A 15 year old was hit by a train as she crossed a railway line. She said the defender had not maintained a fence separating the street from the railway. The defenders knew that people went through the gaps walked across. She had crossed several times, knowing the danger and had looked out, but not on this occasion. It was not believed that she would have been stopped by an ordinary post and wire fence. The Lord Ordinary, Lord Ross, assoilzied saying ‘A person who takes a chance necessarily consents to take what comes.’ The pursuer reclaimed and an Extra Division adhered to the Lord Ordinary’s interlocutor. The pursuer appealed.
Held: (1) The occupier owed a duty to show such care as in all the circumstances was reasonable to see that the person entering on them would not suffer injury; a railway operator owed a duty to maintain a fence beside the line according to the circumstances, including the age and intelligence of the person entering on to the line and the nature of the locus. (2) The respondents owed no duty to the apellant to maintain the fence in a better condition than it was on the grounds that she was aware of the danger, that on-coming trains could be seen for a quarter of a mile and that she had not averred any complaint as to the way in which the train had been operated. (3) Even if the respondents had failed in their duty to maintain the fence the appellant had failed to prove as a matter of probability that the accident would have been prevented had the fence been maintained. (4) That the Lord Ordinary was also correct in holding that the respondents had established a defence under section 2(3) of the 1960 Act which merely stated the principle of volenti non fit iniuria in that the appellant was well aware of and accepted the risk of crossing the line while trains were being operated properly.
Lord Hailsham of St. Marylebone, Lord Chancellor: ‘To my mind the crucial fact in this appeal was that no averment was or could have been made against the respondent Board that the train which struck the appellant was being driven otherwise than in a perfectly proper manner. If such an averment had been made and proved the respondent Board would have been liable . . . the pursuer’s claim, which was based solely on the condition of the fence, was doomed to failure, if only because, on her own admissions, she had voluntarily accepted the risk whatever it was which she incurred by crossing the line, provided only that it was a ‘risk of danger from the running of the railway in the ordinary and accustomed way’.
On this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent Board owed no duty to the appellant, or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent Board, or alternatively that, having assumed the risk involved, the respondent Board was covered by the doctrine volenti non fit iniuria.’
Lord Fraser of Tullybelton: ‘The duty under section 2(1) was considered by your Lordships’ house in McGlone v British Railways Board 1966 S.C. (H.L.) 1 where Lord Guest said at p.15 ‘The duty is not to ensure the entrant’s safety but only to show reasonable care. What is reasonable care must depend ‘on all circumstances of the case”. One of the circumstances is the age and intelligence of the entrant. That appears from the provision in section 2(1) that the duty is to show ‘such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury’ (emphasis added). The question in each case relates to the particular person who has entered upon the premises. The submission of counsel for the respondents was that they did more than enough to discharge their obligations to this appellant because the fences along the north and south sides of the line, notwithstanding that they had gaps, gave her warning that if she went on she would be entering upon railway premises. She was well aware, as she admitted, of the danger of walking across or along the line, and she said that when doing so she normally kept a lookout for trains. By giving her that warning, the respondents were, said Mr Morison [senior counsel for the respondents], doing more than they were obliged to do, because this appellant already knew that the railway was there, and therefore needed no warning. Counsel accepted that the logical conclusion of this argument was that, as the appellant had no need of a warning, the respondents could have left their premises near the bridge completely unfenced without being in breach of any duty towards her. A fortiori they had no duty to do more than they did. ‘
and ‘I must emphasise that the question in this appeal is not whether the respondents, and other operators of railways if any there be, have as a general rule a duty to the public to maintain fences beside their lines in good condition or at all. The existence and extent of a duty to fence will depend on the circumstances of the case including the age and intelligence of the particular person entering upon the premises; the duty will tend to be higher in a question with a very young or a very old person than in the question with a normally active and intelligent adult or adolescent. The nature of the locus and the obviousness or otherwise of the railway may also be relevant. In the circumstances of this case, and in a question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line. I reached that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a lookout for trains, and that she had done so when crossing the line on previous occasions.’ and ‘There was therefore no special danger peculiar to the locus of the accident, and no criticism was made by the appellant of the way in which the particular train was being operated. […] Taking all these circumstances together I consider that the respondents did not owe the appellant a duty to maintain the fence in better condition that it was. If it were necessary to do so I would hold that they owed her no duty to provide any fence at all.’
The Lord Ordinary had correctly decided that, even if the respondents were at fault in failing to maintain the fence and to repair the gaps in it, the appellant had failed to prove, as a matter of probability, that if the respondents had performed their duty in those respects, the accident would have been prevented. He then said: ‘Secondly, the Lord Ordinary held that the respondents had established a defence under section 2(3) of the 1960 Act by proving that the appellant had willingly accepted the risks of walking across the line. As Lord Reid said in McGlone, supra, subsection (3) merely puts in words the principle volenti non fit iniuria. That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the 1960 Act are concerned, the principle is expressly stated in section 2(3) and there is no room for an argument that it is out of date or discredited. If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her. [….] On this matter I am of opinion, in agreement with Lord Hunter, that the Lord Ordinary was well-founded in sustaining this defence. The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty. The appellant admitted that she was fully aware that this was a line along which trains ran, and that it would be dangerous to cross the line because of the presence of trains. She said in cross-examination ‘it was just a chance I took’, and the Lord Ordinary evidently accepted that she understood what she was saying. She was in a different position from the boy in McGlone, supra, who did not have a proper appreciation of the danger from live wires – see Lord Reid at p.13 and Lord Pearce at p.18. As I said already the appellant did not suggest that the train which injured her had been operated in an improper or unusual way. The importance of that is that the chance which she took was no doubt limited to the danger from a train operated properly, in the ‘ordinary and accustomed way’ – see Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264, per Denning L.J. at p.271. Had there been evidence to show that the train which injured the appellant was driven negligently, like the train in Slater’s case, the risk which materialised would not have been within the risks that the appellant had accepted. But there is nothing of that kind here. In my opinion therefore the defence under section 2(3) is established.’
Judges:
Lord Hailsham of St. Marylebone, Lord Chancellor, Lord Fraser of Tullybelton
Citations:
1984 SC (HL) 34, [1983] UKHL 10, [1983] 3 All ER 770, [1983] 1 WLR 1427, 1984 SLT 192, SC (HL) 34
Links:
Statutes:
Occupiers’ Liability (Scotland) Act 1960
Jurisdiction:
Scotland
Citing:
Cited – Slater v Clay Cross Co Ltd 1956
The plaintiff was injured walking down a narrow railway tunnel. The tunnel had been regularly used by locals as a short cut.
Held: Though there was a risk in doing so, that did not mean that she had accepted also the risk that the train driver . .
Cited by:
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Negligence
Updated: 30 June 2022; Ref: scu.226755
