United Kingdom House of Lords Decisions

LORD ROSS .—On or about Saturday, 23rd February 1974 the pursuer, who was then 15 years of age, was in the company of her then boyfriend John Grimes, a young man aged 16. Around 11 p.m. that night these two young people were involved in an accident when they were struck by a railway train which had just left Shettleston Station and was proceeding in the direction of Carntyne Station; as a result of the accident John Grimes was killed and the pursuer was seriously injured.

The locus of the accident was the railway line about a quarter of a mile to the west of Shettleston Station. The pursuer has no recollection of the accident at all, having suffered from post-traumatic amnesia; her last recollection is of events on the Saturday morning, i.e.some 12 hours prior to the accident. The pursuer is, however, familiar with the locus. At or about this point to the west of Shettleston Station, Earnside Street which runs north and south lies at right angles to the railway and passes beneath the railway which is carried over the street on a bridge. For a person walking northwards in Earnside Street towards the bridge, there was a fence on the right; on reaching the bridge, there was a slope or embankment up to the fence. The fence ran parallel to Earnside Street and joined another fence at right angles which ran parallel to the railway line. Between the corner formed by these two fences and the bridge there was a gap through which it was possible for persons who had climbed up the slope to pass. The railway line ran east and west and beyond the railway line to the north there was a disused brickworks with kilns. This disused brickworks was a popular spot for what may euphemistically be described as courting couples. To the north of the railway line there was some further fencing between the railway line and the brickworks, but the fencing was not complete. On a number of previous occasions, the pursuer and John Grimes had been to the brickworks for what the pursuer described as "a kiss and a cuddle". The pursuer considers it likely that she and John Grimes had been at the brickworks that evening and were on their way back to Earnside Street when the accident occurred. She knew that trains ran on the line and on previous occasions she had always looked both ways before crossing the railway line. The pursuer has no recollection of the accident and does not know whether she was on the line or near the line when she was struck.

Counsel for the pursuer submitted that on the evidence the pursuer had established the following matters: (1) that she and John Grimes were crossing the railway line when the accident occurred; (2) that the spot where she and John Grimes were crossing was convenient for and much used by people living locally; (3) that the defenders were aware of this, and in any event any reasonable inspection would have caused them to be aware of these facts; (4) that there were paths leading to gaps in the fences both north and south of the railway lines, and persons were thus likely to cross the line at these points; (5) that the accident would have been prevented by maintaining the fencing and by repairing these gaps in the fencing both north and south of the line; (6) that the defenders were under a duty to take such preventive measures and failed to do so thus causing the accident.

1. (1) The first question to which I address myself is whether the pursuer has established on a balance of probabilities that she and John Grimes were crossing the line at this particular point when the accident occurred. [His Lordship considered the evidence and continued.]

In the light of the evidence, I conclude as matter of probability that when the accident occurred the pursuer and John Grimes were crossing the railway line somewhere in the vicinity of the bridge. When the pursuer and John Grimes left their companions around 10 p.m., I do not believe that they were intending to go straight away to his mother's house; having regard to where John Grimes' body was found after the accident, I conclude that after leaving their companions, John Grimes and the pursuer proceeded to the vicinity of the railway line in order to go to the brickworks. It is not clear whether they ever reached the brickworks. In view of the evidence it is reasonable to conclude that the accident occurred shortly after 11 p.m. The pursuer and John Grimes may have dallied on the way and have been en route for the brickworks when the accident occurred, or they may have been to the brickworks and have been on their way back when the accident occurred. I feel that the probability must be that John Grimes and the pursuer were crossing the line when the accident occurred. I do not think that it is possible to say precisely where they were in relation to the bridge; the most that can be said is that they were crossing the line in the vicinity of the bridge.

I entirely accept that there does not appear to have been any reason why persons such as the pursuer and John Grimes, making for the brickworks from the south, should not have crossed the line below the bridge and then made their way to the brickworks over or through the fence running along the west boundary of the brickworks. However that may be, there was evidence from the pursuer, her sister and James Brennan to the effect that courting couples making for the brickworks did use the route described by the pursuer (though James Brennan did say that he sometimes crossed below the bridge) and I think that it is reasonable to conclude that on this occasion the pursuer and John Grimes followed a route which involved crossing the line.

1. (2) Was the spot convenient for and much used by people living locally in order to cross the line?

A considerable amount of evidence was led regarding this and some of it was confusing. Some of the evidence established that people crossed on occasions to the west of the bridge whereas the pursuer's case is essentially based on an allegation that "there was a path leading from the east side of Earnside Street at the bridge up the embankment to the south of the line, through a gap in said fencing to said line, and from the north of said line through a gap in said fencing to said brickworks which was used by persons crossing said line to the east of said bridge at Earnside Street". [His Lordship considered the evidence and continued.]

On the basis of that evidence, I conclude as matter of fact that there was a certain amount of passage across the railway line on both the east and west sides of the bridge. Such passage was more frequent during periods when the underpass was flooded, but passage did take place even when there was no flooding. I do not think that such passage was used exclusively by persons going to the brickworks; indeed most of those who crossed at those points were not proceeding to the brickworks at all, but were going to the Budhill Avenue area or the Shettleston Station area.

1. (3) Were the defenders aware of this, and in any event would a reasonable inspection have made them aware of it?

There is no direct evidence of such knowledge on the part of the defenders. Mrs Tait spoke to having telephoned to the defenders on occasions to report that the underpass was flooded, but at first she stated that this was within the last four years (i.e. 1975 to 1979); later she said that she had probably telephoned on several occasions over the last five years (i.e. 1974 to 1979), but that she could not say whether she had made any of these telephone calls prior to February 1974.

Although there was no direct evidence that the defenders were aware that people were crossing at this point, I think that it is a reasonable inference that they must have been aware of the facts. For the reasons expressed below I am satisfied that there were some tracks or paths leading up to the embankment and that would make it obvious that persons were walking there. There was also evidence that the fencing was repaired from time to time (see below), and that again suggests that the defenders must have been aware that people were getting access to the track at that point. The pursuer averred that a child named Kennedy was killed on the line "at said point", i.e. near the bridge, and the defenders replied:

"Admitted that on 9th June 1965 a child Cornelius Kennedy, then aged 2 years 10 months was killed on the line at about said point".

The defenders must therefore have been aware that in 1965 a child got access to the railway line at this point.

