United Kingdom House of Lords Decisions

At delivering judgment on 27th October 1965,—

LORD REID .—In this case the appellant sues under the Occupiers' Liability (Scotland) Act, 1960, for damages in respect of injuries suffered by his pupil son on premises occupied by the respondents. The Lord Ordinary held the respondents liable and assessed damages at £1500 but he also held the child to be two-thirds to blame and accordingly he awarded to the pursuer the sum of £500. The First Division held that the respondents were not liable and granted decree of absolvitor.

The respondents' railway line at Kirkhill passes through a cutting before entering a tunnel. At the point where the accident occurred there is a vertical wall rising some eight feet on the north side of the line and above that there is a steeply sloping bank running up to a public footpath. The fence which divides the respondents' property from this footpath was in bad repair and it is not disputed that children from a neighbouring housing estate were in the habit of playing on this bank. Some months before the accident the line was electrified and a booster transformer was erected on a concrete platform at the foot of this bank near the top of the vertical wall. It consisted of a structure about twenty feet high; at a height of about nine feet one live wire was attached to this structure and another was attached to it at a point several feet higher up. The voltage was 2500. The respondents surrounded this structure and platform on three sides by a strongly constructed meshed fence at least six feet high but there was no fence on the side nearest the railway line. When railway servants had occasion to visit this transformer, they climbed up from the railway line by means of a ladder and had free access to it. The sides of the meshed fence running down towards the line did not reach the vertical wall and there were gaps in each side of about four or five feet between the ends of the fence and the vertical wall. These gaps were each closed by five strands of barbed wire running fan-wise from a point on the ground at the top of the wall to various points at the ends of the meshed fence. There were small notices attached to the fence bearing the words "Danger—Overhead live wires."

On 16th June 1962 the appellant's son, aged twelve, and another boy of about the same age were playing on the bank near the transformer and the appellant's son decided to climb the transformer structure. It is not clear how he got through the barbed wire, but that could easily be done by an active boy. He climbed upwards past the first live wire but somehow his arm came into contact with the uppermost live wire and he sustained severe burning from electric shock. He was able to scramble down and his companion helped him to return through the barbed wire fence. He was taken to hospital and his injuries proved to be rather serious.

The question is whether the steps which the respondents took to fence this transformer were adequate to discharge their duty, which is now statutory.

Section 2 of the Act provides: [His Lordship read section 2 (1) and continued]—I do not think it necessary or helpful in this case to discuss the state of the law before this Act was passed. One thing, however, is clear. This section renders the decision of this House in Dumbreck v. Addie & Sons (Collieries) no longer authoritative. It abolishes the categories of invitee, licensee and trespasser and it imposes on occupiers a higher liability to trespassers than that laid down in Dumbreck's case. But I do not intend to consider whether or not this section confers on trespassers greater rights than they were thought to have had before that decision. The wealth of authority discussed in the Court of Session in that case shows that the law was then far from clear and I have not attempted to form any view as to how this case would have been treated before Dumbreck's case was decided.

The section applies both to trespassers and to persons entering property by invitation or licence, express or implied. But that does not mean that the occupier must always show equal care for the safety of all such persons. The care required is such care as is reasonable and it may be reasonable to require a greater degree of care in one such case than in another. In deciding what degree of care is required, in my view regard must be had both to the position of the occupier and to the position of the person entering his premises and it may often be reasonable to hold that an occupier must do more to protect a person whom he permits to be on his property than he need do to protect a person who enters his property without his permission. Trespassers on the steep bank were so frequent that I would be prepared, if necessary, to hold that licence to play on the bank could be implied. Certainly the respondents ought to have expected that boys would play on it near this transformer and the respondents' witness admitted that, when such apparatus is erected at places open to the public, means are taken to warn people against climbing transformers. The question here is whether the means which were taken were sufficient to discharge the statutory duty.

