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 accident. When defects were observed by the Defendant’s employees, repairs were duly effected. These were required with frequency. The evidence was that the fence was intact on the accident date.
Held: He was a trespassr and not a licensee.
Lord Goddard said: ‘repeated trespass of itself confers no licence . . how is it to be said that (an occupier) has licensed what he cannot prevent . . Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it . . What then have they done in this case to lead anyone to suppose that they may go on to their property to play ?’
Lord Oaksey said: ‘In my opinion, in considering the question whether a licence can be inferred, the state of mind of the suggested licensee must be considered. The circumstances must be such that the suggested licensee could have thought and did think that he was not trespassing but was on the property in question by the leave and licence of its owner.’
Lord Porter said that the first question to be decided was: ‘whether there was any evidence from which it could be inferred that children from the recreation ground had become licensees to enter the respondent’s premises and toboggan down the embankment . . There must, I think, be such assent to the user relied upon as amounts to a licence to use the premises. Whether that result can be inferred or not must, of course, be a question of degree, but in my view a court is not justified in likely inferring it . . The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondents to fence, children again and again broke their way through. What more, the appellants asked, could the respondents do? Report to the Corporation? But their caretaker knew already. Prosecute? First you have to catch your children and even then would that be more effective? In any case I cannot see that the respondents were under any obligation to do more than keep their premises shut off by a fence which was duly repaired when broken and obviously intended to keep intruders out.’
Lord Porter, Lord Goddard, Lord Oaksey
 2 All ER 430,  AC 737
Cited – 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 . .
Cited – Harvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .
Lists of cited by and citing cases may be incomplete.
Negligence, Personal Injury, Land
Updated: 31 October 2021; Ref: scu.182867