It is for these reasons that I conclude that the defenders must have been aware that people from time to time did cross the line in the vicinity of the bridge. Counsel for the pursuer maintained in the alternative that any reasonable inspection would have caused the defenders to become aware of this fact, but he conceded that he had not averred a duty to inspect and in the circumstances I am quite unable to affirm any duty to inspect. In the absence of any averments or evidence it would be impossible to know at what intervals of time it is suggested that inspection should have taken place nor the nature of such inspections. However, since I have concluded that the defenders must have been aware of the fact that people crossed the line at this point, it is not necessary for the pursuer to rely on a duty to inspect.

1. (4) What was proved regarding gaps in the fencing and paths north and south of the line?

Photographs of the areas were produced, but these were taken years after the accident and are not evidence of what the state of the area was on the date of the accident.

There is no doubt that there were gaps in the fencing and that the defenders were aware of this. The evidence made it clear that there were gaps in the fence on the south of the line at the top of the embankment, and also in the fence to the north of the railway line between the railway line and the brickworks. In any event, the pursuer has averred that there were gaps in the old broken-down wooden fences and that the defenders should have been aware of inter alia this fact. The defenders have averred:

"Admitted that there were gaps in the fencing at part of said line in said area and that the defenders were aware of this. Admitted that after the accident repairs were carried out to the gaps in the fencing."

In the light of the evidence and the foregoing admissions, it is clearly established that there were gaps in the fencing which required to be repaired after the accident.

In my opinion, it is also established by the evidence that there was a defined path leading up the embankment on the right of the bridge.

There was some evidence that the paths existed to the north of the line as well, but I am not satisfied that it was established in evidence that there was a defined path leading to the brickworks.

The pursuer maintains that the accident would have been prevented by maintaining the fencing and by repairing the gaps in the fencing both north and south of the railway line. In support of this proposition her counsel relied particularly on the evidence of the pursuer herself to the effect that she would not have climbed over a wire fence if a fence had been there. In cross-examination the pursuer maintained that she could not climb over wire, and if there had been a wire fence there, she would not have climbed over it. In re-examination she stated that she had been wearing platform shoes and that she could not have climbed over a wire fence wearing platform shoes. This evidence must be read in the light of the pursuer's evidence elicited in cross-examination to the effect that what she was desiderating was a fence in the form of an impenetrable barrier all along the line.

Unless the defenders were under a duty to erect and maintain impenetrable fencing, I do not believe that fencing would have stopped the pursuer from getting onto the line. She was 15 years of age and must have been either proceeding to the brickworks to indulge in some form of sexual familiarity with her boyfriend or was returning from the brickworks after being there with her boyfriend; he was a young man of 16 who had been drinking and had just been released from detention. I do not believe that a fence such as a post and wire fence would have stopped them. The evidence shows that any fence which had been erected was sooner or later vandalised. As one witness put it, if fencing were put up "it was usually vandalised and pulled down again". If the defenders had had a fence in position shortly before the time of the accident then if it had not been vandalised before the pursuer and John Grimes reached the locus that night, I have no doubt that John Grimes and the pursuer would have negotiated the fence with or without damaging it themselves. The pursuer has failed to safisfy me on the balance of probability that a fence, other than an impenetrable barrier, would have prevented the accident.

Counsel for the pursuer founded on O'Donnell v. Murdoch M'Kenzie & Co. 1967 S.C. (H.L.) 63 and contended that as the defenders had called no evidence on certain matters the inferences to be drawn from the evidence should be those most favourable to the pursuer. In particular he contended that since the defenders had called no evidence on the point, they could hardly invite me to hold that the pursuer would not have been stopped by a fence. He also relied on the case of Herrington v. British Railways Board [1972] AC 877. I do not think that these two decisions assist the pursuer in this case. Although the defenders led no evidence regarding the effectiveness of fencing, having regard to all the evidence led, including evidence that the fencing was regularly vandalised and evidence regarding the pursuer's age and probable intention that night, I feel able to conclude that she and her companion would not have been stopped by anything short of an impenetrable barrier.

Counsel for the pursuer contended that the defenders were under a duty to maintain the fencing and repair gaps in the fencing. In support of his proposition he relied particularly on Herrington v. British Railways Board . In my opinion, however, that case can readily be distinguished from the present case since it concerned an infant, who was six years old, and since there was a danger on the defendants' land to which he was exposed, namely an electrified track.

In my opinion, greater assistance in the solution of this case, can be found in M'Glone v. British Railways Board 1966 S.C. (H.L.) 1 which was a case where the pursuer had founded (as here) on section 2 of the Occupiers' Liability (Scotland) Act 1960. Under the Act:

"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’."

(Lord Guest at p. 15.)

It is plain from the speeches in the House of Lords that there is no duty to erect an impenetrable barrier unless possibly in the case of very young children, or in the case of older children where the danger would not be apparent to them. In that case, the fencing which was provided though not "boy-proof" did present some obstacle to a boy and made it clear to persons that they should keep out. The boy in that case was aged 12.

In the present case I accept that there were gaps in the fencing of which the defenders were aware, and that there was a path leading to a gap at the top of the embankment on the south of the line which the defenders should have appreciated might be used by people to get across the line. In Dumbreck v. Addie & Sons (Collieries) Ltd. 1928 S.C. 547 the Lord President said:

"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"

(at p. 553). In the circumstances of the present case, I am inclined to think that the fencing did not present an effective obstruction to persons trying to enter, and if the pursuer had been an infant, I would have been inclined to think that the defenders were under a duty to fence the line so as to provide a reasonable obstruction to a child seeking to enter. The pursuer, however, was not a young child but was a girl of 15; in my opinion the fencing even with its gaps, was a sufficient indication to her that she should keep out.

What has to be done by the defenders depends upon the circumstances. As I understand it there is no absolute duty to fence a railway line. Although the defenders may be under an obligation to fence a railway line in a question with an owner or occupier of lands adjoining the line (Walker on Delict, vol. 2, p. 534), there is no obligation to fence the line in a question with a member of the public. A fortiori is that so in a question with a trespasser. In the present case there is no question of the railway line or its environs being an allurement to children; the danger from trains on the line was an obvious one of which the pursuer was fully aware; such fencing as there was provided some indication to her that she would be trespassing if she entered the railway property.

In these circumstances I do not consider that the defenders, in a question with the pursuer, required to do more than they did. I stress that it might have been different if the pursuer had been a young child who was unable to appreciate the danger of moving trains. In the present case, however, I am satisfied that such fencing as existed, even with the gaps, was sufficient to bring home to the pursuer that she should not be there. She stated in evidence that she knew that she was trespassing on railway property when she crossed the line; she knew that trains ran on the line and that it would be dangerous to cross the line because of the presence of trains. Towards the pursuer who was 15 years of age, who had such knowledge and was a trespasser, I do not consider that the defenders had a duty to maintain the fencing in a reasonable state of repair and to repair any gaps.

