R Addie & Sons (Collieries) Ltd v Dumbreck

HOUSE OF LORDS

[1929] All ER Rep 1, Also reported [1929] AC 358; 98 LJPC 119; 140 LT 650; 45 TLR 267; 34 Com Cas 214

HEARING-DATES: 16, 19 November 1928, 25 February 1929

25 February 1929

CATCHWORDS:
Negligence - Child - Trespasser - Extent of duty of occupier - Duty of occupier to fence.

HEADNOTE:
The occupier of land has no duty towards a trespasser to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is liable to a trespasser only where the injury suffered by the trespasser is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate malicious intention of doing harm to the trespasser, or at least some act done with such reckless disregard of the presence of the trespasser as to be tantamount to malicious acting. And this is so where a trespasser who is injured is a child, and so in such a case the special duty of care towards children of tender years who may come into contact with dangerous things does not exist.

Per VISCOUNT DUNEDIN: There is no duty on the occupier of land to fence it against the world so that, if he does not take that or some other measure to stop trespass, a trespasser becomes a licensee [or now a "visitor" within the Occupiers' Liability Act 1957].

Appeal from an interlocutor of the First Division of the Court of Session (the Lord President and LORD SANDS, LORD BLACKBURN dissenting) affirming the decision of the sheriff-substitute of Lanarkshire at Glasgow, and finding the present appellants liable in damages to the respondent to the amount of 100 pounds in respect of the death of the respondent's son, Andrew Douglas Dumbreck, who received fatal injuries at a wheel, part of a haulage apparatus on the appellants' premises of View Park Colliery, Uddingston, on 21 April 1926.

The case was initiated in the Sheriff Court by the respondent, a foreman bricklayer, whose son, aged slightly over four years, was accidentally killed through being crushed in the terminal wheel of a haulage system belonging to and worked by the appellants. The haulage system was situated in a field belonging to the appellants, which was used partly for the deposit of ashes brought by the haulage system from the appellants' pithead. The haulage wheel was dangerous, being set in motion intermittently by a motor from the pithead without warning by the appellants from time to time. It was attractive to children and insufficiently protected. The field abutted on the public road, near which was a group of houses, in one of which the respondent lived with his family. Between the field and the public road was an old hedge full of wide gaps which allowed a practically unrestricted access from road to field. The respondent alleged that the child's death had been caused by the negligence of the appellants, who, accordingly, were liable to make reparation to the respondent as the child's father in name of solatium.

The main question of law which arose for decision on the appeal was whether in the circumstances in which the accident occurred, the appellants owed any duty of care towards the respondent's son to protect him from danger of contact with the haulage system or the wheel. The First Division of the Court of Session held, LORD BLACKBURN dissenting, (i) that the defenders had been guilty of negligence, in respect that, as the pursuer's son was one of a class of persons who, to their knowledge, habitually went near to their haulage system, they owed him a duty, which they had failed to fulfil, of taking care to prevent his being injured when the machinery was set in motion; and (ii) that neither the pursuer nor his son had been guilty of contributory negligence in respect (a) that the danger was not obvious, (b) that the child was too young to be capable of negligence, and (c) that it was the recognised custom of working-class parents to allow young children to wander near their homes unattended. The defenders appealed.

The facts are stated in the opinion of the Lord Chancellor.

NOTES:
Notes

The distinction between an invitee and a licensee has been abolished by the Occupiers' Liability Act 1957 (see 37 HALSBURY'S STATUTES (2nd Edn) 832). They are now both "visitors" within the Act, and the duty to them of an occupier is laid down in s 2 and the following sections.

