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British Railways Board v. Herrington

Smart Summary

British Railways Board v. Herrington (House of Lords, 16 February 1972)

Factual and Procedural Background

A six-year-old child (the Respondent) was playing on National Trust land known as Bunce’s Meadow, an area open to the public. A chain-link fence, intended to separate the meadow from an adjacent electrified railway operated by the Appellants, had been in serious disrepair for several weeks. Through the gap the child accessed the railway line and suffered extensive electrical burns after touching the live rail.

The Respondent sued, alleging that the Appellants owed a duty of care to child trespassers. At first instance the claim succeeded; the Court of Appeal upheld the judgment. The Appellants appealed to the House of Lords.

Legal Issues Presented

Does an occupier of land owe any duty of care to a child trespasser injured by a danger on the occupier’s premises?
If so, what is the nature and scope of that duty, particularly in light of the earlier authority of Addie & Sons v. Dumbreck [1929] AC 358?
On the facts, did the British Railways Board breach any such duty by allowing the fence to remain defective?

Arguments of the Parties

Appellants’ Arguments

Addie v. Dumbreck establishes that an occupier owes no duty of reasonable care to trespassers; liability arises only for intentional or reckless injury. The Respondent was therefore a “legal outcast.”
The Board had no actual knowledge of children using the gap on the day of the accident and could not be said to have acted with “reckless disregard.”
Any alteration of Addie is a matter for Parliament, not for the courts.

Respondent’s Arguments

Addie is outdated, harsh and has been widely criticised or distinguished; the House should reconsider or overrule it.
The Board knew, or ought to have appreciated, from earlier reports and the visible state of the fence that children were likely to trespass and face lethal danger from the live rail.
A humane and reasonable occupier would have inspected and repaired the fence at minimal cost; failure to do so constituted a culpable breach of duty.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Addie & Sons v. Dumbreck [1929] AC 358	Traditional rule: no duty of reasonable care to trespassers; liability only for intentional or reckless harm.	Re-examined and substantially limited; Lords held its rigid formula was no longer acceptable for child trespassers.
Lowery v. Walker [1911] AC 10	Implied licence where landowner acquiesces in repeated entry.	Discussed as example of courts mitigating harshness toward trespassers; foundation for “fiction of licence.”
Cooke v. Midland GWR [1909] AC 229	Liability where occupier knows of habitual trespass near dangerous machinery.	Cited to illustrate earlier movement away from absolute immunity.
Excelsior Wire Rope Co. v. Callan [1930] AC 404	Occupier liable where danger was extremely likely to affect trespassers.	Used to show inconsistency with rigid approach in Addie.
Edwards v. Railway Executive [1952] AC 737	Repeated trespass does not itself confer a licence.	Contrasted; Lords accepted that Edwards correctly stated fencing obligations but distinguished present facts.
Adams v. Naylor [1944] KB 750	Differing views on occupier’s liability to children.	Highlighted judicial dissatisfaction with Addie.
Videan v. British Transport Commission [1963] 2 QB 650	Suggested separate duty in respect of “activities” on land.	House rejected majority reasoning; clarified that duty is unified, based on “common humanity.”
Commissioner for Railways v. Quinlan [1964] AC 1054	Re-affirmed limited duty; criticised “general duty of care” toward trespassers.	Lords accepted parts but distinguished passages inconsistent with humane duty now recognised.
Commissioner for Railways v. Cardy 104 CLR 274	Duty arises where occupier knowingly creates grave hidden danger children likely to encounter.	Approved as persuasive support for new approach.
Bird v. Holbrook (1828) 4 Bing 628	Liability for setting spring-guns; early recognition of duty based on humanity.	Seen as historic foundation for humane obligation toward intruders.
Ilott v. Wilkes (1820) 3 B&A 304	Need to give notice of spring-guns; duty to warn even trespassers.	Relied on to show long-standing concern for trespassers’ safety.
Glasgow Corporation v. Taylor [1922] 1 AC 44	Allurement doctrine; duty to protect children from attractive dangers.	Cited analogously to live rail danger.
Blyth v. Birmingham Waterworks 11 Ex 781	Classic negligence definition.	Lords used to frame reasonableness standard.
Donoghue v. Stevenson [1932] AC 562	Neighbour principle; foreseeability as basis of duty.	Recognised but distinguished; trespasser duty remains narrower.
Haley v. London Electricity Board [1965] AC 778	Need to foresee vulnerabilities of particular classes (e.g., blind pedestrians).	Invoked to justify tailoring precautions to children.
Carmarthenshire CC v. Lewis [1955] AC 549	Duty to supervise children to prevent harm to others.	Supported emphasis on foreseeability of child behaviour.
Home Office v. Dorset Yacht Co. [1970] AC 1004	Liability for failure to control third parties.	Referenced in broader discussion of negligence evolution.
Hillen & Pettigrew v. ICI (Alkali) Ltd [1936] AC 65	Visitor who exceeds permission becomes trespasser.	Used to illustrate conceptual difference between licence and trespass.
Hardy v. Central London Railway Co. [1920] 3 KB 459	Child trespasser takes land as found.	Cited as prior strict approach, now moderated.
Mourton v. Poulter [1930] 2 KB 183	Liability where occupier acquiesced in child trespass.	Treated as example of courts stretching “licence” fiction.
Latham v. R. Johnson & Nephew Ltd [1913] 1 KB 398	Trespassers take premises as found; occupier must not act wilfully.	Discussed in reviewing historical doctrine.
M’Glone v. British Railways Board [1966] SC (HL) 1	Scottish statutory approach: “reasonable care” to all entrants.	Lords quoted for guidance while crafting English common-law solution.
Munnings v. Hydro-Electric Commission [1971] AJLR 378	Contractor’s duty where electricity created hidden hazard.	Used as comparative authority aligning with new duty.
Grand Trunk Rly v. Barnett [1911] AC 361	“Reckless disregard of ordinary humanity” test.	Historical support for humane standard.
Indermaur v. Dames LR 1 CP 274 & Gautret v. Egerton LR 2 CP 371	Scope of occupier’s duty to licensees.	Provided benchmark for comparing trespasser duty.
Perry v. Thomas Wrigley [1955] 1 WLR 1164	Failure to deter child trespassers may incur liability.	Cited as intermediate step toward current ruling.
Buckland v. Guildford Gas Co. [1949] 1 KB 410; Davis v. St Mary’s Demolition Co. [1954] 1 WLR 592; Creed v. McGeogh & Sons [1955] 1 WLR 1005	Liability of contractors to trespassers.	Referenced in distinguishing occupier’s position from contractors.
Prentice v. Assets Co. 17 R 484; Holland v. Lanarkshire Middle Ward District Committee [1909] SC 1142	Excavations near highway; duty even to strangers.	Analogous support for limited duty in dangerous situations.
Kingzett v. British Railways Board (1968) 112 SJ 625	Followed Videan.	House expressly disapproved the approach.

