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Cite as: [1972] 2 WLR 537, [1972] UKHL 1, [1972] 1 All ER 749, [1972] AC 877

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JISCBAILII_CASE_TORT

    Die Mercurii, 16° Februarii 1972

    Parliamentary Archives,
    HL/PO/JU/4/3/1219

    HOUSE OF LORDS

    BRITISH RAILWAYS BOARD

    v.
    HERRINGTON (A.P.) (an infant by his Mother and next friend)

    Lord Reid
    Lord Morris of
    Borth-y-Gest

    Lord

    Wilberforce
    Lord Pearson
    Lord Diplock

    Lord Reid

    my lords,

    On 7th June 1965 the Respondent, then a child of six years old, was
    playing with other children on National Trust property at Mitcham which
    is open to the public. Immediately adjoining this property the Appellants
    have an electrified railway line a few yards from the boundary. Their
    boundary is marked by a fence which, if it had been in good repair, would
    have sufficed to prevent the Respondent from reaching the railway line. But
    it was in very bad repair so that when the Respondent strayed away from
    his playmates he was able to get through or over it. He then went a few
    yards farther and came in contact with the live electrified rail. Fortunately
    he was rescued but he had already sustained severe injury. His age was
    such that he was unable to appreciate the danger of going on to the railway
    line and probably unable to appreciate that he was doing wrong in getting
    over the fence.

    I have no doubt that if the Appellants owed to potential child trespassers
    any duty of care to take steps for their safety, they were in breach of any
    such duty. Enquiry soon after the accident showed that this was by no
    means the only place where their fence was defective and a well trodden
    track leading to the point where the Respondent got on to their property
    showed that a considerable number of trespassers must have crossed the line
    at this point to other National Trust property on the other side. The
    Appellants led no evidence at the trial and it cannot be inferred that they
    knew about these trespassers before the accident. The only evidence of
    their knowledge was a report produced by them which showed that they
    knew that a few weeks before the accident some children had been seen
    on the line at some point not very far away. But in my view the evidence
    was sufficient to show either that there was no systematic inspection of their
    fence or that if there was any system it was not operated or enforced.

    The Appellants' main contention is that they owed no duty to this child.
    They found on the leading case of Addie & Sons v. Dumbreck [1929] A.C.
    358. The Respondent founds on later authorities and asks us to reconsider
    Addie's case if it cannot be distinguished. He is entitled to say that Addie's
    case has frequently been criticised. I well remember that this decision, which
    reversed the decision of the Court of Session, was much criticised in Scotland
    at the time. But no one doubted that it had settled the law. And it has
    always been said to have been followed both in England and in Scotland,
    although it is not easy to reconcile with it much that has been said in
    recent cases.

    The speeches in Addie's case must be read in the light of the facts which
    are set out in 1928 Session Cases. Lord President Clyde said, after stating
    that the boy was a trespasser, "on the other hand, he was a member of a
    " class of persons—to wit, the local community of working-class residents
    " of all ages—who, to the knowledge of the defenders, were in the habit of
    " resorting to the field (1) as an open space; (2) as a playground; (3) as
    " a means of access to chapel and railway station ; and (4)—as regards the
    " less well disposed members of the local community—as a means of approach
    " to the defenders' coal bing and wood depot for purposes of depredation.
    " Against the latter class the defenders took the usual means of legal pro-
    " tection by frequent prosecutions for theft. Against the former class they
    " took no measures of a kind calculated to be effective; and they knew that
    " such measures as they did take were quite ineffectual to check the habitual

    2

    " resort of both adults and children to the field and to the immediate neigh-
    " bourhood of the haulage system." (page 553). Then, having said that if the
    presence of a trespasser near a dangerous machine is known to the proprietor
    he cannot disregard that, he went on: "I am unable to distinguish that
    " case from the case in which the proprietor knows of the habitual resort
    " of adults or children, or both, to the near neighbourhood of the dangerous
    " machine—a habit of resort which makes it to his knowledge likely that one
    " or more of such persons may be at the machine when he applies the
    " motive power." (page 554). Later he said: "The intrusion of the local
    " public upon the defenders' field and the site of their haulage system in
    " the present case seems to me to have been very similar to the use by the
    " local public of an unauthorised short cut in Lowery v. Walker [1911]
    " A.C. 10." (page 555).

    The speeches in this House in Addie's case appear to me to be intended
    to lay down a general rule that no occupier is under any duty to potential
    trespassers, whether adults or children, to do anything to protect them from
    danger on his land however likely it may be that they will come and run
    into danger and however lethal the danger may be. I find it impossible to
    reconcile these speeches with any idea that the occupier will incur any duty
    of care to trespassers by carrying out dangerous operations on his land even
    when he knows that trespassers are very likely to come on to his land and
    that if they come these operations may cause them injury. If he knows that
    trespassers are already on his land then for the first time he does incur a
    duty but it is a duty of a very limited kind—a duty not to act with reckless
    disregard of their safety.

    There was nothing now in that. But the rule was laid down with stark
    simplicity and the speeches must have been intended to check a growing
    tendency of courts both in England and Scotland to try to soften its impact.
    Noble and learned lords appear to have had in mind that occupiers are
    entitled to know precisely what their duties are and nothing could be simpler
    than the answer which they gave.

    But there were already two exceptions to this rule. The first was where
    the occupier had put on his land something which was dangerous and was
    an allurement to children. That seems to me to be easy to explain. He
    ought to know that by putting that allurement there he was in a sense
    inviting children to meddle with the dangerous thing, and the law would not
    permit him to do that without imposing a duty on him. His liability arose
    from his own choice to endanger children in that way.

    The second exception is not so easy to explain. If, after a certain point
    not easy to define, the occupier continued to stand by and acquiesce in the
    coming of trespassers he was held to have given a general permission or
    licence to trespassers to continue to do what those trespassers had been doing.
    Any "licence" of this kind was purely fictitious. There was no need to find
    any evidence that he had in fact consented to the coming of the trespassers
    or to the continuance of the trespassing. His inaction in suffering the
    trespassing might have been due to many other reasons than his being willing
    to allow it. He might prove that there was some other reason but that
    would not avail him.

    The Court of Session decided Addie's case on the ground that the child
    was a licensee. On (he then current trend of authority I think they were
    well entitled to do so. But this House thought otherwise and it appears
    to me that their decision must be regarded as an attempt to confine the
    doctrine of licence within much narrower limits than had been customary.

    Later cases can hardly be said to exhibit loyal acceptance of the Addie
    doctrine. In Excelsior Wire Rope Co. v. Callan [1930] A.C. 404 this House
    giving extempore judgments dismissed an appeal by the occupier without
    hearing the Respondent. There cannot have been any intention to modify
    the considered judgments in Addie's case, and it is perhaps a little surprising
    that the House was able so easily to reach a different conclusion. I can only
    regard the decision in Callan's case as founded, rightly or wrongly on the
    particular facts of the case. Encouraged by the decision in Callan's case


    3

    the Court of Appeal were able to decide against the occupier in Mourton v.
    Poulter [1930] 2 K.B. 183. In Adams v. Naylor [1944] K.B. 750 there was
    a difference of opinion in the Court of Appeal. Scott L.J. decided against
    the occupier on grounds that are not easy to state succinctly. Mackinnon L.J.
    and Morton J. reluctantly followed Addie.

    I need not notice any other cases until Edwards v. Railway Executive
    [1952] A.C. 737. There persistent trespassing by children imposed no duty
    on the Railway to keep them out or protect them. I think Lord Goddard
    accurately stated the law when he said "repeated trespass of itself confers no
    " licence ... to find a licence there must be evidence either of express
    " permission or that the landowner has so conducted himself that he cannot
    " be heard to say that he did not give it"

    So far Addie stood, disliked but essentially unshaken. A new chapter
    opened with Videan v. British Transport Commission [1963] 2 Q.B. 650. A
    stationmaster's child strayed on to the railway and was run over. It was
    rightly held that the child was a trespasser and that the authority were not
    liable. But some obiter dicta of Lord Denning M.R. appear to me to be
    directly contrary to the decision of this House in Addie's case. Neverthe-
    less, they have attracted much support in subsequent cases. Having pointed
    out that for child trespassers innocent of any wicked intent the rule in
    Addie's case works most unfairly, he said: "Hence the shifts to which
    " generations of judges have been put to escape the rule. They have time
    " and again turned a trespasser into a licensee so as to give him a remedy
    " for negligence when otherwise he would have none." So far I take no
    exception. But then he went on to discuss "a new way to mitigate the
    " harshness of the old rule", by confining the old rule to the responsibility
    of the occupier for the condition of his premises and inventing a new duty
    towards trespassers to conduct his activities on his property with reasonable
    care. But in Addie's case the danger was not in the condition of the pro-
    perty ; the mechanism when at rest was quite safe. The danger arose when
    Addie's servant began the operation of setting the mechanism in motion.
    If this new theory were right Addie's case must have gone the other way.

    Lord Denning founded the new view on foreseeability. He said: "The
    " true principle is this. In the ordinary way the duty to use reasonable
    " care extends to all persons lawfully on the land, but it does not extend
    " to trespassers, for the simple reason that he cannot ordinarily be expected
    " to foresee the presence of a trespasser. But the circumstances may be such
    " that he ought to foresee even the presence of a trespasser: and then the
    " duty of care extends to the trespasser also." But in Addie's case the
    presence of the children was not only foreseeable, it was very probable.
    Nevertheless, this House held there was no duty.

    This House in Addie held that no duty at all arose until the trespassers
    were known to be on the land. It is easy to extend that to a case when the
    occupier as good as knows, where he shuts his eyes: he will not then be
    heard to say that he did not know. But he has no duty to do anything
    before the trespasser arrives. If, on the other hand, a duty were to arise
    before the trespassers' arrival, when that arrival is merely foreseeable or
    probable, the situation would be very different. The occupier would have
    to do what that duty required him to do to prepare for the trespassers'
    arrival. But that is precisely what Addie's case says he need not do. 1
    can see no way of bringing in that foreseeability test without reconsidering
    and overruling at least that part of the decision in Addie. A duty to act
    with humanity towards a trespasser known to be there is one thing. A duty
    of care towards probable trespassers is of a different order. It would com-
    pletely transform the whole picture and, so far as I can see, completely
    supersede the Addie duty in all cases where the arrival of the injured
    trespasser had been probable or foreseeable.

    It follows that I cannot accept all that was said in the judgment of the
    Privy Council in Commissioner for Railways v. Quinlan
    [1964] AC 1054
    as being consistent with the decision in Addie's case. On page 1076 it is
    said, I think rightly. "A person's knowledge is a question of fact: such a
    ” fact is a very different thing from the objective question whether there

    4

    " was a reasonable likelihood of someone being present at the relevant time
    " and place and whether a person ought to have foreseen that likelihood;
    " Given the fact of the knowledge, the occupier comes under the obligation
    " not to inflict intentional or reckless injury upon the person of whose
    " presence he is aware. This again is a very different thing from an obliga-
    " tion to take precautions in advance against the likelihood of a trespasser
    " being present." And then there is a reference to the occupier being in a
    position in which he as good as knows that the other is there. So far that
    is pure Addie. But the passage on page 1077 appears to me to be incon-
    sistent with this. It would seem to say that it is sufficient if the presence
    of the trespasser is extremely likely or very probable.

    So we are confronted with the position that persistent attempts have been
    made to confer on child trespassers greater rights and to impose on occupiers
    greater obligations than are to my mind consistent with the decision of this
    House in Addie's case. I shall not deal with the forthright Australian
    authorities farther than to say that those attempts are even more persuasive
    and far reaching than those in this country. So it appears to me that no
    satisfactory solution can be found without a re-examination of the whole
    problem and a reconsideration by this House of its decision in Addie's case.

    Child trespassers have for a very long time presented to the Courts an
    almost insoluble problem. They could only be completely safeguarded in
    one or other of two ways. Either parents must be required always to con-
    trol and supervise the movements of their young children, or occupiers of
    premises where they are likely to trespass must be required to take effective
    steps to keep them out or else to make their premises safe for them if they
    come. Neither of these is practicable. The former course was practicable
    at one time for a limited number of well-to-day parents but that number
    is now small. The latter, if practicable at all, would in most cases impose
    on occupiers an impossible financial burden.

    Legal principles cannot solve the problem. How far occupiers are to be
    required by law to take steps to safeguard such children must be a matter
    of public policy. The law was uncertain when Addie's case was decided.
    That decision was intended to make the law certain. It did so. This House
    must have taken the view that as a matter of public policy occupiers should
    have no duty at all to keep out such children or to make their premises safe
    for them. Their only duty was a humanitarian duty not to act recklessly
    with regard to children whom they knew to be there.

    It may have been arguable forty years ago that that was good public
    policy. But for one fact I would think it unarguable today. That is the
    fact that only fourteen years ago Parliament when it had an obvious oppor-
    tunity to alter that policy failed to do so. The law with regard to occupiers'
    liability to persons coming on to their land was then so unsatisfactory that
    Parliament found it necessary to pass for England and Wales the Occupiers'
    Liability Act, 1957. It imposed a "common duty of care" on occupiers
    towards all persons who might lawfully come on to their land. But it
    pointedly omitted to alter the existing law as to trespassers. At that time
    there was no doubt that Addie's case had settled the law, and under the
    practice then prevailing this House could not alter that decision. The Court
    of Appeal had not yet begun to try to modify Addie's case. As I have
    already said, they had no right to do that and I do not think that in 1957
    their action could reasonably have been foreseen.

    So I find it exceedingly difficult to interpret the silence of Parliament
    in the 1957 Act with regard to trespassers in any other way than as an
    approval of the existing law with regard to them. And that means an
    approval of the decision in Addie's case.

    It is, however, I think just possible to attribute that silence to Parliament
    (or those who then advised Parliament) being unable to make up their minds
    as to what to put in place of Addie. I say that because when the law of
    Scotland on this matter was amended in 1960 Parliament (no doubt acting
    on more robust advice from Scotland) did alter the Scots law with regard
    to trespassers. It seems unlikely that on a matter of this kind Parliament
    would deliberately adopt quite different policies for the two countries. So

    5

    I think I may be justified in attributing to indecision the silence of Parliament
    in 1957 with regard to trespassers in England.

    The question, then, is to what extent this House sitting in its judicial
    capacity can do what Parliament failed to do in 1957. I dislike usurping
    the functions of Parliament. But it appears to me that we are confronted
    with the choice of following Addie and putting the clock back or drastically
    modify the Addie rules. It is suggested that such a modification can be
    achieved by developing the law as laid down in Addie's case without actually
    overruling any part of the decision. I do not think that that is possible. It
    can properly be said that one is developing the law laid down in a leading
    case so long but only so long as the "development" does not require us
    to say that the original case was wrongly decided. But it appears to me that
    any acceptable "development" of Addie's case must mean that Addie's case
    if it arose today would be decided the other way. The case for the pursuer
    in Addie's case was stronger on the facts than the case for the present
    Respondent and I do not think that we could dismiss this appeal without
    holding or at least necessarily implying that Addie's case was wrongly decided.
    1 do not think that it would be satisfactory merely to follow the scheme
    of the Scottish Act. That Act provides by section 2 that the care which
    an occupier is required to show to a person entering his land (which includes
    a trespasser) in respect either of its dangerous state or of dangerous activities
    on it shall be "such care as in all the circumstances of the case is reasonable
    " to see that the person will not suffer injury or damage by reason of any " such danger". That may work satisfactorily where actions for damages
    for failure to exercise such care are generally decided by juries. Juries do
    not give reasons and so no verdict of a jury can establish a precedent.
    But in England such actions are decided by judges who must give reasons
    and whose decisions can be the subject of appeal. No doubt if the matter
    were left at large in this way a body of case law with regard to the position
    of trespassers would develop over the years. The matter would in one form
    or another come before this House before very long and some authoritative
    guidance would then emerge. But I would not create such a period of
    uncertainty if that can be avoided, and I think it can be avoided.

    The first matter to be determined is the nature of the duty owed by
    occupiers to trespassers. Here I think we can get good guidance from
    Addie's case. The duty there laid down was a duty not to act recklessly.
    Recklessness has, in my opinion, a subjective meaning: it implies culpability.
    An action which would be reckless if done by a man with adequate knowledge,
    skill or resources might not be reckless if done by a man with less appreciation
    of or ability to deal with the situation. One would be culpable, the other not.
    Reckless is a difficult word. I would substitute culpable.

    The duty laid down in Addie's case was a humanitarian duty. Normally
    the common law applies an objective test. If a person chooses to assume
    a relationship with members of the public, say by setting out to drive a car
    or to erect a building fronting a highway, the law requires him to conduct
    himself as a reasonable man with adequate skill, knowledge and resources
    would do. He will not be heard to say that in fact he could not attain
    that standard. If he cannot attain that standard he ought not to assume
    the responsibility which that relationship involves. But an occupier does
    not voluntarily assume a relationship with trespassers. By trespassing they
    force a "neighbour" relationship on him. When they do so he must act
    in a humane manner—that is not asking too much of him—but I do not
    see why he should be required to do more.

    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.

    So the question whether an occupier is liable in respect of an accident
    to a trespasser on his land would depend on whether a conscientious humane
    man with his knowledge, skill and resources could reasonably have been
    expected to have done or refrained from doing before the accident some-
    thing which would have avoided it. If he knew before the accident that

    6

    there was a substantial probability that trespassers would come I think that
    most people would regard as culpable failure to give any thought to their
    safety. He might often reasonably think, weighing the seriousness of the
    danger and the degree of likelihood of trespassers coming against the burden
    he would have to incur in preventing their entry or making his premises
    safe, or curtailing his own activities on his land, that he could not fairly
    be expected to do anything. But if he could at small trouble and expense
    take some effective action again I think that most people would think it
    inhumane and culpable not to do that. If some such principle is adopted
    there will no longer be any need to strive to imply a fictitious licence.

