Herrington v British Rail Board [1972] AC 877

Facts

  • The claimant was a six-year-old boy who suffered severe burns after coming into contact with an electrified railway line on property owned and operated by the British Rail Board.
  • Entry to the railway premises was gained through a gap in a fence, which had been in disrepair for some time.
  • The British Rail Board was aware of the condition of the fence but had not taken adequate steps to repair it or prevent unauthorized access.
  • At first instance, the court found that the defendant owed no duty of care under existing law, as the boy was a trespasser.
  • The Court of Appeal reversed this decision, holding that failing to address the known hazard breached a duty towards trespassers.
  • The matter was appealed to the House of Lords to determine the extent of an occupier’s liability to trespassers.

Issues

  1. Whether an occupier owed a duty of care to a trespasser injured on their premises.
  2. Whether the principle from Robert Addie & Sons (Collieries) Ltd v Dumbreck should continue to govern occupiers’ liability towards trespassers.
  3. Whether the British Rail Board's failure to repair the fence or implement safeguards constituted a breach of any duty owed to the injured child.

Decision

  • The House of Lords held that the previous rule in Addie, which provided almost no duty to trespassers, was inadequate and outdated.
  • The court introduced the "common duty of humanity," requiring occupiers to take reasonable steps to prevent foreseeable injury to trespassers in appropriate circumstances.
  • The duty is not absolute and depends on factors such as the foreseeability of trespassers, the likelihood and seriousness of harm, and the feasibility of precautions.
  • The British Rail Board’s failure to repair the fence or adopt other preventive measures was a breach of this common duty of humanity.

Legal Principles

  • The "common duty of humanity" replaces the previous, rigid rule and requires occupiers to exercise reasonable care to prevent foreseeable harm to trespassers.
  • The duty varies according to the circumstances, including the vulnerability of the trespasser, especially where children are concerned.
  • This decision signaled a shift from strict liability to a more flexible, case-by-case approach reflective of societal expectations and practical realities.
  • The principle was later codified by the Occupiers' Liability Act 1984.

Conclusion

Herrington v British Rail Board fundamentally redefined occupiers’ liability in English law, replacing the stringent Addie rule with the "common duty of humanity" and imposing a reasonable standard of care towards trespassers, particularly vulnerable individuals such as children.

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