If I am wrong on that, then for the reasons explained above I am of opinion that fencing the line and repairing the gaps would not have prevented this accident because the fence did not require to be impenetrable and anything less than an impenetrable fence would not have stopped the pursuer.

I am therefore satisfied that the pursuer has failed to establish negligence on the part of the defenders, and that is sufficient for the disposal of the case. I should add, however, that in my view, the pursuer's own evidence referred to above, along with the other evidence in the case, is, in my opinion, sufficient to establish the defence of volenti non fit injuria. Such defence is open to the defenders under section 2 (3) of the Occupiers' Liability (Scotland) Act 1960, and no duty under section 2 (1) of the Act is imposed upon an occupier to a person entering on the premises in respect of risks which that person has willingly accepted as his. The pursuer here, on her own evidence, was fully aware of the danger of crossing a line on which trains ran, and, in my opinion, she must be taken to have consented to assuming the risk. There is a passage in her cross-examination which proceeded as follows:

"Q. And you knew that it would be dangerous to cross the line because of the presence of these trains? A. Yes. Q. Well why did you do it if you knew it would be dangerous? A. Because it was shorter to get to the brickworks. Q. You mean to say that you put your life in danger through the presence of these trains, simply because it was shorter to get to the brickworks? A. Well, before my accident I never ever thought that it would happen to me, that I would never get hit by a train, it was just a chance that I took."

A person who takes a chance necessarily consents to take what comes.

In any event, I am satisfied that the evidence established that the sole effective cause of this accident was the pursuer's failure to take reasonable care for her own safety. She was negligent in being on the line at all. Moreover, she stated that on previous occasions she had always stopped and looked both ways before crossing the line to see if a train was approaching, and that she always listened as well. On the evidence, I am satisfied that she cannot have done so on this occasion. The evidence of Mr Charles was that from the bridge of Earnside Street, a train travelling from the east was continually in view from before it entered Shettleston Station (about a quarter of a mile), and that the train was audible when it was about 200 yards distant. (This evidence was not challenged in cross-examination.) In these circumstances, I am satisfied that the pursuer ought to have seen the train in time to get clear of the line, and that she was at fault for failing to keep a good look out and to listen and to stand clear. In my opinion her failure was the sole cause of this accident.

This is accordingly a case where the defenders are entitled to be assoilzied.

[His Lordship then dealt with the question of damages with which this report is not concerned.]

The pursuer reclaimed. The reclaiming motion was heard before an Extra Division on 1st October 1982. At advising on 1st December, the Extra Division refused the reclaiming motion.

LORD HUNTER .—This is a reclaiming motion by the pursuer against an interlocutor of the Lord Ordinary in which he assoilzied the defenders from the conclusion of the summons. Junior counsel for the pursuer and reclaimer was content in opening to accept a very substantial part of the findings of the Lord Ordinary up to p. 16 of appendix A, although it became clear in the course of the argument that at certain limited points the conclusions of the Lord Ordinary and the inferences made by him on questions of fact in this part of his opinion, particularly under head (4), were not wholly accepted on the reclaimer's side of the bar. The remainder of the opinion of the Lord Ordinary, from p. 16 onwards, including the inferences made and the conclusions reached in that part of his opinion, came under strong challenge from counsel for the reclaimer, and it was obvious that in order to succeed the reclaimer had to deal successfully with a series of points upon which the Lord Ordinary had reached inferences and conclusions unfavourable to her. The respondents, while accepting the decision of the Lord Ordinary and those parts of his opinion which were favourable to them, contended in addition that on certain matters, including in particular the precise circumstances of the accident, the conclusions reached by him were, having regard to the written pleadings and upon the evidence led, unduly favourable to the pursuer.

A large part of the discussion centred around four questions, namely: (1) the nature of the duty, if any, owed by the defenders to the pursuer; (2) whether the defenders had in the circumstances failed in performance of any duty owed by them to the pursuer; (3) assuming that there had been any fault on the part of the defenders, whether this fault had been a cause of the loss, injury and damage sustained by the pursuer; (4) whether, in any event, the defence of volenti non fit injuria had been established. The respondents did not contend that, in the event of the matter arising, they should be assoilzied on the ground that the pursuer was herself wholly to blame. They did, however, maintain that if any question of contributory negligence should arise for decision, the responsibility of the pursuer for the loss, injury and damage sustained by her should be held to be very substantially greater than that of the defenders. The reclaimer, on the other hand, in effect conceded that the case was one in which the damages recoverable would, even if the reclaiming motion were to succeed on the other grounds argued, fall to be reduced to some extent on the ground of contributory negligence, but it was submitted that any share of the blame attributable to fault on the part of the pursuer should in the circumstances be held to be less than that attributable to the fault of the defenders.

In view of the course taken by the argument on both sides, it is convenient to consider first the matters in respect of which counsel for the respondents attacked the conclusions reached by the Lord Ordinary. I am persuaded, upon consideration, that these criticisms were not without substance, particularly when regard is had to the pursuer's written pleadings. It is observed in this connection that the proof was before answer on the defenders' plea of relevancy, and also that both parties were afforded ample opportunities to amend their pleadings even after evidence had been led. On a fair reading of the pursuer's record, and in particular article 2 of the condescendence, it is plain that her case is based upon two main propositions of fact: (1) that, along with Grimes, she was at the time of the accident crossing the railway line near the railway bridge over Earnside Street; and (2) that "the spot" where she and Grimes were crossing was much used for that purpose by people taking a short-cut to, from and through the brickworks.

This was the case of which notice was given, and it was reinforced by averments to the effect that there was "a well-worn path on the embankment at that part of the line", that this path "led to gaps in old broken down wooden fences" (in the plural), and that on the other side of the line from Shettleston (i.e. on the north side) there was a brickworks to which "the path" led. I understood it to be suggested by counsel for the reclaimer that the averments from p. 3 of the record onwards gave notice of a broader case, but the repeated references to "this point near the said bridge" (referred to in later sentences of the pursuer's written pleadings as "it"), to "said point", to "using said path", and to "the material point" and "the material spot", appear to emphasise that the pursuer's case was based on the use by the public as a short-cut of a particular route which involved crossing the railway line carrying the blue electric trains on the Airdrie-Helensburgh line and parts of which were marked by paths on both sides of the railway line. It is plain from the evidence led, taken along with the written pleadings, that the use of such a route would involve crossing the line to the east of the railway bridge over Earnside Street.