    It would follow that an impecunious occupier with little assistance at
    hand would often be excused from doing something which a large organise-
    tion with ample staff would be expected to do.

    It is always easy to be wise after the event and in judging what ought
    to have been done one would have to put out of one's mind the fact that
    an accident had occurred and visualise the position of the occupier before
    it had happened. Quite probably this would not be the only point on his
    land where trespass was likely. One would have to look at his problem
    as a whole and ask whether if he had thought about the matter it would
    have been humane or decent of him to do nothing. That may sound a low
    standard but in fact I believe that an occupier's failure to take any preventive
    steps is more often caused by thoughtlessness than by any shirking of his
    moral responsibility. I think that current conceptions of social duty do
    require occupiers to give reasonable attention to their responsibilities as
    occupiers, and I see nothing in legal principles to prevent the law from
    requiring them to do that.

    If I apply that test to the present case I think that the Appellants must
    be held responsible for this accident. They brought on to their land in
    the live rail a lethal and to a young child a concealed danger. 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. I would not single out the stationmaster for
    blame. The trouble appears to have been general slackness in the organic-
    station. For that the Appellants are responsible and I think in the circum-
    stances culpable. I would therefore hold them liable to the Respondent
    and dismiss this appeal.

    Lord Morris of Borth-y-Gest

    my lords,

    On the 7th June (Whit Monday) in the year 1965 a small boy aged six
    went to play in a field near Mitcham called Bunces Meadow. He was
    with his two brothers who were a little older than he was. Bunces Meadow
    is National Trust property which is freely open to the public. Through it
    there runs a public path. For a part of its distance the path is a made-up
    path having a tar-macadam surface. It continues as a trodden path which
    makes a turn to the right. The reason for this is that straight ahead of the
    path there is a single line railway track, which runs between Mitcham
    Junction and Morden Road Halt. By the side of the track there is a "live"
    rail carrying the necessary electric current for trains which are driven along
    the track. The path to the right leads to a footbridge over the railway
    track. By crossing the railway another National Trust property Morden
    Hall Park, is reached.

    The trodden path turned to the right near to but before reaching the line
    of the fence which had been erected to border the railway track. There

    7

    was a further short stretch of trodden path (which should have been a cul-de-
    sac) reaching up to the fence. The fence was a chain link fence four feet
    high supported by concrete posts eight feet six inches apart. But at the
    very place where the fencing should have debarred a person from going
    straight on if he had not previously turned to the right it was defective.
    The fence was detached from one of the posts and had been pressed down
    so that its top curved down to within about ten inches of the ground. The
    lower part of the chain link, which was rusty, was lying on the ground.
    The state of affairs was, as the learned judge found, that for some time
    before the 7th June people going to Morden Hall Park had been taking
    a short-cut. They proceeded straight on and crossed the railway track.
    The fence was in so dilapidated a condition that anybody, adult or child,
    "could quite easily get across on to the line".

    The three boys played in Bunces Meadow but shortly after noon the
    two elder ones missed their young brother. He had wandered off. They
    went in search of him. One brother went through what was virtually the gap
    in the fencing and then found his young brother on the railway track. He was
    between the conductor rail and the running rail. He was lying unconscious.
    After help had been secured, a rescue was effected: but that was only after
    the boy had been most gravely injured. He suffered very severe burns.

    Certain additional facts call for mention. The learned judge was satisfied
    by the evidence given by two youths who had visited Bunces Meadow a
    number of times in the six weeks previous to the 7th June that the fence
    had been in its dilapidated condition for at least several weeks before that
    date. The state of the fence and of the path lead the learned judge to
    think that the described condition of the fence had probably existed for
    months. The Railways Board made no attempt to contravert any of these
    conclusions. They thought it prudent not to put any witness in the box.
    They decided to give no explanations in regard to any of the documents
    which discovery disclosed. Thus, there was a memorandum dated the 17th
    April, 1965 (some seven weeks before the accident) from the Station Master's
    office, Mitcham Junction, to the "Line Manager" stating that the guard of
    an afternoon train two days previously had reported to the signalman at
    Mitcham on arrival at Merton Park that children were on the line between
    Mitcham and Morden Road Halt: the memorandum stated that the Mitcham
    Police were requested to investigate. There were various memoranda
    written on the date of the accident: they recorded that at 3.10 p.m., there
    was an examination of the fences in the vicinity of Bunces Meadow: three
    places in the vicinity were discovered where children could get on to the
    line through the fences. One memorandum was to the "Line Manager":
    another was to the "Ganger" at Mitcham. "Control" had ordered the
    Station Master (of Mitcham Junction) to examine the fences and to report and
    also to inform the "Ganger" to get the fences repaired immediately. The
    "Engineer's Department" were instructed to make repairs in three places.
    A letter of the 11th June from the "Divisional Manager" recorded that
    he was advised that the fence at the site of the accident was "in rather a
    " bad state" and that there were three different places where children could
    get on to the line through the fences: the writer asked that he should
    be informed when the repair work was completed: the letter went to the
    "Line Manager" with a copy to the Station Master. A memorandum from
    the Station Master to the Divisional Manager reported that the Engineers
    Department were called out and that the fences were repaired on the day
    of the accident.

    In view of the evidence which was before the learned judge and in the light
    of the documents referred to, it is a matter of some surprise that when a
    claim was made it was stated on behalf of the Railways Board that their
    engineer had made an inspection of the fence in question on the morning
    of the accident and found it in order. "Our evidence quite clearly establishes
    " that the fence was found in good order earlier on the day in question,
    " but was found damaged after the accident. Temporary repairs were
    " carried out immediately afterwards, followed later by permanent repairs."
    Having regard to the evidence before the learned judge and to the terms

    8

    of the various internal memoranda it is difficult to understand how the letter
    came to be written. There was no evidence either to support it or to
    explain it. If there was a system of inspection there must have been a
    lamentable failure in its operation. The fact remains that for weeks or
    months the fencing was so broken down at a point ahead of a public path
    that a person could easily get across to the line: an adult would doubtless
    appreciate the risks or perils in so proceeding: a boy aged six would not.

    If the facts which I have outlined were put to any well-disposed but fair-
    minded member of the public, whether a parent or not, I venture to think
    that the response guided by the promptings of common sense would be that
    having regard to the dangerous nature of the live rail and its perils for a
    small child, the Railways Board were grievously at fault in allowing a fence
    at the particular place in question to remain for a long time in a broken
    down condition. It must at any time be a matter of regret and of concern
    if the answer of the law does not accord with the answer that common sense
    would suggest. But the Railways Board assert that the law must refuse the
    infant's claim. In effect they say that he was a legal outcast. In short he
    was a trespasser. And they say, "Towards the trespasser the occupier has
    " no duty to take reasonable care for his protection or even to protect him
    " from concealed danger. The trespasser comes on to the premises at his
    "own risk." (Addie v. Dumbreck
    [1929] AC 358.) On the authority of
    the same case they say that an occupier is only liable to a trespasser where
    the injury is due to some wilful act involving something more than the
    absence of reasonable care. "There must be some act done with the
    " deliberate intention of doing harm to the trespasser, or at least some act
    " done with reckless disregard of the presence of the trespasser." So they
    say that in the present case there was no wilful act done against the infant:
    the Railways Board did not know of his presence and did nothing in
    disregard of his presence.

    There is always peril in treating the words of a speech or a judgment
    as though they were words in a legislative enactment, and it is to be
    remembered that judicial utterances are made in the setting of the facts
    of a particular case. The facts in the present case differ from those in Addie's
    case. In the present case a question arises whether some duty may be
    owed to a person before he becomes a trespasser. In that case a question
    arose whether a duty was owed to someone who was already a trespasser.
    In that case both adults and children often went on to the land in question
    though it was made plain to them that they had no right to do so. There
    were many gaps in the hedge that surrounded the land. Children did in
    tact go and play on the land (in spite of their being periodically driven off):
    they played both near the wheel which was there and elsewhere. The
    wheel was about one hundred yards within the boundary of the land. The
    wheel was not something as inherently dangerous as a live rail which it is
    highly perilous to touch. Those who set the wheel in motion did not know
    that a four-year old boy had gone to sit on it. He was a trespasser and
    he had been warned not to go to the land or to go near to the wheel. But
    as those operating the wheel must have known that it was at least a possibility
    if not a likelihood that a child would be on or near to the wheel it might
    have been held that there was a duty to give some warning or to exercise
    some measure of care to see that no one was going to be injured before
    the machine was suddenly set in motion. But it was held that there was
    no liability for the death of the boy. The law was laid down in the terms
    that I have quoted. There have been many expressions of lament that the
    claim should not have succeeded as did the claim in Excelsior Wire Rope
    Co. Ltd.
    v. Callan |1930] A.C. 404.

    In the present case the boy was injured by coming into contact with
    something on the land—the live rail. The live rail was placed where it
    was for the legitimate purpose of supplying power for the running of trains.
    There was no question of intending to do harm to a trespasser. If the
    question is asked—What did the Railways Board do wrong?—the answer
    must I think be that they allowed the fence to remain for a long time in
    such a state that a child who did not sense danger could quite easily get


    9


    on to the line and the live rail. Anyone who gave any thought to the matter
    would at once appreciate that the purpose of having a fence bordering
    on a railway track with a live rail is to warn people that they must proceed
    no further and to be to some extent an obstacle to prevent them from so
    doing. Anyone would further appreciate that if the fencing had a gap in
    it and a gap near to a public path a child might go through the gap and be
    in a position of great danger. Not only might a child come into contact
    with the live rail: he might be struck by a passing train. So the question
    arises whether the Railways Board had any obligation to take thought and
    having taken thought to take some action. Is it enough for them to say—
    true we could appreciate that if a child stepped over the broken fence he
    might get on to the railway track with its live rail and be killed or gravely
    hurt but the moment he stepped over the broken fence he would be a
    trespasser and "towards the trespasser the occupier has no duty to take
    " reasonable care for his protection or even to protect him from concealed
    " danger"? Though, generally speaking, an occupier is not obliged to fence
    his land and though, generally speaking, there is no obligation to prevent
    somebody from becoming a trespasser—are there some circumstances in
    which a duty arises to take some action to lessen the risk of peril both
    in the case of a potential or prospective trespasser and in the case of someone
    who has become a trespasser?

    Having posed this question it is to be remembered that in Addie's case
    consideration was given to such cases as Cooke v. Midland Great Western
    Railway of Ireland
    [1909] A.C. 229 and Lowery v. Walker
    [1911] AC 10
    and Latham v. R. Johnson & Nephew Ltd. [19131 1 K.B. 398 and to many
    other cases and I think that it must be recognised that it was implicitly
    laid down in all the speeches that apart from cases where an occupier
    intends to injure a trespasser (as by laying a spring gun) he owes no duty
    to a potential or prospective trespasser and that it was expressly and indeed
    inexorably laid down that towards an actual trespasser he owes no duty
    apart from the duty not maliciously to cause him injury.

    The question now arises whether we should depart, as we were invited
    to do, from what was laid down in Addle s case or whether in the light of
    developments in the law since 1929 there are some modifications which
    permissibly can be accepted.

    In approaching this question regard must be had to the fact of the enact-
    ment of and to the provisions of the Occupiers' Liability Act of 1957. It
    seems to me that Parliament must have decided that problems relating to
    trespassers should be left to be decided according to common law principles.
    By the Act the "rules" enacted by sections 2 and 3 are to have effect "in
    " place of the rules of the common law, to regulate the duty which an
    " occupier of premises owes to his visitors in respect of dangers due to the
    " state of the premises or to things done or omitted to be done on them".
    To such "visitors" (subject to exceptions) there is a duty to take such care
    as in all the circumstances of the case is reasonable to see that the visitor
    will be reasonably safe in using the premises for the purpose for which he
    is invited or permitted by the occupier to be there. But a trespasser is not
    a "visitor". The term trespasser is a comprehensive word: it covers the
    wicked and the innocent: the burglar, the arrogant invader of another's
    land, the walker blithely unaware that he is stepping where he has no
    right to walk, or the wandering child—all may be dubbed as trespassers.

    When in 1960 the Occupiers' Liability (Scotland) Act was passed it was
    in terms which created a certain duty of care to trespassers. The English
    Act was. however, left as it was. It was not amended. It would not, in
    my view, be fitting for us to make fundamental changes in the law, according
    to our view as to what its terms and policy should be, when Parliament,
    apparently deliberately, has refrained from making such changes. We can.
    however, ensure that the tide of development of the common law is not
    unwarrantably impeded.

    If a child is a visitor an occupier must "be prepared for children to be
    " less careful than adults" (see section 2 subsection (3) of the English Act).
    But apart from any statutory provisions it is a matter of ordinary common


    10

    knowledge that children will roam and will explore. If a fence marks a
    boundary an adult who climbs over it will appreciate what he is doing.
    A small boy who finds a part of a fence so dilapidated that there is no
    real obstacle to his progress will not or may not know that he is at once
    a "trespasser" if he goes on. So the problem raised in this case is whether,
    if an occupier has for legitimate reasons (and with no object of hurting
    anyone) placed something highly dangerous on his land, he owes any and
    what duty to take some steps to lessen the risk that a wandering child may
    run into the danger. Though the present case relates to a young child
    who obviously may be less perceptive than an adult the kindred question
    is raised whether there may be circumstances, if a situation of danger has
    been created on land, in which some measure of duty would be owed to
    an adult trespasser. Furthermore, though in the present case the place of
    real danger was quite close to the boundary of the private land the
    question of principle might equally arise if the place of great danger was
    not close to such boundary. If a minefield had for legitimate reasons been
    created and if it continued in existence I should be sorry to think that an
    occupier owed no duty to warn a potential or actual trespasser. In his
    powerful dissenting judgment in Adams v. Naylor [1944| 1 K.B. 750 Scott L.J.
    saw no reason in principle why an occupier should not be called on to
    take all reasonable precautions to keep trespassing children out of a place
    where he knows they will be blown up.

    In the early part of the last century, occupiers of land sometimes placed
    spring guns on their land: if a trespasser walked against a wire he would
    cause a gun to he fired and he might be injured. If an occupier could
    do as he liked on and within the confines of his own land why should he
    not place such guns? Yet certain trespassers who suffered injury brought
    claims. Could such a trespasser recover damages? The Courts held that
    he could. There were two reasons. One was that an occupier could not
    do indirectly what he could not do directly: if he had been present on his
    land and had seen a trespasser he would not have been entitled to fire a
    gun at him. So he ought not to cause a gun to be fired indiscriminately
    and automatically if and when an intruder walked on the land. The
    other reason was that it was contrary to principles of humanity to place a
    spring gun of which a trespasser was unaware.

    Thus, in 1807 (in Jay v. Whitfield 3 B. & A. 308) a boy who entered the
    defendant's premises for the purpose of cutting a stick was shot by a spring
    gun: he recovered £120 damages (before Richards C.B.) for his injury.
    It is recorded in one of the cases that it was formerly the practice to give
    public notice in market towns if such means of protection as spring guns
    had been resorted to. It was the "common understanding of mankind"
    that such notice ought to be given. That was before there was any statutory
    provision in regard to them.

    In Ilon v. Wilkes which was in 1820 (3 B. & Ald. 304) a trespasser who
    knew that there were spring guns in a wood (without knowing the actual
    particular spots where they were placed) was injured when he trod on a latent
    wire and caused a gun to be fired. On the principle volenti non fit injuria
    he failed in his claim for damages. But the duty to warn was recognised.
    Thus Bayley J. said: "Although it may be lawful to put these instruments
    " on a man's own ground, yet as they are calculated to produce great bodily
    " injury to innocent persons (for many trespassers are comparatively innocent)
    " it is necessary to give as much notice to the public as you can, so as to put
    " people on their guard against the danger." Best J. spoke with no uncertain
    voice when he proclaimed: "Humanity requires that the fullest notice
    " possible should be given, and the law of England will not sanction what
    "is inconsistent with humanity." Bayley J. recognised that there may be
    circumstances in which there is a duty to prevent injury to a trespasser.
    He instanced a situation in which a furious dog was loose in a yard but
    where there was notice over the entrance of the presence of the dog. He
    said that if a wrong-doer read the notice but then in the absence of the
    owner entered the yard he was voluntarily incurring the risk of being injured.
    But he expressed a further view for he said: "If, indeed, the master had
    ” been upon the spot at the time, and had seen the dog running towards the


    11

    " man, it would have been his duty to have done all in his power to prevent
    " the animal from worrying him, and if he had not so done, the party
    " injured might have had a right of action." The passage is of interest as
    showing that the learned judge thought that even inaction, when humanitarian
    impulses would prompt action, might amount to a breach of a duty owed
    to a trespasser.

