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(1972) JELR 87249 (HL)

House of Lords  •  HL/PO/JU/4/3/1219  •  16 Feb 1972  •  United Kingdom

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, wasplaying with other children on National Trust property at Mitcham whichis 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 wassuch that he was unable to appreciate the danger of going on to the railwayline and probably unable to appreciate that he was doing wrong in gettingover the fence.

I have no doubt that if the Appellants owed to potential child trespassersany duty of care to take steps for their safety, they were in breach of anysuch duty. Enquiry soon after the accident showed that this was by nomeans the only place where their fence was defective and a well troddentrack leading to the point where the Respondent got on to their propertyshowed that a considerable number of trespassers must have crossed the lineat this point to other National Trust property on the other side. TheAppellants led no evidence at the trial and it cannot be inferred that theyknew about these trespassers before the accident. The only evidence oftheir knowledge was a report produced by them which showed that theyknew that a few weeks before the accident some children had been seenon the line at some point not very far away. But in my view the evidencewas sufficient to show either that there was no systematic inspection of theirfence 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 and Sons v. Dumbreck [1929] A.C.358 . The Respondent founds on later authorities and asks us to reconsiderAddie's case if it cannot be distinguished. He is entitled to say that Addie'scase has frequently been criticised. I well remember that this decision, whichreversed the decision of the Court of Session, was much criticised in Scotlandat the time. But no one doubted that it had settled the law. And it hasalways 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 inrecent cases.

The speeches in Addie's case must be read in the light of the facts whichare set out in 1928 Session Cases. Lord President Clyde said, after statingthat 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  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 thepresence of a trespasser near a dangerous machine is known to the proprietorhe 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 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 senseinviting 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 pointnot easy to define, the occupier continued to stand by and acquiesce in thecoming of trespassers he was held to have given a general permission orlicence 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 findany evidence that he had in fact consented to the coming of the trespassersor to the continuance of the trespassing. His inaction in suffering thetrespassing might have been due to many other reasons than his being willingto allow it. He might prove that there was some other reason but thatwould not avail him.

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

Later cases can hardly be said to exhibit loyal acceptance of the Addiedoctrine. In Excelsior Wire Rope Co. v. Callan[1930] A.C. 404 this Housegiving extempore judgments dismissed an appeal by the occupier withouthearing the Respondent. There cannot have been any intention to modifythe considered judgments in Addie's case, and it is perhaps a little surprisingthat the House was able so easily to reach a different conclusion. I can onlyregard the decision in Callan's case as founded, rightly or wrongly on theparticular facts of the case. Encouraged by the decision in Callan's case 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 wasa difference of opinion in the Court of Appeal. Scott L.J. decided againstthe 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 dutyon the Railway to keep them out or protect them. I think Lord Goddardaccurately 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 chapteropened with Videan v. British Transport Commission [1963] 2 Q.B. 650 . Astationmaster's child strayed on to the railway and was run over. It wasrightly held that the child was a trespasser and that the authority were notliable. But some obiter dicta of Lord Denning M.R. appear to me to bedirectly contrary to the decision of this House in Addie's case. Neverthe-less, they have attracted much support in subsequent cases. Having pointedout that for child trespassers innocent of any wicked intent the rule inAddie'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 noexception. 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 responsibilityof the occupier for the condition of his premises and inventing a new dutytowards trespassers to conduct his activities on his property with reasonablecare. 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 whenAddie'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 thepresence 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 trespasserswere known to be on the land. It is easy to extend that to a case when theoccupier as good as knows, where he shuts his eyes: he will not then beheard to say that he did not know. But he has no duty to do anythingbefore the trespasser arrives. If, on the other hand, a duty were to arisebefore the trespassers' arrival, when that arrival is merely foreseeable orprobable, the situation would be very different. The occupier would haveto 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. 1can see no way of bringing in that foreseeability test without reconsideringand overruling at least that part of the decision in Addie. A duty to actwith humanity towards a trespasser known to be there is one thing. A dutyof care towards probable trespassers is of a different order. It would com-pletely transform the whole picture and, so far as I can see, completelysupersede the Addie duty in all cases where the arrival of the injuredtrespasser had been probable or foreseeable.

It follows that I cannot accept all that was said in the judgment of thePrivy Council in Commissioner for Railways v. Quinlan [1964] AC 1054as being consistent with the decision in Addie's case. On page 1076 it issaid, 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 " 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 aposition in which he as good as knows that the other is there. So far thatis 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 presenceof the trespasser is extremely likely or very probable.

So we are confronted with the position that persistent attempts have beenmade to confer on child trespassers greater rights and to impose on occupiersgreater obligations than are to my mind consistent with the decision of thisHouse in Addie's case. I shall not deal with the forthright Australianauthorities farther than to say that those attempts are even more persuasiveand far reaching than those in this country. So it appears to me that nosatisfactory solution can be found without a re-examination of the wholeproblem 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 analmost insoluble problem. They could only be completely safeguarded inone or other of two ways. Either parents must be required always to con-trol and supervise the movements of their young children, or occupiers ofpremises where they are likely to trespass must be required to take effectivesteps to keep them out or else to make their premises safe for them if theycome. Neither of these is practicable. The former course was practicableat one time for a limited number of well-to-day parents but that numberis now small. The latter, if practicable at all, would in most cases imposeon occupiers an impossible financial burden.

Legal principles cannot solve the problem. How far occupiers are to berequired by law to take steps to safeguard such children must be a matterof 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 Housemust have taken the view that as a matter of public policy occupiers shouldhave no duty at all to keep out such children or to make their premises safefor them. Their only duty was a humanitarian duty not to act recklesslywith regard to children whom they knew to be there.

It may have been arguable forty years ago that that was good publicpolicy. But for one fact I would think it unarguable today. That is thefact 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 thatParliament found it necessary to pass for England and Wales the Occupiers'Liability Act, 1957. It imposed a "common duty of care" on occupierstowards all persons who might lawfully come on to their land. But itpointedly omitted to alter the existing law as to trespassers. At that timethere was no doubt that Addie's case had settled the law, and under thepractice then prevailing this House could not alter that decision. The Courtof Appeal had not yet begun to try to modify Addie's case. As I havealready said, they had no right to do that and I do not think that in 1957their action could reasonably have been foreseen.

So I find it exceedingly difficult to interpret the silence of Parliamentin the 1957 Act with regard to trespassers in any other way than as anapproval of the existing law with regard to them. And that means anapproval 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 mindsas to what to put in place of Addie. I say that because when the law ofScotland on this matter was amended in 1960 Parliament (no doubt actingon more robust advice from Scotland) did alter the Scots law with regardto trespassers. It seems unlikely that on a matter of this kind Parliamentwould deliberately adopt quite different policies for the two countries. So I think I may be justified in attributing to indecision the silence of Parliamentin 1957 with regard to trespassers in England.

The question, then, is to what extent this House sitting in its judicialcapacity can do what Parliament failed to do in 1957. I dislike usurpingthe functions of Parliament. But it appears to me that we are confrontedwith the choice of following Addie and putting the clock back or drasticallymodify the Addie rules. It is suggested that such a modification can beachieved by developing the law as laid down in Addie's case without actuallyoverruling any part of the decision. I do not think that that is possible. Itcan properly be said that one is developing the law laid down in a leadingcase so long but only so long as the "development" does not require usto say that the original case was wrongly decided. But it appears to me thatany acceptable "development" of Addie's case must mean that Addie's caseif it arose today would be decided the other way. The case for the pursuerin Addie's case was stronger on the facts than the case for the presentRespondent and I do not think that we could dismiss this appeal withoutholding 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 schemeof the Scottish Act. That Act provides by section 2 that the care whichan occupier is required to show to a person entering his land (which includesa trespasser) in respect either of its dangerous state or of dangerous activitieson 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 damagesfor failure to exercise such care are generally decided by juries. Juries donot 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 reasonsand whose decisions can be the subject of appeal. No doubt if the matterwere left at large in this way a body of case law with regard to the positionof trespassers would develop over the years. The matter would in one formor another come before this House before very long and some authoritativeguidance would then emerge. But I would not create such a period ofuncertainty 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 byoccupiers to trespassers. Here I think we can get good guidance fromAddie'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 appreciationof 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. Normallythe common law applies an objective test. If a person chooses to assumea relationship with members of the public, say by setting out to drive a caror to erect a building fronting a highway, the law requires him to conducthimself as a reasonable man with adequate skill, knowledge and resourceswould do. He will not be heard to say that in fact he could not attainthat standard. If he cannot attain that standard he ought not to assumethe responsibility which that relationship involves. But an occupier doesnot voluntarily assume a relationship with trespassers. By trespassing theyforce a "neighbour" relationship on him. When they do so he must actin a humane manner—that is not asking too much of him—but I do notsee why he should be required to do more.

So it appears to me that an occupier's duty to trespassers must varyaccording to his knowledge, ability and resources. It has often been saidthat trespassers must take the land as they find it. I would rather say thatthey must take the occupier as they find him.

So the question whether an occupier is liable in respect of an accidentto a trespasser on his land would depend on whether a conscientious humaneman with his knowledge, skill and resources could reasonably have beenexpected to have done or refrained from doing before the accident some-thing which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come I think thatmost people would regard as culpable failure to give any thought to theirsafety. He might often reasonably think, weighing the seriousness of thedanger and the degree of likelihood of trespassers coming against the burdenhe would have to incur in preventing their entry or making his premisessafe, or curtailing his own activities on his land, that he could not fairlybe expected to do anything. But if he could at small trouble and expensetake some effective action again I think that most people would think itinhumane and culpable not to do that. If some such principle is adoptedthere will no longer be any need to strive to imply a fictitious licence.

