• In the case of Phipps v Rochester corporation 1955 1 QB 450, Devlin J expressed that an occupier who resigns himself to the occasional presence of trespassers on his premises, or who does not fence his land or keep his gate closed against trespassers, does not convert that trespasser into an implied licensee. However, the mere tolerance of repeated entry may be so pronounced as to lead to the conclusion that it amounted to permission.
  • It was unreasonable for Rochester Corporation to be under a grater duty of care than the parents.

Facts of the Case

  • On an October evening a boy, aged five, while out blackberrying with his sister, aged seven, walked across a large open space of grassland, part of a building site on which a housing estate was being developed by the defendants.
  • Through the grassland a long deep trench had been dug for the purpose of laying a sewer, and into this the boy fell and broke his leg.
  • The children lived, with their parents, in a house in a road adjacent to the open grassland.
  • Children were in the habit of using the land, and the defendants had taken no steps to prevent them from so doing, but there was no evidence that little children frequently went there unaccompanied.
  • The Claimants, the father and the infant, suing through his father, claimed that the corporation was liable for the accident. They alleged that the defendants knew that children were in the habit of entering on the land, and in fact permitted them to enter, and that the building works upon the land were an allurement to such children. They further alleged that the defendants, their servants or agents, negligently failed to fence or guard the trench or to take any other steps to prevent children falling into it, and failed properly or sufficiently to fence the land, or to give warning by notice or otherwise, and that the infant plaintiff fell into the trench and was injured as a consequence of the defendants’ negligence.

Issues in Phipps v Rochester Corporation 1955 1 QB 450

  • Whether, the corporation was liable for the injuries sustained to the child.
  • Whether blame could be apportioned to the parents or towards the defendants.

Held by Queen’s Bench Division

  • The children were classed as implied licensees to play on the grasslands. However, it was unreasonable to expect D to have a greater duty of care than the children’s parents.

Devlin J

  • The defendants ought not to have anticipated that the open space was a place in which little children would be sent out to play by themselves. They were entitled to assume that the parents would behave in a naturally prudent manner and satisfy themselves that the places to which they allowed their children to go unaccompanied were safe. Accordingly, although the infant plaintiff was a licensee on the defendants’ land, the defendants had committed no breach of their duty towards him.
  • “There is no evidence in this case to show that little children frequently went unaccompanied on the open space in a way which ought to have brought home to the corporation that that was the use which was being made of its licence. Apart from evidence of that sort, I do not think that the corporation ought to have anticipated that it was a place in which children of five would be sent out to play by themselves. It is not an overcrowded neighbourhood; it is not as if it were the only green place in the centre of a city. The houses had gardens in which small children could play; if it be material, I believe that at the relevant time the plaintiff’s garden was in fact fenced. The parents of children who might be expected to play there all live near and could have made themselves familiar with the space. They must have known that building operations were going on nearby and ought to have realized that that might involve the digging of trenches and holes. Even if it be prudent, which I do not think it is, for a parent to allow two small children out in this way on an October evening, the parents might at least have satisfied themselves that the place to which they allowed these little children to go held no dangers for them. Any parent who looked could have seen the trench and taken steps to prevent his child going there while it was still open. In my judgment, the corporation is entitled to assume that parents would behave in this naturally prudent way, and is not obliged to take it upon itself, in effect, to discharge parental duties.” P.474

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