    In the later case, in 1828, of Bird v. Holbrook 4 Bingham 628 a young
    man, in order to catch a stray fowl (so as to help the servant of its owner),
    went over a wall into the defendant's garden where he came into contact
    with a wire which discharged a gun. He recovered damages in respect
    of the injury which he sustained. Best C.J. stoutly proclaimed: "But we
    " want no authority in a case like the present; we put it on the principle
    " that it is inhuman to catch a man by means which may maim him or
    " endanger his life, and, as far as human means can go, it is the object of
    " English law to uphold humanity, and the sanctions of religion."
    Burrough J. said—"The Plaintiff was only a trespasser: if the Defendant
    " had been present, he would not have been authorised even in taking him
    " into custody, and no man can do indirectly that which he is forbidden
    " to do directly." That approach would I think bring the case within the
    category of acts done with a "deliberate intention of doing harm to a
    " trespasser". The spring gun would be deliberately placed so that it would
    cause injury to any trespasser who might arrive. As Viscount Dunedin
    said (at page 376) in Addie's case—"he may not set a spring gun for that is
    " just to arrange to shoot him without personally firing the shot." Alter-
    natively the placing of the spring gun might amount to a "reckless disregard
    " of the presence of the trespasser". It is to be observed that Dixon C.J.
    said in Commissioner for Railways (N.S.W.) v. Cardy 104 C.L.R. 274, 285—
    "The fixed rule that a trespasser comes at his own risk and that only a
    " wilful injury to him is actionable is modified by the assimilation of
    " 'reckless disregard of the presence of the trespasser' to wilfulness. It
    " needs no argument to show that reckless disregard to the presence of a
    " man must include not only the case of a man who is there but also of one
    " whose coming is expected or foreseen."

    The spring gun would be placed on land because the possible presence of
    a trespasser would either be expected or foreseen—and there would be the
    circumstance that injury was intended. Though the conditions of danger
    on the railway track in the present case were not created with any intention
    of doing injury to anyone, if it could be expected or foreseen that some
    trespasser (such as a young child) might run into the danger unawares, was
    there some and, if so, what duty to take some and what steps to seek to
    avert such an occurrence? If humanity is to be a guide should it not operate
    to lessen the risk of foreseeable injury from a danger which has been created
    even though such injury is not intended?

    If the passages to which I have referred show that even in days when
    property rights were jealously safeguarded it was firmly recognised that
    the dictates of humanity must guide conduct even towards trespassers such
    recognition must surely be no less firm today. Indeed, it should be firmer.
    It is today basic to our legal thinking that every member of a community
    must have regard to the effect upon others of his actions or his inactions.

    If in all probability the boy in the present case would not have suffered injury
    had the fence been in ordinary repair instead of being left dilapidated for
    weeks on end the question might be asked—even so as the boy would be
    a trespasser the moment he crossed the line of the fence why and for what
    reason should the Railways Board owe him any duty at all beyond that
    of not deliberately harming him thereafter or of acting with reckless disregard
    of his presence on their land? I would answer for reasons of common sense
    and common humanity. The nature and extent of any duty owed will call
    for separate consideration. But there must be some circumstances in which,
    by reason of them, a duty is owed by an occupier of land to potential
    trespassers as well as to actual trespassers of whom he is positively aware.
    As my noble and learned friend. Lord Pearson, said in Videan v. British

    12

    Transport Commission ([1963] 2 Q.B. 650) it is a heresy to suggest that
    occupation of land is a ground of exemption from liability: on the contrary
    (he said) occupation of land is a possible ground of liability and if a duty
    of care is owed then any person to whom it is owed is a neighbour though
    the content of the duty will vary according to the circumstances.

    If it is asked—why need the Railways Board give any thought to the
    question whether a trespasser might come to harm by trespassing on their
    land the answer must I think again be that common sense and common
    intelligence so direct. What has been called ordinary civilised behaviour
    would so prompt. The words of Lord Macnaghten in Cooke v. Midland
    Great Western of Ireland
    [1909] A.C. 229 (while remembering that it was
    held that the children in that case were licensees) are apposite—"Would
    " not a private individual of common sense and ordinary intelligence, placed
    " in the position in which the company were placed, and possessing the
    " knowledge which must be attributed to them, have seen that there was a
    " likelihood of some injury happening to children resorting to the place
    " and playing with the turntable, and would he not have thought it his plain
    " duty either to put a stop to the practice altogether, or at least to take
    " ordinary precautions to prevent such an accident as that which occurred?"

    By taking ordinary thought and exercising "common sense and ordinary
    " intelligence"—even apart from the guidance of common humanity—1 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. Even though the child would be a trespasser ought it not to be
    their "plain duty" to repair the fence? That would be a relatively simple
    operation not involving any unreasonable demands of time or labour or
    expense.

    In the classic definition of negligence in 1856 in Blyth v. Birmingham
    Waterworks Co.
    (11 Ex. 781, 784) Alderson B. said that negligence was "the
    " omission to do something which a reasonable man guided upon those
    " considerations which ordinarily regulate the conduct of human affairs would
    " do, or doing something which a prudent and reasonable man would not
    " do." Ought not the "considerations which ordinarily regulate the conduct
    " of human affairs" under some circumstances (and I would include those
    of the present case) produce the result that some duly is owed by an
    occupier of land towards those who if they proceed further may suffer
    injury at a time when they are trespassing?

    That in a civilised community there is need to take thought as to the
    result of acts or omissions has long been recognised. Though in Heaven v.
    Pender in 1883 (11 Q.B. D.503) the colleagues of Brett M.R. were unwilling
    to concur in "laying down unnecessarily the larger principle" which he
    entertained his words may be recalled. He considered that from decided
    cases the proposition was to be deduced "that whenever one person is by
    " circumstances placed in such a position with regard to another that every
    " one of ordinary sense who did think would at once recognise that if he
    " did not use ordinary care and skill in his own conduct with regard to those
    " circumstances he would cause danger of injury to the person or property
    " of the other, a duty arises to use ordinary care and skill to avoid such
    " danger." The Master of the Rolls was of course not considering any
    question in regard to trespassers, but the question now arises whether there
    are not some trespassers for whom thought must be taken. The stress
    placed on the taking of thought by persons of "ordinary sense" is today
    constantly reflected in decisions in the courts. Lord Atkin in Donoghue v.
    Stevenson
    [1932] AC 562, 580 said that "You must take reasonable care
    " to avoid acts or omissions which you can reasonably foresee would be
    " likely to injure your neighbour." The Corporation in Glasgow Corpora-
    tion
    v. Taylor [1922] 1 AC 44 ought by taking thought to have realised
    that the poisonous berries deceptively presented a tempting and harmless
    appearance to a young boy who was entitled to be where he was • there was
    a case for trial as to whether the Corporation had failed to take certain
    precautions that they ought to have taken. In Haley v. London Electricity
    13

    Board [1965] AC 778 it was held that those engaged in operations on the
    pavement of a highway ought to have foreseen that blind persons might
    walk along the pavement. So, by taking thought, should the danger have
    been appreciated of allowing the small child in Carmarthenshire County
    Council
    v. Lewis [1955] AC 549 to be out of care. So, by taking thought,
    should the consequences have been realised of failing to exercise reasonable
    control in the case Home Office v. Dorset Yacht Co. [1970] A.C. 1004.

    I consider that it is abundantly clear that the Railways Board, if they had
    taken thought, must have realised that if they allowed the fence to be broken
    down at the particular place in question there was a considerable risk that
    a small child would pass through it and might as a result either be killed
    or come to serious harm. This was not a case in which a child could be
    said to have been invited or permitted to proceed with the result that he
    would as an invitee or licensee be proceeding towards what could be called
    a trap: nor do I think that any temptation to proceed could be said to have
    been in response to an allurement.

    The present case is to be distinguished on its facts from Edwards v.
    Railway Executive [1952] A.C. 737 where the main issue was whether the
    boy could be said to have been a licensee. The lay-out of the land was in
    that case quite different from that in the present case and the fence in that
    case was repaired whenever it was observed to have suffered interference.
    There was evidence in that case that on the morning of the accident the
    fence was in proper repair.

    Could a child such as the boy in the present case be regarded as a
    "neighbour"? When Lord Atkin posed the question Who then in law is
    my neighbour? he said that the answer seemed to be "persons who are
    " so closely and directly affected by my act that I ought reasonably to have
    " them in contemplation as being so affected when I am directing my mind
    " to the acts or omissions which are called in question." No one would
    suggest that every trespasser is a "neighbour" but within these words was
    not the small boy in the present case a neighbour? When the railway track
    and its electrified rail were laid and at all times when they were maintained
    the risks of injury resulting if there was neither warning nor impediment
    such as a fence would provide would be clear to anyone who gave the
    mutter a moment's thought. Yet when the boy went on to the track he
    undoubtedly became a trespasser. Does this mean that the strict edict of
    Addie's case prevents any kind of duty from arising towards such a neighbour,
    especially as Parliament has not legislated in terms which cover trespassers?
    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. In regard
    to the words that I have quoted from Addie's case I do not think that the
    Railways Board (through their servants) did any act with the deliberate
    intention of doing harm to the boy: their omission for a long time to repair
    the fence and their continuing distribution of electric power along their live
    rail did not, in my view, amount to a "reckless disregard of the presence of
    " of a trespasser". If those last quoted words can be said to cover the
    likely or expected or anticipated presence of a trespasser then the question
    arises whether the lamentable inaction of the Railways Board is to be charac-
    terised as "reckless". As to this I have doubt. The word "reckless"
    seems more apposite in reference to positive conduct than to inaction.

    The duty that lay upon the Railways Board was a limited one. There
    was no duty to ensure that no trespasser could enter upon the land. And
    certainly an occupier owes no duty to make his land fit for trespassers to
    trespass in. Nor need he make surveys of his land in order to decide
    whether dangers exist of which he is unaware. The general law remains that
    one who trespasses does so at his peril. But in the present case there were
    a number of special circumstances—(a) the place where the fence was faulty
    was near to a public path and public ground ; (b) a child might easily pass
    through the fence ; (c) if a child did pass through and go on to the track
    he would be in grave danger of death or serious bodily harm ; (d) a child

    14

    might not realise the risk involved in touching the live rail or being in a.
    place where a train might pass at speed. Because of these circumstances
    (all of them well known and obvious) there was, in my view, a duty which.
    while not amounting to the duty of care which an occupier owes to a
    visitor, would be a duty to take such steps as common sense or common.
    humanity would dictate: they would be steps calculated to exclude or to.
    warn or otherwise within reasonable and practicable limits to reduce or
    avert danger.

    I would adopt the approach of my noble and learned friend, Lord Pearson.
    in his judgment in the Court of Appeal in Videan's case. In agreement with
    him, I do not think that there is any sound basis of principle for differentiating
    sharply between liability for the static condition of land and liability for
    current operations on land. In general, therefore, a trespasser has not
    only to take the land as he finds it but the current operations on land as he
    finds them. Yet a potential or actual trespasser may on occasion be a
    neighbour and, as my noble and learned friend said (at page 678), the
    expression "duty to a neighbour" is more appropriately used as an aid
    to ascertaining whether or not there is a duty of care owing by one person
    to another rather than as a definition of the content of such a duty. So
    (at page 680)—" If the person concerned does not know of or have good
    " reason to anticipate the presence of the trespasser, that person owes to
    " him no duty of care because he is not within the ' zone of reasonable
    " ' contemplation ' and is not a 'neighbour'. If the person concerned knows
    " of or has good reason to anticipate the presence of the trespasser, that
    " person owes to the trespasser a duty of care which is substantially less
    " than the duty of care which is owing to a lawful visitor, because the duty
    " to a trespasser is only a duty to treat him with common humanity and
    " not a duty to make the land and operations thereon safe for the trespasser
    " in his trespassing."

    The case of Commissioner for Railways (N.S.W.) v. Cardy 104 C.L.R. 274
    amply repays study. Though the boy who was injured was a trespasser he
    recovered damages. In the course of his judgment Dixon C.L. said—
    " In principle a duty of care should rest on a man to safeguard others from
    " a grave danger of serious harm, if knowingly he has created the danger
    " or is responsible for its continued existence and is aware of the likelihood
    " of others coming into proximity of the danger and has the means of pre-
    " venting it or of averting the danger or of bringing it to their knowledge."
    Windeyer J. expressed the view that the duty of an occupier is rooted at
    bottom in his duty to his neighbour in Lord Atkin's sense and he said
    (at page 321)—"No man has a duty to make his land safe for trespassers.
    " But, if he has made it dangerous and the danger he has created is not
    " apparent, he may have a duty to warn people who might come there of
    " the danger of doing so. Whether there be such a duty in a particular
    "case must depend upon the circumstances, including the likelihood of
    " people coming there. But if they would be likely to come, the duty does
    " not, in my view, disappear because in coming they would be trespassing.
    " It is a duty owed to likely comers, to those who would be intruders as
    " to those who would be welcome." He further said (at page 322)—"I do
    " not see how, speaking generally, there can be a duty either to prevent
    " people trespassing or to make the premises safe for those who do. But
    " the duty that I think can, in appropriate circumstances, exist is a duty to
    " warn persons coming upon premises of hidden dangers they may encounter
    " there, when those dangers are not natural features of the land but arise
    " from conditions created by the occupier. Such a duty is not necessarily
    " discharged by posting notices such as ' Trespassers will be prosecuted' ;
    " for the warning required is not that trespassing is not tolerated but that
    " entry may be dangerous."

    For the reasons which I have given I consider that the learned judge
    was warranted in deciding that the plaintiff was entitled to recover. My
    approach involves some departure from some of what was said in Quinlan's
    case. It involves also that, on its facts, the decision in Addie's case should
    in my view have been the other way. The Colliery Company knew that


    15

    young children were in the habit of playing on the ground near to the wheel
    in question and knew that, though at times there were warnings, children
    continued to frequent the place. They knew that children might be or
    were likely to be there. I consider that with such knowledge they should
    have taken 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. It follows that I consider that the case was wrongly decided.

    I would dismiss the appeal.

    Lord Wilberforce
    my lords,

    This is, unusually, a straight case of an infant trespasser. The six year
    old boy was trespassing on the railway when he came into contact with a
    live electric rail, was fortunately not killed, but was severely injured. There
    was no allurement on to the defendant's land; there is no basis, in reality
    or fiction, by which the child can be treated as a licensee. There was no
    wilful intention to injure him; nor (I shall return to this) reckless disregard
    of his presence. At most (and this has been found) there was a lack of
    care by the Board as regards the maintenance of its fences.

    We have not, in England, any general law as to public enterprise liability.
    As regards fencing, such duty as the Board has (Railway Clauses (Con-
    solidation) Act, 1845, section 68, which, it seems protects cattle but not
    children) dates from 1845 since when, even after electrification, Parliament
    has not thought it necessary to impose new obligations on railway com-
    panies. So if the plaintiff is to recover, he must rely on our outdated law
    of fault liability which involves the need to establish a duty of care towards
    him and a breach of it. At once he is faced by the formidable authority
    of Robert Addie & Sons (Collieries) Ltd. v. Dumbreck
    [1929] AC 358.

    There are perhaps two things about Addie's case which, out of many
    comments that have been made over the years, are relevant here.

    First, the bulk of the criticism has been of it as a decision on its facts.
    It is claimed that it should have been decided the other way, in favour of
    the child, as it was decided in the Court of Session, as, on very similar facts,
    Callan's case three years later was decided in the plaintiff's favour (Excelsior
    Wire Rope Co.
    v. Callan [1930] A.C. 404). The difference of opinion
    between the Inner House and this House was essentially as to whether the
    child should have been regarded as a licensee. The Lord President said
    he should—he compared him with the plaintiff in Lowery v. Walker ([1911]
    A.C. 10) and said, as to the user of the company's premises, that it was
    substantially acquiesced in and acquiescence is often a form of what may
    be called an unwilling consent (l.c.p.555). This House took a different
    view: he was, on the Sheriff Substitute's finding, a trespasser and nothing
    else. The wheel had been there long before the house in which he lived
    was built, so that there was no question of a dangerous thing having been
    placed in his proximity: the only relevant relationship was the occupier/
    trespasser relationship. I have referred to these factual points because I
    do not think that we should decide this case by meticulously comparing the
    facts here with the facts there. What we are concerned with is the principle
    of law which Addie established—to see what it is and what cases it governs.
    The second thing to be said about Addle is that it is a case to be con-
    sidered in a context, the context of previous and subsequent cases of
    common law, and the context of bordering but not identical typical situa-
    tions. This has often been forgotten. The prestige of the learned law
    Lords who gave the opinions in that case, and the clarity and emphasis of
    those opinions has led to its rules being treated as a code of law to be
    scrupulously applied to every situation where the defendant is an occupier
    of land whatever may be the set of facts out of which the injury, and
    the claim for damages, may have arisen. It is often the fate of clear pro-
    nouncements—in law as in science—to be treated in this way, with con-
    sequences more and more strained as different cases are forced within them

    16

    by the use of fictions and other devices until there is a bursting of the seams
    and a cry that this case as a statement of the law must be overruled. That
    is what we are asked to do here.

    I should say at once that, even apart from the argument against this which
    the Occupiers Liability Act, 1957, provides, I should hesitate to support
    this course. We should first see whether we can move on from the position
    taken in 1929 by classical methods of experience, analogy and logic. We
    should approach this without the too complacent assumption that our present
    age is humaner than was that of 40 years ago: but we may take the benefit
    of experience and recognise fresh situations—especially those of extreme
    danger, which have become typical.

    There can be no doubt that the law regarding occupiers' liability forms
    part of the general law of negligence. The earlier 19th century cases were
    actions on The case (Deane v. Clayton (1817) 7 Taunt 489. 4., Lynch v.
    Nurdin
    (1841) 1 Q.B. 29) and though attempts were made to treat some
    of them as based on nuisance this was not a tendency which prevailed.