It would follow that an impecunious occupier with little assistance athand 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 oughtto have been done one would have to put out of one's mind the fact thatan accident had occurred and visualise the position of the occupier beforeit had happened. Quite probably this would not be the only point on hisland where trespass was likely. One would have to look at his problemas a whole and ask whether if he had thought about the matter it wouldhave been humane or decent of him to do nothing. That may sound a lowstandard but in fact I believe that an occupier's failure to take any preventivesteps is more often caused by thoughtlessness than by any shirking of hismoral responsibility. I think that current conceptions of social duty dorequire occupiers to give reasonable attention to their responsibilities asoccupiers, and I see nothing in legal principles to prevent the law fromrequiring them to do that.

If I apply that test to the present case I think that the Appellants mustbe held responsible for this accident. They brought on to their land inthe live rail a lethal and to a young child a concealed danger. It wouldhave been very easy for them to have and enforce a reasonable system ofinspection and repair of their boundary fence. They knew that childrenwere entitled and accustomed to play on the other side of the fence andmust 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 gravedanger. Yet they did nothing. I do not think that a large organisationis acting with due regard to humane consideration if its officers do not paymore attention to safety. I would not single out the stationmaster forblame. 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 Respondentand 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 sixwent to play in a field near Mitcham called Bunces Meadow. He waswith his two brothers who were a little older than he was. Bunces Meadowis National Trust property which is freely open to the public. Through itthere runs a public path. For a part of its distance the path is a made-uppath having a tar-macadam surface. It continues as a trodden path whichmakes a turn to the right. The reason for this is that straight ahead of thepath there is a single line railway track, which runs between MitchamJunction 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 alongthe track. The path to the right leads to a footbridge over the railwaytrack. By crossing the railway another National Trust property MordenHall Park, is reached.

The trodden path turned to the right near to but before reaching the lineof the fence which had been erected to border the railway track. There 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 feethigh supported by concrete posts eight feet six inches apart. But at thevery place where the fencing should have debarred a person from goingstraight 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 downso that its top curved down to within about ten inches of the ground. Thelower 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 timebefore the 7th June people going to Morden Hall Park had been takinga 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 thetwo elder ones missed their young brother. He had wandered off. Theywent in search of him. One brother went through what was virtually the gapin the fencing and then found his young brother on the railway track. He wasbetween the conductor rail and the running rail. He was lying unconscious.After help had been secured, a rescue was effected: but that was only afterthe boy had been most gravely injured. He suffered very severe burns.

Certain additional facts call for mention. The learned judge was satisfiedby the evidence given by two youths who had visited Bunces Meadow anumber of times in the six weeks previous to the 7th June that the fencehad been in its dilapidated condition for at least several weeks before thatdate. The state of the fence and of the path lead the learned judge tothink that the described condition of the fence had probably existed formonths. The Railways Board made no attempt to contravert any of theseconclusions. They thought it prudent not to put any witness in the box.They decided to give no explanations in regard to any of the documentswhich discovery disclosed. Thus, there was a memorandum dated the 17thApril, 1965 (some seven weeks before the accident) from the Station Master'soffice, Mitcham Junction, to the "Line Manager" stating that the guard ofan afternoon train two days previously had reported to the signalman atMitcham on arrival at Merton Park that children were on the line betweenMitcham and Morden Road Halt: the memorandum stated that the MitchamPolice were requested to investigate. There were various memorandawritten on the date of the accident: they recorded that at 3.10 p.m., therewas an examination of the fences in the vicinity of Bunces Meadow: threeplaces in the vicinity were discovered where children could get on to theline through the fences. One memorandum was to the "Line Manager":another was to the "Ganger" at Mitcham. "Control" had ordered theStation Master (of Mitcham Junction) to examine the fences and to report andalso 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 thathe 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 couldget on to the line through the fences: the writer asked that he shouldbe informed when the repair work was completed: the letter went to the"Line Manager" with a copy to the Station Master. A memorandum fromthe Station Master to the Divisional Manager reported that the EngineersDepartment were called out and that the fences were repaired on the dayof the accident.

In view of the evidence which was before the learned judge and in the lightof the documents referred to, it is a matter of some surprise that when aclaim was made it was stated on behalf of the Railways Board that theirengineer had made an inspection of the fence in question on the morningof 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 of the various internal memoranda it is difficult to understand how the lettercame to be written. There was no evidence either to support it or toexplain it. If there was a system of inspection there must have been alamentable failure in its operation. The fact remains that for weeks ormonths the fencing was so broken down at a point ahead of a public paththat a person could easily get across to the line: an adult would doubtlessappreciate 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 thinkthat the response guided by the promptings of common sense would be thathaving regard to the dangerous nature of the live rail and its perils for asmall child, the Railways Board were grievously at fault in allowing a fenceat the particular place in question to remain for a long time in a brokendown condition. It must at any time be a matter of regret and of concernif the answer of the law does not accord with the answer that common sensewould suggest. But the Railways Board assert that the law must refuse theinfant's claim. In effect they say that he was a legal outcast. In short hewas 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 ofthe same case they say that an occupier is only liable to a trespasser wherethe injury is due to some wilful act involving something more than theabsence 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 theysay 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 indisregard of his presence.

There is always peril in treating the words of a speech or a judgmentas though they were words in a legislative enactment, and it is to beremembered that judicial utterances are made in the setting of the factsof a particular case. The facts in the present case differ from those in Addie'scase. In the present case a question arises whether some duty may beowed to a person before he becomes a trespasser. In that case a questionarose 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 questionthough it was made plain to them that they had no right to do so. Therewere many gaps in the hedge that surrounded the land. Children did intact 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. Thewheel was about one hundred yards within the boundary of the land. Thewheel was not something as inherently dangerous as a live rail which it ishighly perilous to touch. Those who set the wheel in motion did not knowthat a four-year old boy had gone to sit on it. He was a trespasser andhe had been warned not to go to the land or to go near to the wheel. Butas those operating the wheel must have known that it was at least a possibilityif not a likelihood that a child would be on or near to the wheel it mighthave been held that there was a duty to give some warning or to exercisesome measure of care to see that no one was going to be injured beforethe machine was suddenly set in motion. But it was held that there wasno liability for the death of the boy. The law was laid down in the termsthat I have quoted. There have been many expressions of lament that theclaim should not have succeeded as did the claim in Excelsior Wire RopeCo. Ltd. v. Callan |1930] A.C. 404 .

In the present case the boy was injured by coming into contact withsomething on the land—the live rail. The live rail was placed where itwas 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 thequestion is asked—What did the Railways Board do wrong?—the answermust I think be that they allowed the fence to remain for a long time insuch a state that a child who did not sense danger could quite easily get on to the line and the live rail. Anyone who gave any thought to the matterwould at once appreciate that the purpose of having a fence borderingon a railway track with a live rail is to warn people that they must proceedno further and to be to some extent an obstacle to prevent them from sodoing. Anyone would further appreciate that if the fencing had a gap init and a gap near to a public path a child might go through the gap and bein a position of great danger. Not only might a child come into contactwith the live rail: he might be struck by a passing train. So the questionarises whether the Railways Board had any obligation to take thought andhaving 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 hemight get on to the railway track with its live rail and be killed or gravelyhurt but the moment he stepped over the broken fence he would be atrespasser 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 fencehis land and though, generally speaking, there is no obligation to preventsomebody from becoming a trespasser—are there some circumstances inwhich a duty arises to take some action to lessen the risk of peril bothin the case of a potential or prospective trespasser and in the case of someonewho has become a trespasser?

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

The question now arises whether we should depart, as we were invitedto do, from what was laid down in Addle s case or whether in the light ofdevelopments in the law since 1929 there are some modifications whichpermissibly 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. Itseems to me that Parliament must have decided that problems relating totrespassers 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 careas in all the circumstances of the case is reasonable to see that the visitorwill be reasonably safe in using the premises for the purpose for which heis invited or permitted by the occupier to be there. But a trespasser is nota "visitor". The term trespasser is a comprehensive word: it covers thewicked and the innocent: the burglar, the arrogant invader of another'sland, the walker blithely unaware that he is stepping where he has noright to walk, or the wandering child—all may be dubbed as trespassers.

When in 1960 the Occupiers' Liability (Scotland) Act was passed it wasin terms which created a certain duty of care to trespassers. The EnglishAct was. however, left as it was. It was not amended. It would not, inmy view, be fitting for us to make fundamental changes in the law, accordingto 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 notunwarrantably 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 knowledge that children will roam and will explore. If a fence marks aboundary 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 noreal obstacle to his progress will not or may not know that he is at oncea "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 hurtinganyone) placed something highly dangerous on his land, he owes any andwhat duty to take some steps to lessen the risk that a wandering child mayrun into the danger. Though the present case relates to a young childwho obviously may be less perceptive than an adult the kindred questionis raised whether there may be circumstances, if a situation of danger hasbeen created on land, in which some measure of duty would be owed toan adult trespasser. Furthermore, though in the present case the place ofreal danger was quite close to the boundary of the private land thequestion of principle might equally arise if the place of great danger wasnot close to such boundary. If a minefield had for legitimate reasons beencreated and if it continued in existence I should be sorry to think that anoccupier owed no duty to warn a potential or actual trespasser. In hispowerful 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 totake all reasonable precautions to keep trespassing children out of a placewhere he knows they will be blown up.