The Lord Ordinary reached the conclusion, as matter of probability, that when the accident occurred the pursuer and Grimes were crossing the railway line "somewhere in the vicinity of the bridge". The Lord Ordinary also concluded that, after leaving their companions, presumably in or near Shettleston Road, Grimes and the pursuer proceeded "to the vicinity of the railway line in order to go to the brickworks". The Lord Ordinary went on to say that it was not clear whether Grimes and the pursuer ever reached the brickworks and added, in relation to difficulties about timing, that the pursuer and Grimes "may have" dallied on the way or "may have" been to the brickworks and been on their way back when the accident occurred. It may be observed that the Lord Ordinary did not expressly hold that the pursuer was struck by the train at a time when she was on or near the railway line while using as a short-cut the route specified in her written pleadings. As has been seen, the furthest the Lord Ordinary went was to hold that when the accident occurred the pursuer and Grimes were crossing the line "somewhere in the vicinity of the bridge". This is extremely vague, and does not even amount to a finding that the pursuer was to the east of the bridge when she was struck. In my opinion the whole evidence, particularly the evidence relating to what was found after the accident, is so unsatisfactory that the most that can be made of it is that the pursuer and Grimes at the time of the accident were near enough to the line on which westbound trains travelled to be struck by the nearside of the bogie and the bodywork, including one of the footbars on the nearside of the leading bogie. The Lord Ordinary did not find and, in my opinion, could not, as a probable or even reasonable inference from the available evidence, have found that the pursuer was crossing the line to the east of the railway bridge at the time when she was struck. At best for the pursuer it is, in my opinion, no better than conjecture whether or not she and Grimes were to the east of the bridge, on the bridge, or to the west of the bridge at the time when she was struck. If anything, the real evidence, such as it is, would appear to suggest that the pursuer and Grimes were on the bridge to the west of it rather than to the east of it at the time when the train came into contact with them. If so, the pursuer has not in my opinion proved as matter of probability that, when the accident occurred, she and Grimes were following the route or short-cut referred to in her pleadings and also in her evidence, namely a route or short-cut to the east of the railway bridge.

Moreover, the conclusion reached by the Lord Ordinary, as matter of probability, that at the time of the accident the pursuer and Grimes were crossing the line on their way either to or from the brickworks, appears to have been based not on the real evidence nor on evidence of eye-witnesses, because there were none, but on evidence, which on this particular matter came from the pursuer alone, that she and Grimes had on occasions, about once a month during an unspecified period prior to the accident, used the said route as a short-cut to the brickworks when going there "for a kiss and a cuddle". Two other witneses gave evidence about persons crossing the railway line at or about the said point on their way to the brickworks. Miss Linda M'Ginlay, the pursuer's sister, gave evidence to the effect that she and a boyfriend had crossed the railway line near the railway bridge on one occasion, about six months before the accident to the pursuer, when taking a short-cut to the brickworks. This witness described going up the embankment to the right where the fence was down, crossing the railway line and walking "along the line" for about five minutes before turning to the right and going to the brickworks. The precise route said to have been followed on this occasion after the witness and her companion reached the top of the embankment is not clear. The other witness relied on by the Lord Ordinary as giving some support to his finding about the route followed by the pursuer and Grimes on the night of the accident was James Brennan. The evidence of this witness was to the effect that prior to the date of the pursuer's accident he had gone to the right up the embankment from Earnside Street and, after passing "old sleepers" and what used to be a doorway, had crossed the railway line on his way to Budhill Avenue. He had done this "a couple of times" in company with a male friend. He also spoke to having "seen people coming to the place where the old sleepers were", apparently from both directions. He saw this from the window of his house in Old Shettleston Road, but his evidence left uncertain the period during which it happened. James Brennan also spoke to going to the old brickworks "for under-age drinking", when he "once or twice" crossed the railway line and on other occasions walked under the bridge. He also mentioned going to the brickworks with a girl on which occasions he "always used to go under the bridgeway". He sometimes, according to his own evidence, went up the embankment and past the old sleepers on his way to Shettleston railway station, but on such occasions did not cross the railway line. In my opinion the evidence of Miss Linda M'Ginlay and James Brennan falls far short of corroboration that at the time of the accident the pursuer was crossing the railway line while using a route or short-cut to or from the brickworks as averred by her on record. Accordingly, in my opinion, the pursuer did not succeed in proving the averments relating to the occurrence of the accident upon which her case of fault was based. I would again emphasise in this connection that the Lord Ordinary went no further than to hold, as matter of probability, that the pursuer and Grimes were crossing the railway line "somewhere in the vicinity of the bridge", and left open the question whether they were crossing from south to north or from north to south.

Assuming, contrary to my opinion, that the pursuer succeeded in proving the account given by her on record of the circumstances of the accident, I turn to the several grounds on which the Lord Ordinary has reached a decision adverse to her case. It is appropriate to consider in the first place the question whether the Lord Ordinary, as counsel for the pursuer and reclaimer maintained, misdirected himself in holding that, in a question with the pursuer, the defenders did not owe a duty to do more than they did, which was to provide fencing of a sort, consisting of old railway sleepers through which there were gaps. Some of these old railway sleepers are shown in certain of the photographs produced, although, according to James Brennan, there were at the time of the pursuer's accident more sleepers at the place illustrated in the photograph no. 30 of process than are shown in that photograph. The general duty of care required to be shown by an occupier of premises, by reason of his occupation or control of the premises, towards a person entering thereon in respect of dangers which are due to the state of the premises was, for Scotland, the subject of enactment in section 2 of the Occupiers' Liability (Scotland) Act 1960. It is to show "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". That simple enactment was the subject of consideration by the House of Lords in M'Glone v. British Railways Board 1966 S.C. (H.L.) 1. We were also referred by the reclaimer to a number of English decisions, but as the law of England has taken a somewhat different course from that followed in the Scottish statute I do not consider it advisable or safe to attempt to apply principles derived from English cases in the field of occupiers' liability. In particular, as Lord Reid pointed out in M'Glone v. British Railways Board, at p. 11, section 2 of the Act of 1960 rendered the decision of the House of Lords in Dumbreck v. Addie & Sons (Collieries) 1929 SC (HL) 51 no longer authoritative and, so far as the law of Scotland is concerned, abolished the categories of invitor, licensee and trespasser.

In the present case the specific duties of care, breach of which by the defenders the pursuer offered to prove, were a duty to maintain the fencing to the south and north of the said railway line and to the east of the railway bridge in a reasonable state of repair and to take reasonable steps to repair the gaps in the fencing. The Lord Ordinary held that, in a question with the pursuer, the defenders were not in the circumstances under duty to do more than they did, although he concluded on a consideration of the evidence that the defenders must have been aware that people from time to time did cross the railway line in the "vicinity of the bridge". Although with some hesitation, I am not prepared to differ from the Lord Ordinary on this branch of the case. The matter is very much one of impression and degree on which the views of the judge of first instance must carry a good deal of weight. The Lord Ordinary concluded that the fencing provided by the defenders was a sufficient warning and obstacle to a girl of 15, who was fully aware of the dangers of going across or near the railway line and who knew she had no right to do so, although the position might have been different if the pursuer had been a young child. I do not think it can be said that this opinion was one which in the circumstances the Lord Ordinary was not entitled to reach.

