British Railways Board v Herrington: HL 16 Feb 1972

Land-owner’s Possible Duty to Trespassers

The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a trespasser, the creation by him of particular risks which may be unknown to sections of the public, including children, might create such a liability. The test may be subjective, as to whether a land-owner of this character might reasonably be expected to do or refrain from doing something on his land to avoid the risk. A duty might arise where the owner had, or ought to have had, actual knowledge of trespassers using the land, and of the risk they might face, and the risk was such as might cause a person with ordinary humane feelings to seek to avoid it. The duty does not extend beyond taking reasonable steps to enable a trespasser to avoid the danger.
Lord Diplock said that the court may draw adverse inferences from a defendant’s decision not to give or call evidence as to matters within the knowledge of himself or his employees: ‘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.’
As to the liability of a railway undertaking for injury suffered by trespassers on the line, Lord Diplock said: ‘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 take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. 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.’

Lord Reid, Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Pearson and Lord Diplock
[1972] AC 877, [1972] 2 WLR 537, [1971] 1 All ER 749, [1972] UKHL 1
lip, Bailii
England and Wales
LimitedAddie (Robert) and Sons (Collieries) Ltd v Dumbreck HL 25-Feb-1929
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. . .
CitedAdams v Naylor HL 1946
The House disapproved of the practice of appointing a nominee defendant in tort actions against whom damages could be awarded as opposed to a party with crown immunity. The House refused to entertain a claim against a nominated army officer arising . .
CitedBaker v Bethnal Green Corporation CA 1945
The plaintiff sought damages after a relative died in the stairwell of an underground tube station taken over by the defendant for use as an air raid shelter. The steps down to the station were known to be unsafe, being wide without protective . .
CitedBillings (AC) and Sons Ltd v Riden HL 1957
A building contractor may assume a duty of care to a visitor, though the contractor was not viewed as the occupier, the occupier being separately liable to the injured plaintiff. However, ‘if the Plaintiff knew the danger, either because he was . .
CitedBird v Holbrook CCP 9-May-1828
Whether a trespasser who was injured could recover or not depends at common law upon whether notice had been given him of the presence of those dangers on the defendant’s land. Burrough J said: ‘The Plaintiff was only a trespasser: if the Defendant . .
CitedBlyth v Birmingham Waterworks Co 1856
. .
CitedBourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
CitedBuckland v Guildford Gas Light and Coke Co 1948
Whether someone is a trespasser vis-a-vis the occupier is relevant only to the foreseeability of his presence. . .
CitedCarmarthenshire County Council v Lewis HL 17-Feb-1955
The House considered the unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not negligent) it was possible for a child of four to wander from the school premises onto the highway, through a gate which was either . .
CitedCommissioner for Railways v McDermott PC 1966
. .
CitedCommissioner for Railways v Quinlan PC 9-Mar-1964
(New South Wales) The plaintiff trespasser was hit by the occupier’s train. He succeeded at trial and on first appeal.
Held: A mere failure to exercise reasonable care was not a basis for claim by a trespasser, there must: ‘be injury due to . .
CitedCommissioner for Railways (NSW ) v Cardy 1960
. .
CitedCooke v Midland Great Western Railway of Ireland HL 1909
Lord Atkinson said: ‘The duty the owner of premises owes to the persons to whom he gives permission to enter upon them must . . be measured, by his knowledge, actual or imputed, of the habits, capacities and propensities of those persons.’ and ‘The . .
CitedCreed v McGeoch and Sons Ltd 1955
The question of who is an occupier will depend on the particular facts of each case and especially upon the nature and extent of the occupation or control in fact enjoyed or exercised by the defendant over the premises. The defendant contractor was . .
CitedDavis v St Mary’s Demolition and Excavation Co Ltd 1954
The defendants were demolishing some houses, behind which was an open space on which children were known to play. A child wandered onto the site and a wall fell causing injury.
Held: Although the plaintiff was a trespasser, the presence of . .
CitedDeane v Clayton 1817
. .
CitedDonoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
CitedDorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
CitedDunster v Abbott CA 1953
The court discussed the distinction between the liability of an occupier for the dangerous condition of his premises and the liability of an occupier in relation to dangerous activities carried out on his premises. Denning LJ said: ‘In this case . . . .
CitedEdwards v Railway Executive HL 1952
A boy aged 9 was injured on a railway line. He had been warned not to go onto the land and had found his way through a defective fence. He claimed in negligence. The fence had been breached by children with some frequency for many years before the . .
CitedExcelsior Wire Rope Co Ltd v Callan HL 1930
The House dismissed an appeal by an occupier of land against a finding that he was liable for an injury occasioned to a child trespassing on his land. . .
CitedGautret v Egerton 1867
A man fell to his death when crossing a bridge used with the consent and permission of the defendants by persons proceeding to and coming from the defendants’ docks.
Held: The claim by his widow against the bridge owner was dismissed.
CitedGlasgow Corporation v Taylor HL 18-Nov-1921
A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty . .
CitedGoldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
CitedGrand Trunk Railway Co of Canada v Barnett PC 28-Mar-1911
In an action against the appellant railroad company for damages for personal injuries resulting from collision caused by the negligence of the appellants’ servants it appeared that the collision took place on the property of the appellants to which . .
CitedHaley v London Electricity Board HL 28-Jul-1964
Electricity undertakers owed a duty of care to blind persons as a class when they excavated a trench along a pavement in a London suburb because blind people foreseeably walk along pavements. . .
CitedHardy v Central London Railway Co CA 1920
. .
CitedHawkins v Coulsdon and Purley Urban District Council CA 1954
Denning LJ suggested that there was a confluence between the laws applying to invitees and the laws applying to licensees.
Somervell LJ said: ‘reasonable foresight could not depend on ‘attributes which properly belong to a person of . .
CitedHeaven v Pender, Trading As West India Graving Dock Company CA 30-Jul-1883
Duty Arising to Use Ordinary Care and Skill
The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
Held: The defendant had . .
CitedHillen and Pettigrew v ICI (Alkali) Ltd HL 1936
Stevedores who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew that they ought not to use the . .
CitedHolland v Lanarkshire Middle Ward District Committee 1909
Duty to fence a quarry. On a failure the land owner may be liable in damages. It was doubtful that a child would be liable in contributory negligence. . .
CitedIlott v Wilkes 1820
. .
CitedIndermaur v Dames 1866
The court described as an occupier’s duty towards his invitees: ‘And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall . .
CitedJay v Whitfield (Note) 1817
Liability for injury in trap. . .
CitedKingzett v British Railways Board 1968
. .
CitedLatham v R Johnson and Nephew Ltd CA 12-Dec-1912
The defendants were owners of a plot of unfenced waste land from which old houses had been cleared. It did not adjoin any public highway, but was accessible by a path leading from the back of the house in which the plaintiff, a child between two and . .
CitedLowery v Walker HL 9-Nov-1910
A trespasser was injured by the land owner’s savage horse.
Held: If a land-owner knows of but does nothing to stop acts of trespass by the public on his land, there may be an implied license. Decision reversed. In Scottish courts the . .
CitedLynch v Nurdin 1841
The defendant’s servant left his cart and horse on a street where children were playing. A child climbed on the wheel of the cart, other children disturbed the horse, and the child was injured.
Held: The judge had correctly left it to the jury . .
CitedMcCarthy v Wellington City 1966
A person storing dangerous explosives on his premises owed a duty of care to keep them secure to all persons foreseeably likely to be injured as a result of a breach of that duty. . .
CitedM’Glone v British Railways Board HL 27-Oct-1965
The appellant sought damages in respect of injuries suffered by his son who received a severe electrical shock, climbing on a booster transformer on premises occupied by the respondents. The First Division had held that the respondents were not . .
CitedMiller v South of Scotland Electricity Board HL 1958
An employer should recognise that it is not possible to predict all the ways in which dangers may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened. In . .
CitedMooney v Lanarkshire County Council 1954
. .
CitedMorran v Waddell SCS 24-Oct-1883
Inner House First Division. – Reparation – Culpa – Railway – Private Line of Railway – Obligation to Fence – Contributory Negligence. . .
CitedMoulton v Poulter CA 1930
The defendant land owner and occupier knew of the presence of the trespassing children.
Held: He was liable for injury to the trespassing child by a tree was felled negligently. The defendant had: ‘cut the last root by which the tree was . .
CitedMunnings v Hydro-Electric Commission 1971
. .
CitedPerry v Thomas Wrigley Ltd 1955
A trench dug in a road for its repair did not count as an allurement for passing children. . .
CitedPrentice v Assets Co Ltd 1889
. .
CitedRich v Commissioner for Railways (NSW) 1959
The Board considered a claim arising from an accident occurring at a railway level crossing . .
CitedRoss v Keith 1888
. .
CitedThompson v Bankstown Municipal Corporation 1953
(Australia) Occupier’s duty of care to a person to whom he already has a neighbour relationship. . .
CitedUnited Zinc and Chemical Co v Britt 1922
There was no evidence of children being in the habit of going near the poisoned pool at issue. Speaking of trespassers, Holmes J said ‘the owner of the land would have owed no duty to remove even hidden danger; it would have been entitled to assume . .
CitedVidean -v British Transport Commission CA 1963
The court was asked as to the duty of a land owner to a trespasser.
Held: At least in respect of his own activities an occupier owed the trespasser duty to take care not to injure a trespasser whose presence was foreseeable or reasonably to be . .
CitedMunnings v Hydro-Electric Commission 1971
. .
Appeal fromBritish Railways Board v Herrington CA 1971
A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, such as the inability of children to recognise danger. . .