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

Thus, in 1807 (in Jay v. Whitfield 3 B. and A. 308) a boy who entered thedefendant's premises for the purpose of cutting a stick was shot by a springgun: 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 givepublic notice in market towns if such means of protection as spring gunshad been resorted to. It was the "common understanding of mankind"that such notice ought to be given. That was before there was any statutoryprovision in regard to them.

In Ilon v. Wilkes which was in 1820 (3 B. and Ald. 304) a trespasser whoknew that there were spring guns in a wood (without knowing the actualparticular spots where they were placed) was injured when he trod on a latentwire and caused a gun to be fired. On the principle volenti non fit injuriahe 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 uncertainvoice 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 becircumstances 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 butwhere there was notice over the entrance of the presence of the dog. Hesaid that if a wrong-doer read the notice but then in the absence of theowner 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 " 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 asshowing that the learned judge thought that even inaction, when humanitarianimpulses would prompt action, might amount to a breach of a duty owedto a trespasser.

In the later case, in 1828, of Bird v. Holbrook 4 Bingham 628 a youngman, 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 contactwith a wire which discharged a gun. He recovered damages in respectof 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 thecategory of acts done with a "deliberate intention of doing harm to a" trespasser". The spring gun would be deliberately placed so that it wouldcause injury to any trespasser who might arrive. As Viscount Dunedinsaid (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. Cardy104 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 ofa trespasser would either be expected or foreseen—and there would be thecircumstance that injury was intended. Though the conditions of dangeron the railway track in the present case were not created with any intentionof doing injury to anyone, if it could be expected or foreseen that sometrespasser (such as a young child) might run into the danger unawares, wasthere some and, if so, what duty to take some and what steps to seek toavert such an occurrence? If humanity is to be a guide should it not operateto lessen the risk of foreseeable injury from a danger which has been createdeven though such injury is not intended?

If the passages to which I have referred show that even in days whenproperty rights were jealously safeguarded it was firmly recognised thatthe dictates of humanity must guide conduct even towards trespassers suchrecognition 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 communitymust 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 injuryhad the fence been in ordinary repair instead of being left dilapidated forweeks on end the question might be asked—even so as the boy would bea trespasser the moment he crossed the line of the fence why and for whatreason should the Railways Board owe him any duty at all beyond thatof not deliberately harming him thereafter or of acting with reckless disregardof his presence on their land? I would answer for reasons of common senseand common humanity. The nature and extent of any duty owed will callfor separate consideration. But there must be some circumstances in which,by reason of them, a duty is owed by an occupier of land to potentialtrespassers 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 Transport Commission ([1963] 2 Q.B. 650) it is a heresy to suggest thatoccupation 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 dutyof care is owed then any person to whom it is owed is a neighbour thoughthe content of the duty will vary according to the circumstances.

If it is asked—why need the Railways Board give any thought to thequestion whether a trespasser might come to harm by trespassing on theirland the answer must I think again be that common sense and commonintelligence so direct. What has been called ordinary civilised behaviourwould so prompt. The words of Lord Macnaghten in Cooke v. MidlandGreat Western of Ireland [1909] A.C. 229 (while remembering that it washeld 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 casethere 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 seriousinjury. 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. BirminghamWaterworks 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 thoseof the present case) produce the result that some duly is owed by anoccupier of land towards those who if they proceed further may sufferinjury at a time when they are trespassing?

That in a civilised community there is need to take thought as to theresult 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 unwillingto concur in "laying down unnecessarily the larger principle" which heentertained his words may be recalled. He considered that from decidedcases 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 anyquestion in regard to trespassers, but the question now arises whether thereare not some trespassers for whom thought must be taken. The stressplaced on the taking of thought by persons of "ordinary sense" is todayconstantly 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 realisedthat the poisonous berries deceptively presented a tempting and harmlessappearance to a young boy who was entitled to be where he was • there wasa case for trial as to whether the Corporation had failed to take certainprecautions 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 thepavement of a highway ought to have foreseen that blind persons mightwalk along the pavement. So, by taking thought, should the danger havebeen appreciated of allowing the small child in Carmarthenshire CountyCouncil v. Lewis [1955] AC 549 to be out of care. So, by taking thought,should the consequences have been realised of failing to exercise reasonablecontrol 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 hadtaken thought, must have realised that if they allowed the fence to be brokendown at the particular place in question there was a considerable risk thata small child would pass through it and might as a result either be killedor come to serious harm. This was not a case in which a child could besaid to have been invited or permitted to proceed with the result that hewould as an invitee or licensee be proceeding towards what could be calleda trap: nor do I think that any temptation to proceed could be said to havebeen 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 theboy could be said to have been a licensee. The lay-out of the land was inthat case quite different from that in the present case and the fence in thatcase was repaired whenever it was observed to have suffered interference.There was evidence in that case that on the morning of the accident thefence 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 ismy 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 wouldsuggest that every trespasser is a "neighbour" but within these words wasnot the small boy in the present case a neighbour? When the railway trackand its electrified rail were laid and at all times when they were maintainedthe risks of injury resulting if there was neither warning nor impedimentsuch as a fence would provide would be clear to anyone who gave themutter a moment's thought. Yet when the boy went on to the track heundoubtedly became a trespasser. Does this mean that the strict edict ofAddie'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 commonduty of care to the young boy in the present case they did owe to him atleast the duty of acting with common humanity towards him. In regardto the words that I have quoted from Addie's case I do not think that theRailways Board (through their servants) did any act with the deliberateintention of doing harm to the boy: their omission for a long time to repairthe fence and their continuing distribution of electric power along their liverail 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 thelikely or expected or anticipated presence of a trespasser then the questionarises 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. Therewas no duty to ensure that no trespasser could enter upon the land. Andcertainly an occupier owes no duty to make his land fit for trespassers totrespass in. Nor need he make surveys of his land in order to decidewhether dangers exist of which he is unaware. The general law remains thatone who trespasses does so at his peril. But in the present case there werea number of special circumstances—(a) the place where the fence was faultywas near to a public path and public ground ; (b) a child might easily passthrough the fence ; (c) if a child did pass through and go on to the trackhe would be in grave danger of death or serious bodily harm ; (d) a child 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 avisitor, 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 oravert 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 withhim, I do not think that there is any sound basis of principle for differentiatingsharply between liability for the static condition of land and liability forcurrent operations on land. In general, therefore, a trespasser has notonly to take the land as he finds it but the current operations on land as hefinds them. Yet a potential or actual trespasser may on occasion be aneighbour and, as my noble and learned friend said (at page 678), theexpression "duty to a neighbour" is more appropriately used as an aidto ascertaining whether or not there is a duty of care owing by one personto 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. Cardy104 C.L.R. 274amply repays study. Though the boy who was injured was a trespasser herecovered 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 atbottom 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 judgewas warranted in deciding that the plaintiff was entitled to recover. Myapproach involves some departure from some of what was said in Quinlan'scase. It involves also that, on its facts, the decision in Addie's case shouldin my view have been the other way. The Colliery Company knew that young children were in the habit of playing on the ground near to the wheelin question and knew that, though at times there were warnings, childrencontinued to frequent the place. They knew that children might be orwere likely to be there. I consider that with such knowledge they shouldhave taken reasonable care to avoid the risk of a child trespasser beingkilled or injured by reason of the wheel being suddenly and blindly put towork. It follows that I consider that the case was wrongly decided.

I would dismiss the appeal.

Lord Wilberforcemy lords,

This is, unusually, a straight case of an infant trespasser. The six yearold boy was trespassing on the railway when he came into contact with alive electric rail, was fortunately not killed, but was severely injured. Therewas no allurement on to the defendant's land; there is no basis, in realityor fiction, by which the child can be treated as a licensee. There was nowilful intention to injure him; nor (I shall return to this) reckless disregardof his presence. At most (and this has been found) there was a lack ofcare 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 notchildren) dates from 1845 since when, even after electrification, Parliamenthas 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 lawof fault liability which involves the need to establish a duty of care towardshim and a breach of it. At once he is faced by the formidable authorityof Robert Addie and Sons (Collieries) Ltd. v. Dumbreck [1929] AC 358.

There are perhaps two things about Addie's case which, out of manycomments 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 ofthe 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 (ExcelsiorWire Rope Co. v. Callan [1930] A.C. 404 ). The difference of opinionbetween the Inner House and this House was essentially as to whether thechild should have been regarded as a licensee. The Lord President saidhe 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 wassubstantially acquiesced in and acquiescence is often a form of what maybe called an unwilling consent (l.c.p.555). This House took a differentview: he was, on the Sheriff Substitute's finding, a trespasser and nothingelse. The wheel had been there long before the house in which he livedwas built, so that there was no question of a dangerous thing having beenplaced in his proximity: the only relevant relationship was the occupier/trespasser relationship. I have referred to these factual points because Ido not think that we should decide this case by meticulously comparing thefacts here with the facts there. What we are concerned with is the principleof 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 ofcommon law, and the context of bordering but not identical typical situa-tions. This has often been forgotten. The prestige of the learned lawLords who gave the opinions in that case, and the clarity and emphasis ofthose opinions has led to its rules being treated as a code of law to bescrupulously applied to every situation where the defendant is an occupierof land whatever may be the set of facts out of which the injury, andthe 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 by the use of fictions and other devices until there is a bursting of the seamsand a cry that this case as a statement of the law must be overruled. Thatis what we are asked to do here.

