arose. It was held that although the test of knowledge
of the physical facts which constituted the concealed danger was subjective
(did the occupier either personally or vicariously by his servants actually
know them?), the lest of appreciation of the danger resulting from the
known facts was objective (would a reasonable man possessed of that
knowledge of the physical facts appreciate the danger?).
If this can be characterised as an enlargement rather than a mere explana-
tion by judicial decision of an occupier’s duty to his licensees it was a
development which had taken place before the Occupiers Liability Act, 1957,
had substituted a statutory duty of care for the common law duty previously
owed to licensees. That Act did not touch the occupier’s duty to trespassers
at common law. It left it to continue to be developed by judicial decision.
Actual knowledge of concealed danger is a factor common to the duty
previously owed at common law by an occupier to his licensees and to the
duty still owed by an occupier to trespassers.
There is, in any event, a certain artificiality in ascribing an appreciation
of risk to a fictitious person, a corporation—as this defendant is and as
nowadays most defendants are. Knowledge of facts calls for the use of eyes
and ears ; and these a corporation has through its employees, even the
humblest. If any of them learns of the facts, in the course of his employment
his knowledge is the knowledge of the corporation. But appreciation of
risk of danger calls for the exercise of intelligent judgment; and it is the
judgment of the corporation itself which is relevant. What human minds are
to be treated as those of the corporation for the purpose of exercising that
judgment? To take an example of what may have been the facts of the
present case if the Appellants had chosen to disclose them. The linesman
when he saw the broken fence may have appreciated the risk of danger
to trespassing children but have failed to report the state of the fence out of
laziness or forgetfulness. Or, whether or not he himself appreciated the risk,
he may have reported the state of the fence in terms which did not draw the
attention of the recipient of his report to the danger involved. Or the
recipient may himself have appreciated the risk but to save himself trouble
decided to do nothing about it. And so on up the chain of responsibility
to the employee of the corporation endowed with authority to order the
37
fence to be repaired. Is appreciation of the risk by any one employee in
this chain to be treated as appreciation of risk by the corporation itself?
One possible solution in the case of a corporation is to apply the objective
standard of the reasonable man. by attributing to the fictitious person, the
fictitious mind and judgment of a reasonable man. It would, however, be
more consistent with the way in which English law develops, to apply to
” actual knowledge of a danger ” as a factor in the duty of an occupier to
trespassers the same analysis as was adopted in relation to the occupier’s
duty at common law to his licensees. This avoids differentiating between
the real and the fictitious person as occupier and solves the metaphysical
difficulties of ascribing to the latter an actual appreciation of the risk. To
see the danger signal yet not to take the trouble to give some thought to it is
conduct which the law ought to condemn.
My Lords, I conclude therefore that there is no duty owed by an occupier
to any trespasser unless he actually knows of the physical facts in relation
to the state of his land or some activity carried out upon it. which constitute
a serious danger to persons on the land who are unaware of those facts.
He is under no duty to any trespasser to make inspections or inquiries to
ascertain whether there is any such danger. Where he does know of physical
facts which a reasonable man would appreciate involved danger of serious
injury to the trespasser his duty is to take reasonable steps to enable the
trespasser to avoid the danger. What constitute reasonable steps will depend
upon the kind of trespasser to whom the duty is owed. If the duty owed
to small children too young to understand a warning notice the duty may
require the provision of an obstacle to their approach to the danger sufficiently
difficult to surmount as to make it clear to the youngest unaccompanied
child likely to approach the danger, that beyond the obstacle is forbidden
territory.
Such being, as I would hold, the content of the occupier’s duty to a
trespasser, I return to the consideration of the class of trespassers to whom
the duty is owed and, in particular, to the degree of expectation on the
part of the occupier that the trespassers will come on to his land which, in
the absence of actual knowledge of his presence, is sufficient to give rise to
the duty. It is a problem which does not arise in the case of licensees to
whom he has given permission to come there.