    Since these were what we now call actions in negligence, it was necessary
    to define the degree of care owed to persons coming on land in particular
    circumstances, and this led to the emergence, in progressively segregated
    divisions of the familiar tripartite classification—which in Addie was stated
    to be exhaustive, and the line separating them an absolutely rigid line ([1929]
    A.C p. 371 per Viscount Dunedin). The first duty of the court, it was said,
    was to fix once and for all into which class the plaintiff falls. The Scottish
    Courts avoided this rigidity and proceeded upon the general principles
    governing the law of negligence (Addie's case 1928 S.C. 547, 551 per Lord
    President Clyde). The formulation by this House in Addie gave rise not
    only to dissatisfaction in Scotland but to difficulty since human conduct can
    rarely be squeezed neatly into a predetermined slot ; and if this is what
    courts are told to do, they will find ways, according to their views of the
    merits, of crossing the lines. So they have found means of converting
    trespassers into licensees by imputing licences, and in the case of children
    they have improved their status by a finding of allurement or by straining
    the facts.

    We ought now to ask the question directly, what, in relation particularly to
    infant trespassers, is the duty of care (See Commissioner of Railways (N.S.W.)
    v. Cardy 104, C.L.R. 274) for the recognition of some duty of care, even
    towards trespassers, in certain limited cases, is what the imputation of a
    licence really means. We may, though here we are getting near the dangerous
    ground of legislation, be readier than our predecessors to see liability for
    injuries to individuals placed upon society generally, of which the Railways
    Board effectively forms part. And if we do not go so far as to recognise
    that special rules ought to be devised for child trespassers (c.f. American
    Restatement, Torts (2nd) section 339), we can at least accept that fresh and
    more lethal dangers to their safety have appeared, and come nearer to them,
    and that somewhere more care has to be used to prevent them being hurt.
    I say "somewhere" because the occupier of adjoining land is not the only,
    or indeed the first, person in the line of responsibility. Even today parents
    have some control and responsibility, and if children are on a playground
    which someone has provided for the purpose, that person has a responsibility
    to see that it is safe.

    Does, then, Addie contain an exhaustive definition of an occupier's duties
    to persons on his land? One does not see why, in principle, this should
    be so. It could be so if the fact of occupation of land were to be the basis
    of exemption from any greater liability than the relevant rule prescribes.
    But this idea has been refuted more than once (see Commissioner for Rail-
    ways (N.S.W.)
    v. McDermott [1967] AC 169, 186). The correct conception
    is that stated by the Privy Council when through Viscount Radcliffe the
    Board said that the Addie rules were expressive of certain consequences
    as regards proximity and foreseeability which flow from the given relationship
    (occupier and invitee—licensee—trespasser). (Commissioner for Railways
    (N.S.W.)
    v. Quinlan [1964] AC 1054, 1072.) Or, as was put by Barwick
    C.J. there is "a quantitative element both in the extent of the foreseeability


    17

    " and of the reasonable steps required to fulfil any resultant duty arising
    " from the circumstances in which the injured person came on the scene ".
    (Munnings v. Hydroelectric Commission of Tasmania [1971] AJ.L.R. 378,
    382.) If this is generally so, it must follow that the law can, particularly,
    take into account other relevant factors, if they exist, which bear upon these
    matters of foresight and prudence. It does so when in the general case it
    considers it relevant to know whether the presence of the relevant person
    was known, "as good as known" Commissioner for Railways v. Quinlan
    [1964] AC 1054 and 1076, or "extremely likely" Excelsior Wire Rope Co. v.
    Gallon [1930] A.C. 404, 410, and it seems a necessary step from this to say
    that particular circumstances may exist in which an increased duty of
    "foreseeability" may arise.

    There are other indications, in the law as it stands, of the relevance of
    particular factors as modifying the general rules. First there is the doctrine
    of allurements. It has been criticised, as a device, like imputed licenses, for
    escaping from the Addie rules. But it is older than Addie and reflects the
    perfectly sound conception that as particular things are ("foreseeably")
    likely to be attractive to children, the occupier owes a duty, if they are
    dangerous, not to put them in the children's way. The classic case is that
    of the berries in the park Glasgow Corporation v. Taylor [1922] 1 AC 44.
    Secondly, there is the law as to fencing. In general an occupier is under
    no duty to fence his land so as to exclude trespassers, a rule of importance
    to Railway Companies and of validity as this House has decided (Edwards v.
    Railway Executive [1952] A.C. 737). The fact, that Parliament has not
    imposed a duty securely to fence children or others out, is a recognition
    that a compromise must be struck between the desire to save everyone
    from every danger and the cost to the community of doing so. It means that
    there are situations where even children will not recover. But the courts
    have qualified this exemption by reference to particular circumstances as,
    for example, that persons are known frequently to have access along a track
    Cooke v. Midland G.W. Railway of Ireland [1909] A.C. 229, Lowery v.
    Walker
    [1911] AC 10 which, though put upon the imputation of a licence,
    really reflect the fact that some elementary duty is owed. Similarly, there
    are the cases of pitfalls—where an occupier makes an excavation near a
    highway (cf. Prentice v. Assets Co. 17 R. 484) (the same would surely be
    true of other hazards, e.g. an electric wire): he is under a duty, even to
    trespassers, to take some steps to keep them off.

    Thirdly, there is the position of contractors carrying out work on land.
    A number of cases Davis v. St. Mary's Demolition & Excavation Co. Ltd.
    [1954] 1 W.L.R. 592, Morney v. Lanarkshire County Council [1954] S.C. 245.
    A. G. Billings & Sons Ltd. v. Riden [1958] AC 240, which I need not
    examine in detail—(some of them I think put the duty too high), have
    established their responsibility in principle, through a duty of care, toward
    trespassers, including infant trespassers. Their liability should not depend
    solely upon whether they were, or were not, themselves occupiers of the
    land, and it would be absurd if there were one law for contractors doing
    work and another law if the occupier did the same work himself cf. Buckland
    v. Guild ford Gas Light & Coke Co. [1949] 1 K.B. 410, Creed v. McGeogh
    & Sons
    [1955] 1 W.L.R. 1005—both perfectly sound decisions in themselves.
    This is not to say that the contractor's duty is to be imposed or measured
    regardless of the fact that the victim may have been a trespasser, but it
    is to say that there may be circumstances in which contractors and occupiers
    alike may have some (I am not saying the same) responsibility for trespassers'
    safety, outside the bare Addie principle. It is curious, in fact, that this point
    escaped attention so long after Callan's case—(Excelsior Wire Rope Co. v.
    Callan [1930] A.C. 405)—had shown how easy it is to reach a just and sensible
    conclusion once one escapes from a narcotic preoccupation with the
    occupier / trespasser relationship.

    These are merely examples to illustrate the proposition that Addie is not
    an all embracing code, but a piece in the larger whole of a man's duty of
    care to those who may come into his proximity, and may be injured by
    actions or events occurring on his land.


    18

    I have already referred briefly to the historical antecedents of the law
    of occupiers' liability. It would be possible to show, in my belief, that Addie
    to some extent represented a step back in the direction of categorisation
    from an earlier more general attitude to the duty of care. It is more
    significant for the present case to recall that it occurred precisely
    at a time when the law of negligence was being put on a generalised basis
    and that many of the eminent legal authorities of this time were parties,
    in differing combinations, to Addie, Callan's case (Excelsior Wire Rope Co.
    v. Callan [1930] A.S. 405) and Donoghue v. Stevenson [1932] AC 562.
    It is hard to believe that they regarded these cases as inconsistent, or as
    separating occupiers' cases, as such, from all other situations where care
    might be needed.

    I pass over for the moment the Occupiers Liability Act, 1957, in order
    to refer to four Australian cases, decided in the High Court, which give
    us valuable guidance in the search for a modern definition, or at least
    outline of the duty of care which may be owed to trespassers in cases such
    as the present. It will be necessary to supplement this by consideration of
    Quinlan's case in which the Privy Council, on a New South Wales Appeal,
    may appear to have taken a step back. The High Court cases are Thompson
    v. Bankstown Corporation (1953) 87 C.L.R. 619, Rich v. Commissioner for
    Railways (N.S.W.)
    (1959) 101 C.L.R. 135, Commissioner for Railways
    (N.S.W.)
    v. Cardey (1959-60) 104 C.L.R. 274 and Munnings v. Hydro-Electric
    Commission
    (1971) A.J.L.R. 378.

    Rich was a level crossing case, Cardey one of a child straying on to an
    attractive rubbish dump with hot ashes under the surface: Thompson and
    Munnings are nearer the subject matter of this case being concerned with high
    tension electric wires placed in proximity to places where children might be.

    Although each case is difficult in its facts and required extensive legal
    argument, they can fairly be summarised into the generalisation that they
    reflect a tendency toward the recognition of a duty of care, appropriate
    to the circumstances, extracted from the situation and shaped by it,
    independent of such liability as might arise from the relation of occupier
    and licensee or trespasser. I cite some passages which clearly reflect this.
    In Thompson the judgment of Dixon C.J. and Williams J. contained this:
    " A man or child may be infringing upon another's possession of land or
    " goods at the time he is injured and it will be no bar to his recovery if
    " otherwise he can make out the constituent elements of a cause of action."
    They cited in support of this Gallons case, Mourton v. Poulter [1932] K.B.
    183, Buckland v. Guildford Gas Light & Coke Co. [1949] 1 K.B. 410 and
    Glasgow Corporation v. Taylor [1922] 1 AC 44. In the same case the
    judgment of Kitto J. contained an even more explicit passage. After
    mentioning, in terms of acceptance, the case of Addie and Edwards he said:
    " The respondent's contention appears to assume that the rule of law which
    " defines the limits of the duty owed by an occupier to a trespasser goes
    '' so far as to provide the occupier with an effective answer to any assertion
    " by the trespasser that during the period of the trespass the occupier owed
    " him a duty of care. The assumption is unwarranted, for the rule is con-
    " cerned only with the incidents which the law attaches to the specific relation
    " of occupier and trespasser. It demands, as Lord Uthwatt said in Read
    " v. J. Lyons & Co. Ltd. a standard of conduct which a reasonably-minded
    " occupier with due regard to his own interests might well agree to be fair
    " and a trespasser might in a civilised community reasonably expect. It would
    " be a misconception of the rule to regard it as precluding the application
    " of the general principle of M'Alister (or Donoghue) v. Stevenson, to a
    " case where an occupier, in addition to being an occupier, stands in some
    " other relation to a trespasser so that the latter is not only a trespasser but
    " is also the occupier's neighbour, in Lord Atkin's sense of the word: see
    " Transport Commissioners of New South Wales v. Barton." The clarity
    of this passage has caused it to be followed, in analogous situations, in
    Australia, but it received some criticism based I think upon some misunder-
    standing in Quinlan's case (see below).


    19

    The same conception of a duty of care, coexisting with the special duties
    arising from occupation is developed in his judgment of Fullagar J. in
    Rich, and again by Dixon C.J. in Cardey. I quote two passages: " The rule
    " remains that a man trespasses at his own risk and the occupier is under
    " no duty to him except to refrain from intentional or wanton harm to him.
    " But it recognises that nevertheless a duty exists where to the knowledge
    " of the occupier premises are frequented by strangers or are openly used
    " by other people and the occupier actively creates a specific peril seriously
    " menacing their safety or continues it in existence. The duty may be
    " limited to perils of which the person so using the premises are unaware
    " and which they are unlikely to expect and guard against. The duty is
    " measured by the nature of the danger or peril but it may, according to
    " circumstances, be sufficiently discharged by warning of the danger, by taking
    " steps to exclude the intruder or by removal or reduction of the danger."
    And later: " In principle a duty of care should rest on a man to safeguard
    " others from a grave danger of serious harm is knowingly he has created
    " the danger or is responsible for its continued existence and is aware of the
    " likelihood of others coming into proximity of the danger and has the
    " means of preventing it or of averting the danger or of bringing it to their
    " knowledge." There are no doubt words and expressions here which can be
    discussed, I do not say improved on, for the former Chief Justice is a master
    of language; but he would himself never claim that every possible case
    can be included in a formula. The principle is one which I am happy to
    adopt: Addie's case as the plain general rule; room, in circumstances to be
    carefully defined, for a special duty of care. The other judgments, particu-
    larly that of Fullagar J. repay study: I take my two short excerpts from
    that of Windeyer J. Of a trespasser he says: " The trespasser in relation
    " to the occupier thus really stands outside the law of negligence, for to
    " him, considered simply as an entrant upon the land, the occupier has no
    " duty of care. Such a duty may, however, arise from some circumstances
    " beyond the mere fact of entry, as for example from the occupier's know-
    " ledge of the trespasser's presence and of his proximity to dangerous opera-
    " tions. It arises then not as a duty to him as a trespasser, but to him as
    " an individual whose relation to the occupier has become that of a
    "'neighbour'." And later: "No man has a duty to make his land safe
    " for trespassers. But, if he has made it dangerous and the danger he has
    " created is not apparent, he may have a duty to warn people who might
    " come there of the danger of doing so. Whether there be such a duty
    " in a particular case must depend upon the circumstances, including the
    " likelihood of people coming there. But if they would be likely to come,
    " the duty does not, in my view, disappear because in coming they would
    " be trespassing. It is a duty owed to likely comers, to those who would
    " be intruders as well as to those who would be welcome." The recognition
    of a larger area surrounding Addie's case, which I favour, is well summed up
    in the first two sentences of the latter citation.

    Quinlan's case (Commissioners for Railways (N.S.W.) v. Quinlan [1964]
    A.C. 1054) has been thought by later Australian cases, and some English
    authorities, to constitute an obstacle to a wider view of the law as regards
    trespassers. It was difficult and unusual in its facts, being concerned with a
    private railway crossing used by the Respondent in conditions hard to
    define. No discussion of it would be fair unless it were squarely recognised
    that it came down firmly against the view that a duty of care (called in
    the judgment a " general duty of care ") can coexist with the very limited
    duty to a trespasser stated in Addie's case. But it is important to see what
    was meant by this disclaimer.

    The previous history of the case and the form of the direction to the jury
    show very clearly, and importantly, that what the courts had to consider
    was whether Quinlan, though a trespasser, might succeed in negligence under
    " the duty of general care ". This the Board rejected on a basis appearing
    early in the judgment. There is no principle, it is said, to be deduced
    from Donoghue v. Stevenson which throws any particular light upon the
    legal rights and duties that arise when a trespasser is injured on a railway

    20

    level crossing where he has no right to be. More particularly the likelihood
    of a trespasser being present at some time or another is not sufficient to
    impose upon the occupier any general duty of care towards such a trespasser.
    It is this proposition which the Board is concerned to justify from the
    authorities. With this proposition I have no desire to disagree. I would
    accept that in such a case the rules of Addie's case may adequately govern
    the situation. The trespasser is just a trespasser and there is no relevant set
    of circumstances—involving serious risk and proximity—sufficient to call in
    play a duty of care independent of the occupier-trespasser relationship. Indeed
    the proposition itself, by referring to " the general duty of care " carries its
    own affirmation. A general duty, without supporting circumstances giving
    rise to this duty and measuring its extent, is a meaningless idea. Donoghue
    v. Stevenson does not evoke it, Addie's case denies it. But it is a very
    different matter when proved circumstances exist sufficient to place a definable
    duty (however slight—for example to warn) upon the person who is respon-
    sible for the existence of those circumstances, occupier or not, and I think
    that the judgment in Quinlan recognised this when it was, perhaps rather
    cryptically, said " that so long as the relationship of occupier and trespasser
    " is or continues to be a relevant description of the relationship between the
    " person who injures . . . and the person who is injured—an important
    " qualification—the occupier's duty is limited in the accepted terms ". (Can
    " a relevant " here be read as " the relevant "?) Whether sufficient circum-
    stances of this kind were to be found in Quinlan's case is not a matter which
    needs concern us. It is only when the judgment is invoked as a denial of the
    possibility of such circumstances and the correlative duty that I must part
    company with its interpreters.

    Further extensive citation is undesirable, but I must mention one passage
    where reference is made to the extract from the judgment of Kitto J. in
    Thompson's case cited above. The criticism made is again that the limited
    duty of an occupier to a trespasser cannot coexist with " the wide general
    " duty of care appropriate to the Donoghue v. Stevenson formula ": if
    there is to be another relation the grounds of it must admit of reasonably
    precise definition otherwise it will be impossible to direct juries in an
    adequate manner.

    1 think that Kitto J. has here been misunderstood. I do not understand
    him (or those who have followed him) to be arguing for a general duty of
    care: nor do I think that he would disagree with the necessity for reason-
    ably precise definition ; certainly I would not, and I fully recognise that,
    unless that is possible, plaintiffs such as the present plaintiff cannot, if they
    are outside the Addie rules, succeed. As was well said in the High Court,
    we should not be too ready to erode the general rule of Addie's case by
    discovering loo easily special duties of care. (Munning's case (u.s.) per
    Walsh J. at p. 394.)

    There is one other point discussed in the judgment, upon which I find
    myself in agreement with the Board—that is the discussion of the (then)
    recent Court of Appeal case of Videan v. British Transport Commission
    [19631 2 Q.B. 650. This, too, was a case of an infant trespassing on a
    railway and of a rescuer. The infant's claim failed but the majority in the
    Court of Appeal made (obiter) a distinction between simple occupation of
    land and the carrying on of operations of land, and held that as regards
    the latter the occupier's duty as regards a trespasser was "the common
    " duty of care " or a duty to take " reasonable care ". This duty arose
    whenever he " ought to foresee " their presence. The Board criticised this
    in two respects: first, as regards the words " ought to foresee " which it
    pointed out begs the whole question at issue—namely, whether there is a
    duty towards trespassers at all, and imposes far too wide a duty upon
    occupiers. Secondly—and this is consistent with the Board's general
    approach—it rejected the imposition of a general or common duty of care-
    in this I would agree with it but in a full statement of the law it would,
    in my opinion, be necessary to recognise the possibility both of a duty to
    foresee and of a special and limited duty of care arising out of and quan-
    titatively measured by particular circumstances <see citations above from


    21

    Quinlan's case and Munning's case). I think that the judgment of Pearson
    L.J. in Videan endorses this approach.