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

There can be no doubt that the law regarding occupiers' liability formspart of the general law of negligence. The earlier 19th century cases wereactions 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 someof them as based on nuisance this was not a tendency which prevailed.

Since these were what we now call actions in negligence, it was necessaryto define the degree of care owed to persons coming on land in particularcircumstances, and this led to the emergence, in progressively segregateddivisions of the familiar tripartite classification—which in Addie was statedto 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 ScottishCourts avoided this rigidity and proceeded upon the general principlesgoverning the law of negligence (Addie's case 1928 S.C. 547, 551 per LordPresident Clyde). The formulation by this House in Addie gave rise notonly to dissatisfaction in Scotland but to difficulty since human conduct canrarely be squeezed neatly into a predetermined slot ; and if this is whatcourts are told to do, they will find ways, according to their views of themerits, of crossing the lines. So they have found means of convertingtrespassers into licensees by imputing licences, and in the case of childrenthey have improved their status by a finding of allurement or by strainingthe facts.

We ought now to ask the question directly, what, in relation particularly toinfant 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, eventowards trespassers, in certain limited cases, is what the imputation of alicence really means. We may, though here we are getting near the dangerousground of legislation, be readier than our predecessors to see liability forinjuries to individuals placed upon society generally, of which the RailwaysBoard effectively forms part. And if we do not go so far as to recognisethat special rules ought to be devised for child trespassers (c.f. AmericanRestatement, Torts (2nd) section 339), we can at least accept that fresh andmore 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 parentshave some control and responsibility, and if children are on a playgroundwhich someone has provided for the purpose, that person has a responsibilityto see that it is safe.

Does, then, Addie contain an exhaustive definition of an occupier's dutiesto persons on his land? One does not see why, in principle, this shouldbe so. It could be so if the fact of occupation of land were to be the basisof 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 conceptionis that stated by the Privy Council when through Viscount Radcliffe theBoard said that the Addie rules were expressive of certain consequencesas 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 BarwickC.J. there is "a quantitative element both in the extent of the foreseeability 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 thesematters of foresight and prudence. It does so when in the general case itconsiders it relevant to know whether the presence of the relevant personwas 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 saythat 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 ofparticular factors as modifying the general rules. First there is the doctrineof allurements. It has been criticised, as a device, like imputed licenses, forescaping from the Addie rules. But it is older than Addie and reflects theperfectly sound conception that as particular things are ("foreseeably")likely to be attractive to children, the occupier owes a duty, if they aredangerous, not to put them in the children's way. The classic case is thatof 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 underno duty to fence his land so as to exclude trespassers, a rule of importanceto Railway Companies and of validity as this House has decided (Edwards v.Railway Executive [1952] A.C. 737). The fact, that Parliament has notimposed a duty securely to fence children or others out, is a recognitionthat a compromise must be struck between the desire to save everyonefrom every danger and the cost to the community of doing so. It means thatthere are situations where even children will not recover. But the courtshave qualified this exemption by reference to particular circumstances as,for example, that persons are known frequently to have access along a trackCooke v. Midland G.W. Railway of Ireland [1909] A.C. 229, Lowery v.Walker [1911] AC 10which, though put upon the imputation of a licence,really reflect the fact that some elementary duty is owed. Similarly, thereare the cases of pitfalls—where an occupier makes an excavation near ahighway (cf. Prentice v. Assets Co. 17 R. 484) (the same would surely betrue of other hazards, e.g. an electric wire): he is under a duty, even totrespassers, 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 and Excavation Co. Ltd.[1954] 1 W.L.R. 592, Morney v. Lanarkshire County Council [1954] S.C. 245 .A. G. Billings and Sons Ltd. v. Riden [1958] AC 240, which I need notexamine in detail—(some of them I think put the duty too high), haveestablished their responsibility in principle, through a duty of care, towardtrespassers, including infant trespassers. Their liability should not dependsolely upon whether they were, or were not, themselves occupiers of theland, and it would be absurd if there were one law for contractors doingwork and another law if the occupier did the same work himself cf. Bucklandv. Guild ford Gas Light and 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 measuredregardless of the fact that the victim may have been a trespasser, but itis to say that there may be circumstances in which contractors and occupiersalike 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 pointescaped 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 sensibleconclusion once one escapes from a narcotic preoccupation with theoccupier / trespasser relationship.

These are merely examples to illustrate the proposition that Addie is notan all embracing code, but a piece in the larger whole of a man's duty ofcare to those who may come into his proximity, and may be injured byactions or events occurring on his land.

I have already referred briefly to the historical antecedents of the lawof occupiers' liability. It would be possible to show, in my belief, that Addieto some extent represented a step back in the direction of categorisationfrom an earlier more general attitude to the duty of care. It is moresignificant for the present case to recall that it occurred preciselyat a time when the law of negligence was being put on a generalised basisand 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 asseparating occupiers' cases, as such, from all other situations where caremight be needed.

I pass over for the moment the Occupiers Liability Act, 1957, in orderto refer to four Australian cases, decided in the High Court, which giveus valuable guidance in the search for a modern definition, or at leastoutline of the duty of care which may be owed to trespassers in cases suchas the present. It will be necessary to supplement this by consideration ofQuinlan'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 Thompsonv. Bankstown Corporation (1953) 87 C.L.R. 619, Rich v. Commissioner forRailways (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-ElectricCommission (1971) A.J.L.R. 378.

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

Although each case is difficult in its facts and required extensive legalargument, they can fairly be summarised into the generalisation that theyreflect a tendency toward the recognition of a duty of care, appropriateto the circumstances, extracted from the situation and shaped by it,independent of such liability as might arise from the relation of occupierand 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 and Coke Co. [1949] 1 K.B. 410 andGlasgow Corporation v. Taylor [1922] 1 AC 44. In the same case thejudgment of Kitto J. contained an even more explicit passage. Aftermentioning, 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 and 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 clarityof this passage has caused it to be followed, in analogous situations, inAustralia, but it received some criticism based I think upon some misunder-standing in Quinlan's case (see below).

The same conception of a duty of care, coexisting with the special dutiesarising from occupation is developed in his judgment of Fullagar J. inRich, 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 bediscussed, I do not say improved on, for the former Chief Justice is a masterof language; but he would himself never claim that every possible casecan be included in a formula. The principle is one which I am happy toadopt: Addie's case as the plain general rule; room, in circumstances to becarefully defined, for a special duty of care. The other judgments, particu-larly that of Fullagar J. repay study: I take my two short excerpts fromthat 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 recognitionof a larger area surrounding Addie's case, which I favour, is well summed upin 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 Englishauthorities, to constitute an obstacle to a wider view of the law as regardstrespassers. It was difficult and unusual in its facts, being concerned with aprivate railway crossing used by the Respondent in conditions hard todefine. No discussion of it would be fair unless it were squarely recognisedthat it came down firmly against the view that a duty of care (called inthe judgment a " general duty of care ") can coexist with the very limitedduty 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 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 verydifferent matter when proved circumstances exist sufficient to place a definableduty (however slight—for example to warn) upon the person who is respon-sible for the existence of those circumstances, occupier or not, and I thinkthat the judgment in Quinlan recognised this when it was, perhaps rathercryptically, 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 whichneeds concern us. It is only when the judgment is invoked as a denial of thepossibility of such circumstances and the correlative duty that I must partcompany with its interpreters.

Further extensive citation is undesirable, but I must mention one passagewhere reference is made to the extract from the judgment of Kitto J. inThompson's case cited above. The criticism made is again that the limitedduty 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 reasonablyprecise definition otherwise it will be impossible to direct juries in anadequate manner.

1 think that Kitto J. has here been misunderstood. I do not understandhim (or those who have followed him) to be arguing for a general duty ofcare: 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 theyare 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 bydiscovering loo easily special duties of care. (Munning's case (u.s.) perWalsh J. at p. 394.)

There is one other point discussed in the judgment, upon which I findmyself 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 arailway and of a rescuer. The infant's claim failed but the majority in theCourt of Appeal made (obiter) a distinction between simple occupation ofland and the carrying on of operations of land, and held that as regardsthe latter the occupier's duty as regards a trespasser was "the common" duty of care " or a duty to take " reasonable care ". This duty arosewhenever he " ought to foresee " their presence. The Board criticised thisin two respects: first, as regards the words " ought to foresee " which itpointed out begs the whole question at issue—namely, whether there is aduty towards trespassers at all, and imposes far too wide a duty uponoccupiers. Secondly—and this is consistent with the Board's generalapproach—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 toforesee and of a special and limited duty of care arising out of and quan-titatively measured by particular circumstances Quinlan's case and Munning's case). I think that the judgment of PearsonL.J. in Videan endorses this approach.

How does the matter rest? It is often said that the law on this topicis 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 Loweryv. Walker trespassers or licensees according to the judge's notes, how didthe wheel in Addie differ from that in Callan, were the children in Cookelicensees or trespassers?) and when once one has discarded fictions, rulescan be seen to emerge from the mists with reasonable clarity, but I emphasiseno greater clarity, than we ought to expect from the common law, whichalways leaves a residue to be completed by common sense.

In general, an occupier of land owes no duty to trespassers, or intendingtrespassers: 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 actualpresence 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 withreckless 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 byViscount Hailsham surely bears its normal meaning in the law—as akinto intentional injury, but instead of intention, not caring whether he doesso or not. And this involves knowledge of the trespasser's presence.

