Court: House of Lords
Date: 1972
Citation: [1972] AC 877
The case of Herrington v British Railways Board [1972] AC 877 marks a significant shift in the law regarding the duty of care owed to trespassers, particularly children, by occupiers of land. The House of Lords in this case overruled the earlier decision in Addie v Dumbreck (1929), which had set a strict and limited standard for the duty owed to trespassers. Herrington is an essential case in understanding how the law has adapted to the evolving societal conditions and the responsibilities of occupiers in safeguarding vulnerable individuals, especially children, from foreseeable harm.
Facts of Herrington v British Railways Board
In Herrington v British Railways Board, the defendant, British Railways Board (D), was the owner of electrified rail tracks that were situated in a meadow. This meadow was frequently used by children as a playground. By 1965, there was a breach in the fence surrounding the tracks, which allowed children to pass through and use the tracks as a shortcut.
Despite receiving reports in 1965 from the station master about children playing near the tracks, the railway company did not take action to repair the fence. Later that year, a six-year-old boy, Herrington (C), trespassed through the broken fence and was severely injured by the live rail. His mother brought a claim for negligence against the British Railways Board.
At trial, it was determined that the railway company had been negligent in failing to repair the fence for a prolonged period, despite being aware of the risk posed to children. The Court of Appeal later held that the railway company had been reckless in safeguarding the child. The case was then brought to the House of Lords for a final decision on whether the railway company owed a duty of care to the child trespasser and, if so, whether the company had breached that duty.
Issues
The primary issue before the House of Lords was whether British Railways Board owed a duty of care to a trespasser, specifically a child, and if so, whether it had failed in its duty by not taking reasonable steps to prevent access to the dangerous railway tracks.
Additionally, the case raised the question of whether the law should continue to uphold the principle established in Addie v Dumbreck, which stated that no duty of care was owed to a trespasser, or whether a more modern and humane approach should be adopted to reflect the changing conditions of society.
Decision of the House of Lords in Herrington v British Railways Board
The House of Lords unanimously dismissed the appeal, agreeing with the lower courts that the British Railways Board had been negligent in failing to take reasonable care to protect the trespasser, a young child, from foreseeable harm. The Lords held that the railway company had breached its common duty of care owed to the child trespasser.
In particular, the House of Lords departed from the traditional ruling in Addie v Dumbreck, which had held that no duty was owed to trespassers. Instead, the court acknowledged the need to evolve the law to take account of modern conditions and the increased risks posed to children.
Herrington v British Railways Board Judgements and Key Judicial Statements
Lord Reid:
Lord Reid was one of the leading judges in the case and provided a key statement on the duty owed to trespassers. He dismissed the appeal, criticising the failure of the railway company to take proper action in safeguarding the child. He noted:
“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.”
Lord Reid’s statement highlighted the shift in the legal approach towards trespassers. He acknowledged that occupiers, particularly large organisations like the railway company, should take reasonable precautions based on their knowledge and resources. The case marked a significant departure from the rigid rule that previously existed, where trespassers were expected to assume the risks of trespassing without any protection.
Furthermore, Lord Reid emphasised that the railway company was well aware of the potential risks, given that children regularly played in the area. He remarked that it would have been simple for the company to implement a system to inspect and repair the broken fence. His view was that:
“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.”
Lord Reid’s judgement reflected a growing awareness of the need for occupiers to act with common humanity and safeguard vulnerable individuals, particularly children, from foreseeable harm.
Lord Morris of Borth-Y-Guest:
Lord Morris of Borth-Y-Guest also dismissed the appeal, providing additional insight into the case. He agreed that the railway company owed a duty of care, especially in light of the knowledge they had regarding the breach in the fence and the likelihood of children accessing the tracks.
Lord Morris stated:
“I 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.”
He also highlighted the importance of common humanity and suggested that the railway company had an obligation to act with greater care for the safety of vulnerable individuals, particularly children. He explained:
“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.”
This statement reinforced the idea that occupiers must take reasonable steps to prevent harm, even to trespassers, particularly when the risks are foreseeable.
Lord Pearson:
Lord Pearson further reinforced the growing shift in legal thinking. He pointed out that the earlier ruling in Addie v Dumbreck was no longer adequate in the face of modern conditions. He noted that urbanisation and the increased likelihood of children trespassing required a more compassionate and reasonable approach from occupiers.
Lord Pearson’s judgement suggested:
“The rigid and restrictive nature of the rule in Addie v Dumbreck has been overtaken by modern conditions. Occupiers now have a duty of common humanity to take reasonable steps to protect trespassers, especially children, from foreseeable harm.”
He argued that the previous rule was too harsh and out of touch with contemporary society, where children are more likely to trespass in urban areas and where the dangers posed by certain occupations, such as railways, are well known.
Conclusion
The House of Lords’ decision in Herrington v British Railways Board [1972] AC 877 represents a crucial development in the law of torts, particularly concerning occupiers’ liability. The case broke away from outdated principles that had denied any duty of care to trespassers, acknowledging instead that occupiers must take reasonable steps to prevent harm, especially when it comes to the protection of children.