However, even if it were to be held that the defenders were at fault in failing to keep the fencing in repair, and in particular in failing to repair the gaps, I would be prepared to reach the same conclusion as the Lord Ordinary, namely that the pursuer has not proved as matter of probability that such steps would have prevented the accident. Bearing in mind that the pursuer was in company with Grimes, the Lord Ordinary concluded that she would have climbed the fencing or negotiated it in some other way and crossed the railway line on her way to or from the brickworks even if the fencing had been in repair and without gaps. I do not consider that the Lord Ordinary misdirected himself in reaching this view, and it is apparent from his opinion that he rejected outright the pursuer's evidence to the contrary. The fact that the pursuer, in her own evidence, would have demanded something in the nature of an impenetrable barrier may have gone some distance to supporting an inference that nothing less would have kept herself and Grimes from reaching or crossing the railway line.

In any event, I am satisfied that the Lord Ordinary was well-founded in sustaining the defenders' fourth plea-in-law, namely the defence of volenti non fit injuria, of which section 2 (3) or the Act of 1960 is a statutory expression. See M'Glone v. British Railways Board, per Lord Reid at p. 13 and Lord Pearce at p. 18. At the time of the accident the pursuer was a girl of 15. On her own showing she fully appreciated the risks of going near or over the railway line. She knew that trains ran along the line and that it was for that reason dangerous to cross the line. It was obvious, on her own admission, where the railway property was, and she knew that she was trespassing on it. It is plain from her evidence that she just accepted the risk. In her own words:

"it was just a chance that I took".

In the circumstances I am of opinion that the case is a strong one for sustaining a defence under section 2 (3), and that the Lord Ordinary was well entitled to hold the defence established on the evidence. I refer in this connection to the observations of Lord Pearce in M'Glone v. British Railways Board at p. 18, and I would add that in my view the pursuer "voluntarily took the risk of of danger from the running of the railway in the ordinary and accustomed way": Slater v. Clay Cross Ltd. [1956] 2 Q.B. 264, per Denning L.J. at p. 271.

For the foregoing reasons I am of opinion that the reclaiming motion should be refused. For completeness I should add that had the question of contributory negligence arisen, I would have been disposed to hold that the pursuer's share in the responsibility for the accident was of a very major character. I should also note that there was not on either side of the bar any challenge of the Lord Ordinary's assessment of damages.

LORD AVONSIDE .—On 23rd February 1974 the pursuer and appellant together with a companion, a youth named Grimes, were struck by a train belonging to the respondents. The appellant was very severely injured and has no memory of the accident. Grimes was killed. It is stated on the record that the incident took place at or about 10 p.m. The accident occurred in the darkness of a winter night. There were no eye-witnesses and the case rests on inferences to be drawn from the evidence.

The train was travelling westwards on the southern track of two lines of rail, the northern being used by eastbound traffic. It was coming from Shettleston station. To the west of that station there is a bridge running south and north. On the east side of that bridge there is an embankment and at the top of it there were upright sleepers abutting on the bridge. There was a trodden path or track running up the embankment from the street below. On the evidence it is established that persons used that path and went through gaps in the sleepers to the area of the railway tracks. The respondents admit that they knew there were these gaps and say that after the accident repairs were carried out to the gap in the "fencing". They assert that the "fence" consisted of wire fencing between the gap, that the "fence" was designed to inhibit trespass of animals and children. They were aware of "occasional trespass", mostly by children, and aver that there was periodic patrolling by railway police. The evidence led by the respondents at the proof did not touch on this aspect of the case.

The defence was, in the first place, that the appellant had not proved her case on record. She claimed that she and her companion would have gone up the path on the southern embankment using a "short-cut" across the rails to the northern embankment and from there to an area of disused brickworks which provided shelter for "courting" couples and others. Apart from that, it was said, people used the "short-cut" because it was convenient for going to and from work from their homes and, generally, that adults and children were in the habit of crossing the railway lines for their own purposes from the path in the embankment. In any event, it is said, the respondents should have known that in the area with which the case is concerned, people did cross the lines.

The respondents point to the pleadings for the appellant. Her case is that the short-cut she and her companion were using was the one which ran to and from the brickworks area, and that the respondents knew or should have known of that use of the short-cut. It was argued that that use was not proved in evidence. Technically I have some sympathy with that assertion, looking to the pleadings for the appellant, but it is too narrow a view. Essentially the case, and the evidence, was concerned with people crossing the railway lines for one reason or another and the assertion that the respondents knew or ought to have known that this took place. In my opinion the Lord Ordinary was entitled to hold, as he did, that the respondents were at fault in not fencing properly the south embankment and that, in any event, it was proved that people did cross the railway lines and that the respondents should have been aware of this practice. That being so, it was held, the respondents were in breach of section 2 (1) of the Occupiers' Liability (Scotland) Act 1960 in that they did not take reasonable care, in all these circumstances, to see that the appellant would not suffer injury or damage by reason of the danger presented by trains travelling on the railway lines. Section 1 of the Act and that subsection impose a general duty of reasonable care, and in so doing replace, or abolish, the common law which had measured the duty of occupiers of land by looking to the legal categories of the persons coming on to the land. In face of the opinion of the Lord Ordinary, the evidence and the Act I do not find it necessary to refer to decisions which turned on the particular facts in issue in each case.

Having been so far in favour of the appellant the Lord Ordinary dismissed the action on the application of the brocard volenti non fit injuria. In so doing he referred to the appellant as a "trespasser" and great play was made on his use of that word. Reading the opinion of the Lord Ordinary it is evident that, while the use of the word may have been unfortunate, he was not applying it in the sense of the old common law category. He had already found the respondents in breach of the duty imposed by the Act and, that being so, the question of the defence of volenti did not depend on the status of the appellant.

Section 2(3) of the Act writes out the substance of the defence of volenti [His Lordship quoted section 2(3) and continued]. It is well established that this is not a question of contract, although counsel for the appellant seemed at one point almost to suggest so.

