1 All ER 749
British Railways Board v Herrington
HOUSE OF LORDS
LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD WILBERFORE, LORD PEARSON AND LORD DIPLOCK
9, 11, 12, 15, 16, 17, 19, 22 NOVEMBER 1971, 16 FEBRUARY 1972
16 February 1972. The following opinions were delivered.
My Lords, on 7 June 1965 the respondent, then a child of six years old, was playing with other children on National Trust property at Mitcham which is open to the public. Immediately adjoining this property the appellants have an electrified railway line a few yards from the boundary. Their boundary is marked by a fence which, if it had been in good repair, would have sufficed to prevent the respondent from reaching the railway line. But it was in very bad repair so that when the respondent strayed away from his playmates he was able to get through or over it. He then went a few yards farther and came in contact with the live electrified rail. Fortunately he was rescued but he had already sustained severe injury. His age was such that he was unable to appreciate the danger of going on to the railway line and probably unable to appreciate that he was doing wrong in getting over the fence.
I have no doubt that if the appellants owed to potential child trespassers any duty of care to take steps for their safety, they were in breach of any such duty. Enquiry soon after the accident showed that this was by no means the only place where their fence was defective and a well trodden track leading to the point where the respondent got on to their property showed that a considerable number of trespassers must have crossed the line at this point to other National Trust property on the other side. The appellants led no evidence at the trial and it cannot be inferred that they knew about these trespassers before the accident. The only evidence of their knowledge was a report produced by them which showed that they knew that a few weeks before the accident some children had been seen on the line at some point not very far away. But in my view the evidence was sufficient to show either that there was no systematic inspection of their fence or that if there was any system it was not operated or enforced.