I see no reason to discard the alternative test of " extremely likely " (LordBuckmaster in Callan [1930] A.C. 404, 410), in relation to the trespasser'spresence. 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 thePrivy Council in Quinlan. It excludes necessarily any lower duty of fore-seeability in the general case by an occupier of trespassers' presence (seeQuinlan l.c.p.1072, 1074).

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

The question remains whether, in particular circumstances, a man may beunder some duty of a particular kind, other than to abstain from wilfulinjury, or reckless disregard. A test more specific than that of " foresightof 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 areexemplified by Addie's case itself. On the other hand, to adopt the expedientof recoiling upon the comfortable concept of the reasonable man is hardlygood 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 toproceed by exclusion, and then to the facts of this case. An occupier isnot under any general duty to foresee the possibility or likelihood of trespasson his land, or to carry out inspection to see whether trespass is occurringor likely. To suppose otherwise would impose impossible burdens. Norcan a trespasser by giving notice to the occupier that he may trespass at aparticular 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, thisexclusion is valid whether or not the occupier is carrying on operations onthe land or whether some danger exists through a static condition (e.g. aquarry 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 ofpitfalls and analogous situations of dangers created near a place where thevictim had a right to go, (b) in the case of allurements to children. Theprinciple 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 smallchildren potentially hurtful and attractive objects.

In the particular case of railway companies, there is no general duty toerect or maintain fences sufficient to exclude adults or children—the case ofEdwards is clear on this point and I respectfully think right: the only duty is to mark off the railway property. If more precautions are needed becauseof the proximity of a playground they may have to be taken by those incontrol of the playground, fencing in, rather than fencing out.

Then on the positive side I think that we can best serve the developmentof the law by concentrating on the particular type of case which has engagedthe courts, and on which the law has been tested by experience. Just as inthe 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 onthe ground all over our overcrowded island and see where this leads asregards foresight and care. The ingredients of such duty as may arisemust stem from the inevitable proximity to places of access, includinghighways, from the continuous nature of the danger, from the lethal dangerof 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 ofthe existence, near to the public, of a dangerous situation. The greaterthe proximity, the greater the risk, and correspondingly the need of foresightand a duty of care.

What is the nature of this duty of care? Again, it must be rememberedthat we are concerned with trespassers, and a compromise must be reachedbetween the demands of humanity and the necessity to avoid placing undueburdens on occupiers. What is reasonable depends on the nature and degreeof the danger. It also depends on the difficulty and expense of guardingagainst it. The law, in this context, takes account of the means and resourcesof the occupier or other person in control—what is reasonable for a railwaycompany may be very unreasonable for a farmer, or (if this is relevant)a small contractor. If a precedent is needed for this concept of relativeresponsibility I may venture to refer to the Privy Council judgment inGoldman v. Hargrave [1967] AC 645, 663 where in relation to anothercommon 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 lawas stated in Addie's case is developed but not denied ; not, I venture tothink, developed beyond what is permissible and indeed required of thisHouse in its judicial capacity. It was suggested that some difficulty arosefrom the passing of the Occupiers Liability Act, 1957, the argument beingthat, as Parliament deliberately changed the law about invitees and licenseesbut not that concerning trespassers, the House was bound hand and foot byAddie's case at its narrowest. I do not follow this. There might be someforce in an argument that for this House to depart from (i.e. overrule) Addie'scase would, in effect, be to legislate where Parliament has abstained, but Ican see no sense in supposing that when Parliament left the law alone asregards trespassers the intention was to freeze the law as or as it was takento be in 1929. As this Act itself shows, what Parliament left alone in thecase 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 entityas the judges develop it, and so long as we follow the well tried methodof moving forward in accordance with principle as fresh facts emerge andchanges in society occur, we are surely doing what Parliament intends weshould 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 anyargument can be drawn from the passing by the same Parliament three yearslater of the Occupiers' Liability (Scotland) Act, 1961, which (section 2)defined the occupiers' duty towards trespassers as that of such care as inall the circumstances of his case is reasonable. But it is interesting to seethat, in a case upon that section which reached this House, recognition wasgiven to the differing standard of care which may be required towardsinvitees, 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).

Dealing now with the case of the infant plaintiff. In the Court of Appealhe succeeded on a basis of recklessness—that of the stationmaster at thenearest station who some time before had been informed some six weeksearlier that on one occasion children had been seen somewhere on the line.As to this, unless " recklessness " means " gross carelessness "—and in myopinion not even then, there is no basis on which the Appellants can beliable for this injury. But I agree with Salmon L.J. and not with the majorityin the Court of Appeal that recklessness, in this context, has its classicalmeaning.

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

I feel bound to say that I have less confidence than your Lordships orthe trial judge that the proved facts make the case good. The evidence asto the condition of the fence at the relevant time, the means of access to itand 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. Conclusionupon it can hardly be reached without a degree of strain. Evidence as tothe knowledge or lack of it as to the condition of the fence or the so-calledpath to the fence by the Railway Board (much less conspicuous than theofficial path leading to a footbridge over the railway close by, whoseexistence 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 factthat six weeks before the accident the presence had been reported of somechildren of unspecified age, somewhere on the two-mile stretch of the linebetween Morden and Mitcham (the fact relied on as showing " recklessness ")does not reassure me as to the solidity of the case. But there remains thefact of this electrified line lying between two open spaces albeit linked bya bridge and of the broken down chain link fence at a point near to wherechildren might play and I think that there is force in the point that theBoard, once they knew of the gap, took immediate steps to repair it andindeed contended at one time that it was in repair at the critical time. Thecase 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 abarrier designed to be adequate, in view of the existing risk, and becomeinadequate 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'sfinding, to differ from your Lordships' view that, in relation to the specialduty of care incumbent on the Board in the relevant place, there was abreach of that duty amounting to legal negligence, but I am left with thefeeling that cases such as these would be more satisfactorily dealt with bya 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 mustbe radically different from that of a lawful visitor. The broad effect ofsection 2 of the Occupiers' Liability Act, 1957, is that an occupier ofpremises owes to his lawful visitors, i.e. the persons who come on thepremises 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 caseis reasonable to see that the visitor will be reasonably safe in using thepremises for the purposes for which he is invited or permitted to be there.

In my opinion, the occupier of premises does not owe any such duty to atrespasser: he does not owe to the trespasser a duty to take such care as inall the circumstances of the case is reasonable to see that the trespasserwill be reasonably safe in using the premises for the purposes for which he istrespassing. That seems to me to be the fundamental distinction, and itshould 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 anticipatedby the occupier, then the occupier has a duly to the trespasser, but it is alower and less onerous duty than the one which the occupier owes to alawful visitor. Very broadly stated, it is a duty to treat the trespasser withordinary humanity. Bird v. Holbrook (1828) 2 Bing. 628 , 641 ; GrandTrunk 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 ordinaryhumanity? The authoritative formulation of the duty, as given in RobertAcidic and Sons (Collieries) v. Dumbreck [1929] AC 358 is severelyrestrictive and is, I think, now inadequate. Subject to the difficulty createdby 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 asis required of him, if he has taken reasonable steps to deter the trespasserfrom entering or remaining on the premises, or the part of the premises,in which he will encounter a dangerous situation. In simple language, it isnormally sufficient for the occupier to make reasonable endeavours to keepout or chase off the potential or actual intruder who is likely to be or isin a dangerous situation. The erection and maintenance of suitable noticeboards or fencing or both, or the giving of suitable oral warning, or apractice 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. CentralLondon 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 ; Edwardsv. 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'sreasonable endeavours to deter him, insists on trespassing or continuing histrespass, he must take the condition of the land and the operations on theland as he finds them and cannot normally hold the occupier of the landor 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 emergencyhas arisen whereby the trespasser has been placed in a position of imminentperil, ordinary humanity requires further steps to be taken: the very obviousexample is that, if the driver of a train sees a trespasser fallen on the linein front of him, he must try to stop the train. The variety of possiblesituations is so great that one cannot safely try to formulate for all caseswhat steps an occupier is required to take for the protection or rescue ofa 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 cheapestand most effective way of protecting children who might be tempted toeat 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 grew. But as an illustration of the duty to trespassers normally being suffi-ciently discharged by reasonable measures designed to exclude them fromthe situation of danger, I will cite a passage from the judgment ofWindeyer 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 uponhim onerous obligations to a trespasser—

(1) There is the unpredictability of the possible trespasser both as towhether he will come on the land at all and also as to where he will goand what he will do if he does come on the land. I enlarged on this pointin Videan v. British TransportCommission [1963] 2 Q.B. 650 , 679, and Iwill 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 requiredto take precautions for his safety. Occupiers are entitled to farm lands,operate quarries and factories, run express trains at full speed throughstations, fell trees and fire shots without regard to the mere general possibilitythat there might happen to be in the vicinity a trespasser who might beinjured. The occupiers do not have to cease or restrict their activities inview of that possibility, which is too remote to be taken into account andcould not fairly be allowed to curtail their freedom of action.

(2) Even when his presence is known or reasonably to be anticipated, sothat he becomes a neighbour, the trespasser is rightly to be regarded as anunder-privileged neighbour. The reason for this appears, I think, mostclearly from a consideration of the analogous position of a lawful visitor whoexceeds 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 69-70Lord 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) 45Australian 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 reasonable steps required to fulfil any resultant duty arising from the" circumstances in which the injured person came upon the scene."