Explained: Mourton v Poulter, [1930] All ER Rep. 6. Considered: Ellis v Fulham Corpn, [1937] 3 All ER 454; Coates v Rawtenstall Borough Council, [1937] 3 All ER 602. Distinguished: Pearson v Coleman Bros, [1948] 2 All ER 274. Considered: Pearson v Lambeth Borough Council, [1950] 1 All ER 682. Distinguished: Gough v National Coal Board, [1953] 2 All ER 1283. Considered: Perry v Thomas Wrigley, Ltd, [1955] 3 All ER 243 n. Referred to: Excelsior Wire Rope Co, Ltd v Callan, [1930] All ER Rep. 1; Donovan v Union Cartage Co, Ltd, [1932] All ER Rep 273; Liddle v North Riding of Yorkshire County Council, [1934] All ER Rep. 222; Purkis v Walthamstow Borough Council, [1934] All ER Rep 64; Weigall v Westminster Hospital, [1936] 1 All ER 232;

Morgan v Incorporated Central Council of the Girls' Friendly Society [1936] 1 All ER 404; Hawkins v Thames Stevedore Co, Ltd and Cold Storage Co Ltd [1936] 2 All ER 472; Campbell v Shelbourne Hotel Ltd [1939] 2 All ER 351; Culkin v McFie & Sons Ltd [1939] 3 All ER 613; Gould v McAuliffe [1941] 1 All ER 515; Haseldine v CA Daw & Son Ltd [1941] 3 All ER 156; Glasgow Corpn v Muir [1943] 2 All ER 44; Walden v Hammersmith Borough Council [1944] 1 All ER 490; Adams v Naylor [1944] 2 All ER 21; Baker v Bethnal Green Corpn [1945] 1 All ER 135; Bint v Lewisham Borough Council (1945) 174 LT 128; Buckland v Guildford Gas, Light and Coke Co [1948] 2 All ER 1086; Anderson v Guiness Trust [1949] 1 All ER 530; Horton v London Graving Dock Co [1950] 1 All ER 180; Williams v Cardiff Corpn [1950] 1 All ER 250; Edwards v Railway Executive [1952] 2 All ER 430; Davis v St Mary's Demolition and Excavation Co [1954] 1 All ER 578; Hawkins v Coulsdon and Purley UDC [1954] 1 All ER 97; Phipps v Rochester Corpn [1955] 1 All ER 129; Randall v Tarrant [1955] 1 All ER 600; Dyer v Ilfracombe UDC [1956] 1 All ER 581.

As to the duty of an occupier to children, see 23 HALSBURY'S LAWS (2nd Edn) 584-586; and to trespassers, see ibid, 613, 614. For cases see 36 DIGEST (Repl) 114 et seq, 70-72.

CASES-REF-TO:
Cases referred to:

(1) Cooke v Midland Great Western Railway of Ireland, [1909] AC 229; 78 LJPC 76; 100 LT 626; 25 TLR 375; 53 Sol Jo 319, HL; 36 Digest (Repl) 118, 590.

(2) Lowery v Walker, [1910] 1 KB 173; 79 LJKB 297; 101 LT 873; 26 TLR 108; 54 Sol Jo 99, C A; reversed, [1911] AC 10; 80 LJKB 138; 103 LT 674; 27 TLR 83; 55 Sol Jo 62; 48 ScLR 726, HL; 86 Digest (Repl) 55, 302.

(3) Latham v R Johnson & Nephew Ltd, [1913] 1 KB 398; 82 LJKB 258; 108 LT 4; 77 JP 137; 29 TLR 124; 57 Sol Jo 127, CA; 36 Digest (Repl) 49, 262.

(4) Hardy v Central London Rail Co, [1920] 3 KB 459; 89 LJKB 1187; 124 LT 136; 36 TLR 843; 64 Sol Jo 683, CA; 36 Digest (Repl) 120, 603.

(5) Coffee v M'Evoy, [1912] 2 DR 95; 36 Digest (Repl) 72, 393.

(6) Houghton v North British Rail Co (1892) 20 R (Ct of Sess) 113; 30 ScLR 111; 36 Digest (Repl) 119, 868.

