Herrington v British Railways Board [1972] AC 877

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

Did the railway owe a protective duty to a child likely to trespass through a known defective fence and encounter a live rail?

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 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] 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

Herrington recognised a limited common-law duty of common humanity towards trespassers exposed to a known danger. It is a historical authority preceding the Occupiers' Liability Act 1984, whose statutory conditions now govern the relevant non-visitor claims in England and Wales.

Herrington marked a departure from the earlier restrictive treatment of trespassers. Knowledge of children using the area, the defective fence and the grave danger made practicable protection important. Its common-humanity formulation should not be confused with the common duty owed to lawful visitors. The 1984 Act supplies the modern framework, so students should use Herrington to explain development rather than substitute its language for the statutory conditions in a current problem.