The appellant pleaded that it was the respondents' duty to surround the transformer by a fence adequate to prevent children from doing what this boy did. But that would mean that whenever an occupier brings a highly dangerous object on to his land where children are accustomed to be, he must surround it by an impenetrable and unclimbable fence. That appears to me to be quite unreasonable and the Lord Ordinary did not go nearly so far as that. It would mean that here there would have had to be a locked gate in a fence next the railway so that railway servants could enter when necessary. We do not know whether that would have been so inconvenient as to prevent railway servants from having access to the transformer in a case where such access might be urgently necessary. The Lord Ordinary did not hold that there should have been a fence on the side next the railway, but, as I read his judgment, he decided against the respondents on a ground which only emerged in the course of the proof. In the course of his evidence the pursuer suggested that the gaps between the ends of the meshed fence and the vertical wall should have been closed by prolonging the sides of the meshed fence to the top of the wall. No objection was taken at that stage. Then, when the injured boy gave evidence, he was cross-examined as to whether such prolongation of the meshed fence would have kept him out. I agree with the Lord President that this ground of fault was not covered by the pursuer's record and, if objection had been taken timeously, I think that it ought to have been sustained, leaving the pursuer to amend his record, if so advised. But no objection was taken until, in the course of cross-examination of the defenders' witness, the pursuer's counsel put it to him that the sides of the meshed fence ought to have been prolonged. There may, no doubt, be cases where objection cannot reasonably be expected to be taken at the first moment when evidence is led regarding a ground of fault not pleaded, but in my view in this case there was ample opportunity to take this objection at a much earlier stage in the proof and I think that the Lord Ordinary was right in not sustaining the objection at the stage when it was taken. Accordingly I think that we ought to consider this case on the basis that this new ground of fault must be dealt with.

As I read the judgment of the Lord Ordinary, he held that prolongation of the meshed fence would probably have prevented the boy from gaining access to the transformer. On the evidence this is doubtful. An adventurous and active boy might well have been able to swing himself round the end of the prolonged fence. However, I shall assume that the Lord Ordinary was right about this. But I do not think that the respondents were at fault in closing the gaps with barbed wire instead of prolonging the fence.

The live wires were only a danger to a boy old enough to climb up this structure, and I think that the respondents could properly assume that such a boy would understand that the barbed wire was intended to keep him out and that there would or might be danger if he forced his way into this small enclosure. This is not a case of danger to a child too young to understand such things. The evidence shows that the boy knew quite well that the barbed wire was intended to keep him out and that to climb the transformer was dangerous. But he knew little or nothing about electricity and he did not know about live wires. So, even if he had read the notices, he would have learned little from them.

In a case like this an occupier does in my view act reasonably if he erects an obstacle which a boy must take some trouble to overcome before he can reach the dangerous apparatus. But the opinion of the Lord President could be read as stating a general proposition, though I doubt whether he meant to do that. He said:

"Warning notices and fencing are normal precautionary methods of keeping members of the public out of dangerous areas … As the Lord President put it in Dumbreck v. Addie & Sons (Collieries) in the Court of Session (at p. 553), ‘The point is not that the fence should be impenetrable or unclimbable, but that it should present an obstacle to an invader, adult or infantile, which the invader must consciously overcome.’ If the barrier in question satisfies this test, it would in my opinion comply with the provisions of the statute."

I do not find it difficult to imagine cases where that might not be sufficient. If an occupier brings a highly dangerous thing on to his land, he might have to do more than that if he has reason to anticipate the presence of very young children, or in the case of older children, if the obstacle merely prevents access to a place where no danger of any kind would be apparent to them. And if warning notices are to be effective, they would have to be more prominent, larger and clearer than the notices which the respondents displayed. I would observe that in Dumbreck's case the Lord President was considering what would be sufficient to exclude any implied licence, and the new provision in the 1960 Act may require more than that in some cases.

The Lord Ordinary attached importance to the fact that the meshed fence could easily have been extended. As this matter came into the case at so late a stage, we do not know whether there would have been any practical difficulty in doing this. But even if this would have involved no substantial difficulty or expense, I do not think that an occupier is bound to do more than fulfil the statutory duty. It would put occupiers in an impossible position if, having provided adequate protection, they then had to weigh possible further reduction of risk of accidents against the trouble and expense of taking further precautions. An occupier must do what he is bound to do, but he is not in fault in failing to do more, however easy it might have been to do that.