(7) Devlin v Jeffray's Trustees (1902) 40 ScLR 92; 5 F (Ct of Sess) 130; 7 Digest 287, 157 v.

(8) Holland v District Committee of Middle Ward of Lanarkshire, 1909 SC 1142; 1909, 2 SLT 7; 7 Digest 288, k.

(9) Reilly v Greenfield Coal and Brick Co Ltd, 1909 SC 1328.

(10) Mackenzie v Fairfield Shipbuilding and Engineering Co Ltd, 1913 SC 213; 7 Digest 288, n.

(11) Boyd v Glasgow Iron and Steel Co Ltd, 1923 SC 758; 36 Digest (Repl) 117, 858.

(12) Grand Trunk Rail Co of Canada v Barnett, [1911] AC 361; 80 LJPC 117; 104 LT 362; 27 TLR 359, PC; 36 Digest (Repl) 71, 359.

(13) Thompson v North British Rail Co (1882) 9 R (Ct of Sess) 1101; 19 ScLR 817; 36 Digest (Repl) 176, 1522.

(14) Cummings v Darngavil Coal Co Ltd (1903) 5 F (Ct of Sess) 513; 10 SLT 660; 7 Digest 287, g.

COUNSEL:
Graham Robertson KC, James R Marshall (both of the Scottish Bar) and Harold Beveridge for the appellants.; George Morton KC, Albert Russell (both of the Scottish Bar) and Weitzman, for the respondent.

Solicitors: Beveridge & Co, for W T Craig, Glasgow, and W & J Burness, WS, Edinburgh; George Brown, Son & Vardy, for John W Snodgrass, Writer, Glasgow, and Alexander Campbell & Son, SSC, Edinburgh.

Reported by EJM CHAPLIN, ESQ, Barrister-at-Law.

JUDGMENT-READ:
The House took time for consideration.

25 Feb. The following opinions were read.

PANEL: LordS, Hailsham LC, Shaw, Buckmaster, Carson, Viscount Dunedin

JUDGMENTBY-1: LORD HAILSHAM LC:

JUDGMENT-1:
LORD HAILSHAM LC:

This is an appeal from an interlocutor of the First Division of the Court of Session, pronounced on appeal from a decision of the Sheriff-Substitute of Lanarkshire, whereby the appellants were ordered to pay to the respondent 100 pounds damages in respect of the death of the infant son of the respondent, who received fatal injuries at the wheel pit of the haulage apparatus on the appellants' premises at View Park Colliery, Uddingston, on 21 April 1926. The facts as found by the Court of Session are as follows. The accident happened in a field at a spot about a hundred yards from a public road; the field forms part of View Park Colliery and is used as a dump for the deposit of ashes from the pithead; it is separated from the public road by a hedge in which there were at the time of the accident numerous large gaps, including a gap of 10 ft opposite the point at which the accident happened; there are two gates to the field, at one of which there is a notice-board bearing the words "Trespassers will be prosecuted"; the haulage system consists of an endless wire cable operated from time to time, as may be necessary, for the purpose of removing ashes from the pithead by an eight-horsepower electric motor situated at the pithead, while at the other end of the system (which is not visible from the pithead) there is a heavy horizontal iron wheel round which the cable passes and returns at a speed of from two to two-and-a-half miles per hour; the wheel at the front, where the cable entered and left,

