• In the case of Herrington v British Railways Board [1972] AC 877, a distinguishment was made between the duty owed to a trespasser and a visitor; a trespasser is owed such duty that the occupier takes steps of common sense/humanity to reduce or avert danger by practicable means of warnings

Facts of the Case

  • Ds owned electrified rail tracks, which were fenced off from a meadow, where children played
  • By 1965, the there was a breach in the fencing and people would commonly go through it and pass through the tracks as this was a shortcut
  • The station master on behalf of D was notified in the same year that children were observed to have been playing on the tracks, but the fence remained unrepaired afterwards
  • Later in the year, C (aged 6) trespassed via the broken fence and was injured on the live rail
  • C’s mother brought an action for negligence; held at the trial that Ds were negligent due to their failure to repair the fence for a prolonged period of time; the Court of Appeal held that Ds were reckless as to safeguarding C

Issues in Herrington v British Railways Board [1972] AC 877

  • Appeal from the Court of Appeal for damages due to a breach of statutory duty

Held by the House of Lords

  • Appeal dismissed – Ds were in breach of their common duty of care to trespassers, so C was entitled to damages; unanimous dismissal of the appeal, the verdicts and commentary of two of the Lords are inserted below

Lord Reid

Dismissed the appeal as it was too reckless by a big corporation to ignore the obvious danger of minors trespassing and exposing themselves to danger

  • ‘So it appears to me that an occupier’s duty to trespassers must vary according to his knowledge. ability and resources. It has often been said that trespassers must take the land as they find it. I would rather say that they must take the occupier as they find him.’ [at p.899]
  • ‘It would have been very easy for them to have and enforce a reasonable system of inspection and repair of their boundary fence. They knew that children were entitled and accustomed to play on the other side of the fence and must have known, had any of their officers given the matter a thought, that a young child might easily cross a defective fence and run into grave danger. Yet they did nothing. I do not think that a large organisation is acting with due regard to humane consideration if its officers do not pay more attention to safety.’ [at p.899] 

Lord Morris of Borth-Y-Guest

Dismissed the appeal because D’s knowledge should have been factored in to take reasonable care to avoid the risk of a child trespasser being killed or injured by reason of the wheel being suddenly and blindly put to work

  • ‘I think that the railways board would see that in the circumstances of this case there was a likelihood that some child might pass over the broken down fence and get on to the track with its live rail and be in peril of serious injury’ [at p.907]
  • In my view, while it cannot be said that the railways board owed a common duty of care to the young boy in the present case they did owe to him at least the duty of acting with common humanity towards him.’ [at p.909]

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