Herrington v British Railways Board (British Railways Board v Herrington)

An occupier does not owe a trespasser the statutory common duty owed to a lawful visitor, nor a general duty to make land safe or childproof. A limited common-law duty of ordinary humanity arises where the occupier knows, or on facts known to him should appreciate, that trespassers are likely to encounter a serious danger.

The required response depends on the likelihood and gravity of injury, whether the danger is apparent, the probable trespasser’s age, the practicality and cost of precautions, and the occupier’s resources. Warning, exclusion or reduction of the danger may suffice. Young children may require physical barriers. The restrictive rule confining liability to intentional injury or subjective recklessness towards a known trespasser was displaced. An occupier may therefore be liable for a culpable omission to address a concealed lethal danger likely to be encountered by child trespassers.

The respondent, aged six, passed through a chain-link boundary fence which had remained badly damaged for several weeks. The fence separated a public meadow from the appellant Board’s electrified railway. The child reached the live rail, whose danger he could not appreciate, and suffered grave injuries.

The trial judge held the Board liable. The Court of Appeal upheld that result by treating its conduct as reckless within the rule in Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358. The Board appealed to the House of Lords.

The central questions were whether an occupier could owe a duty to an anticipated child trespasser before the child entered the land, what the content of that duty was, and whether the restrictive formulation in Addie v Dumbreck remained an exhaustive statement of the law.

1. Unanimously, dismissing the appeal, the Board owed the child a limited common-law duty and had breached it. Although the five Law Lords expressed the governing standard differently, their common basis was that an occupier may owe anticipated trespassers a duty of ordinary humanity where known circumstances disclose a serious danger and a sufficient likelihood of their presence.

2. Per Lord Reid, liability depended on whether a conscientious and humane occupier, possessing the defendant’s knowledge, skill and resources, could reasonably have been expected to take or refrain from taking an effective step. The seriousness of the danger and likelihood of trespass had to be balanced against the burden of prevention. The Board’s failure to maintain an elementary system for inspecting and repairing the fence was culpable.

3. Per Lord Morris of Borth-y-Gest, an occupier remained under no general duty to make land safe for trespassers. The circumstances nevertheless required steps which common sense and common humanity dictated. The defective fence adjoined public ground and a public path; a young child could pass it easily; and the concealed live rail exposed such a child to death or grave injury. Repairing the fence was a reasonable and practical precaution.

4. Per Lord Wilberforce, the general rule that an occupier need not make land safe for trespassers survived, but particular circumstances could create a special duty. Relevant matters included proximity to public access, the continuous and lethal nature of the danger, its lack of apparent danger to children, the cost of precautions and the occupier’s resources. He regarded the law in Addie v Dumbreck [1929] AC 358 as developed rather than wholly denied.

5. Per Lord Pearson, the statutory common duty under the Occupiers’ Liability Act 1957 did not extend to trespassers. Where their presence was known or reasonably anticipated, however, the occupier owed a lower duty of ordinary humanity. Reasonable warning, exclusion, removal or reduction of the danger could discharge it. Maintaining the fence was an obvious reasonable measure which the Board omitted.

6. Per Lord Diplock, the occupier had to know the physical facts indicating both likely trespass and serious danger. A reasonable person’s appreciation of those known facts then supplied the objective element. The resulting duty was limited to reasonable steps enabling the trespasser to avoid the danger; for a young child this could require an effective physical obstacle. No general duty of inspection arose.

7. A majority rejected as exhaustive the rule in Addie v Dumbreck which confined liability to deliberate injury or subjective recklessness after a trespasser’s presence was known. It could not exclude liability for a culpable omission to address a lethal danger to anticipated child trespassers. The majority also rejected a general distinction between static conditions and activities on land, and the fictitious implication of a licence was no longer needed.

1. House of Lords: The Board’s appeal was dismissed unanimously. The child’s judgment for damages was upheld.
2. Court of Appeal: The court upheld liability, treating the Board’s conduct as reckless within the formulation in Addie v Dumbreck [1929] AC 358. No citation for this stage is stated.
3. Trial court: The judge held that the child was entitled to recover. In addressing the duty owed, the judge considered himself bound by Videan v British Transport Commission [1963] 2 QB 650 and the subsequent Court of Appeal approach. No citation for this stage is stated.