was in no way enclosed or protected, while on the top it was covered by four covering boards. In front of the wheel the cable had worn grooves or depressions in the adjacent surface of the ash-dump, so that there was a space 8 or 9 inches deep in the centre from ashes to covering-board, and rather more at the sides. The respondent had warned his son not to enter the colliery premises or to go near the wheel; the hedge was quite inadequate to keep the public, and, in particular, children, out of the ground, which was in fact, to the knowledge of the appellants, habitually traversed by members of the public as a short cut and frequented by youths and children of all ages. The appellants' employees at times warned children out of the field and reproved adults, but, as the appellants knew, the children disregarded warnings and the adults continued to frequent the field; the watch kept by the appellants' servants was casual and ineffective, except in so far as it was directed to guarding the wood piles and coal bings, and the ground in question was to the appellants' knowledge used as a playground by young children near the wheel and elsewhere; the wheel was dangerous and attractive to children and insufficiently protected at the time of the accident; the child who was killed was a little over four years of age, and the accident occurred owing to the child, when sitting on the cover of the wheel or in a position in front of and in close proximity to the pulley and rope, being caught and drawn into the mechanism when it was set in motion by the appellants' servants. Having regard to these facts, the Court of Session has held that the accident was due to the fault of the appellants in setting the haulage system in operation in the circumstances stated above without taking any precaution to avoid accident to persons frequenting the field in the near neighbourhood of the haulage system, and accordingly they awarded damages to the respondent.

The first, and, in my opinion, the only, question which arises for determination is the capacity in which the deceased child was in the field and at the wheel on the occasion of the accident. There are three categories into which persons visiting premises belonging to another person may fall: they may go (i) by the invitation, express or implied, of the occupier; (ii) with the leave and licence of the occupier; and (iii) as trespassers. It was suggested in argument that there was a fourth category of persons who were not on the premises with the leave or licence of the occupier, but who were not pure trespassers. I cannot find any foundation for this suggestion either in English or in Scottish law, and I do not think that the category exists. The duty which rests upon the occupier of premises towards the persons who come on such premises differs according to the category into which the visitor falls. The highest duty exists towards those persons who fall into the first category, and who are present by the invitation of the occupier. Towards such persons the occupier has the duty of taking reasonable care that the premises are safe. In the case of persons who are not there by invitation, but who are there by leave and licence, express or implied, the duty is much less stringent - the occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises which is not apparent to the visitor, but which is known - or ought to be known - to the occupier. Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser.

It was suggested in argument for the respondent that Cooke v Midland Great Western Railway Co of Ireland (1) and of Lowery v Walker (2) showed that even towards trespassers the duty was higher than that which I have stated. In my opinion, these two cases afford no ground for such a contention. In Cooke v Midland Great Western Railway Co of Ireland (1) the railway company kept a dangerous turn-table on their land close to a public road; the company knew that

children were in the habit of playing on the turntable, to which they obtained easy access through a well-worn gap in a fence which the respondents were bound by statute to maintain; a child between four and five years of age having been seriously injured on the turntable, it was held that there was evidence for a jury of actionable negligence on the part of the railway company. LORD MACNAGHTEN [1909] AC at p 236) expressly treats the case as one in which the children were resorting to the turn-table with the tacit permission of the railway company. LORD ATKINSON says ([1909] AC at p 240):

"If the plaintiff entered upon these premises and played on this turn-table with the leave and licence of the defendants, then these latter owed to the child a duty not to permit the machine to be in the movable end dangerous, because movable, condition in which they permitted it in fact to be."

LORD COLLINS says [1909] AC at p 241):

"I think all these facts in combination were evidence from which a jury might well infer not merely a licence but an invitation, which fixed the defendants with a high responsibility towards those people to whom such an invitation would mainly appeal."

LORD LOREBURN agreed with the judgment of LORD MACNAGHTEN expressly on the ground that:

"this place . . . was to the defendants' knowledge an habitual resort of children . . . and that the defendants took no steps . . . to prevent the children's presence . . ."

but be regarded the case as "near the line" and the evidence as very weak. In my opinion, the decision in Cooke's Case (1) rests upon the ground that there was evidence from which the jury were entitled to infer that the plaintiff was on the turntable with the leave and licence of the railway company, and that the turntable was in the nature of a trap; it therefore throws no light upon the question as to any duty owed by the occupier of premises to a trespasser.