In Quinlan’s case a variety of expressions were used to describe the
necessary degree of expectation. The occupier must ” as good as know ”
that the trespasser is present at the time of the injury. His presence must
be fairly described as ” extremely likely ” or ” very probable “. I do not
find these latter phrases helpful save as a warning that the presence of
trespassers being unpredictable as compared with that of licensees, this un-
predictability must not be allowed to impose upon the occupier a duty
to give his mind to all the possible circumstances in which a trespasser
might come on to his land. If this branch of the law is based upon
” ordinary humanity ” it would seem evident that there must be a relation-
ship between the degree of expectation and the degree of danger. In the
case of a minefield, as in Adams v. Naylor ([1944] 1 K.B. 750), or a live
electric rail, an ordinarily humane man would regard it as incumbent upon
him to take precautions to protect intruders against the mortal danger which
these objects present although the likelihood of there being intruders was
much less than that which would cause him to take precautions to protect
intruders against more innocuous perils. Furthermore, the relevant likeli-
hood is that of the trespasser’s presence at the place and time of danger.
If the danger is created by an occasional or intermittent activity upon the
land, such as putting machines or vehicles in motion, the test of the creation
of the occupier’s liability to the injured trespasser is his expectation of a
trespasser’s presence at the point of danger at that moment of activity.
Whereas if the danger lies in some permanent condition of the land, such
as a live rail, the test is his expectation of some trespasser’s presence at
the point of danger at any time while that condition continues to exist.
Thirdly, in the case of children, the degree of attractiveness to children of
38
something present on the land, is relevant to the occupier’s expectation that
child trespassers will come on to his land and will approach the point of
danger, as well as being relevant to the kind of precaution he must take to
protect them from the danger.
My Lords, an occupier’s expectation of a trespasser’s presence, like his
knowledge of a concealed danger, also involves two mental elements: actual
knowledge of physical facts which indicate that trespassers are likely to
come on to the land; and appreciation of the resulting likelihood. For
reasons similar to those which I have indicated I think that, as the law has
now developed, the test of appreciation of the likelihood of trespass is
whether a reasonable man knowing only the physical facts which the occupier
actually knew, would appreciate that a trespasser’s presence at the point and
time of danger was so likely that in all the circumstances it would be
inhumane not to give to him effective warning of the danger or, in the case
of a child too young to understand a warning, not to take steps to convey
to his infant intelligence that he must keep away. I do not think that a
judge or jury would find any difficulty in applying this test.
I would then seek to summarise the characteristics of an occupier’s duty
to trespassers on his land which distinguishes it from the statutory ” common
” duty of care ” owed to persons lawfully on his land under the Occupier’s
Liability Act, 1957, and from the common law duty of care owed by one
man to his “neighbour”, in the Atkinian sense, where the relationship
of occupier and trespasser does not subsist between them. To do so does
involve rejecting Viscount Hailsham’s formulation of the duty in Addie v.
Dumbreck as amounting to an exclusive or comprehensive statement of it
as it exists today. It takes account, as this House as the final expositor
of the common law should always do, of changes in social attitudes and
circumstances and gives effect to the general public sentiment of what is
” reckless ” conduct as it has expanded over the forty years which have
elapsed since the decision in that case.
First: The duty does not arise until the occupier has actual knowledge
either of the presence of the trespasser upon his land or of facts which make
it likely that the trespasser will come on to his land ; and has also actual
knowledge of facts as to the condition of his land or of activities carried
out upon it which are likely to cause personal injury to a trespasser who
is unaware of the danger. He is under no duty to the trespasser to make
any inquiry or inspection to ascertain whether or not such facts do exist.
His liability does not arise until he actually knows of them.
Secondly: Once the occupier has actual knowledge of such facts, his own
failure to appreciate the likelihood of the trespasser’s presence or the risk
to him involved, does not absolve the occupier from his duty to the trespasser
if a reasonable man possessed of the actual knowledge of the occupier would
recognise that likelihood and that risk.
Thirdly: The duty when it arises is limited to taking reasonable steps to
enable the trespasser to avoid the danger. Where the likely trespasser
is a child too young to understand or heed a written or a previous oral
warning, this may involve providing reasonable physical obstacles to keep
the child away from the danger.
Fourthly: The relevant likelihood to be considered is of the trespasser’s
presence at the actual time and place of danger to him. The degree of
likelihood needed to give rise to the duty cannot, I think, be more closely
defined than as being such as would impel a man of ordinary humane
feelings to take some steps to mitigate the risk of injury to the trespasser
to which the particular danger exposes him. It will thus depend on all
the circumstances of the case: the permanent or intermittent character of
the danger; the severity of the injuries which it is likely to cause; in the
case of children, the attractiveness to them of that which constitutes the
dangerous object or condition of the land; the expense involved in giving
effective warning of it to the kind of trespasser likely to be injured, in
relation to the occupier’s resources in money or in labour.
