Herrington v British Rail Board [1972] AC 877

Key points

  • An occupier owes a trespasser a duty of common humanity (a precursor to the duty under Occupiers’ Liability Act 1984)
  • The standard of care owed towards children is higher

Facts

  • D owned an electrified line which was fenced off from a meadow where children played
  • The station master was notified that children had been seen on the line, but the fence was not repaired
  • The fence fell into disrepair and a child aged six (C) trespassed over the fence and was injured on the live rail

Held (House of Lords)

  • D was in breach of their duty to C
  • C was entitled to damages

Lord Morris

  • Occupier owes a trespasser a duty to take such steps as common sense or common humanity would dictate to exclude or warn or otherwise, within reasonable and practicable limits, reduce or avert danger
  • The court has to look at the lack of capacity of the trespasser, such as the inability of children to recognise danger
    • “If a fence marks a boundary an adult who climbs over it will appreciate what he is doing. A small boy who finds a part of a fence so dilapidated that there is no real obstacle to his progress will not or may not know that he is at once a ‘trespasser’ if he goes on.”: p. 904C

Lord Reid

  • The standard of care depends on whether a conscientious humane man with his knowledge skill and resources could reasonably be expected to do or refrain from doing before the accident something that could have avoided it

Commentary

  • Prior to Herrington, the only common law duty that occupiers owed to trespassers was not to cause them deliberate or reckless injury
  • As a response to Herrington, the Law Commission proposed a reform of occupiers’ liability to trespassers and this was implemented by the Occupiers’ Liability Act 1984