Lowery v Walker (2) was an appeal from the decision of a County Court judge. The facts were that the respondent put a savage horse, which he knew to be dangerous to mankind, into a field which he knew people were in the habit of crossing on their way to a railway station, and that the plaintiff was injured by the horse when so crossing the field. The Court of Appeal treated the county court judge's judgment as amounting to a finding that the plaintiff was a trespasser, and accordingly decided in favour of the defendant. This House reversed the decision expressly on the ground that the county court judge's finding amounted to a decision that the plaintiff was in the field as a licensee. LORD LOREBURN says ([1911] AC at p 12): "I think that the effect of his finding is that the plaintiff was there with the permission of the defendant." LORD HALSBURY agrees; and LORD ATKINSON says ([1911] AC at p 14):

"On the interpretation which I think is most rightly and properly put upon the findings of the learned county court judge it is clear that the plaintiff was lawfully in the place where the injury happened to him."

LORD SHAW expressly reserved any opinion as to the legal position if the plaintiff had been a mere trespasser. It is clear, therefore, that this case affords no support to the respondent's contention. This explanation of the case has been most clearly stated in the Court of Appeal in the judgment of HAMILTON LJ in Latham v R Johnson and Nephew, Ltd (3) [1913] 1 KB at p 419) a judgment with which I find myself in full agreement. Apart from these two cases, counsel for the respondent were bound to confess that they were unable to find any case, either in the English or in the Scottish reports, which lent any support to the doctrine that there was any duty owed by an occupier to a trespasser apart from the duty not maliciously to cause him injury.

On the other hand, there is a number of decided cases in England, Scotland, and Ireland to the contrary effect. So far as English law is concerned, it is sufficient to refer to Hardy v Central London Rail Co (4) in which a child was injured on a moving staircase on the Underground Railway, where he had no right to be. SCRUTTON LJ says ([1920] 3 KB at p 473):

"If the children were trespassers, the landowner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business. Against those he was under no obligation to guard trespassers."

I believe that that sentence accurately summarises the English law. In Ireland the law has been similarly stated in the Court of Appeal in Coffee v M'Evoy (5). The Scottish law seems to me to be the same and to be supported by a large number of authorities. In Haughton v North British Rail Co (6) where children had been injured on the railway line in the course of shunting operations, it was held that the pursuers could only succeed in raising a relevant case by an averment which stated that the persons engaged in the shunting knew, when they proceeded to shunt, that the children were upon the line. In Devlin v Jeffray's Trustees (7) LORD KINNEAR says (5 F (Ct of Sess) at p 135):

"It was said that there is a doctrine admitted in the law of England which has not been received in our law, that when people come on the lands of others for their own purposes, without right or invitation, they must take the lands as they find them, and if they are exposed to injury from unseen dangers, they must take care of themselves, and cannot throw any responsibility upon the persons on whose lands they have trespassed. If that is a correct statement of the law, I am of opinion that there is no such distinction as is supposed between English and Scotch law, and that this doctrine is just as clearly a part of our law as it is said to be of the law of England."

In Holland v District Committee of Middle Ward of Lanarkshire (8) where children who had been in the habit of playing upon a strip of waste ground got access to the defenders' ground through a gap in a fence and fell into a disused and unfenced quarry, the defenders were assoilzied on the ground that there was no duty on them to fence the quarry. In Reilly v Greenfield Coal and Brick Co Ltd (9) where a child had been injured at a level crossing, it was held that the company was responsible because the child was lawfully on the road when the accident happened. In Mackenzie v Fairfield Shipbuilding and Engineering Co Ltd (10) where a child was killed by a fall of sand in a pit belonging to the defenders, the pursuers' averments were held relevant because they contained a statement that the defenders knew of the children's practice of entering the ground and using the pit as a playground and allowed it, and the Lord Justice Clerk says (1913 SC at p 216): "The real ground of liability as alleged is the fact that the defenders allowed the children to make use of the pit." In Boyd v Glasgow Iron and Steel Co Ltd (11) where a boy was killed by falling from the wall of a ruinous engine house while birds' nesting, the Court of Session held that the pursuers had stated a relevant case for inquiry because they averred that the defenders knew the condition of the building and knew and tolerated the practice of children playing there. The Lord Justice Clerk points out that on the pursuer's statement the pursuer's son was a licensee, and that, as such, it was the duty of the defenders to protect him against any concealed danger or trap, and LORD ORMIDALE says, "The pursuer's son was not a trespasser, but was doing what he did with the leave and licence of the defenders." Turning finally to the law as laid down by the Privy Council, we find in Grand Trunk Rail Co of Canada v Barnett (12) where the plaintiff was injured by a collision which took place on the appellants' railway line, it was held that the plaintiff could not recover because he was a trespasser on the train, and LORD ROBSON in giving the decision of the