    How does the matter rest? It is often said that the law on this topic
    is in confusion, but this is to do it less than justice. When one has elimi-
    nated from it complexities of fact situation (were the pedestrians in Lowery
    v. Walker trespassers or licensees according to the judge's notes, how did
    the wheel in Addie differ from that in Callan, were the children in Cooke
    licensees or trespassers?) and when once one has discarded fictions, rules
    can be seen to emerge from the mists with reasonable clarity, but I emphasise
    no greater clarity, than we ought to expect from the common law, which
    always leaves a residue to be completed by common sense.

    In general, an occupier of land owes no duty to trespassers, or intending
    trespassers: he is not obliged to make his land safe for their trespassing.
    If he knows, or "as good as knows" (Quinlan at p. 1070) of the actual
    presence of a trespasser, he is under a duty—as defined in Addie's case—
    not to act with the deliberate intention of doing harm to him or to act with
    reckless disregard of his presence. I must return to this matter of reckless-
    ness, but at present it is enough to say that reckless disregard as used by
    Viscount Hailsham surely bears its normal meaning in the law—as akin
    to intentional injury, but instead of intention, not caring whether he does
    so or not. And this involves knowledge of the trespasser's presence.

    I see no reason to discard the alternative test of " extremely likely " (Lord
    Buckmaster in Callan [1930] A.C. 404, 410), in relation to the trespasser's
    presence. Apart from its origin it has received support from Dixon C.J.
    and Windeyer J. (104 C.L.R. 274, 286, 320) and other judges as well as the
    Privy Council in Quinlan. It excludes necessarily any lower duty of fore-
    seeability in the general case by an occupier of trespassers' presence (see
    Quinlan l.c.p.1072, 1074).

    This is the general rule as stated by Viscount Hailsham L.C. I think it
    is still a sound rule and I think that we must support it.

    The question remains whether, in particular circumstances, a man may be
    under some duty of a particular kind, other than to abstain from wilful
    injury, or reckless disregard. A test more specific than that of " foresight
    of likelihood of trespass " and a definition of duty more limited than that of
    " the common duty of care " is required.

    The dangers of too precise, or exhaustive or codified, a definition are
    exemplified by Addie's case itself. On the other hand, to adopt the expedient
    of recoiling upon the comfortable concept of the reasonable man is hardly
    good enough. It evades the problem by throwing it into the lap of the judge.
    We must try at least to set up some boundary marks. I think it is safer to
    proceed by exclusion, and then to the facts of this case. An occupier is
    not under any general duty to foresee the possibility or likelihood of trespass
    on his land, or to carry out inspection to see whether trespass is occurring
    or likely. To suppose otherwise would impose impossible burdens. Nor
    can a trespasser by giving notice to the occupier that he may trespass at a
    particular place or time, by that fact create a duty towards him.

    An occupier is under no general duty to fence his land against trespassers,
    or even against child trespassers: and in my opinion, in principle, this
    exclusion is valid whether or not the occupier is carrying on operations on
    the land or whether some danger exists through a static condition (e.g. a
    quarry Holland v. Lanarkshire Middle Ward District Committee [1909] S.C.
    1142). A poisoned pool (258 U.S. 268) may give rise to a special duty.

    Exceptions may be found (these are only examples) (a) in the case of
    pitfalls and analogous situations of dangers created near a place where the
    victim had a right to go, (b) in the case of allurements to children. The
    principle behind the latter is. in my opinion, not one of imputing a licence,
    but that of a duty to take reasonable steps not to place in the way of small
    children potentially hurtful and attractive objects.

    In the particular case of railway companies, there is no general duty to
    erect or maintain fences sufficient to exclude adults or children—the case of
    Edwards is clear on this point and I respectfully think right: the only duty


    22

    is to mark off the railway property. If more precautions are needed because
    of the proximity of a playground they may have to be taken by those in
    control of the playground, fencing in, rather than fencing out.

    Then on the positive side I think that we can best serve the development
    of the law by concentrating on the particular type of case which has engaged
    the courts, and on which the law has been tested by experience. Just as in
    the 19th century the introduction of turntables, attractive to children,
    accessible and dangerous, gave rise to a jurisprudence known by their name.
    so we must take account of the placing of electrical conductors above or on
    the ground all over our overcrowded island and see where this leads as
    regards foresight and care. The ingredients of such duty as may arise
    must stem from the inevitable proximity to places of access, including
    highways, from the continuous nature of the danger, from the lethal danger
    of contact and from the fact that to children the danger may not be apparent.
    There is no duty to make the place safe, but a duty does arise because of
    the existence, near to the public, of a dangerous situation. The greater
    the proximity, the greater the risk, and correspondingly the need of foresight
    and a duty of care.

    What is the nature of this duty of care? Again, it must be remembered
    that we are concerned with trespassers, and a compromise must be reached
    between the demands of humanity and the necessity to avoid placing undue
    burdens on occupiers. What is reasonable depends on the nature and degree
    of the danger. It also depends on the difficulty and expense of guarding
    against it. The law, in this context, takes account of the means and resources
    of the occupier or other person in control—what is reasonable for a railway
    company may be very unreasonable for a farmer, or (if this is relevant)
    a small contractor. If a precedent is needed for this concept of relative
    responsibility I may venture to refer to the Privy Council judgment in
    Goldman v. Hargrave [1967] AC 645, 663 where in relation to another
    common law duty it was said (inter alia) " the standard ought to be to require
    " of the occupier what it is reasonable to expect of him in his individual
    " circumstances."

    My Lords, in my opinion, if the law is such as I have suggested, the law
    as stated in Addie's case is developed but not denied ; not, I venture to
    think, developed beyond what is permissible and indeed required of this
    House in its judicial capacity. It was suggested that some difficulty arose
    from the passing of the Occupiers Liability Act, 1957, the argument being
    that, as Parliament deliberately changed the law about invitees and licensees
    but not that concerning trespassers, the House was bound hand and foot by
    Addie's case at its narrowest. I do not follow this. There might be some
    force in an argument that for this House to depart from (i.e. overrule) Addie's
    case would, in effect, be to legislate where Parliament has abstained, but I
    can see no sense in supposing that when Parliament left the law alone as
    regards trespassers the intention was to freeze the law as or as it was taken
    to be in 1929. As this Act itself shows, what Parliament left alone in the
    case of trespassers, while displacing them in the cases of invitees or licensees,
    were the rules of common law. But the common law is a developing entity
    as the judges develop it, and so long as we follow the well tried method
    of moving forward in accordance with principle as fresh facts emerge and
    changes in society occur, we are surely doing what Parliament intends we
    should do. So long as liability continues to be based upon fault we may,
    indeed must, adjust it to reason and experience. I do not think that any
    argument can be drawn from the passing by the same Parliament three years
    later of the Occupiers' Liability (Scotland) Act, 1961, which (section 2)
    defined the occupiers' duty towards trespassers as that of such care as in
    all the circumstances of his case is reasonable. But it is interesting to see
    that, in a case upon that section which reached this House, recognition was
    given to the differing standard of care which may be required towards
    invitees, licensees or trespassers. My noble and learned friend, Lord Reid,
    expressed this standard in words very appropriate to the issue in this appeal
    (M'Glone v. British Railways Board [1966] SC 1.11).


    23

    Dealing now with the case of the infant plaintiff. In the Court of Appeal
    he succeeded on a basis of recklessness—that of the stationmaster at the
    nearest station who some time before had been informed some six weeks
    earlier that on one occasion children had been seen somewhere on the line.
    As to this, unless " recklessness " means " gross carelessness "—and in my
    opinion not even then, there is no basis on which the Appellants can be
    liable for this injury. But I agree with Salmon L.J. and not with the majority
    in the Court of Appeal that recklessness, in this context, has its classical
    meaning.

    In Quinlan's case the Privy Council suggested that the way ahead lay
    through an extended scope of wanton and reckless conduct. This may be
    enough in some cases, but in others, and in a case such as the present, I
    prefer a direct acceptance of an appropriate duty of care. The use of
    " recklessness " or imputed recklessness seems to me too like another fiction
    of the kind it is better to discard. However, if the approach I have suggested
    is correct, it will follow that a basis exists here upon which, given satisfactory
    proof, an action in negligence could lie.

    I feel bound to say that I have less confidence than your Lordships or
    the trial judge that the proved facts make the case good. The evidence as
    to the condition of the fence at the relevant time, the means of access to it
    and the use of the open spaces on either side of the line (" the meadow was
    ' not much used by children " said the only witness) is exiguous. Conclusion
    upon it can hardly be reached without a degree of strain. Evidence as to
    the knowledge or lack of it as to the condition of the fence or the so-called
    path to the fence by the Railway Board (much less conspicuous than the
    official path leading to a footbridge over the railway close by, whose
    existence seems largely to be forgotten) or as to the system of maintenance,
    or lack of it, hardly exists. That it was necessary to call in aid the fact
    that six weeks before the accident the presence had been reported of some
    children of unspecified age, somewhere on the two-mile stretch of the line
    between Morden and Mitcham (the fact relied on as showing " recklessness ")
    does not reassure me as to the solidity of the case. But there remains the
    fact of this electrified line lying between two open spaces albeit linked by
    a bridge and of the broken down chain link fence at a point near to where
    children might play and I think that there is force in the point that the
    Board, once they knew of the gap, took immediate steps to repair it and
    indeed contended at one time that it was in repair at the critical time. The
    case is not therefore (as in Edwards' case) one of a barrier erected in accord-
    ance with statute but in fact inadequate to keep children out, but of a
    barrier designed to be adequate, in view of the existing risk, and become
    inadequate through lack of maintenance. The distinction is, I think, a real.
    as well as a fine one. I am not prepared, especially in view of the judge's
    finding, to differ from your Lordships' view that, in relation to the special
    duty of care incumbent on the Board in the relevant place, there was a
    breach of that duty amounting to legal negligence, but I am left with the
    feeling that cases such as these would be more satisfactorily dealt with by
    a modern system of public enterprise liability devised by Parliament.

    I would dismiss the appeal.

    Lord Pearson

    my lords,

    In relation to an occupier of premises the position of a trespasser must
    be radically different from that of a lawful visitor. The broad effect of
    section 2 of the Occupiers' Liability Act, 1957, is that an occupier of
    premises owes to his lawful visitors, i.e. the persons who come on the
    premises at his invitation or with his permission, the common duty of care;
    and that is a duty to take such care as in all the circumstances of the case
    is reasonable to see that the visitor will be reasonably safe in using the
    premises for the purposes for which he is invited or permitted to be there.


    24

    In my opinion, the occupier of premises does not owe any such duty to a
    trespasser: he does not owe to the trespasser a duty to take such care as in
    all the circumstances of the case is reasonable to see that the trespasser
    will be reasonably safe in using the premises for the purposes for which he is
    trespassing. That seems to me to be the fundamental distinction, and it
    should be fully preserved.

    It does not follow that the occupier never owes any duty to the trespasser.
    If the presence of the trespasser is known to or reasonably to be anticipated
    by the occupier, then the occupier has a duly to the trespasser, but it is a
    lower and less onerous duty than the one which the occupier owes to a
    lawful visitor. Very broadly stated, it is a duty to treat the trespasser with
    ordinary humanity. Bird v. Holbrook (1828) 2 Bing. 628, 641 ; Grand
    Trunk Railway Company of Canada
    v. Barnett [1911] A.C.(J.C) 361, 369;
    Latham v. Johnson [1913] 1 K.B. 398, 411. But that is a vague phrase.
    What is the content of the duty to treat the trespasser with ordinary
    humanity? The authoritative formulation of the duty, as given in Robert
    Acidic and Sons (Collieries) v. Dumbreck
    [1929] AC 358 is severely
    restrictive and is, I think, now inadequate. Subject to the difficulty created
    by that formulation, I think one can deduce from decided cases that,
    normally at any rate, the occupier is not at fault, he has done as much as
    is required of him, if he has taken reasonable steps to deter the trespasser
    from entering or remaining on the premises, or the part of the premises,
    in which he will encounter a dangerous situation. In simple language, it is
    normally sufficient for the occupier to make reasonable endeavours to keep
    out or chase off the potential or actual intruder who is likely to be or is
    in a dangerous situation. The erection and maintenance of suitable notice
    boards or fencing or both, or the giving of suitable oral warning, or a
    practice of chasing away trespassing children, will usually constitute reason-
    able endeavours for this purpose. Ilott v. Wilkes (1820) 2 B. and Ald. 304;
    Bird v. Holbrook (1828) 2 Bing 628; Morran v. Waddell (1883) 11 R.44;
    Ross v. Keith (1888) 16 R.56; Cooke v. Midland Great Western Railway
    [1909] A.C. 229 ; Lowery v. Walker [1911] AC 10, 13-14 ; Hardy v. Central
    London Railway Co.
    [19201 3 K.B. 459 C.A. ; Mourton v. Poulter [1930]
    2 K.B. 183 ; Excelsior Wire Rope Co. v. Callan [1930] A.C. 404; Edwards
    v. Railway Executive [1952] A.C. 737 at page 744 (where Lord Porter said:
    " In any case I cannot see that the respondents were under any obligation
    " to do more than keep their premises shut off by a fence which was duly
    " repaired when broken and obviously intended to keep intruders out.");
    Perry v. Thomas Wrigley [1955] 1 W.L.R. 1164; M'Glone v. British Rail-
    ways Board
    [1966] S.C. (H.L.)l. If the trespasser, in spite of the occupier's
    reasonable endeavours to deter him, insists on trespassing or continuing his
    trespass, he must take the condition of the land and the operations on the
    land as he finds them and cannot normally hold the occupier of the land
    or anyone but himself responsible for injuries resulting from the trespass,
    which is his own wrongdoing. But that statement is subject to this pro-
    viso: if the occupier knows or as good as knows that some emergency
    has arisen whereby the trespasser has been placed in a position of imminent
    peril, ordinary humanity requires further steps to be taken: the very obvious
    example is that, if the driver of a train sees a trespasser fallen on the line
    in front of him, he must try to stop the train. The variety of possible
    situations is so great that one cannot safely try to formulate for all cases
    what steps an occupier is required to take for the protection or rescue of
    a trespasser, but the decided cases show what is required in typical situations,
    and that I have endeavoured to summarise. In Commissioner for Rail-
    ways (N.S.W.)
    v. Cardy (1959-60) 104 C.L.R. 274 at page 286, Dixon C.J.
    said " The duty is measured by the nature of the danger or peril but it may,
    " according to circumstances, be sufficiently discharged by warning of the
    " danger, by taking steps to exclude the intruder or by removal or reduction
    " of the danger." In the case of the poisonous berries in the public park
    (Glasgow Corporation v. Taylor [1922] 2 A.C. 44) the simplest and cheapest
    and most effective way of protecting children who might be tempted to
    eat them would have been, not the erection of a fence or warning notices,
    but to dig up and remove the tree or shrub on which the poisonous berries


    25

    grew. But as an illustration of the duty to trespassers normally being suffi-
    ciently discharged by reasonable measures designed to exclude them from
    the situation of danger, I will cite a passage from the judgment of
    Windeyer J. in Munnings v. Hydro-Electric Commission (1971) 45 A.L.J.R.
    378 at page 389. He said " The duty of care that the Commission owed
    " to the plaintiff was not a duty to have its pole safe for trespassers. It
    " was a duty which arose from the very fact that it was dangerous to tres-
    " passers. High voltage electricity is a highly dangerous thing. To bring
    " such a dangerous thing to a locality frequented by members of the public
    " imposed a duty of care. That duty could be discharged by putting live
    " wires beyond easy reach and not enabling unauthorised persons to come
    " to them."

    There are several reasons why an occupier should not have imposed upon
    him onerous obligations to a trespasser—

    (1) There is the unpredictability of the possible trespasser both as to
    whether he will come on the land at all and also as to where he will go
    and what he will do if he does come on the land. I enlarged on this point
    in Videan v. British Transport Commission [1963] 2 Q.B. 650, 679, and I
    will only summarise it shortly here. As the trespasser's presence and move-
    ments are unpredictable, he is not within the zone of reasonable contempla-
    tion (Hay or Bourhill v. Young) and he is not a " neighbour " (Donoghue v.
    Stevenson) to the occupier, and the occupier cannot reasonably be required
    to take precautions for his safety. Occupiers are entitled to farm lands,
    operate quarries and factories, run express trains at full speed through
    stations, fell trees and fire shots without regard to the mere general possibility
    that there might happen to be in the vicinity a trespasser who might be
    injured. The occupiers do not have to cease or restrict their activities in
    view of that possibility, which is too remote to be taken into account and
    could not fairly be allowed to curtail their freedom of action.