Court's Reasoning and Analysis

All five Law Lords (Judge Reid, Judge Morris, Judge Wilberforce, Judge Pearson and Judge Diplock) agreed that the strict rule in Addie v. Dumbreck was no longer compatible with contemporary standards of “ordinary humanity.” Their analysis proceeded in five main steps:

Historical critique. The speeches traced how courts had stretched the “implied licence” fiction, used allurements, or distinguished “activities” to avoid the harshness of Addie, demonstrating that the rule was already eroded in practice.
Inadequacy of the existing categories. Rigid labels of “invitee, licensee, trespasser” could not meet modern conditions, especially where lethal technology (e.g., live rails) adjoins public space.
Re-statement of duty. The House reformulated the occupier’s common-law duty as a limited but real obligation to take such steps as common sense and common humanity demand when the occupier knows, or has reason to anticipate that trespassers, particularly children, may encounter concealed and serious danger on the land.
Balancing factors. The duty is variable: cost, practicability, gravity of danger, and the occupier’s resources all influence what precautions are reasonable. It is not a general duty of care equivalent to that owed to lawful visitors under the Occupiers’ Liability Act 1957.
Application to the facts. The Board knew of children on the line weeks earlier, the track was lethal, the fence gap was obvious and cheap to repair, and no adequate inspection system existed. A reasonable, humane organisation would have mended the fence promptly. Failure to do so was “culpable” and breached the newly stated duty.

Holding and Implications

Appeal dismissed. The British Railways Board was held liable for the Respondent’s injuries.

Implications: The House of Lords decisively modified the common law by overruling, in substance if not expressly, the rigid rule in Addie v. Dumbreck. Occupiers now owe trespassers—especially child trespassers—a duty of “common humanity” that requires reasonable steps to prevent serious harm where dangers are known or reasonably to be anticipated. The judgment became the leading authority on occupiers’ liability to trespassers and influenced subsequent legislative and judicial developments throughout the United Kingdom.