It would in many, if not most, cases be impracticable to take effectivesteps to prevent (instead of merely endeavouring to deter) trespassers fromgoing into or remaining in situations of danger. The cost of erecting andmaintaining an impenetrable and unclimbable or, as it has been put, " boy-" proof" fence would be prohibitive, if it could be done at all. The casesof 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 boytrespassers. 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."

There is also a moral aspect. Apart from trespasses which areinadvertent or more or less excusable, trespassing is a form of misbehaviour,showing lack of consideration for the rights of others. It would be unfairif trespassers could by their misbehaviour impose onerous obligations onothers. One can take the case of a farmer. He may know well from pastexperience that persons are likely to trespass on his land for the purposeof tearing up his primroses and bluebells, or picking his mushrooms orstealing his turkeys, or for the purpose of taking country walks in the courseof which they will tread down his grass and leave gates open and watchtheir dogs chasing the farmer's cattle and sheep. It would be intolerableif a farmer had to take expensive precautions for the protection of suchpersons 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 theoccupier's duty to lawful visitors. It can also be said that the occupier doesnot owe to the trespasser any general duty of care. This question was fullyconsidered 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'sdirections 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  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 qualification—the occupier's duty is limited in the accepted terms."

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

It seems to me that there is rational justification for the common lawattitude towards trespassers, in so far as it has recognised that in relation to an occupier the position of a trespasser is radicallydifferent from that of a lawful visitor; the unknown and merely possible trespasser is not a " neighbour "in the sense in which that word " neighbour" was used by LordAtkin in Donoghue v. Stevenson, and the occupier owes to such atrespasser no duty to take precautions for his safety ; and

if the presence of the trespasser is known to or reasonably to beanticipated 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 dutiesformerly 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 ordinaryhumanity.

So far so good. In so far as those are the rules of the common law on thissubject, they seem to be fully acceptable. The difficulty, however, arisesfrom the narrow formulation of the duty to trespassers in Robert Addie and Sons (Collieries) v. Dumbreck [1929] AC 358. At page 365 Lord HailshamL.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 notin respect of omissions. Suppose that the occupier is running an electrifiedrailway, 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 childrenfrom straying on to the railway, and in consequence a child strays on tothe live rail and is seriously injured. Surely common sense and justicerequire 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 topositive acts. Perhaps the words " act" and " acting " in Addie v. Dumbreckcan be interpreted as including omissions.


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

Thirdly, the formulation makes the occupier liable only in respect ofdeliberate or reckless acts. I think the word " reckless " in the context doesnot mean grossly negligent but means that there must be a conscious disregardof the consequences—in effect deciding not to bother about the consequences.Thus a subjective, mental element, a sort of mens rea, is required as acondition of liability. Mere negligence would not be enough to createliability, according to this formulation. There would be no duty to takecare, 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. Thereis other authority to the effect that a man trespasses at his own risk andmust take the land as he finds it. Hamilton L.J. said in Latham v. Johnson[19131 1 K.B. 398at 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 casesboth before and after Addie v. Dumbreck(supra.) especially in cases wherechild trespassers were concerned. Where there had been frequent trespassingand no effective prevention of it, a licence was held to be implied, althoughthere was no voluntary grant of permission. Instances are Cooke v. MidlandRailway Co. [1909] A.C. 229 ; Lowery v. Walker [1911] AC 10; ExcelsoirWire Rope Co. v. Callan [1930] A.C. 404 . In such cases the licence was alegal fiction by which the harsh rule of law was circumvented and, one maysay, 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 ElectricityBoard 1958 S.C. (H.L.) 20 ; and in Videan's case (supra.) at page 663. AsDixon 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. Seealso Quinlan's case [1964] AC 1054, 1083-4. Also in more recent timesthere has been another development or attempted development of the lawto circumvent the harsh rule in Addie v. Dumbreck. Distinctions have beenmade (a) between the liability of the occupier and the liability of other personswho carry out active operations on the land ; (b) between the liability ofthe occupier qua occupier and his liability qua operator himself carryingout active operations on the land. The theory is that, whereas the occupierqua occupier has a large measure of exemption from liability in respect ofthe static condition of the land, the occupier or any other person carryingout active operations on the land has the full duty of care even towardsa 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. Seealso Buckland v. Guildford [1949] 1 K.B. 410 , Davis v. St. Mary's DemolitionCo. 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 1166and in Videan's case (supra.) at page 678. In so far as the theory has gained 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 doubtwhether there is any major distinction for the present purpose (i) betweenthe static condition of the land and active operations on the land (ii)between the occupier and other persons (such as his servants or agents orindependent contractors or employees of public authorities) lawfully carry-ing out operations on the land and having control of the operations andperhaps of the land as well for the time being (iii) between trespass on landand trespass on installations or railway vehicles. Occupation is associatedwith control and is a ground of liability, not of exemption from liability.The trespasser's movements are unpredictable and he goes into places wherehe has no business to be and imposes his unwanted presence: these con-siderations affect what can reasonably be required not only in the case ofthe occupier but also in the case of such other persons.

It seems to me that the rule in Addie v. Dumbreck has been renderedobsolete by changes in physical and social conditions and has become anincumbrance impeding the proper development of the law. With the in-crease of the population and the larger proportion living in cities and townsand the extensive substitution of blocks of flats for rows of houses withgardens or back yards and quiet streets, there is less playing space forchildren and so a greater temptation to trespass. There is less supervisionof children, so that they are more likely to trespass. Also with the progressof technology there are more and greater dangers for them to encounter byreason of the increased use of, for instance, electricity, gas, fast-movingvehicles, heavy machinery and poisonous chemicals. There is considerablymore need than there used to be for occupiers to take reasonable steps witha view to deterring persons, especially children, from trespassing in placesthat are dangerous for them.

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

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

I would dismiss the appeal.

Lord Diplock

my lords,

In a heavily populated suburban area of London there are two publicopen spaces in which children of all ages are accustomed to play. Betweenthem runs a line of the Appellants' railway equipped with live electric railwhich would cause serious injury or even death to anyone who came intocontact with it. Its dangerous character would not be appreciated by littlechildren. It is within a few yards of the boundary between the railway andone 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-troddenpath 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 groundIt presented no obstacle to access to the live rail by children too young to appreciate the danger. On 7th June, 1965, the Respondent, a child agedsix years, crossed the fence at this point, came into contact with the live railand sustained very serious injuries.

If the facts as to the use of the meadow and the condition of the fencewhich I have just recited were known to those responsible for runningthe railway, I believe that anyone endowed with common humanity wouldsay that the common law ought to afford to the injured child a legal rightto compensation against the railway authorities ; and that if it did notthere 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 conditionof the fence and the adjacent terrain had been noticed by any particularservant of theirs or as to what he or any other of their servants eitherthought or did about it. This is a legitimate tactical move under ouradversarial system of litigation. But a defendant who adopts it cannotcomplain if the court draws from the facts which have been disclosed allreasonable inferences as to what are the facts which the defendant has chosento withhold.

A court may lake judicial notice that railway lines are regularly patrolledby linesmen and gangers. In the absence of evidence to the contrary, it isentitled to infer that one or more of them in the course of several weeksnoticed what was plain for all to see. Anyone of common sense wouldrealise the danger that the state of the fence so close to the live rail createdfor little children coming to the meadow to play. As the Appellants electedto call none of the persons who patrolled the line there is nothing to rebutthe 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 Appellantsthat one or more of their employees decided to allow the risk to continueof some child crossing the boundary and being injured or killed by thelive rail rather than to incur the trivial trouble and expense of repairingthe gap in the fence.

Even if these inferences are drawn, it is the submission of the Appellantsthat the common law affords no remedy to the injured. Such is said to bethe ineluctable consequence of the decision of this House over forty yearsago in Addie v. Dumbreck ([1929] AC 358) and, in particular, is said tofollow 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 halfyears. It was decided in the year that I started to read for the Bar. Evenat that time it offended against what Lord Atkin, only three years later, wasto 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 whothought that previous cases in this House had shown the common law asmoving towards a less draconian treatment of those who trespassed innocentlyupon 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 itpossible to say that, judged by current standards of behaviour, the conductof those engaged in operating the appellants' railway in the instant casewas any more blameworthy than the conduct of those engaged in runningthe colliery of the successful appellant in Addie v. Dumbreck Yet all ninejudges who have been concerned with the instant case in its various stagesare convinced that the plaintiff's claim ought to succeed; and, if I maybe permitted to be candid, are determined that it shall. The problem of judicial technique is how best to surmount or to circumvent the obstaclepresented by the speeches of the Lord Chancellor and Viscount Dunedinin Addie v. Dumbreck, and the way in which those speeches were dealt within 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. inBird v. Holbrook ([1828] 4 Bing. 628) had laid it down that an occupierwas not entitled intentionally and maliciously to injure a trespasser. Forpresent purposes the significance of that case, which arose out of settingof spring guns to injure trespassers, is two-fold. First, it is recognised thatthe duty, whatever its content, was owned by the occupier to an unknownbut expected trespasser as well as to a trespasser actually known to theoccupier to be trespassing on his land. Secondly, Best C.J. based the dutyupon its being the object of English law to uphold humanity. This expressionfound 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 ofordinary humanity, which was adopted by Lord Sumner, then HamiltonL.J., as the definition of the duty of an occupier to a trespasser, in hisjudgment in Latham v. R. Johnson and Nephew Ltd. ([I913] 1 K.B. 398 atp. 341)—a judgment which was expressly approved by both the LordChancellor and Viscount Dunedin in Addie v. Dumbreck.

