M'Glone v British Railways Board

Under the Occupiers' Liability (Scotland) Act 1960, an occupier must take such care as is reasonable in all the circumstances. The duty does not require guaranteed safety or an impenetrable barrier. Its content depends on the danger, the foreseeable entrants and their capacity to understand warnings and obstacles.

An occupier may ordinarily expect an older child to recognise that substantial fencing and barbed wire are intended to exclude entry to dangerous apparatus. Once reasonable protection has been provided, the ease of taking an additional precaution does not by itself establish negligence. The defence of volenti non fit injuria requires proper appreciation and acceptance of the relevant risk.

A 12-year-old boy entered railway premises where children regularly played and climbed an electricity transformer carrying live wires at 2,500 volts. The transformer was protected on three sides by a high mesh fence. Gaps beside a retaining wall were closed with strands of barbed wire, and warning notices were displayed. The boy passed the barrier, climbed the structure and suffered serious electrical burns.

The Lord Ordinary held the British Railways Board liable under the Occupiers' Liability (Scotland) Act 1960, but found the boy two-thirds responsible and awarded £500. The First Division reversed that decision and granted decree of absolvitor. The question before the House was whether the fencing and warnings amounted to reasonable care under section 2, together with subsidiary questions concerning an unpleaded ground of fault and the defence of volenti non fit injuria.

1. The appeal was dismissed unanimously. Lord Reid, Lord Morris of Borth-y-Gest, Lord Guest, Lord Pearce and Lord Pearson concluded that the respondents had complied with their statutory duty.

2. Per Lord Reid, Lord Guest and Lord Pearce, section 2(1) of the Occupiers' Liability (Scotland) Act 1960 requires such care as is reasonable in all the circumstances. The Act abolished the former categories of invitee, licensee and trespasser, but it does not require the same precautions for every entrant. The entrant's status, age and foreseeable conduct may affect the degree of reasonable care.

3. Per Lord Reid, the requirement of an obstacle which an entrant must consciously overcome is not an invariably sufficient precaution. Greater protection may be required where very young children are foreseeable or where older children would have no reason to perceive any danger. Warnings must be sufficiently prominent, clear and intelligible to those whom they are intended to protect.

4. Per Lord Reid, Lord Guest and Lord Pearce, the respondents could reasonably expect a boy mature and agile enough to overcome the barbed wire and climb the transformer to understand the barrier's purpose and the existence of danger. The mesh fencing, barbed wire and notices demonstrated a serious intention to exclude entry. Reasonable care did not require an impenetrable or perfectly boy-proof enclosure capable of repelling a deliberate invader.

5. Per Lord Reid, Lord Guest and Lord Pearce, adequate precautions do not become negligent merely because a further precaution could readily and cheaply have been taken. The question must be assessed prospectively from the position of a reasonable occupier, not by reference to improvements apparent after the accident.

6. Per Lord Reid, Lord Guest and Lord Pearce, the Lord Ordinary was entitled to consider the allegation that the mesh fence should have been extended to the retaining wall. Although that particular measure was not expressly pleaded, evidence about it was admitted without timely objection and was subsequently explored with several witnesses.

7. Per Lord Reid and Lord Pearce, section 2(3) embodies volenti non fit injuria. The defence failed because the boy did not properly appreciate the danger from the live wires and therefore could not be inferred to have accepted that risk. Lord Pearce added that pupilage is not by itself an absolute bar to the defence.

1. House of Lords: Dismissed the pursuer's appeal and left standing the First Division's decree of absolvitor.

2. First Division of the Court of Session: Held that the respondents were not liable, reversed the Lord Ordinary and granted decree of absolvitor.

3. Lord Ordinary: Held the respondents liable, assessed damages at £1,500, found the child two-thirds to blame and awarded the pursuer £500.