Considerable argument rested on the age of the appellant at the time of the accident. She was, as I understand it, a month or so short of her 16th birthday and it was said that a girl of that age could not be held willingly to accept the risk involved in crossing the railway lines. It was suggested that in some cases the decision had turned on the age of a young person who had ceased to be a child. In my opinion this approach is utterly wrong. It cannot be postulated that the age of a young person in law is decisive of a particular issue in fact. Nor, if I may say so, is a judge, who had ceased to be a young person long ago, equipped to make a pronouncement on the abilities of a generation of which he cannot be a member. In effect, each case must depend on its own facts and circumstances.

In the present case there was no suggestion that there was a hidden danger or an allurement or a trap or that the train driver was in any way negligent. The danger lay in crossing railway tracks on which trains ran at fairly frequent intervals. The appellant candidly admitted that she knew of the danger. Before crossing a track she looked each way to see if a train was coming. She took "a chance". She agreed that she could have gone to the brickworks in safety through the underpass of the bridge but the short-cut was more convenient. In these circumstances the Lord Ordinary was, in my opinion, entitled to hold that the appellant was volens and it cannot be said that he was plainly wrong in doing so.

In case that view is wrong one should turn to the question of negligence on the part of the appellant, as the Lord Ordinary has done. Several facts are important. As was said above the appellant could have got to her destination by a safe route under the bridge which did not involve crossing the railway track. She avers that the accident occurred about 10 p.m. on a dark winter night when, as she said, she was aware of the danger of crossing the rails. The front of the train had an illuminated destination screen and route indicator. Some light would be shed by carriage lighting. She and her companion had left a group of friends to go to the brickworks at about 9.45 p.m. She had told her sister that she would be back to go home about 11 p.m. Then there is a remarkable piece of evidence. The appellant and the body of her companion were found by railway police, no doubt acting on information, but regrettably no evidence of the situation was led. I cannot see that the respondents would have been prejudiced had that evidence been provided. Be that as it may, there was some evidence that the body of Grimes was found lying westwards of the sleeper fence and a watch belonging to the appellant was found on the bridge and also a shoe in the western area. There is undisputed evidence that on inspection, there were marks of some damage to the near side of the leading component of the train which indicated that it had struck something. There were no marks on the front of the train or on its offside. The appellant could not have been to and come back from the brickworks at 10 p.m. Even if she had, and was crossing to the south side of the track it would be impossible that she could have crossed the rails and not have been struck by the offside of the train or by the front of the train but by the nearside behind the front. The worst of the injuries sustained by the appellant were to her right arm. All that evidence points to the reasonable probability that she and her companion had, as it were, walked into contact with the near or south side of the train. In any event and whatever be the case the appellant was to a very high degree negligent in placing herself in the path of a train immediately upon her.

The Lord Ordinary has held the appellant 100 per cent in fault. Should this point ever come to decision I would have put blame at 80 per cent in all the circumstances.

I would refuse the appeal.

LORD GRIEVE .—I agree with your Lordships that this reclaiming motion fails. Like both your Lordships I am of opinion that, in proceeding to the spot where she and Grimes were struck by a train, wherever that spot was, the pursuer must be held to have been willing to accept the risk of being struck by one of the trains which regularly ran along the route between Airdrie and Helensburgh, and that the Lord Ordinary was well entitled to hold that the defence provided by section 2 (1) of the Occupiers' Liability (Scotland) Act 1960 had been established.

Had it been necessary to do so I would have been inclined to agree with your Lordship in the chair that the pursuer had failed to prove the factual basis of her case, namely that at the material time she and Grimes were "crossing" the railway line at a "spot much used" as a "short-cut for people living locally". So far as the pursuer herself was concerned all that the evidence established, on my reading of it, was that the pursuer and Grimes had crossed the railway line to the east of the bridge on a number of occasions on their way to the brickworks for "a kiss and a cuddle". The only other evidence bearing on the pursuer's averments that the route she said she was following on the night of her accident was a recognised short-cut, came from her sister Miss Linda M'Ginlay and James Brennan. The evidence of Miss M'Ginlay however relates to only one occasion, and that of Brennan was not confined to visits to the brickworks. In my opinion that evidence falls far short of establishing the elaborate averments made by the pursuer on pp. 4 to 5 of her record. These averments are taken up in article 3 of the condescendence and form the basis of the pursuer's case of fault, namely that the defenders should have maintained the fencing to both the south and north of the railway line on the east side of the bridge because they knew that people "often walked on and crossed the line at the said spot". The pursuer's averments on the matter of the short-cut are in my opinion critical to her case and it is not taking too narrow a view of her pleadings to make clear proof of them essential to her success. Moreover, in order to succeed the pursuer had to prove that she was using the alleged "short-cut" at the time of her accident. To do that she had to prove that the accident occurred to the east of the bridge. The pursuer's counsel, both of whom presented their submissions with care and clarity, could not point to any piece of evidence from which, as matter of probability the locus of the accident could be fixed as being to the east of the bridge. The pursuer thus failed to forge the requisite link between her use of the alleged short-cut and the accident which caused her injury.

Had the question of the pursuer's own negligence been a live issue as a contributory factor to the accident I would have attributed by far the major share of the blame to her. On her own admission she "just took a chance", and wherever she was at the time she was struck she must have put herself in the track of the train seconds before it struck her and at a time when, if she was taking any care for her own safety, she must have been aware of its approach. I would have found the pursuer 90 per cent to blame.

The pursuer appealed to the House of Lords. The appeals were heard on 24th and 25th October 1983.

At delivering judgment on 24th November 1983,—

LORD CHANCELLOR (HAILSHAM OF ST. MARLEYBONE).—My Lords, I have read in draft the speech about to be delivered by my noble and learned friend Lord Fraser of Tullybelton. I entirely agree with his conclusion that this appeal must be dismissed, and with the train of reasoning by which he would arrive at this conclusion.

To my mind the crucial fact in this appeal was that no averment was or could have been made against the respondent Board that the train which struck the appellant was being driven otherwise than in a perfectly proper manner. If such an averment had been made and proved the respondent Board would have been liable on the lines of the well-known passage of Denning L.J.'s judgment in Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264 at p. 271. But, on the facts and evidence in this case, once it was accepted that there was no negligence on the part of the driver of the train, it seems to me that the pursuer's claim, which was based solely on the condition of the fence, was doomed to failure, if only because, on her own admissions, she had voluntarily accepted the risk whatever it was which she incurred by crossing the line, provided only that it was a "risk of danger from the running of the railway in the ordinary and accustomed way".

On this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent Board owed no duty to the appellant, or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent Board, or alternatively that, having assumed the risk involved, the respondent Board was covered by the doctrine volenti non fit injuria.

