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

1. Does an occupier of land owe any duty of care to a child trespasser injured by a danger on the occupier’s premises?
2. 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?
3. 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• Addie is outdated, harsh and has been widely criticised or distinguished; the House should reconsider or overrule it.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

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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.