Finally the respondents relied on section 2 (3) of the Act. That subsection merely puts in words the principle volenti non fit injuria, and it is a sufficient answer to the application of that principle to this case that this boy did not have a proper appreciation of the risk from live wires.

I would therefore dismiss this appeal.

LORD MORRIS OF BORTH-Y-GEST .—I have had the advantage of reading in advance the speech of my noble and learned friend Lord Reid. I am in agreement with it and accordingly I would dismiss the appeal.

LORD GUEST .—The facts in this case have been already fully stated in the Courts below and by my noble and learned friend who has preceded me and I do not propose to rehearse them. I therefore turn at once to the questions raised in this appeal.

I will first deal with the question whether the Lord Ordinary was entitled to find against the respondents on the ground on which his decision was based. The ground of fault alleged by the appellant on record was that the respondents failed to provide and maintain an adequate fence round the booster transformer structure on all sides, which would prevent children from coming in contact with its dangerous parts: further it was alleged that the fence provided was not adequate "in that it surrounded the fitment on three sides only and children could easily gain access to the fitment by passing round the ends of the fence …" (Condescendence 3.) The ground upon which the Lord Ordinary decided against the respondents was in not extending the mesh fence on the two sides to the rock edge. It was argued that this was a different case from that pleaded by the pursuer in condescendence 3. Quite true it is that the appellant did not make the specific suggestion on record that the mesh fence could have been so extended. When, therefore, at an early stage in the evidence the appellant (the boy's father) suggested that, if the fence had been extended to the rock face, it would have prevented the boy from getting under the wire, an objection taken then by the respondents' counsel to the evidence might well have succeeded. If the Lord Ordinary had rejected the evidence then, no further evidence on this point could have been led and the respondents would have been on strong grounds in attacking the Lord Ordinary's decision on the merits. Alternatively, the appellant might have, with leave of the Court, amended his record so as to cover the case of the mesh fence being extended to the rock edge, in which event the case would have proceeded on more regular lines. But neither of these steps was taken. No objection was made by the respondents to the point about the mesh fence being extended which was later developed in the evidence of the appellant, the boy, and Police Sergeant Cashmore. It was not until the last witness (Mr Kenton, the respondents' distribution assistant) was being cross-examined by the appellant's counsel that the respondents' counsel objected to the line of cross-examination, in so far as it related to the possibility of extending the wire-mesh fence to the edge of the precipice, on the ground that there was no record. In my view, contrary to that of Lord Guthrie, the Lord Ordinary rightly repelled the objection. In the state of the evidence which had already been given by the appellant's witnesses it was too late for such an objection to succeed. Scots practice requires that, if an objection to a line of evidence is to be taken on the ground of incompetency, it should be taken at the first available time. By failing to table an objection timeously the appellant was entitled to assume that the respondents took the view that the case of an extended mesh fence was covered by the record. The Lord President and Lord Guthrie have taken, in my view, too strict a view of the pleadings. I agree with the Lord President that proper notice must ordinarily be given on record of the attack made upon the other side. The reason is that the other side may be prejudiced by the failure to give proper notice. But the respondents can scarcely object on this ground when they allowed such evidence to be led and failed until the last witness to table an objection to the evidence. Pleadings are to be used as servants and not masters. For these reasons I do not accept that the ground of fault sustained by the Lord Ordinary was not one on which as a matter of pleading the appellant was entitled to rely.