But I must take leave respectfully to add that the condition of the boundary fence as depicted by the evidence left much to be desired. The line was a suburban line passing through a populated area. Trains crossed by at intervals of about 20 minutes. There was evidence that at least one small child had been killed at approximately the same spot. Quite apart from the danger to children straying, there could well have been a danger to passengers in trains had children, animals or vandals come on to the line and created an obstruction on it. It follows that had the facts of the case been other than what they were, it would be unsafe for the respondent Board to assume that they would have been immune from liability from the state of the fence from a different claimant had another and different accident occurred.

LORD FRASER OF TULLYBELTON .—My Lords, on 23rd February 1974 about 11 p.m. the appellant, who was then aged 15, was struck by a train on the respondents' railway line, between Shettleston and Carntyne stations in Glasgow. She was in the company of a young man, named John Grimes, aged 16, who was also struck by the train. John Grimes was killed, and the appellant suffered very serious injuries, some of which will leave permanent effects upon her. In this action, the appellant sues the respondents for damages under the Occupiers' Liability (Scotland) Act 1960. Her case is that the accident was caused by the negligence of the respondents in failing to maintain the fence along their railway in a reasonable state of repair. The respondents deny that they owed a duty to the appellant to maintain the fence in good condition. They also deny liability on other grounds to which I shall return, and they pleaded that the appellant's averments were irrelevant. A proof before answer was heard by the Lord Ordinary (Lord Ross), who assoilzied the defenders. An Extra Division of the Inner House, (Lords Hunter, Avonside and Grieve), dismissed the appellant's appeal and adhered to the Lord Ordinary's interlocutor. The appellant has now appealed to this House.

The accident occurred at a place where the railway line runs through a built-up and populous area of Glasgow. It runs approximately east and west, and the train which struck the appellant was travelling westwards from Shettleston towards Carntyne. The exact point where the accident occurred was not established, but the Lord Ordinary found that it was about a quarter-of-a-mile west of Shettleston station in the vicinity of a bridge by which the line crosses over Earnside Street. Earnside Street runs approximately north and south, and passes under the railway at right angles. For a person walking northwards in Earnside Street towards the railway bridge, there was a fence, for which the respondents had no responsibility, on the right-hand side. At right angles to that fence there was another fence, for which the respondents were responsible, running along the south side of the railway both east and west of the bridge. The latter fence was made of sleepers standing upright in the ground, but at the time of the accident, and apparently for some years before that, there were gaps in it. In particular there was a gap between the sleeper fence to the east of the bridge and the fence along the east side of Earnside Street, the gap being wide enough for a person to pass through it without difficulty. In order to reach the gap from Earnside Street a person would have to climb a slope up to the embankment on which the railway ran. There was a rough path up the slope leading to the gap in the fence. Having passed through the gap a person could either cross the railway lines, and go through any one of several gaps in the fence on the north side of the railway or he could walk along the line in either direction. The route across the line was used to some extent as a short cut to a housing area further to the north. It was also used as a short cut to a brickworks which lay immediately to the north of the railway line, and to the east of the bridge. This brickworks was a popular resort for courting couples. There was no necessity to walk across the line in order to reach the housing estate or the brickworks; the proper way was to continue along Earnside Street and under the railway bridge, but that route was apparently rather longer than the short cut and was also liable to flooding. The Lord Ordinary concluded after a careful review of the evidence that "there was a certain amount of passage across the railway line on both the east and west sides of the bridge". He also concluded that the respondents "must have been aware that people from time to time did cross the line in the vicinity of the bridge".

The appellant has no recollection of the accident or of the events immediately before it, as she suffers from post-traumatic amnesia. Her last recollection before the accident is of events in the morning of 23rd February, some 12 hours earlier. But she is familiar with the neighbourhood of Earnside Street and she gave evidence, apparently very frankly, about having crossed the railway line with John Grimes, on the way to and from the brickworks, on several previous occasions. There were no eye-witnesses of the accident, but several witnesses gave evidence of having seen the appellant and John Grimes together earlier in the evening up till about 10 p.m. The Lord Ordinary's findings about the time and place of the accident, and how it occurred, were based partly on the evidence of these witnesses, partly on the appellant's own evidence of her previous visits to the brickworks and partly on the real evidence found after the accident. There was evidence from one of the respondents' witnesses that at off-peak times there were three trains per hour in each direction on this line.

I did not understand counsel for either party to criticise the Lord Ordinary's findings of fact as being erroneous, but counsel for the respondents submitted to the Division, and more briefly to this House, that they did not go far enough to entitle him to hold that the appellant had proved her case as averred on record. This submission persuaded Lord Hunter who held that the appellant could not succeed because the Lord Ordinary's finding that the accident had occurred "somewhere in the vicinity of the bridge" did not prove her averment on record that the accident had occurred when she and Grimes were following the particular route or short cut referred to in the pleadings, and in her evidence, namely a route to the east of the railway bridge. Lord Grieve was inclined to agree with Lord Hunter although he based his decision on other grounds. Lord Avonside rejected the argument. In my opinion, with all respect to Lord Hunter and Lord Grieve, it would not be reasonable to reach a decision adverse to the appellant merely on the ground that she had not precisely proved her case as averred. The respondents had ample notice that the case against them was based on the fact that the accident occurred at a part of the line in the vicinity of the bridge where, to their knowledge, people were in the habit of walking across it, after getting through gaps in the fence. Nothing turned upon the exact spot where the appellant was struck and it is of no consequence whether it was on the east or the west side of the bridge. The respondents were in at least as good a position as the appellant to identify the point of impact, as the appellant herself has no recollection of the accident. The railway police appear to have been at the locus soon after the accident, although none of them was called as a witness. I have no hesitation in rejecting the argument for the respondents on what I may call the pleading point.

The duty of care owed by an occupier of premises towards a person entering thereon is now stated in the Occupiers' Liability (Scotland) Act 1960. [His Lordship quoted section 2(1) and (3) and continued.] These two subsections are intimately related but I shall, as far as possible, consider them separately. I shall consider first whether the respondents as occupiers owed to the appellant as a person entering on their premises in respect of dangers due to something done on the premises (namely the running of trains) a duty to maintain the fence in better condition than it was at the time of the accident. Let me repeat that the fence had gaps through which persons like the appellant could easily pass, and that the respondents knew that persons did pass through the gaps and walk across the line.