    (2) Even when his presence is known or reasonably to be anticipated, so
    that he becomes a neighbour, the trespasser is rightly to be regarded as an
    under-privileged neighbour. The reason for this appears, I think, most
    clearly from a consideration of the analogous position of a lawful visitor who
    exceeds his authority, going outside the scope of his licence or permission.
    In Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. (1936] A.C. 65 at pages 69-70
    Lord Atkin said: " This duty to an invitee only extends so long as and so far
    " as the invitee is making what can reasonably be contemplated as an ordinary
    " and reasonable use of the premises by the invitee for the purposes for
    " which he has been invited. He is not invited to use any part of the premises
    " for purposes which he knows are wrongfully dangerous and constitute an
    " improper use. As Scrutton L.J. has pointedly said: 'When you invite a
    ' person into your house to use the staircase you do not invite him to slide
    " ' down the bannisters '. The Calgarth [1926] P. 93, 110. So far as he sets
    " foot on so much of the premises as lie outside the invitation or uses them
    " for purposes which are alien to the invitation he is not an invitee but a
    " trespasser, and his rights must be determined accordingly. In the present
    " case the stevedores knew that they ought not to use the covered hatch in
    " order to load cargo from it: for them for such a purpose it was out of
    " bounds. They were trespassers. The defendants had no reason to con-
    " template such a use; they had no duty to take any care that the hatch
    " when covered was safe for such a use; they had no duty to warn anyone
    " that it was not fit for such use."

    In Munnings and Another v. Hydro-Electric Commission (1971) 45
    Australian Law Journal Reports p. 378 at p. 382 Barwick C.J. said " Of
    " course in determining what ought to have been foreseen, as well as in
    " deciding what steps ought to have been taken or omitted in the particular
    " case, the right, or absence of right, of the injured person to have been at
    " the place where he was injured, or at the point from which his injuries
    " stemmed, would be material factors. Though the rigid categories of invitee,
    " licensee and trespasser may not be applicable as such, there must remain
    " a quantative element both in the extent of the foreseeability and of the


    26

    " reasonable steps required to fulfil any resultant duty arising from the
    " circumstances in which the injured person came upon the scene."

    1. It would in many, if not most, cases be impracticable to take effective
      steps to prevent (instead of merely endeavouring to deter) trespassers from
      going into or remaining in situations of danger. The cost of erecting and
      maintaining an impenetrable and unclimbable or, as it has been put, " boy-
      " proof" fence would be prohibitive, if it could be done at all. The cases
      of M'Glone v. British Railways Board (supra.), McCarthy v. Wellington City
      [1966] N.Z.L.R. 481 and Munnings and Another v. Hydro-Electric Com-
      mission
      (supra.) illustrate the agility, ingenuity and persistence of boy
      trespassers. As Lord Goddard said in Edwards v. Railway Executive [1952]
      A.C. 737 at p. 747, referring to the Railway Executive: "Had they to
      " provide watchmen to guard every place on the railways of the Southern
      " Region where children may and do get on to embankments and lines,
      " railway fares would be a great deal higher than they are already."

    2. There is also a moral aspect. Apart from trespasses which are
      inadvertent or more or less excusable, trespassing is a form of misbehaviour,
      showing lack of consideration for the rights of others. It would be unfair
      if trespassers could by their misbehaviour impose onerous obligations on
      others. One can take the case of a farmer. He may know well from past
      experience that persons are likely to trespass on his land for the purpose
      of tearing up his primroses and bluebells, or picking his mushrooms or
      stealing his turkeys, or for the purpose of taking country walks in the course
      of which they will tread down his grass and leave gates open and watch
      their dogs chasing the farmer's cattle and sheep. It would be intolerable
      if a farmer had to take expensive precautions for the protection of such
      persons in such activities.

    I have said that an occupier does not owe to a trespasser the " common
    " duty of care ", which is now the relevant statutory expression for the
    occupier's duty to lawful visitors. It can also be said that the occupier does
    not owe to the trespasser any general duty of care. This question was fully
    considered and decided in the case of Commissioner for Railways v. Quinlan
    [1964] AC 1054 J.C. The question was directly raised by the trial judge's
    directions to the jury. Viscount Radcliffe said at pp. 2069-70 "Their
    " Lordships think that there is no doubt that the jury must have received
    " the definite impression that the law that they were to apply to the facts
    " was that, once they thought that there was a ' likelihood ' of people
    " coming to the crossing and that the appellant was aware of such a likeli-
    " hood, the appellant owed a general duty to the respondent as ' a member

    ' of the public ' to take reasonable precautions to secure his safety, and
    " that this duty was not affected by the fact that the respondent was a
    " trespasser. In their Lordships' opinion this direction was not in accordance
    " with law .... The Court . . . had ordered a new trial, because in their
    " view the case, if re-tried, might show that the respondent, though a tres-
    " passer, was nevertheless entitled to claim from the appellant the duty of
    " general care and a liability in negligence for a breach of it: such a duty,
    " it was suggested, might be founded on a general principle derived from
    "the House of Lords' decision in Donoghue v. Stevenson [1932] AC 562.
    " Their Lordships think this view mistaken. They cannot see that there
    " is any general principle to be deduced from that decision which throws
    " any particular light upon the legal rights and duties that arise when a
    " trespasser is injured on a railway level crossing where he has no right
    " to be: more particularly, they consider that it is not correct in principle
    " to suppose that the mere fact that there was a likelihood, apparent to the
    " occupier, of a trespasser being present on the crossing at some time or
    " another is sufficient to impose upon the occupier any general duty of care
    " towards such a trespasser. The consequences of such a supposition would
    " be far-reaching indeed." I respectfully agree with that passage.

    Viscount Radcliffe also said, referring to what he described as "the
    " accepted formulation of the occupier's duty to a trespasser", that "What
    " is intended is an exclusive or comprehensive definition of the duty. Indeed
    " there would be no point in it if it were not. It follows then that so long


    27

    " as the relationship of occupier and trespasser is or continues to be a
    " relevant description of the relationship between the person who injures
    " or brings about injury and the person who is injured—an important quali-
    " fication—the occupier's duty is limited in the accepted terms."

    There is economy of doctrine, simplicity of principle, in having one
    exclusive and comprehensive formula defining the duty of occupier to
    trespasser. But the formula itself has created difficulties and aroused criti-
    cism, and I think it is not now adequate or defensible as applying to modern
    conditions. Before coming to the formula, I will attempt a summary of the
    principles so far dealt with.

    It seems to me that there is rational justification for the common law
    attitude towards trespassers, in so far as it has recognised that—

    1. in relation to an occupier the position of a trespasser is radically
      different from that of a lawful visitor;

    2. the unknown and merely possible trespasser is not a " neighbour "
      in the sense in which that word " neighbour" was used by Lord
      Atkin in Donoghue v. Stevenson, and the occupier owes to such a
      trespasser no duty to take precautions for his safety ; and

    3. if the presence of the trespasser is known to or reasonably to be
      anticipated by the occupier, then the occupier—

    (i) does not owe to the trespasser the common duty of care
    (which is the single statutory substitute for the different duties
    formerly owing to invitees and licensees);

    (ii) does not owe to the trespasser a general duty of care ; but

    (iii) does owe to the trespasser a lower and less onerous duty,
    which has been described as a duty to treat him with ordinary
    humanity.

    So far so good. In so far as those are the rules of the common law on this
    subject, they seem to be fully acceptable. The difficulty, however, arises
    from the narrow formulation of the duty to trespassers in Robert Addie &
    Sons (Collieries)
    v. Dumbreck
    [1929] AC 358. At page 365 Lord Hailsham
    L.C., after stating the duties of occupiers towards invitees and licensees,
    said: " Towards the trespasser the occupier has no duty to take reasonable
    " care for his protection or even to protect him from concealed danger.
    " The trespasser comes on to the premises at his own risk. An occupier
    " is in such a case liable only where the injury is due to some wilful act
    " involving something more than the absence of reasonable care. There
    " must be some act done with the deliberate intention of doing harm to
    " the trespasser, or at least some act done with reckless disregard of the
    " presence of the trespasser."

    Lord Dunedin said at pages 376-7: " In the present case, had the child
    " been a licensee I would have held the defenders liable: secus if the com-
    " plainer had been an adult. But if the person is a trespasser, then the
    " only duty the proprietor has towards him is not maliciously to injure
    " him: he may not shoot him ; he may not set a spring gun, for that is
    " just to arrange to shoot him without personally firing the shot. Other
    " illustrations of what he may not do might be found, but they all come
    " under the same head—injury either directly malicious or an acting so
    " reckless as to be tantamount to malicious acting."

    The formulation is too narrow and inadequate in at least three respects.

    First, it appears to hold the occupier liable only for positive acts and not
    in respect of omissions. Suppose that the occupier is running an electrified
    railway, with an exposed live rail, in the vicinity of a public playground,
    and that he has not provided any warning notice or fence to deter children
    from straying on to the railway, and in consequence a child strays on to
    the live rail and is seriously injured. Surely common sense and justice
    require that the occupier must be held liable in such a case for his non-
    feasance. I doubt, however, whether it was intended to confine liability to
    positive acts. Perhaps the words " act" and " acting " in Addie v. Dumbreck
    can be interpreted as including omissions.


    28

    Secondly, the formulation appears to say that the occupier has no duty
    to do anything for the protection of trespassers until there is a trespasser
    actually on the land and the occupier knows he is there. But again the case
    of a child straying on the live rail of an electrified railway shows that there
    must be a duty on the occupier to take some steps in advance to deter
    children from trespassing on the railway.

    Thirdly, the formulation makes the occupier liable only in respect of
    deliberate or reckless acts. I think the word " reckless " in the context does
    not mean grossly negligent but means that there must be a conscious disregard
    of the consequences—in effect deciding not to bother about the consequences.
    Thus a subjective, mental element, a sort of mens rea, is required as a
    condition of liability. Mere negligence would not be enough to create
    liability, according to this formulation. There would be no duty to take
    care, but only a duty to abstain from deliberately or recklessly causing injury.

    That is plainly inadequate.

    It must be conceded that Addie v. Dumbreck does not stand alone. There
    is other authority to the effect that a man trespasses at his own risk and
    must take the land as he finds it. Hamilton L.J. said in Latham v. Johnson
    [19131 1 K.B. 398 at page 411: " The rule as to trespassers is most recently
    " indicated in Lowery v. Walker and is stated and discussed in Grand Trunk
    " Railway of Canada v. Barnett. The owner of the property is under a duty
    " not to injure the trespasser wilfully: ' not to do a wilful act in reckless
    "' disregard of ordinary humanity towards him '; but otherwise a man
    " ' trespasses at his own risk '. On this point Scots law is the same. In
    " English and Scottish law alike, when people come on the lands of others
    " for their own purposes without right or invitation, they must take the lands
    " as they find them, and cannot throw any responsibility upon the person
    " upon whose lands they have trespassed: per Lord Kinnear, Devlin v.
    " Jeffray's Trustees." The rule was applied to child trespassers in Hardy v.
    Central London Railway Company [1920]1 3 K.B. 459 C.A.

    Nevertheless the rule was evidently found to be unsatisfactory in cases
    both before and after Addie v. Dumbreck (supra.) especially in cases where
    child trespassers were concerned. Where there had been frequent trespassing
    and no effective prevention of it, a licence was held to be implied, although
    there was no voluntary grant of permission. Instances are Cooke v. Midland
    Railway Co.
    [1909] A.C. 229; Lowery v. Walker [1911] AC 10; Excelsoir
    Wire Rope Co.
    v. Callan [1930] A.C. 404. In such cases the licence was a
    legal fiction by which the harsh rule of law was circumvented and, one may
    say, eroded. See per Lord Dunedin in Excelsior Wire Rope v. Callan (supra.)
    at page 411 and per Lord Denning in Miller v. South of Scotland Electricity
    Board
    1958 S.C. (H.L.) 20; and in Videan's case (supra.) at page 663. As
    Dixon C.J. pointed out in Commissioner for Railways (N.S.W.) v. Cardy
    (1959-60) 104 C.L.R. 274, 285, that is how the common law develops. See
    also Quinlan's case [1964] AC 1054, 1083-4. Also in more recent times
    there has been another development or attempted development of the law
    to circumvent the harsh rule in Addie v. Dumbreck. Distinctions have been
    made (a) between the liability of the occupier and the liability of other persons
    who carry out active operations on the land ; (b) between the liability of
    the occupier qua occupier and his liability qua operator himself carrying
    out active operations on the land. The theory is that, whereas the occupier
    qua occupier has a large measure of exemption from liability in respect of
    the static condition of the land, the occupier or any other person carrying
    out active operations on the land has the full duty of care even towards
    a trespasser under the "neighbour" principle of Donoghue v. Stevenson
    (supra.). Per Lord Denning in Miller's case (supra.); Dunster v. Abbott
    [1953] 2 All E.R. 1572, 1574 and Videan's case (supra.) at page 664. See
    also Buckland v. Guildford [1949] 1 K.B. 410, Davis v. St. Mary's Demolition
    Co. Ltd.
    [1954] 1 W.L.R. 592 and Creed v. McGeogh [1955] 1 W.L.R. 1005.
    Reservations or doubts about this theory were expressed in Miller's case
    (supra.) at pages 35 and 36, in Perry v. Thomas Wrigley (supra.) at page 1166
    and in Videan's case (supra.) at page 678. In so far as the theory has gained


    29

    acceptance, it constitutes another circumvention and erosion of the rule in
    Addie v. Dumbreck.

    I should, however, make it plain that I do not accept the theory. I doubt
    whether there is any major distinction for the present purpose (i) between
    the static condition of the land and active operations on the land (ii)
    between the occupier and other persons (such as his servants or agents or
    independent contractors or employees of public authorities) lawfully carry-
    ing out operations on the land and having control of the operations and
    perhaps of the land as well for the time being (iii) between trespass on land
    and trespass on installations or railway vehicles. Occupation is associated
    with control and is a ground of liability, not of exemption from liability.
    The trespasser's movements are unpredictable and he goes into places where
    he has no business to be and imposes his unwanted presence: these con-
    siderations affect what can reasonably be required not only in the case of
    the occupier but also in the case of such other persons.

    It seems to me that the rule in Addie v. Dumbreck has been rendered
    obsolete by changes in physical and social conditions and has become an
    incumbrance impeding the proper development of the law. With the in-
    crease of the population and the larger proportion living in cities and towns
    and the extensive substitution of blocks of flats for rows of houses with
    gardens or back yards and quiet streets, there is less playing space for
    children and so a greater temptation to trespass. There is less supervision
    of children, so that they are more likely to trespass. Also with the progress
    of technology there are more and greater dangers for them to encounter by
    reason of the increased use of, for instance, electricity, gas, fast-moving
    vehicles, heavy machinery and poisonous chemicals. There is considerably
    more need than there used to be for occupiers to take reasonable steps with
    a view to deterring persons, especially children, from trespassing in places
    that are dangerous for them.

    In my opinion the Addie v. Dumbreck formulation of the duly of occupier
    to trespasser is plainly inadequate for modern conditions, and its rigid and
    restrictive character has impeded the proper development of the common
    law in this field. It has become an anomaly and should be discarded. But
    in my opinion the duty of occupier to trespasser should remain limited in
    the ways that I have endeavoured to indicate.

    I need not lengthen this already long opinion by describing again the
    facts of the present case which have been described by my noble and
    learned friends. The Railway Board in the circumstances had a duty to
    take reasonable steps to deter children from straying from the public space
    on to the electrified railway line. Obviously, reasonable steps for this pur-
    pose included proper maintenance of the fence. But the Railways Board
    tailed to repair the broken down fence even after they had been notified
    that children had been seen on the line. There was a clear breach of the
    duty.

    I would dismiss the appeal.

    Lord Diplock

    my lords,

    In a heavily populated suburban area of London there are two public
    open spaces in which children of all ages are accustomed to play. Between
    them runs a line of the Appellants' railway equipped with live electric rail
    which would cause serious injury or even death to anyone who came into
    contact with it. Its dangerous character would not be appreciated by little
    children. It is within a few yards of the boundary between the railway and
    one of the open spaces—Bunce's Meadow. Along the boundary is a chain-
    link fence four feet high. But at one point, approached by a well-trodden
    path across the meadow it had, for several weeks before 7th June, 1965,
    been pressed down to a height of no more than ten inches from the ground
    It presented no obstacle to access to the live rail by children too young to


    30

    appreciate the danger. On 7th June, 1965, the Respondent, a child aged
    six years, crossed the fence at this point, came into contact with the live rail
    and sustained very serious injuries.

    If the facts as to the use of the meadow and the condition of the fence
    which I have just recited were known to those responsible for running
    the railway, I believe that anyone endowed with common humanity would
    say that the common law ought to afford to the injured child a legal right
    to compensation against the railway authorities ; and that if it did not
    there was something wrong with the common law.

    The Appellants, who are a public corporation, elected to call no witnesses,
    thus depriving the court of any positive evidence as to whether the condition
    of the fence and the adjacent terrain had been noticed by any particular
    servant of theirs or as to what he or any other of their servants either
    thought or did about it. This is a legitimate tactical move under our
    adversarial system of litigation. But a defendant who adopts it cannot
    complain if the court draws from the facts which have been disclosed all
    reasonable inferences as to what are the facts which the defendant has chosen
    to withhold.

    A court may lake judicial notice that railway lines are regularly patrolled
    by linesmen and gangers. In the absence of evidence to the contrary, it is
    entitled to infer that one or more of them in the course of several weeks
    noticed what was plain for all to see. Anyone of common sense would
    realise the danger that the state of the fence so close to the live rail created
    for little children coming to the meadow to play. As the Appellants elected
    to call none of the persons who patrolled the line there is nothing to rebut
    the inference that they did not lack the common sense to realise the danger.
    A court is accordingly entitled to infer from the inaction of the Appellants
    that one or more of their employees decided to allow the risk to continue
    of some child crossing the boundary and being injured or killed by the
    live rail rather than to incur the trivial trouble and expense of repairing
    the gap in the fence.

