McGinlay or Titchener v British Railways Board

An occupier’s duty under section 2(1) of the Occupiers’ Liability (Scotland) Act 1960 depends on all the circumstances and relates to the particular entrant. Relevant matters include the entrant’s age, intelligence and appreciation of the danger, the nature of the premises and whether the danger is obvious.

A railway operator need not provide or maintain fencing for an adolescent who fully understands the ordinary danger from passing trains, deliberately enters the line and faces no special or concealed danger. Liability also requires proof that the proposed precaution would probably have prevented the injury. Under section 2(3), an entrant who willingly accepts the ordinary risk of properly operated trains cannot recover for that risk. That acceptance would not extend to negligent or unusual operation.

The appellant, aged 15, was seriously injured when she and her 16-year-old companion were struck by a train on a suburban railway line. Her companion was killed. There were gaps in fencing near a bridge, and the railway board knew that people sometimes crossed the line there. The appellant knew that trains used the line, appreciated the danger and had previously crossed it as a short cut.

The Lord Ordinary assoilzied the board. An Extra Division of the Inner House refused the appellant’s reclaiming motion and adhered to that interlocutor. The appellant appealed to the House of Lords, contending that the board had breached its statutory duty by failing to maintain the fencing. The central issues were whether the board owed her a duty to provide better fencing, whether any failure caused the accident and whether she had willingly accepted the relevant risk.

Appeal dismissed unanimously. Lord Fraser of Tullybelton delivered the leading speech. The Lord Chancellor, Lord Keith of Kinkel, Lord Roskill and Lord Bridge of Harwich agreed with his conclusion and reasoning.

1. Per Lord Fraser, the duty under section 2(1) of the Occupiers’ Liability (Scotland) Act 1960 is to exercise the care which is reasonable in all the circumstances towards the particular entrant. The existence and extent of a duty to fence therefore depend upon such matters as the entrant’s age and intelligence, the nature of the place and the obviousness of the railway and its dangers. The Act imposes no general or absolute duty to fence railway lines.

2. The board owed this appellant no duty to maintain better fencing and, if necessary, owed her no duty to provide fencing at all. She knew that the line existed, understood the danger from trains and knew that she should keep a lookout. She had to climb an embankment and pass the remaining fence, so she could not have entered unawares. Approaching trains were readily visible, there was no special danger peculiar to the location and the train’s operation was not criticised. This conclusion accorded with M’Glone v British Railways Board 1966 SC (HL) 1.

3. Even if the board had been obliged to repair the fence, causation was not proved. The Lord Ordinary was entitled to reject the appellant’s uncontradicted assertion that an ordinary post-and-wire fence would have deterred her. The evidence did not establish on the balance of probabilities that anything short of an impenetrable barrier would have prevented her from crossing. An occupier was not required to provide such a barrier.

4. Per Lord Fraser, section 2(3) independently defeated the claim. It expresses the principle volenti non fit injuria. The appellant understood the danger and admitted that crossing was a chance she took. She therefore willingly accepted the risk arising from trains operated in the ordinary and accustomed way. Following the qualification illustrated by Slater v Clay Cross Co Ltd [1956] 2 QB 264, that acceptance would not have covered negligent or unusual operation, but no such operation was alleged or proved.

The Lord Chancellor added that the fencing left much to be desired. He cautioned that different facts, another claimant or a different accident could produce liability. The board could not treat the result as general immunity for inadequate railway fencing.

1. House of Lords: Dismissed the appellant’s appeal and left the interlocutor assoilzieing the British Railways Board undisturbed.
2. Extra Division of the Inner House: Refused the reclaiming motion and adhered to the Lord Ordinary’s interlocutor.
3. Court of Session, Outer House: Lord Ross held that liability had not been established and assoilzied the defenders.