Since the Occupiers' Liability (Scotland) Act, 1960, the various categories into which those who come upon the premises of another had been placed have now been abolished. The law of Scotland now stands in this connection where it stood before the case of Dumbreck v. Addie & Sons (Collieries) by a decision of the House of Lords introduced these categories into the law of Scotland. Section 2 (1) of the Act of 1960 defines the duty of the occupier of premises towards a person entering thereon in respect of dangers due to the state of the premises in terms which would have been appropriate in Scotland when the case of Dumbreck was before the Court of Session. The occupier must show towards such a person such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. The duty is not to ensure the entrant's safety but only to show reasonable care. What is reasonable must depend "on all the circumstances of the case." This is very largely a question of fact and in ordinary circumstances I should have been prepared to follow the Lord Ordinary on this matter. I find, however, his reasoning difficult to follow. He first expresses the view that the barbed wire to the rock face "presented an obstacle which could be overcome only by a deliberate act intended to defeat its obvious function." He then says that the erection of such an obstacle would "in many circumstances" satisfy the test of reasonable care. But he unaccountably continues by saying:

"The peculiarity of this case is that the mesh fence could easily have been extended to the rock edge, and would then have formed a perfect fence."

The fallacy in his reasoning seems, with respect, to be that, because an extra precaution can easily be taken, it must follow that a failure to take it is a breach of the duty to take reasonable care. He gives no satisfactory reasons for thinking that a "perfect boy-proof fence" was necessary. I do not think that the duty of exercising reasonable care required the taking of such precautions as would repel a deliberate invader.

In considering whether the respondents took reasonable steps to protect persons whom they ought reasonably to expect to be there from the admitted danger, all the circumstances must be looked at. The transformer was a highly dangerous object which did undoubtedly provide an allurement to inquisitive children. Boys had been known to play on the embankment without objection, although not to enter the enclosure. The steps which the respondents took to exclude them from the enclosure were fairly comprehensive. A seven foot high unclimbable mesh fence was erected on three sides. Danger notices were placed on these three sides and at each gap on either side between the end of the mesh fence and the rock edge five strands of barbed wire in a fan-like shape had been erected. Was this enough? I would like to adopt with approval the quotation from Winfield's Law of Tort, (5th ed.) p. 587, which is to be found in the judgment of Singleton, L.J., in Gough v. National Coal Board (at p. 201) and is to the following effect:

"An occupier must take reasonable care to see that children, of whose presence he knows or ought to know or to anticipate and who are too young to appreciate the danger of some attractive object under his control and within his knowledge, are protected against injury from that danger either by warning which is intelligible to them or by some other means."

The protective measures must be sufficient to indicate a serious intention to exclude the intruder. The boy was aged twelve at the time of the accident. I must accept the Lord Ordinary's finding that the boy did not know of the danger either by reading the notices or by sensing danger otherwise. But the test which the Lord Ordinary rightly puts as a subjective test in relation to section 2 (3) of the Act of 1960, is an objective one in relation to the respondents' duty of exercising reasonable care under section 2 (1). They were not bound, in my view, to foresee that a boy old enough to clamber down the embankment and old enough to climb up the structure would have not appreciated the danger. They could not reasonably have been expected to foresee that he would disregard the notices and the obvious intention of the wire fence and the barbed wire to exclude him and that he would climb up the structure to the danger point where the accident happened.

I have formed the same view of this branch of the case as the Lord President and Lord Guthrie. I think the provision of a mesh fence on three sides and the barbed wire was an adequate compliance with the statute. As I have reached the conclusion that the steps taken by the respondents complied with the requirements of the statute, it is unnecessary to consider the further question whether the provision of an extension to the mesh fence on either side would have prevented the accident. The possibility of the boy swinging round the end of the fence was suggested. I do not, however, consider that there is sufficient material in the evidence to enable me to reach a conclusion on this matter.

My conclusion on section 2 (1) of the 1960 Act makes it unnecessary for me to consider the respondents' plea based on section 2 (3) of the Act.

I would dismiss the appeal.

LORD PEARCE .—The Lord Ordinary held that the barbed wire presented an obstacle which could only be overcome by a deliberate act intended to defeat its obvious function. The erection of such an obstacle would, he considered, in many cases amount to the exercise of reasonable care in fencing people out from a danger, but he found the defenders guilty of negligence because in this case the mesh fence could easily have been extended to the rock edge and would then have formed a perfect fence.