    Even if these inferences are drawn, it is the submission of the Appellants
    that the common law affords no remedy to the injured. Such is said to be
    the ineluctable consequence of the decision of this House over forty years
    ago in Addie v. Dumbreck (
    [1929] AC 358) and, in particular, is said to
    follow from the lapidary statement in the speech of Viscount Hailsham—

    " Towards the trespasser the occupier has no duty to take reasonable
    " care for his protection or even to protect him from concealed danger.
    " The trespasser comes on to the premises at his own risk. An
    " occupier is in such a case liable only where the injury is due to some
    " wilful act involving something more than the absence of reasonable
    " care. There must be some act done with the deliberate intention of
    " doing harm to the trespasser, or at least some act done with reckless
    " disregard of the presence of the trespasser."

    Addie v. Dumbreck was a case of trespass by a child aged four and a half
    years. It was decided in the year that I started to read for the Bar. Even
    at that time it offended against what Lord Atkin, only three years later, was
    to call " a general public sentiment of moral wrongdoing for which the
    "offender must pay," Donoghue v. Stevenson ([1932] AC 562 at p. 580)
    I well recall the disappointment with which it was received by those who
    thought that previous cases in this House had shown the common law as
    moving towards a less draconian treatment of those who trespassed innocently
    upon other people's land.

    If the facts in the instant appeal are compared with those in Addie v.
    Dumbreck as stated by the Lord Chancellor (pp. 359-60) I do not think it
    possible to say that, judged by current standards of behaviour, the conduct
    of those engaged in operating the appellants' railway in the instant case
    was any more blameworthy than the conduct of those engaged in running
    the colliery of the successful appellant in Addie v. Dumbreck Yet all nine
    judges who have been concerned with the instant case in its various stages
    are convinced that the plaintiff's claim ought to succeed; and, if I may
    be permitted to be candid, are determined that it shall. The problem of


    31

    judicial technique is how best to surmount or to circumvent the obstacle
    presented by the speeches of the Lord Chancellor and Viscount Dunedin
    in Addie v. Dumbreck, and the way in which those speeches were dealt with
    in the Privy Council in the comparatively recent Australian appeal of
    Commissioner of Railways v. Quinlan ([1964] AC 1054).

    By the time that Addie v. Dumbreck was decided the law as to an occu-
    pier's duty towards trespassers had made some advance since Best CJ. in
    Bird v. Holbrook ([1828] 4 Bing. 628) had laid it down that an occupier
    was not entitled intentionally and maliciously to injure a trespasser. For
    present purposes the significance of that case, which arose out of setting
    of spring guns to injure trespassers, is two-fold. First, it is recognised that
    the duty, whatever its content, was owned by the occupier to an unknown
    but expected trespasser as well as to a trespasser actually known to the
    occupier to be trespassing on his land. Secondly, Best C.J. based the duty
    upon its being the object of English law to uphold humanity. This expression
    found its echo in Lord Robson's reference in Grand Trunk Railway v.
    Burnett
    ([1911] AC 361 at p. 370) to "a wilful or reckless disregard of
    ordinary humanity, which was adopted by Lord Sumner, then Hamilton
    L.J., as the definition of the duty of an occupier to a trespasser, in his
    judgment in Latham v. R. Johnson & Nephew Ltd. ([I913] 1 K.B. 398 at
    p. 341)—a judgment which was expressly approved by both the Lord
    Chancellor and Viscount Dunedin in Addie v. Dumbreck.

    But attention had been diverted from the development of the content of
    an occupier's duty towards trespassers by the adoption of the technique of
    re-classifying as " licensees" persons whom the occupier had not made
    sufficiently effective efforts to exclude from his land, so as to give them the
    benefit of the ready-made duty of care for their safety owed at common
    law by an occupier to those who, in reality, entered upon his land by his
    permission and not against his will. This technique had been accepted
    without adverse comment in cases in this House itself. Cooke v. Midland
    (Great Western Railway of Ireland
    ([1909] A.C. 229) and Lowery v. Walker
    ([1911] AC 10) are noteworthy examples. The resulting duty may be
    briefly summarised as a duty to take reasonable steps to enable the licensee
    to avoid a danger known to the occupier.

    In Addie v. Dumbreck the First Division of the Court of Session had
    departed from this technique and sought to recognise as a separate category
    of persons to whom a duty was owed, members of a class whom the occupier
    knew to be in the habit of resorting to his land without his permission. The
    majority had held that such trespassers the occupier owed a duty to take
    reasonable steps to deter their intrusion if it was likely to result in serious
    injury to them. The decision of this House in Addie v. Dumbreck was
    primarily directed to asserting the propositions: that persons present upon
    an occupier's land could be assigned to one of three mutually exclusive
    categories only, viz. invitees, licensees and trespassers : that there was no
    sub-division of the category of trespassers ; and that the duty owed by an
    occupier to a person on his land was determined solely by the category into
    which that person fell. In order to decide the appeal, however, it was also
    necessary to state the content of the duty towards trespassers—the category
    into which it was held that the respondent fell—in order to determine whether
    the appellant was in breach of it. This the Lord Chancellor did in the passage
    that I have cited.

    In Addie v. Dumbreck the child had not been found by the Court of
    Session to be a licensee. The decision of this House did not therefore directly
    impugn the technique of inferring the tacit permission of the occupier to an
    intruder's presence on his land from his failure to take effective steps to
    manifest to the intruder his objection to it. Indeed Addie v. Dumbreck
    appeared to confirm this as the only way of mitigating the lot of meritorious
    trespassers; though the actual decision on the facts showed a greater
    reluctance to make use of it than had been evinced by the members of this
    House who had decided Lowery v. Walker.

    The technique accordingly continued to be used. Appellate courts con-
    fined themselves to preventing what was felt to be its misuse—as this House

    32

    did in Edwards v. Railway Executive ([1952] A.C. 787). Lord Porter there
    refers to it in terms as " the doctrine of implied licence " and says that " where
    " the owner (sc. occupier) of the premises knows that the public or some
    " portion of it is accustomed to trespass over his land he must take steps
    " to show that he resents and will try to prevent the invasion " if he is to
    avoid the implication. Lord Goddard, with whose speech my noble and
    learned friend Lord Reid agreed, based the implied licence on estoppel:
    the occupier must have " so conducted himself that he cannot be heard
    " to say that he did not give it" (sc. permission to go upon his land), Lord
    Oaksey said " The circumstances must be such that the suggested licensee
    " could have thought and did think that he was not trespassing but was on
    " the property in question with the leave and licence of the owner ".

    It is implicit in each of these statements that even when there is no real
    consent by the occupier to a person's entry on his land, there may be circum-
    stances in which a mere failure to take reasonable steps to deter entry will
    confer upon a person entering, the same common law rights as respects his
    personal safety as if he had been the occupier's licensee.

    That the " licence " treated as having been granted in such cases was a
    legal fiction employed to justify extending to meritorious trespassers, particu-
    larly if they were children, the benefit of the duty which at common law an
    occupier owed to his licensees, was explicitly acknowledged by Dixon C.J.
    in Commissioner for Railways v. Cardy ([I960] 104 C.L.R. 274). What he
    said on this topic was approved by the Privy Council in Quinlan v. Com-
    missioner for Railways
    (1964 AC 1054 at p. 1083) who added "those
    " conceptions of licence or "permission . . . are virtually without meaning
    " at any rate as applied to children ". The facts in Lowery v. Walker
    (ubi. sup.) stated at the beginning of the report show that in the case of adults
    the so-called " licence '' could be equally fictitious.

    By use of the fiction of a " licence " to persons who would otherwise
    be trespassers the courts were enabled to recognise that there were circum-
    stances which imposed upon an occupier a duty either (a) to take reasonable
    steps to deter such persons from entering upon a part of his land where he
    knew they would be exposed to serious risk of personal injury ; or, if he
    did not do so, (b) to take reasonable steps to enable them to avoid the
    danger. Breach of the former duty entitled them to the status of
    " licensees " ; the acquisition of that status entitled them to the benefit of
    the latter duty. Once the circumstances which impose these duties have
    been identified in a sufficient number of cases to form a body of precedent
    upon their own. the fiction has served its purpose in the development of
    the common law and is ripe for discard. The misfortune of Addie \.
    Dumbreck
    was that the majority of the Court of Session tried to discard
    the fiction before the time was ripe to do so. The need to retain it persisted
    so long as it continued to be accepted doctrine that a duty to regulate
    one's conduct towards one's neighbour so as to reduce the risk of injuring
    him, could only arise if there were some pre-existing legal relationships
    between the parties which fell within some category already recognised
    at common law. This obstacle to the rational development of: an occu-
    pier's duty towards trespassers was penetrated by the decision of this House
    in Donoghue v. Stevenson ([1932] AC 562) and broken down by Bourhill
    v. Young ([1943] AC 92). The significance of these two cases for present
    purposes is not the content of the duty there discussed but the recognition
    that conduct likely to cause injury to another person could in itself create
    the legal relationship between the parties to which the duty attached.

    It is surely time now for this House to follow the example of Dixon C.J.
    and of the Privy Council in Quinlan's case and to discard the fiction of a
    " licence " to meritorious trespassers. Once the conduct of the occupier is
    recognised as being capable in itself of creating a legal relationship to
    another person which attracts duties owed to that person in respect of his
    safety, it is no longer necessary in cases where that conduct attracts a duty
    to take reasonable steps to deter another person from entering a dangerous
    part of the occupier's land, to sub-divide his duties to that person into a
    duty to deter his entry, a breach of which gives rise to a subsequent duty
    to take reasonable steps to enable him to avoid the danger. To deter his


    33

    entry to merely one way of enabling him to avoid the danger. The
    whole duty can be described as a duty to take reasonable steps to enable
    him to avoid the danger.

    My Lords, this approach clearly runs counter to that of this House in
    Addie v. Dumbreck. It rejects categorisation of the injured person as a
    trespasser or licensee as the source of any duty owed to him by the occupier
    to take steps for his safety and looks instead to the conduct of the occupier
    as creating the relevant relationship. Addie v. Dumbreck asserts the neces-
    sity for such categorisation; but by leaving intact the technique of inferring
    a licence by the occupier to a person to whose presence on his land he does
    not really consent, it transfers from the category of trespassers to that of
    licensees persons who for the purposes of all other incidents of the legal
    relationship between them and the occupier, except his duty to take steps
    for their safety, would remain in the category of trespassers. But, as each
    of the previous citations from the speeches in Edward's case confirms, the
    criteria for eligibility for transfer from one category to the other depended
    upon the conduct of the occupier. So, even upon this approach, the inquiry
    necessarily started with an examination of the occupier's conduct before
    the person subsequently injured enters upon his land. These criteria were
    not defined or analysed in the speeches in this House in Addie v. Dumbreck.
    It simply held that the particular facts found in that case did not justify
    treating the trespassing child as if she were a licensee.

    My Lords, this House has since 1966 abandoned its former practice of
    adhering rigidly to the ratio decidendi of its previous decisions. There is
    no longer any need to discuss whether to discard the fiction of a so-called
    " licence" to enter granted by the occupier of land to the person who
    suffers personal injury on it, should be characterised as over-ruling Addie
    v. Dumbreck or as doing no more than explaining its reasoning in terms
    which are in harmony with the general development of legal concepts since
    1929 as to the source of one man's duty to take steps for the safety of
    another. For my part I would reject the fiction and direct attention to
    the kind of conduct of an occupier of land which attracts the duty to take
    reasonable steps to enable a person who enters on his land without his actual
    consent, to avoid a danger of which the occupier knows.

    1 come now to Quinlan's case. Owing to the way in which it had pro-
    ceeded in the courts of New South Wales, no question arose in the Privy
    Council as to the status of Mr. Quinlan as a " trespasser " upon the level
    crossing where he was injured- The judgment of the Board was mainly
    directed to rejecting the proposition that there were circumstances in which
    a person entitled only to the status of " trespasser " might be owed by the
    occupier upon whose land he was trespassing the common duty of care
    laid down in Donoghue v. Stevenson—which was higher duty than that
    which is owed by an occupier of land to his licensees in Australia where
    the common law has not been replaced by statutory provisions such as those
    to be found in the English Occupier's Liability Act. 1957. In the course
    of examining three recent decisions of the High Court of Australia on which
    the rejected proposition was said to be based, the Privy Council expressly
    approved the actual decision in Cardy's case upon the ground that " the
    " circumstances seemed to place the case squarely among those ' children's

    " cases' in which an occupier who had placed a dangerous ' allurement' on
    " his land is liable for injury caused by it to a straying child ". It was in
    the context of such cases that the Privy Council recognised the unreality
    of the "licence" to the straying child. But although recognising the
    " licence " as a fiction, they accepted the correctness of the conclusions as to
    the legal consequences of the conduct of the occupier which had hitherto
    previously been accepted as constituting an implied " licence " to the person
    trespassing and so entitling him to the benefit of the higher duty owed by
    an occupier to take steps for the safety of his licensees.

    My Lords, Quinlan's case is authority for the proposition that an occupier
    does not owe to a person who is unlawfully upon his land the common duty
    of care and foresight as respects dangerous activities which he carries out
    there, that he owes to persons who are lawfully present there, as was the


    34

    successful plaintiff in the contrasting Australian level-crossing case (Com-
    missioner of Railways v. McDermott
    [1967] AC 169) which came to the
    Privy Council a few years later.

    I have no quarrel with Quinlan's case as an authority for this proposition.
    What I regard as defective in its reasoning is that, although it is recognised
    that, in the case of children at any rate, their categorisation as " licensees "
    instead of " trespassers " was a mere legal fiction, it failed to recognise that
    it was a necessary corollary that " the general formula as laid down in
    " Addie's case" was not, as had been stated earlier in the Judgment, "an
    " exclusive or comprehensive " statement of the duty owed by an occupier
    to those who entered on his land, otherwise than in the exercise of a legal
    right or with his actual consent.

    But although the Addie test (there must be some act done with the
    deliberate intention of doing harm to the trespasser or at least some act done
    with reckless disregard of the presence of the trespasser) was accepted as
    being exclusive or comprehensive, the Privy Council went on to say " That
    " formula may embrace an extensive and, it may be, an expansive inter-
    " pretation of what is wanton or reckless conduct towards a trespasser in
    " any given situation and in the case of children it will not preclude full
    " weight being given to any reckless lack of care in allowing things naturally
    " dangerous to them to be accessible in their vicinity ".

    A formula which is both exclusive and expansive seems to me, as a matter
    of linguistics, to be a contradiction in terms. For my part I would not
    follow the alternative route thus hinted at by which an amelioration of the
    law in favour of meritorious trespassers might be attained. I think it prefer-
    able to seek to identify the underlying principles which had been tacitly
    accepted in Addie v. Dumbreck as justifying exclusion from the category of
    intruders to whom the Addie test applies, those persons to whom judges
    have hitherto managed to ascribe the status of licensee without acknowledging
    the fictitious character of their imputed " licence " from the occupier.

    Any duty imposed by common law upon one person to take steps to
    avoid harming another arises out of some relationship recognised by the
    common law as subsisting between the two persons. Where the harm to be
    avoided is personal injury a necessary characteristic of the relationship is
    one of physical proximity between the person to whom the duty is owed
    and the person by whom the duty is owed or some thing whose dangerous
    condition that person has played a part in creating or continuing. Where
    the dangerous thing is situate upon land in private occupation and is
    dangerous only to persons who come on to the land, the necessary charac-
    teristic of proximity between the occupier of the land and a person who
    sustains harm from the dangerous thing is created by that person's own act
    in coming on to the land.

    There is thus a relevant distinction between a person who is lawfully
    upon the occupier's land with the occupier's consent and a trespasser. In
    the case of the former the occupier has consented to the creation of the
    relationship from which the duty flows; in the case of the trespasser the
    relationship has been forced upon the occupier against his will and as the
    result of a legal wrong inflicted on him by the trespasser himself.

    This distinction, as it seems to me, supplies the jurisprudential basis for
    the proposition, implicit in the Scots cases about fencing land against tres-
    passers, which were cited with the approval by Viscount Dunedin in Addie
    v. Dumbreck (ubi. sup. at pp. 374-6), and explicit in Quinlan's case (ubi.
    sup. at p. 1076), that the occupier is not under any duty to take any pre-
    cautions in advance to acquaint himself as to the likelihood or otherwise
    of trespassers coming on to any part of his land. He is entitled to assume
    that persons will not inflict a wrong upon him unless he has actual knowledge
    of the likelihood that they will do so. It would be an unjustifiable burden
    for the law to impose upon an occupier for the benefit of wrongdoers, a
    duty to make inspections and inquiries in order to ascertain whether or
    not trespassers were likely to come on to his land. So in the ordinary case
    of a person to whom the occupier has not given permission to come upon
    his land, keeping the danger within the boundaries of his own land is itself


    35

    a fulfilment of any duty he may owe to such a person to take reasonable
    steps to enable him to avoid such danger. The test of whether an occupier
    is under any duty to a trespasser to do more than to keep the danger within
    the boundaries of his land is whether he is actually aware of facts which
    make it likely that some trespasser will come on to that part of his land
    where the danger is. It is not what the occupier would have been aware
    of if he had exercised more diligence or foresight than he did.

    My Lords, the degree of expectation that a trespasser will come upon
    his land that is sufficient to impose upon him a duty to take any additional
    steps to enable such a trespasser to avoid the danger and whether there are
    any elements in it which require recourse to the standards of a reasonable
    man, can best be discussed after considering what is the content of that duty
    when it arises.