The duty under section 2 (1) was considered by your Lordships' House in M'Glone v. British Railways Board 1966 S.C. (H.L.) 1 where Lord Guest said at p. 15 "the duty is not to ensure the entrant's safety but only to show reasonable care. What is reasonable care must depend ‘on all circumstances of the case’". One of the circumstances is the age and intelligence of the entrant. That appears from the provision in section 2 (1) that the duty is to show "such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury" (emphasis added). The question in each case relates to the particular person who has entered upon the premises. The submission of counsel for the respondents was that they did more than enough to discharge their obligations to this appellant because the fences along the north and south sides of the line, notwithstanding that they had gaps, gave her warning that if she went on she would be entering upon railway premises. She was well aware, as she admitted, of the danger of walking across or along the line, and she said that when doing so she normally kept a lookout for trains. By giving her that warning, the respondents were, said Mr Morison, doing more than they were obliged to do, because this appellant already knew that the railway was there, and therefore needed no warning. Counsel accepted that the logical conclusion of this argument was that, as the appellant had no need of a warning, the respondents could have left their premises near the bridge completely unfenced without being in breach of any duty towards her, A fortiorithey had no duty to do more than they did.

The Lord Ordinary accepted that argument, and in the Division Lord Hunter agreed, although only with some hesitation.

I must emphasise that the question in this appeal is not whether the respondents, and other operators of railways if any there be, have as a general rule a duty to the public to maintain fences beside their lines in good condition or at all. The existence and extent of a duty to fence will depend on the circumstances of the case including the age and intelligence of the particular person entering upon the premises; the duty will tend to be higher in a question with a very young or a very old person than in the question with a normally active and intelligent adult or adolescent. The nature of the locus and the obviousness or otherwise of the railway may also be relevant. In the circumstances of this case, and in a question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line. I reach that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a look out for trains, and that she had done so when crossing the line on previous occasions. In addition the following features of the case are in my opinion important. The line ran along an embankment up which the appellant had to climb, whether she approached from the south or the north. Accordingly she could not possibly have strayed on to the line unawares. Enough of the fence remained to give her further warning, if that were necessary, that she would be going on to a railway premises where (as she knew) there was danger from the trains. For reasons explained by the Lord Ordinary, it seems that the train which caused this accident approached from the east, that is from Shettleston, and the line in that direction is perfectly straight and free from obstruction for at least a quarter of a mile from the bridge over Earnside Street to Shettleston Station and for some distance beyond the station. There was no difficulty in seeing trains as they approached. It was dark at the time of the accident but, even in the dark, their lights would have been visible. There was therefore no special danger peculiar to the locus of the accident, and no criticism was made by the appellant of the way in which the particular train was being operated. (I shall return to the last point in a moment.) Taking all these circumstances together I consider that the respondents did not owe the appellant a duty to maintain the fence in better condition than it was. If it were necessary to do so, I would hold that they owed her no duty to provide any fence at all.

If I am right so far, that would be enough to dispose of this appeal in favour of the respondents. But the Lord Ordinary and the Division based their decisions also on other grounds and I ought briefly to consider those additional grounds. In the first place the Lord Ordinary held that, even if the respondents were at fault in failing to maintain the fence and to repair the gaps in it, the appellant had failed to prove, as a matter of probability, that if the respondents had performed their duty in those respects, the accident would have been prevented. The Lord Ordinary expressed himself strongly on this point and concluded that the appellant and her companion would not have been stopped by anything short of an impenetrable barrier. No doubt he reached that conclusion mainly because of the appellant's evidence in cross-examination that the respondents should have put up an impenetrable barrier which would have been "impossible to get through". That extreme view is clearly untenable; even in M'Glone, supra,where the danger (from a transformer) was at least as great as the danger in this case and where the injured intruder was a boy aged only 12, Lord Reid described the suggestion that the defenders owed him a duty to surround the transformer with an impenetrable and unclimbable fence as "quite unreasonable". But the appellant also said that even an ordinary post and wire fence would have been enough to prevent her from crossing the line because she could not have climbed over it. This was at least partly because she was wearing platform shoes. The Lord Ordinary disbelieved her evidence on this point, but Mr Galbraith submitted that, in the absence of any other evidence, he had not been entitled to do so. In my opinion the Lord Ordinary was in no way bound to accept the appellant's evidence on this point, even though it was uncontradicted. Having regard to the fact that the appellant, helped perhaps by her boyfriend, was apparently able to climb up the embankment and walk across the line, platform shoes and all, I consider that the Lord Ordinary was fully entitled to conclude that she had failed to satisfy him that a post and wire fence would have deterred her. It follows that the respondents' failure to maintain the fence in a reasonable condition, even assuming that it was their duty to have done so, did not cause the accident. The respondents aver that post and wire fencing was the type of fencing mainly relied on by them near the locus and that it was subject to frequent vandalism, but these matters were not explored in evidence.

Secondly the Lord Ordinary held that the respondents had established a defence under section 2(3) of the 1960 Act by proving that the appellant had willingly accepted the risks of walking across the line. As Lord Reid said in M'Glone, supra, subsection (3) merely puts in words the principle volenti non fit injuria.That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the 1960 Act are concerned, the principle is expressly stated in section 2(3) and there is no room for an argument that it is out of date or discredited. If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her. (See Salmond on Torts, 18th ed., p. 467.) On this matter I am of opinion, in agreement with Lord Hunter, that the Lord Ordinary was well-founded in sustaining this defence. The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty. The appellant admitted that she was fully aware that this was a line along which trains ran, and that it would be dangerous to cross the line because of the presence of trains. She said in cross-examination "it was just a chance I took", and the Lord Ordinary evidently accepted that she understood what she was saying. She was in a different position from the boy in M'Glone, supra, who did not have a proper appreciation of the danger from live wires—see Lord Reid at p. 13 and Lord Pearce at p. 18. As I said already the appellant did not suggest that the train which injured her had been operated in an improper or unusual way. The importance of that is that the chance which she took was no doubt limited to the danger from a train operated properly, in the "ordinary and accustomed way"—see Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264, per Denning L.J. at p. 271. Had there been evidence to show that the train which injured the appellant was driven negligently, like the train in Slater's case, the risk which materialised would not have been within the risks that the appellant had accepted. But there is nothing of that kind here. In my opinion therefore the defence under section 2 (3) is established.

In these circumstances no question of apportioning the blame on the ground of contributory negligence arises.

For these reasons I would dismiss the appeal.

LORD KEITH OF KINKEL .—My Lords, I agree that, for the reasons set out in the speech of my noble and learned friend, Lord Fraser of Tullybelton, this appeal should be dismissed.

LORD ROSKILL .—My Lords, I have had the advantage of reading in draft the speech delivered by my noble and learned friend, Lord Fraser of Tullybelton. For the reasons he gives I too would dismiss this appeal.

LORD BRIDGE OF HARWICH .—My Lords, for the reasons given in the speech of my noble and learned friend Lord Fraser of Tullybelton, with which I fully agree, I too would dismiss this appeal.