British Railways Board V Herrington

British Railways Board v Herrington: A Landmark Case in Occupiers' Liability

This article delves into the landmark case of British Railways Board v Herrington [1972] AC 877, a pivotal moment in the evolution of occupiers' liability law in England and Wales. This case significantly altered the traditional approach to the duty of care owed by occupiers to trespassers, moving away from the rigid common law rules and introducing a more humane and flexible standard. Understanding this case requires examining its facts, the legal arguments presented, the House of Lords' decision, and its lasting impact on subsequent legislation and judicial interpretations. This analysis will explore the key legal principles established, highlighting the significance of Herrington in shaping the landscape of occupiers' liability.

The Facts of the Case

The case centered on a six-year-old boy, Herrington, who was severely injured after trespassing onto a railway line. He wandered onto the railway property through a gap in a dilapidated fence. The railway line was known to be frequented by trespassers, particularly children, and the British Railways Board (BRB) was aware of this. Despite this knowledge, the BRB had failed to take adequate measures to prevent access to the live railway lines, particularly for young children. Herrington suffered severe burns when he came into contact with a live electric rail.

Legal Arguments Before the House of Lords

The case reached the House of Lords after a series of lower court decisions. The core argument revolved around the duty of care owed by the BRB to Herrington, a trespasser on their property. The traditional common law position, based on earlier precedents, offered minimal protection to trespassers. An occupier generally owed no duty of care to a trespasser unless they were aware of the trespasser's presence and acted with intention to cause harm or reckless disregard for their safety. This "all or nothing" approach was increasingly viewed as harsh and unfair, particularly in cases involving children who might lack the capacity to appreciate the dangers.

The claimant argued that the BRB owed him a duty of care, not based on the traditional principles, but on a more general application of the principle of negligence developed in Donoghue v Stevenson [1932] AC 562. They asserted that the BRB, knowing of the frequent trespassing, particularly children, should have taken reasonable steps to safeguard them from foreseeable harm. They emphasized the foreseeability of harm to children and the relative ease with which the hazard could have been mitigated.

The BRB, on the other hand, maintained that the traditional common law position should prevail. They argued that they had no duty of care towards a trespasser, especially since Herrington had entered their property without permission. They asserted that they were not legally obligated to take preventative measures beyond those necessary to safeguard lawful visitors.

The House of Lords Decision

The House of Lords, in a landmark decision, departed from the traditional common law approach and established a new precedent. They acknowledged the inadequacy of the rigid common law rules in addressing the changing social conditions and the need for a more flexible and humane approach to occupiers' liability. Lord Reid, delivering the leading judgment, held that an occupier owed a common duty of care to all persons, including trespassers, who might be injured on their property. This duty was not absolute but was based on the principle of reasonable foreseeability and was determined by the circumstances of each case.

The Lords outlined a test encompassing several key elements to determine the existence of a duty of care:

• Foreseeability of Harm: The occupier must have reasonably foreseen the presence of the trespasser on the property. In Herrington, the frequent trespassing, especially of children, made the presence of a trespasser reasonably foreseeable.
• Proximity: A degree of proximity or closeness between the occupier and the trespasser must exist. In this case, the close proximity of the railway line to a public path and the knowledge of the BRB regarding the frequent trespassing fulfilled this requirement.
• Reasonableness of the Precautions: The court must consider the reasonableness of the precautions which the occupier should have taken to prevent harm. The court weighed the cost and practicality of preventing access against the risk of injury. Given the foreseeability of harm and the simplicity of remedial measures (such as repairing the fence), the BRB's failure to act was deemed unreasonable.

The House of Lords emphasized that the duty of care was not to prevent all potential harm, but to take reasonable steps to safeguard against foreseeable harm. This flexible approach introduced a measure of fairness and proportionality in determining the occupier's liability. The decision in Herrington effectively broadened the scope of occupiers' liability to encompass trespassers, particularly those whose presence was foreseeable.

The Impact of British Railways Board v Herrington

Herrington had a profound and lasting impact on the law of occupiers' liability:

• Shift from Strict Rules to a Principled Approach: The case shifted away from the rigid and often unfair rules governing occupiers' liability towards trespassers, towards a more flexible and principled approach based on negligence principles. The focus shifted from the status of the entrant (visitor or trespasser) to the foreseeability of harm and reasonableness of the occupier's actions.

• Influence on Subsequent Legislation: The decision directly influenced the subsequent enactment of the Occupiers' Liability Acts of 1957 and 1984. These acts codified many of the principles established in Herrington, providing clearer and more comprehensive guidelines on the duties of care owed by occupiers to different categories of entrants. The 1984 Act, in particular, addressed the duty of care owed to trespassers, reflecting the principles set out in Herrington.

• Broadening the Scope of Occupiers' Liability: The case expanded the scope of occupiers' liability, extending protection to a wider range of individuals, including those who were technically trespassers but whose presence was reasonably foreseeable. This reflected a move towards a more socially just and protective legal framework.

• Emphasis on Foreseeability and Reasonableness: Herrington placed significant emphasis on the foreseeability of harm and the reasonableness of the precautions taken by the occupier. These became central considerations in determining the existence and extent of an occupier's duty of care.

• Application Beyond Railway Premises: While the case involved a railway line, the principles established are applicable to a wide range of premises and circumstances where the presence of trespassers is reasonably foreseeable.

Frequently Asked Questions (FAQs)

Q1: What is the significance of Donoghue v Stevenson in the Herrington case?

A1: Donoghue v Stevenson established the neighbour principle, which broadened the scope of negligence. Herrington applied this principle to the context of occupiers' liability, arguing that an occupier owes a duty of care to those whose presence is reasonably foreseeable.

Q2: Did Herrington abolish the distinction between visitors and trespassers entirely?

A2: No. While Herrington significantly narrowed the distinction, it did not abolish it entirely. The Occupiers' Liability Acts still maintain a distinction, but the approach is more flexible and focuses on the foreseeability of harm and reasonableness of precautions rather than solely on the legal status of the entrant.

Q3: What are some examples of reasonable precautions an occupier might take to prevent harm to trespassers?

A3: Reasonable precautions could include erecting fences, warning signs, employing security personnel, or undertaking regular inspections to identify and address hazards. The reasonableness of the precautions depends on the circumstances of each case, including the foreseeability of harm and the cost and feasibility of the measures.

Q4: What is the current legal position on occupiers' liability to trespassers in England and Wales?

A4: The current legal position is primarily governed by the Occupiers' Liability Act 1984. This Act codifies and expands upon the principles established in Herrington, outlining the duty of care owed to trespassers where an occupier is aware of the danger and the presence of the trespasser, or where they ought to have been aware of it.

Q5: How did Herrington impact the development of tort law?

A5: Herrington significantly influenced the development of tort law by demonstrating the court's willingness to adapt common law principles to reflect evolving social expectations and to adopt a more flexible and just approach to liability. It emphasized the importance of foreseeability and reasonableness, principles which are central to modern tort law.

Conclusion

British Railways Board v Herrington remains a landmark case in English law. It represents a decisive shift in the approach to occupiers' liability, moving away from archaic and inflexible rules towards a more humane and just system. The case's emphasis on foreseeability and reasonableness has profoundly influenced subsequent legislation and judicial decisions, shaping the current landscape of occupiers' liability and contributing significantly to the broader development of tort law. The principles established in Herrington continue to be relevant and influential in determining the duty of care owed by occupiers to a wide range of entrants, including those who enter their property without permission. The case stands as a testament to the courts' ability to adapt common law to reflect changing societal values and provide a more equitable legal framework for protecting individuals from harm.