    The duty at common law owed by an occupier to a licensee as it was
    explained a hundred years ago by Willis J. in the two leading cases of
    Indermaur v. Dames (L.R. 1 C.P. 274) and Gautret v. Egerton (L.R. 2
    C.P. 371) was restricted to a duty to warn the licensee of traps or concealed
    dangers actually known to the occupier but not to the licensee. What
    constituted an adequate warning depended on the circumstances, including
    the age and understanding of the licensee. Since the licensee, unlike the
    invitee, came on to the premises for his own purposes it was his own
    responsibility to avoid dangers of which he knew or could have known by
    the exercise of reasonable care himself. It is for this reason that I have
    summarised the duty as a duty to take reasonable steps to enable a licensee
    to avoid a danger known by the occupier to exist upon his land.

    The result of the technique of imputing a " licence " to trespassers of a
    class whom the occupier knew were in the habit of coming on to his land
    was to extend to them the benefit of this duty. In contrast to the common
    law duty owed by an occupier to an invitee the test of a breach of the duty
    was in modern legal parlance " subjective " rather than " objective ". The
    duty to warn extended to concealed dangers of which the occupier actually
    knew and not to those of which he did not know, although he would have
    done if he had exercised more diligence in inspecting his land than he did.

    This " subjective " duty was owed by an occupier to licensees of whose
    actual presence on the land and consequent exposure to danger he was
    unaware but ought to have foreseen because he had given them permission
    to go there. As respects licensees of whose presence and exposure to danger
    he was actually aware the content of his duty as I have summarised it differs
    very little in substance from Viscount Hailsham's description in Addie v.
    Dumbreck of conduct of an occupier which renders him liable to a trespasser
    heaving aside intentional injury. He stated the occupier's duty to a trespasser
    whom he knew to be present, in the negative form of a duty to refrain
    from doing an act " with reckless disregard of the presence of the trespasser ",
    whereas I have summarised the occupier's duty to a trespasser whom he
    knows to be exposed to danger, in the positive form of a duty to take
    reasonable steps to enable the trespasser to avoid the danger. But positive
    and negative descriptions of duties of this kind may be ways of describing
    the two sides of the same coin. In the passage immediately before that
    which I have quoted Viscount Hailsham had stated the occupier's duty to
    his licensee in the negative form: " He is bound not to create a trap or to
    " allow a concealed danger to exist upon the said premises which is known—
    " or ought to be known—to the occupier "—though the inclusion of the
    words " or ought to be known " does, I think, overstate the accepted definition
    of the common law duty to licensees.

    It is possible to conceive of circumstances where the concealed danger
    is due to the natural condition of the land, but all the actual cases in the
    books are about man-made dangers and it is to these that the language of
    the judgments is directed. Man-made danger may be the result of an act
    done while the trespasser is actually present on the land, as was the case in
    Addie v. Dumbreck itself, or an act done before the trespasser came on to
    the land. It can hardly be supposed that Viscount Hailsham intended to
    draw a distinction between the liability of the occupier for setting the haulage


    36

    machinery in motion when the child was known to be close to the pulley
    wheel and allowing it to continue in motion after the child was known to
    have approached the wheel. In either case his conduct would manifest
    " a reckless diregard of ordinary humanity ". In the context of recklessness
    of conduct there is no rational distinction between activity and inactivity.

    The practical effect of the technique of imputing a " licence " to trespassers
    of whose actual presence on the land the occupier was not aware was thus
    to put them in the same position vis-a-vis the occupier as if he had actually
    known of their presence and consequent exposure to a concealed danger of
    which he had actual knowledge.

    Actual knowledge of a concealed danger, however, may involve two
    different mental elements: actual knowledge of an activity carried out upon
    the land or of its physical condition, which constitutes a concealed danger
    to a person on the land ; and actual appreciation that the known activity
    or condition does constitute a concealed danger. The relevance of this
    analysis, particularly in cases in which any activities on the land are carried
    out by servants of the occupier for whose fault he is vicariously liable, does
    not appear to have been appreciated until comparatively recently, when
    the current vogue for classifying the tests of legal duties as either " subjective "
    or " objective " made it desirable to identify who the relevant " subject"
    was. It played no part in judicial reasoning at the time of Addie v.
    Dumbreck. The possibility of drawing a distinction between knowledge of
    physical facts and appreciation of danger was first suggested in argument in
    Baker v. Bethnal Green Borough Council ([1945] 1 All E.R. 135). It was
    eventually accepted by the Court of Appeal in Hawkins v. Purley and
    Coulsdon U.D.C.
    ([1954] 1 Q.B. 349) in order to impose upon a corporation
    as occupier liability based upon the actual knowledge of the physical facts
    from which the danger arose. It was held that although the test of knowledge
    of the physical facts which constituted the concealed danger was subjective
    (did the occupier either personally or vicariously by his servants actually
    know them?), the lest of appreciation of the danger resulting from the
    known facts was objective (would a reasonable man possessed of that
    knowledge of the physical facts appreciate the danger?).

    If this can be characterised as an enlargement rather than a mere explana-
    tion by judicial decision of an occupier's duty to his licensees it was a
    development which had taken place before the Occupiers Liability Act, 1957,
    had substituted a statutory duty of care for the common law duty previously
    owed to licensees. That Act did not touch the occupier's duty to trespassers
    at common law. It left it to continue to be developed by judicial decision.
    Actual knowledge of concealed danger is a factor common to the duty
    previously owed at common law by an occupier to his licensees and to the
    duty still owed by an occupier to trespassers.

    There is, in any event, a certain artificiality in ascribing an appreciation
    of risk to a fictitious person, a corporation—as this defendant is and as
    nowadays most defendants are. Knowledge of facts calls for the use of eyes
    and ears ; and these a corporation has through its employees, even the
    humblest. If any of them learns of the facts, in the course of his employment
    his knowledge is the knowledge of the corporation. But appreciation of
    risk of danger calls for the exercise of intelligent judgment; and it is the
    judgment of the corporation itself which is relevant. What human minds are
    to be treated as those of the corporation for the purpose of exercising that
    judgment? To take an example of what may have been the facts of the
    present case if the Appellants had chosen to disclose them. The linesman
    when he saw the broken fence may have appreciated the risk of danger
    to trespassing children but have failed to report the state of the fence out of
    laziness or forgetfulness. Or, whether or not he himself appreciated the risk,
    he may have reported the state of the fence in terms which did not draw the
    attention of the recipient of his report to the danger involved. Or the
    recipient may himself have appreciated the risk but to save himself trouble
    decided to do nothing about it. And so on up the chain of responsibility
    to the employee of the corporation endowed with authority to order the


    37

    fence to be repaired. Is appreciation of the risk by any one employee in
    this chain to be treated as appreciation of risk by the corporation itself?

    One possible solution in the case of a corporation is to apply the objective
    standard of the reasonable man. by attributing to the fictitious person, the
    fictitious mind and judgment of a reasonable man. It would, however, be
    more consistent with the way in which English law develops, to apply to
    " actual knowledge of a danger " as a factor in the duty of an occupier to
    trespassers the same analysis as was adopted in relation to the occupier's
    duty at common law to his licensees. This avoids differentiating between
    the real and the fictitious person as occupier and solves the metaphysical
    difficulties of ascribing to the latter an actual appreciation of the risk. To
    see the danger signal yet not to take the trouble to give some thought to it is
    conduct which the law ought to condemn.

    My Lords, I conclude therefore that there is no duty owed by an occupier
    to any trespasser unless he actually knows of the physical facts in relation
    to the state of his land or some activity carried out upon it. which constitute
    a serious danger to persons on the land who are unaware of those facts.
    He is under no duty to any trespasser to make inspections or inquiries to
    ascertain whether there is any such danger. Where he does know of physical
    facts which a reasonable man would appreciate involved danger of serious
    injury to the trespasser his duty is to take reasonable steps to enable the
    trespasser to avoid the danger. What constitute reasonable steps will depend
    upon the kind of trespasser to whom the duty is owed. If the duty owed
    to small children too young to understand a warning notice the duty may
    require the provision of an obstacle to their approach to the danger sufficiently
    difficult to surmount as to make it clear to the youngest unaccompanied
    child likely to approach the danger, that beyond the obstacle is forbidden
    territory.

    Such being, as I would hold, the content of the occupier's duty to a
    trespasser, I return to the consideration of the class of trespassers to whom
    the duty is owed and, in particular, to the degree of expectation on the
    part of the occupier that the trespassers will come on to his land which, in
    the absence of actual knowledge of his presence, is sufficient to give rise to
    the duty. It is a problem which does not arise in the case of licensees to
    whom he has given permission to come there.

    In Quinlan's case a variety of expressions were used to describe the
    necessary degree of expectation. The occupier must " as good as know "
    that the trespasser is present at the time of the injury. His presence must
    be fairly described as " extremely likely " or " very probable ". I do not
    find these latter phrases helpful save as a warning that the presence of
    trespassers being unpredictable as compared with that of licensees, this un-
    predictability must not be allowed to impose upon the occupier a duty
    to give his mind to all the possible circumstances in which a trespasser
    might come on to his land. If this branch of the law is based upon
    " ordinary humanity " it would seem evident that there must be a relation-
    ship between the degree of expectation and the degree of danger. In the
    case of a minefield, as in Adams v. Naylor ([1944] 1 K.B. 750), or a live
    electric rail, an ordinarily humane man would regard it as incumbent upon
    him to take precautions to protect intruders against the mortal danger which
    these objects present although the likelihood of there being intruders was
    much less than that which would cause him to take precautions to protect
    intruders against more innocuous perils. Furthermore, the relevant likeli-
    hood is that of the trespasser's presence at the place and time of danger.
    If the danger is created by an occasional or intermittent activity upon the
    land, such as putting machines or vehicles in motion, the test of the creation
    of the occupier's liability to the injured trespasser is his expectation of a
    trespasser's presence at the point of danger at that moment of activity.
    Whereas if the danger lies in some permanent condition of the land, such
    as a live rail, the test is his expectation of some trespasser's presence at
    the point of danger at any time while that condition continues to exist.
    Thirdly, in the case of children, the degree of attractiveness to children of


    38

    something present on the land, is relevant to the occupier's expectation that
    child trespassers will come on to his land and will approach the point of
    danger, as well as being relevant to the kind of precaution he must take to
    protect them from the danger.

    My Lords, an occupier's expectation of a trespasser's presence, like his
    knowledge of a concealed danger, also involves two mental elements: actual
    knowledge of physical facts which indicate that trespassers are likely to
    come on to the land; and appreciation of the resulting likelihood. For
    reasons similar to those which I have indicated I think that, as the law has
    now developed, the test of appreciation of the likelihood of trespass is
    whether a reasonable man knowing only the physical facts which the occupier
    actually knew, would appreciate that a trespasser's presence at the point and
    time of danger was so likely that in all the circumstances it would be
    inhumane not to give to him effective warning of the danger or, in the case
    of a child too young to understand a warning, not to take steps to convey
    to his infant intelligence that he must keep away. I do not think that a
    judge or jury would find any difficulty in applying this test.

    I would then seek to summarise the characteristics of an occupier's duty
    to trespassers on his land which distinguishes it from the statutory " common
    " duty of care " owed to persons lawfully on his land under the Occupier's
    Liability Act, 1957, and from the common law duty of care owed by one
    man to his "neighbour", in the Atkinian sense, where the relationship
    of occupier and trespasser does not subsist between them. To do so does
    involve rejecting Viscount Hailsham's formulation of the duty in Addie v.
    Dumbreck as amounting to an exclusive or comprehensive statement of it
    as it exists today. It takes account, as this House as the final expositor
    of the common law should always do, of changes in social attitudes and
    circumstances and gives effect to the general public sentiment of what is
    " reckless " conduct as it has expanded over the forty years which have
    elapsed since the decision in that case.

    First: The duty does not arise until the occupier has actual knowledge
    either of the presence of the trespasser upon his land or of facts which make
    it likely that the trespasser will come on to his land ; and has also actual
    knowledge of facts as to the condition of his land or of activities carried
    out upon it which are likely to cause personal injury to a trespasser who
    is unaware of the danger. He is under no duty to the trespasser to make
    any inquiry or inspection to ascertain whether or not such facts do exist.
    His liability does not arise until he actually knows of them.

    Secondly: Once the occupier has actual knowledge of such facts, his own
    failure to appreciate the likelihood of the trespasser's presence or the risk
    to him involved, does not absolve the occupier from his duty to the trespasser
    if a reasonable man possessed of the actual knowledge of the occupier would
    recognise that likelihood and that risk.

    Thirdly: The duty when it arises is limited to taking reasonable steps to
    enable the trespasser to avoid the danger. Where the likely trespasser
    is a child too young to understand or heed a written or a previous oral
    warning, this may involve providing reasonable physical obstacles to keep
    the child away from the danger.

    Fourthly: The relevant likelihood to be considered is of the trespasser's
    presence at the actual time and place of danger to him. The degree of
    likelihood needed to give rise to the duty cannot, I think, be more closely
    defined than as being such as would impel a man of ordinary humane
    feelings to take some steps to mitigate the risk of injury to the trespasser
    to which the particular danger exposes him. It will thus depend on all
    the circumstances of the case: the permanent or intermittent character of
    the danger; the severity of the injuries which it is likely to cause; in the
    case of children, the attractiveness to them of that which constitutes the
    dangerous object or condition of the land; the expense involved in giving
    effective warning of it to the kind of trespasser likely to be injured, in
    relation to the occupier's resources in money or in labour.

    My Lords, upon the findings of the trial judge in the instant appeal. 1
    find no difficulty in inferring that through the eyes or ears of one or other


    39

    of their servants the Appellant Board did know the physical facts that made
    it likely that little children playing in Bunce's Meadow would trespass on
    their line and that if they did so would run a serious risk of grave if not
    mortal injury from the electric rail. Breach of the other characteristics of
    the duty which then arose, is in my view, established. I would, therefore,
    dismiss this appeal.

    It might, however, leave this branch of the common law of England still
    in confusion if this House did not state categorically the respects in which
    the test of an occupier's duty to a trespasser differs from that stated by the
    majority of the Court of Appeal in Videan v. British Transport Commission
    (1963 2 Q.B. 650) and reiterated by the whole court in Kingzett v. British
    Railways Board
    ((1968) 112 Sol. J. 625) despite the intervening adverse
    comment by the Privy Council in Quinlan's case.

    In the instant case the trial judge felt that he was bound to follow the
    reasoning of Videan's case and Kingzett's case. The Court of Appeal felt
    able to decide it without recourse to Videan's case, by treating the station-
    master's failure to do anything except to warn the police when children
    had trespassed on the land two months before, as falling within Viscount
    Hailsham's formula in Addie v. Dumbreck as " an act done with reckless
    " disregard of the presence of a trespasser ". This was, I think, unduly
    censorious of the station-master as an individual. It was unnecessary to
    apportion among its individual servants the blame which lay upon the
    incorporated Board. The reckless act was that of the fictitious person, the
    Board itself, in allowing the deadly current to flow through the live rail when,
    through one or more of its servants it knew the physical facts which made
    it likely that a little child would stray from Bunce's Meadow and come
    in contact with the rail.

    The test propounded by the majority of the Court of Appeal in Videan's
    case is, in my view, wrong in three respects.

    1. It draws an unwarrantable distinction between a "static" condition
      of the occupier's land and an " activity " which the occupier carries out on
      it. In respect of activities of the occupier on the land it accords the
      trespasser the status of " neighbour " vis-a-vis the occupier despite the fact
      that he has forced this relationship upon the occupier against the latter's will
      and by a wrongful act done to the occupier.

    2. It treats the source of the relationship which gives rise to the occupier's
      duty towards a trespasser in respect of "activities" as mere foreseeability
      of the trespasser's presence, just as in the case of someone lawfully on his
      land. This suggests that there is some duty on the occupier to make
      inspections or inquiries in order to acquaint himself of the likelihood of a
      trespasser's coming on to his land. There is no such duty.

    3. It treats the duty of the occupier to the trespasser in respect of
      " activities" as identical with his duty to persons lawfully on his land
      instead of the more restricted duty to take reasonable steps to enable the
      trespasser to avoid concealed dangers resulting from the existence of facts
      actually known to the occupier.

    In the instant appeal Your Lordships are concerned only with the liability
    of an occupier of land towards a trespasser whose presence on the land is a
    legal wrong committed by the trespasser upon the occupier himself. This
    is not necessarily the same as the liability of some other person, who carries
    on an activity on the land with the permission of the occupier, towards
    a person who, though a trespasser vis-a-vis the occupier, commits no legal
    wrong upon him who carries on the activity. There are three cases at
    first instance in which it has been held by judges of great eminence that a
    contractor, who is not the occupier of land, owes to trespassers on the land
    the ordinary common law duty of care owed by one man to his neighbour.
    That he is a trespasser vis-a-vis the occupier was treated as relevant only
    to the foreseeability of his presence. (See: Buckland v. Guildford Gas Light
    & Coke Co.
    [1949] 1 W.L.R. 410; Davies v. St. Mary's Demolition Co.
    [1954] 1 W.L.R. 392; Creed v. McGeogh & Sons (1955] 1 W.L.R. 1005.)
    In Videan's case (ubi. sup. at p. 604) it was asserted baldly that there was


    40

    neither rhyme nor reason why the occupier's liability to a trespasser should
    differ from that of a contractor. There is at least one possible reason in
    logic and in law. Disapproval of the ratio decidendi of Videan's case does
    not necessarily involve any conflict with the decisions in the three contractor's
    cases to which I have referred. The instant case is not an appropriate one
    in which to deal with the liability to trespasser of persons who are not
    the occupiers of the land on which the trespass is committed.

    (322725) Dd I97075 2/72 St.S.


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