But attention had been diverted from the development of the content ofan occupier's duty towards trespassers by the adoption of the technique ofre-classifying as " licensees" persons whom the occupier had not madesufficiently effective efforts to exclude from his land, so as to give them thebenefit of the ready-made duty of care for their safety owed at commonlaw by an occupier to those who, in reality, entered upon his land by hispermission and not against his will. This technique had been acceptedwithout 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 bebriefly summarised as a duty to take reasonable steps to enable the licenseeto avoid a danger known to the occupier.

In Addie v. Dumbreck the First Division of the Court of Session haddeparted from this technique and sought to recognise as a separate categoryof persons to whom a duty was owed, members of a class whom the occupierknew to be in the habit of resorting to his land without his permission. Themajority had held that such trespassers the occupier owed a duty to takereasonable steps to deter their intrusion if it was likely to result in seriousinjury to them. The decision of this House in Addie v. Dumbreck wasprimarily directed to asserting the propositions: that persons present uponan occupier's land could be assigned to one of three mutually exclusivecategories only, viz. invitees, licensees and trespassers : that there was nosub-division of the category of trespassers ; and that the duty owed by anoccupier to a person on his land was determined solely by the category intowhich that person fell. In order to decide the appeal, however, it was alsonecessary to state the content of the duty towards trespassers—the categoryinto which it was held that the respondent fell—in order to determine whetherthe appellant was in breach of it. This the Lord Chancellor did in the passagethat I have cited.

In Addie v. Dumbreck the child had not been found by the Court ofSession to be a licensee. The decision of this House did not therefore directlyimpugn the technique of inferring the tacit permission of the occupier to anintruder's presence on his land from his failure to take effective steps tomanifest to the intruder his objection to it. Indeed Addie v. Dumbreckappeared to confirm this as the only way of mitigating the lot of meritorioustrespassers; though the actual decision on the facts showed a greaterreluctance to make use of it than had been evinced by the members of thisHouse 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 did in Edwards v. Railway Executive ([1952] A.C. 787). Lord Porter thererefers 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 toavoid the implication. Lord Goddard, with whose speech my noble andlearned 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), LordOaksey 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 circumstances 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, particularly 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 adultsthe so-called " licence '' could be equally fictitious.

By use of the fiction of a " licence " to persons who would otherwisebe trespassers the courts were enabled to recognise that there were circum-stances which imposed upon an occupier a duty either (a) to take reasonablesteps to deter such persons from entering upon a part of his land where heknew they would be exposed to serious risk of personal injury ; or, if hedid not do so, (b) to take reasonable steps to enable them to avoid thedanger. Breach of the former duty entitled them to the status of" licensees " ; the acquisition of that status entitled them to the benefit ofthe latter duty. Once the circumstances which impose these duties havebeen identified in a sufficient number of cases to form a body of precedentupon their own. the fiction has served its purpose in the development ofthe common law and is ripe for discard. The misfortune of Addie \.Dumbreck was that the majority of the Court of Session tried to discardthe fiction before the time was ripe to do so. The need to retain it persistedso long as it continued to be accepted doctrine that a duty to regulateone's conduct towards one's neighbour so as to reduce the risk of injuringhim, could only arise if there were some pre-existing legal relationshipsbetween the parties which fell within some category already recognisedat common law. This obstacle to the rational development of: an occu-pier's duty towards trespassers was penetrated by the decision of this Housein Donoghue v. Stevenson ([1932] AC 562) and broken down by Bourhillv. Young ([1943] AC 92). The significance of these two cases for presentpurposes is not the content of the duty there discussed but the recognitionthat conduct likely to cause injury to another person could in itself createthe 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 isrecognised as being capable in itself of creating a legal relationship toanother person which attracts duties owed to that person in respect of hissafety, it is no longer necessary in cases where that conduct attracts a dutyto take reasonable steps to deter another person from entering a dangerouspart of the occupier's land, to sub-divide his duties to that person into aduty to deter his entry, a breach of which gives rise to a subsequent dutyto take reasonable steps to enable him to avoid the danger. To deter his entry to merely one way of enabling him to avoid the danger. Thewhole duty can be described as a duty to take reasonable steps to enablehim to avoid the danger.

My Lords, this approach clearly runs counter to that of this House inAddie v. Dumbreck. It rejects categorisation of the injured person as atrespasser or licensee as the source of any duty owed to him by the occupierto take steps for his safety and looks instead to the conduct of the occupieras creating the relevant relationship. Addie v. Dumbreck asserts the neces-sity for such categorisation; but by leaving intact the technique of inferringa licence by the occupier to a person to whose presence on his land he doesnot really consent, it transfers from the category of trespassers to that oflicensees persons who for the purposes of all other incidents of the legalrelationship between them and the occupier, except his duty to take stepsfor their safety, would remain in the category of trespassers. But, as eachof the previous citations from the speeches in Edward's case confirms, thecriteria for eligibility for transfer from one category to the other dependedupon the conduct of the occupier. So, even upon this approach, the inquirynecessarily started with an examination of the occupier's conduct beforethe person subsequently injured enters upon his land. These criteria werenot 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 justifytreating the trespassing child as if she were a licensee.

My Lords, this House has since 1966 abandoned its former practice ofadhering rigidly to the ratio decidendi of its previous decisions. There isno 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 whosuffers personal injury on it, should be characterised as over-ruling Addiev. Dumbreck or as doing no more than explaining its reasoning in termswhich are in harmony with the general development of legal concepts since1929 as to the source of one man's duty to take steps for the safety ofanother. For my part I would reject the fiction and direct attention tothe kind of conduct of an occupier of land which attracts the duty to takereasonable steps to enable a person who enters on his land without his actualconsent, 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 PrivyCouncil as to the status of Mr. Quinlan as a " trespasser " upon the levelcrossing where he was injured- The judgment of the Board was mainlydirected to rejecting the proposition that there were circumstances in whicha person entitled only to the status of " trespasser " might be owed by theoccupier upon whose land he was trespassing the common duty of carelaid down in Donoghue v. Stevenson—which was higher duty than thatwhich is owed by an occupier of land to his licensees in Australia wherethe common law has not been replaced by statutory provisions such as thoseto be found in the English Occupier's Liability Act. 1957. In the courseof examining three recent decisions of the High Court of Australia on whichthe rejected proposition was said to be based, the Privy Council expresslyapproved 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 inthe context of such cases that the Privy Council recognised the unrealityof the "licence" to the straying child. But although recognising the" licence " as a fiction, they accepted the correctness of the conclusions as tothe legal consequences of the conduct of the occupier which had hithertopreviously been accepted as constituting an implied " licence " to the persontrespassing and so entitling him to the benefit of the higher duty owed byan occupier to take steps for the safety of his licensees.

My Lords, Quinlan's case is authority for the proposition that an occupierdoes not owe to a person who is unlawfully upon his land the common dutyof care and foresight as respects dangerous activities which he carries outthere, that he owes to persons who are lawfully present there, as was the successful plaintiff in the contrasting Australian level-crossing case (Com-missioner of Railways v. McDermott[1967] AC 169) which came to thePrivy 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 recognisedthat, in the case of children at any rate, their categorisation as " licensees "instead of " trespassers " was a mere legal fiction, it failed to recognise thatit 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 occupierto those who entered on his land, otherwise than in the exercise of a legalright or with his actual consent.

But although the Addie test (there must be some act done with thedeliberate intention of doing harm to the trespasser or at least some act donewith reckless disregard of the presence of the trespasser) was accepted asbeing 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 matterof linguistics, to be a contradiction in terms. For my part I would notfollow the alternative route thus hinted at by which an amelioration of thelaw in favour of meritorious trespassers might be attained. I think it prefer-able to seek to identify the underlying principles which had been tacitlyaccepted in Addie v. Dumbreck as justifying exclusion from the category ofintruders to whom the Addie test applies, those persons to whom judgeshave hitherto managed to ascribe the status of licensee without acknowledgingthe fictitious character of their imputed " licence " from the occupier.

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

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

This distinction, as it seems to me, supplies the jurisprudential basis forthe proposition, implicit in the Scots cases about fencing land against tres-passers, which were cited with the approval by Viscount Dunedin in Addiev. 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 otherwiseof trespassers coming on to any part of his land. He is entitled to assumethat persons will not inflict a wrong upon him unless he has actual knowledgeof the likelihood that they will do so. It would be an unjustifiable burdenfor the law to impose upon an occupier for the benefit of wrongdoers, aduty to make inspections and inquiries in order to ascertain whether ornot trespassers were likely to come on to his land. So in the ordinary caseof a person to whom the occupier has not given permission to come uponhis land, keeping the danger within the boundaries of his own land is itself a fulfilment of any duty he may owe to such a person to take reasonablesteps to enable him to avoid such danger. The test of whether an occupieris under any duty to a trespasser to do more than to keep the danger withinthe boundaries of his land is whether he is actually aware of facts whichmake it likely that some trespasser will come on to that part of his landwhere the danger is. It is not what the occupier would have been awareof if he had exercised more diligence or foresight than he did.

My Lords, the degree of expectation that a trespasser will come uponhis land that is sufficient to impose upon him a duty to take any additionalsteps to enable such a trespasser to avoid the danger and whether there areany elements in it which require recourse to the standards of a reasonableman, can best be discussed after considering what is the content of that dutywhen it arises.