My Lords, upon the findings of the trial judge in the instant appeal. 1
find no difficulty in inferring that through the eyes or ears of one or other
39
of their servants the Appellant Board did know the physical facts that made
it likely that little children playing in Bunce’s Meadow would trespass on
their line and that if they did so would run a serious risk of grave if not
mortal injury from the electric rail. Breach of the other characteristics of
the duty which then arose, is in my view, established. I would, therefore,
dismiss this appeal.
It might, however, leave this branch of the common law of England still
in confusion if this House did not state categorically the respects in which
the test of an occupier’s duty to a trespasser differs from that stated by the
majority of the Court of Appeal in Videan v. British Transport Commission
(1963 2 Q.B. 650) and reiterated by the whole court in Kingzett v. British
Railways Board ((1968) 112 Sol. J. 625) despite the intervening adverse
comment by the Privy Council in Quinlan’s case.
In the instant case the trial judge felt that he was bound to follow the
reasoning of Videan’s case and Kingzett’s case. The Court of Appeal felt
able to decide it without recourse to Videan’s case, by treating the station-
master’s failure to do anything except to warn the police when children
had trespassed on the land two months before, as falling within Viscount
Hailsham’s formula in Addie v. Dumbreck as ” an act done with reckless
” disregard of the presence of a trespasser “. This was, I think, unduly
censorious of the station-master as an individual. It was unnecessary to
apportion among its individual servants the blame which lay upon the
incorporated Board. The reckless act was that of the fictitious person, the
Board itself, in allowing the deadly current to flow through the live rail when,
through one or more of its servants it knew the physical facts which made
it likely that a little child would stray from Bunce’s Meadow and come
in contact with the rail.
The test propounded by the majority of the Court of Appeal in Videan’s
case is, in my view, wrong in three respects.
-
-
-
It draws an unwarrantable distinction between a “static” condition
of the occupier’s land and an ” activity ” which the occupier carries out on
it. In respect of activities of the occupier on the land it accords the
trespasser the status of ” neighbour ” vis-a-vis the occupier despite the fact
that he has forced this relationship upon the occupier against the latter’s will
and by a wrongful act done to the occupier. -
It treats the source of the relationship which gives rise to the occupier’s
duty towards a trespasser in respect of “activities” as mere foreseeability
of the trespasser’s presence, just as in the case of someone lawfully on his
land. This suggests that there is some duty on the occupier to make
inspections or inquiries in order to acquaint himself of the likelihood of a
trespasser’s coming on to his land. There is no such duty. -
It treats the duty of the occupier to the trespasser in respect of
” activities” as identical with his duty to persons lawfully on his land
instead of the more restricted duty to take reasonable steps to enable the
trespasser to avoid concealed dangers resulting from the existence of facts
actually known to the occupier.
-
-
In the instant appeal Your Lordships are concerned only with the liability
of an occupier of land towards a trespasser whose presence on the land is a
legal wrong committed by the trespasser upon the occupier himself. This
is not necessarily the same as the liability of some other person, who carries
on an activity on the land with the permission of the occupier, towards
a person who, though a trespasser vis-a-vis the occupier, commits no legal
wrong upon him who carries on the activity. There are three cases at
first instance in which it has been held by judges of great eminence that a
contractor, who is not the occupier of land, owes to trespassers on the land
the ordinary common law duty of care owed by one man to his neighbour.
That he is a trespasser vis-a-vis the occupier was treated as relevant only
to the foreseeability of his presence. (See: Buckland v. Guildford Gas Light
& Coke Co. [1949] 1 W.L.R. 410; Davies v. St. Mary’s Demolition Co.
[1954] 1 W.L.R. 392; Creed v. McGeogh & Sons (1955] 1 W.L.R. 1005.)
In Videan’s case (ubi. sup. at p. 604) it was asserted baldly that there was
40
neither rhyme nor reason why the occupier’s liability to a trespasser should
differ from that of a contractor. There is at least one possible reason in
logic and in law. Disapproval of the ratio decidendi of Videan’s case does
not necessarily involve any conflict with the decisions in the three contractor’s
cases to which I have referred. The instant case is not an appropriate one
in which to deal with the liability to trespasser of persons who are not
the occupiers of the land on which the trespass is committed.
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