Cited by:
CitedTomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s . .
CitedRegina v Stephenson CACD 1979
The defendant sought to sleep in a hollow in a haystack. He lit a fire, to keep warm, which set fire to the stack. He appealed against his conviction under the 1971 Act. He had a long history of schizophrenia and may not have had the same ability to . .
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
CitedWisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
CitedWalker v Northumberland County Council QBD 16-Nov-1994
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .
CitedHampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
CitedCrawford v Financial Institutions Services Ltd PC 2-Nov-2005
(Jamaica) The government had intervened in banking institutions under the control of the appellant. Subsequently orders had been made against him for compensation in respect of loans made negligently or otherwise than in accordance with good banking . .
CitedHardy v Washington Green Fine Art Publishing Company Ltd CA 9-Mar-2010
The claimant’s husband had bought a Rolf Harris picture from an art gallery, but left it with them for safe keeping. The gallery was said to have been taken over by the defendants. The painting was noticed to be missing but the claimant was not . .
CitedEarles v Barclays Bank plc Merc 8-Oct-2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedHarris v Birkenhead Corporation CA 12-Nov-1975
A four year old child had fallen from a second-story window in a derelict house owned by the defendant, and suffered serious injury. The house and others had been purchased by compulsion for intended clearance. The Corporation appealed against a . .
CitedOvu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .

Lists of cited by and citing cases may be incomplete.

Land, Personal Injury, Nuisance, Children, Negligence, Evidence

Leading Case

Updated: 29 November 2021; Ref: scu.174315