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

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

This " subjective " duty was owed by an occupier to licensees of whoseactual presence on the land and consequent exposure to danger he wasunaware but ought to have foreseen because he had given them permissionto go there. As respects licensees of whose presence and exposure to dangerhe was actually aware the content of his duty as I have summarised it differsvery little in substance from Viscount Hailsham's description in Addie v.Dumbreck of conduct of an occupier which renders him liable to a trespasserheaving aside intentional injury. He stated the occupier's duty to a trespasserwhom he knew to be present, in the negative form of a duty to refrainfrom doing an act " with reckless disregard of the presence of the trespasser ",whereas I have summarised the occupier's duty to a trespasser whom heknows to be exposed to danger, in the positive form of a duty to takereasonable steps to enable the trespasser to avoid the danger. But positiveand negative descriptions of duties of this kind may be ways of describingthe two sides of the same coin. In the passage immediately before thatwhich I have quoted Viscount Hailsham had stated the occupier's duty tohis 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 thewords " or ought to be known " does, I think, overstate the accepted definitionof the common law duty to licensees.

It is possible to conceive of circumstances where the concealed dangeris due to the natural condition of the land, but all the actual cases in thebooks are about man-made dangers and it is to these that the language ofthe judgments is directed. Man-made danger may be the result of an actdone while the trespasser is actually present on the land, as was the case inAddie v. Dumbreck itself, or an act done before the trespasser came on tothe land. It can hardly be supposed that Viscount Hailsham intended todraw a distinction between the liability of the occupier for setting the haulage machinery in motion when the child was known to be close to the pulleywheel and allowing it to continue in motion after the child was known tohave approached the wheel. In either case his conduct would manifest" a reckless diregard of ordinary humanity ". In the context of recklessnessof conduct there is no rational distinction between activity and inactivity.

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

Actual knowledge of a concealed danger, however, may involve twodifferent mental elements: actual knowledge of an activity carried out uponthe land or of its physical condition, which constitutes a concealed dangerto a person on the land ; and actual appreciation that the known activityor condition does constitute a concealed danger. The relevance of thisanalysis, particularly in cases in which any activities on the land are carriedout by servants of the occupier for whose fault he is vicariously liable, doesnot appear to have been appreciated until comparatively recently, whenthe 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 ofphysical facts and appreciation of danger was first suggested in argument inBaker v. Bethnal Green Borough Council ([1945] 1 All E.R. 135). It waseventually accepted by the Court of Appeal in Hawkins v. Purley andCoulsdon U.D.C. ([1954] 1 Q.B. 349) in order to impose upon a corporationas occupier liability based upon the actual knowledge of the physical factsfrom which the danger arose. It was held that although the test of knowledgeof the physical facts which constituted the concealed danger was subjective(did the occupier either personally or vicariously by his servants actuallyknow them?), the lest of appreciation of the danger resulting from theknown facts was objective (would a reasonable man possessed of thatknowledge 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 adevelopment which had taken place before the Occupiers Liability Act, 1957,had substituted a statutory duty of care for the common law duty previouslyowed to licensees. That Act did not touch the occupier's duty to trespassersat common law. It left it to continue to be developed by judicial decision.Actual knowledge of concealed danger is a factor common to the dutypreviously owed at common law by an occupier to his licensees and to theduty still owed by an occupier to trespassers.

There is, in any event, a certain artificiality in ascribing an appreciationof risk to a fictitious person, a corporation—as this defendant is and asnowadays most defendants are. Knowledge of facts calls for the use of eyesand ears ; and these a corporation has through its employees, even thehumblest. If any of them learns of the facts, in the course of his employmenthis knowledge is the knowledge of the corporation. But appreciation ofrisk of danger calls for the exercise of intelligent judgment; and it is thejudgment of the corporation itself which is relevant. What human minds areto be treated as those of the corporation for the purpose of exercising thatjudgment? To take an example of what may have been the facts of thepresent case if the Appellants had chosen to disclose them. The linesmanwhen he saw the broken fence may have appreciated the risk of dangerto trespassing children but have failed to report the state of the fence out oflaziness 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 theattention of the recipient of his report to the danger involved. Or therecipient may himself have appreciated the risk but to save himself troubledecided to do nothing about it. And so on up the chain of responsibilityto the employee of the corporation endowed with authority to order the fence to be repaired. Is appreciation of the risk by any one employee inthis 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 objectivestandard of the reasonable man. by attributing to the fictitious person, thefictitious mind and judgment of a reasonable man. It would, however, bemore 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 totrespassers the same analysis as was adopted in relation to the occupier'sduty at common law to his licensees. This avoids differentiating betweenthe real and the fictitious person as occupier and solves the metaphysicaldifficulties of ascribing to the latter an actual appreciation of the risk. Tosee the danger signal yet not to take the trouble to give some thought to it isconduct which the law ought to condemn.

My Lords, I conclude therefore that there is no duty owed by an occupierto any trespasser unless he actually knows of the physical facts in relationto the state of his land or some activity carried out upon it. which constitutea 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 toascertain whether there is any such danger. Where he does know of physicalfacts which a reasonable man would appreciate involved danger of seriousinjury to the trespasser his duty is to take reasonable steps to enable thetrespasser to avoid the danger. What constitute reasonable steps will dependupon the kind of trespasser to whom the duty is owed. If the duty owedto small children too young to understand a warning notice the duty mayrequire the provision of an obstacle to their approach to the danger sufficientlydifficult to surmount as to make it clear to the youngest unaccompaniedchild likely to approach the danger, that beyond the obstacle is forbiddenterritory.

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

In Quinlan's case a variety of expressions were used to describe thenecessary degree of expectation. The occupier must " as good as know "that the trespasser is present at the time of the injury. His presence mustbe fairly described as " extremely likely " or " very probable ". I do notfind these latter phrases helpful save as a warning that the presence oftrespassers being unpredictable as compared with that of licensees, this un-predictability must not be allowed to impose upon the occupier a dutyto give his mind to all the possible circumstances in which a trespassermight 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 thecase of a minefield, as in Adams v. Naylor([1944] 1 K.B. 750), or a liveelectric rail, an ordinarily humane man would regard it as incumbent uponhim to take precautions to protect intruders against the mortal danger whichthese objects present although the likelihood of there being intruders wasmuch less than that which would cause him to take precautions to protectintruders 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 theland, such as putting machines or vehicles in motion, the test of the creationof the occupier's liability to the injured trespasser is his expectation of atrespasser's presence at the point of danger at that moment of activity.Whereas if the danger lies in some permanent condition of the land, suchas a live rail, the test is his expectation of some trespasser's presence atthe 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 something present on the land, is relevant to the occupier's expectation thatchild trespassers will come on to his land and will approach the point ofdanger, as well as being relevant to the kind of precaution he must take toprotect them from the danger.

My Lords, an occupier's expectation of a trespasser's presence, like hisknowledge of a concealed danger, also involves two mental elements: actualknowledge of physical facts which indicate that trespassers are likely tocome on to the land; and appreciation of the resulting likelihood. Forreasons similar to those which I have indicated I think that, as the law hasnow developed, the test of appreciation of the likelihood of trespass iswhether a reasonable man knowing only the physical facts which the occupieractually knew, would appreciate that a trespasser's presence at the point andtime of danger was so likely that in all the circumstances it would beinhumane not to give to him effective warning of the danger or, in the caseof a child too young to understand a warning, not to take steps to conveyto his infant intelligence that he must keep away. I do not think that ajudge or jury would find any difficulty in applying this test.

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

First: The duty does not arise until the occupier has actual knowledgeeither of the presence of the trespasser upon his land or of facts which makeit likely that the trespasser will come on to his land ; and has also actualknowledge of facts as to the condition of his land or of activities carriedout upon it which are likely to cause personal injury to a trespasser whois unaware of the danger. He is under no duty to the trespasser to makeany 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 ownfailure to appreciate the likelihood of the trespasser's presence or the riskto him involved, does not absolve the occupier from his duty to the trespasserif a reasonable man possessed of the actual knowledge of the occupier wouldrecognise that likelihood and that risk.

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

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

My Lords, upon the findings of the trial judge in the instant appeal. 1find no difficulty in inferring that through the eyes or ears of one or other of their servants the Appellant Board did know the physical facts that madeit likely that little children playing in Bunce's Meadow would trespass ontheir line and that if they did so would run a serious risk of grave if notmortal injury from the electric rail. Breach of the other characteristics ofthe 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 stillin confusion if this House did not state categorically the respects in whichthe test of an occupier's duty to a trespasser differs from that stated by themajority of the Court of Appeal in Videan v. British TransportCommission(1963 2 Q.B. 650) and reiterated by the whole court in Kingzett v. BritishRailways Board ((1968) 112 Sol. J. 625) despite the intervening adversecomment by the Privy Council in Quinlan's case.

In the instant case the trial judge felt that he was bound to follow thereasoning of Videan's case and Kingzett's case. The Court of Appeal feltable 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 childrenhad trespassed on the land two months before, as falling within ViscountHailsham's formula in Addie v. Dumbreck as " an act done with reckless" disregard of the presence of a trespasser ". This was, I think, undulycensorious of the station-master as an individual. It was unnecessary toapportion among its individual servants the blame which lay upon theincorporated Board. The reckless act was that of the fictitious person, theBoard 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 madeit likely that a little child would stray from Bunce's Meadow and comein contact with the rail.

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

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.

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.

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 and Sons (1955] 1 W.L.R. 1005.)In Videan's case (ubi. sup. at p. 604) it was asserted baldly that there was 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.

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