I have some doubt whether the evidence justifies the conclusion that such an extension alone would have stopped the intruder from entering the enclosure. For it would, I think, have been easy for him to hold the outside edge of the fence, and, facing inwards, put first one foot and then the other round the edge of the fence and into the enclosure. But assuming that an extension of the fence to the rock edge would have been effective, did the omission to make the extension constitute negligence?

Where reasonable care has been taken, the fact that even greater precautions could have been adopted without difficulty does not, in general, constitute a ground for finding negligence. In the light of subsequent events it is often easy to see how precautions could have been improved. And it may be hard to clear one's mind of subsequent events when judging the relevant question, namely, how the matter appeared before the accident to a reasonable person in the defenders' position. But if a person had used sufficient care before the accident, he does not become negligent because in retrospect one sees that he could easily have done even better. I agree with the Lord Ordinary's conclusion that in many circumstances the erection of such an obstacle would amount to the exercise of reasonable care, but with respect I cannot agree that in this case it did not do so.

Granted the foreseeable possibility or even probability of some irresponsible youth feeling inclined to climb the transformer, what precautions must the occupier take? It is clear that no normal precautions could be taken which would repel a determined invasion supported, for example, by wire-cutters. It thus becomes a question of degree to be decided in the light of common sense how serious the obstruction must be in a particular case.

Here there were notices of danger on every side of the mesh fence. The occupier might reasonably think that any intruder who was sufficiently mature to defeat the fence and climb nine feet to where the first point of danger lay would have maturity enough to read the notices and understand the nature of the peril. If the Lord Ordinary was correct in concluding that this particular intruder did not read the notices or sense the danger, it was because the boy was at that awkward stage when he combined the irresponsibility and ignorance of childhood with the agility, daring and persistence of incipient adolescence. But I do not think that the defenders were negligent in not foreseeing this or addressing their minds more particularly to such a combination and guarding against it. Refinements of foresight which one might fairly demand as to those whom the defenders invite on to their premises and whom they can and should envisage more clearly would be inappropriate to a situation where an occupier successfully makes it clear that he is intending to exclude invaders. In such a case it is, I think, enough, even where the danger is both lethal and artificial, if the occupier makes it clear, beyond the possibility of mistake, that all persons are forbidden to enter and, in addition, backs up that manifestation by some serious obstruction which can only be overcome by a deliberate act intended to defeat its obvious function. As a rule, barbed wire in sufficient quantity not only creates a serious obstruction but also carries an obvious message. In my opinion, there was enough barbed wire in the aperture to fulfil both those functions.

The question whether the Lord Ordinary was entitled to entertain the contention that it was negligent not to extend the wire mesh to the rock edge thus becomes academic. In my opinion, he was so entitled. Although not covered expressly by the record, this contention was really directed to the same general point as the allegation on the record. The fresh allegation became clear when the pursuer explained to the Lord Ordinary early in the case (without objection taken) his theory that the mesh should have been continued up to the rock edge. Thereafter the allegation was dealt with in the examination or cross-examination of various witnesses. At any stage the defenders could have asked for an adjournment to call fresh evidence on this fresh angle of the case, and no doubt it would have been granted at the pursuer's cost. But they did not do so.

The defenders also sought to rely on section 2 (3) of the Act, which imports into it the possible defence of volenti non fit injuria. The Lord Ordinary rightly, in my opinion, declined to infer that the boy had accepted the risk. That was a question of inference from facts. Had the intruder been a young man of, say, 18 years, such an inference would have been wholly justified on the facts of this case. I do not accept the contention that pupilage would bar any defence of volenti non fit injuria. This is not a contractual matter. If an invader with appreciation of the possible consequences defies the exclusion and the warning, the reasonable inference is that he is accepting the risk and taking the consequences on his own head. But since this was a boy of twelve years, who was believed when he said that he did not appreciate the danger, it was, in my opinion, right to reject the inference.

I would dismiss the appeal.

LORD PEARSON .—I have had an opportunity of reading in advance the speeches of my noble and learned friends, and I agree with them. Accordingly I would dismiss the appeal.