Board that the defendants were not liable states ([1911] AC at p 370): "The general rule, therefore, is that a man trespasses at his own risk."

The only question, therefore, that remains for decision in this case is whether upon the findings of fact of the Court of Session (which are not open to review) the respondent's son may properly be regarded as having been at the wheel at the time of the accident with the leave and licence of the appellants. If this had been proved, I should have been prepared to hold that the wheel which was at times stationary and which was started without any warning, and which was, in the words of the Court of Session, "dangerous and attractive to children and insufficiently protected at the time of the accident," amounted to a trap, and that the respondent would, therefore, have been entitled to recover. But, in my opinion, the findings of fact effectually negative that view. It is found that the appellants warned children out of the field and reproved adults who came there, and all that can be said is that these warnings were frequently neglected and that there was a gap in the hedge through which it was easy to pass on to the field. I cannot regard the fact that the appellants did not effectively fence the field or the fact that their warnings were frequently disregarded as sufficient to justify an inference that they permitted the children to be on the field, and in the absence of such a permission it is clear that the respondent's child was merely a trespasser. The sympathy which one cannot help feeling for the unhappy father must not be allowed to alter one's view of the law, and I have no doubt that in law the respondent's son was a mere trespasser and that as such the appellants owed him no duty to protect him from injury. On these grounds I am of opinion that this appeal succeeds and must be allowed with costs, and I move your Lordships accordingly.

JUDGMENTBY-2: VISCOUNT DUNEDIN:

JUDGMENT-2:
VISCOUNT DUNEDIN:

I am of the same opinion and might have contented myself with a simple concurrence, had it not been that the case is an important one so that I thought it better to write my opinion before I had seen that of the Lord Chancellor.

I cannot do better than preface my remarks by a quotation from the exceedingly comprehensive and able judgment pronounced by VISCOUNT SUMNER, at that time HAMILTON LJ, in Latham v F Johnson and Nephew Ltd (3). I quote from [1913] 1 KB at p 410:

"Where a question arises, not between parties who are both present in the exercise of equal rights inter se, but between parties of whom one is the owner or occupier of the place and the other, the party injured, is not there as of right, but must justify his presence there if he can, the law has long recognised three categories of obligation. In these the duty of the owner or occupier to use care, if it exists at all, is graduated distinctly, though never very definitely measured. . . . Contractual obligations, of course, stand apart. The lowest is the duty towards a trespasser. More care, though not much, is owed to a licensee - more again to an invitee. . . . The owner of the property is under a duty not to injure the trespasser wilfully; 'not to do a wilful act in reckless disregard of ordinary humanity towards him'; but otherwise a man 'trespasses at his own risk.' On this point Scottish law is the same. In English and Scottish law alike, when people come on the lands of others for their own purposes without right or invitation, they must take the lands as they find them, and cannot throw any responsibility upon the person on whose lands they have trespassed: per LORD KINNEAR, Devlin v Jeffray's Trustees (7) 5 F (Ct of Sess) at p 135. The rule as to licensees, too, is that they must take the premises as they find them apart from concealed sources of danger; where dangers are obvious they run the risk of them. In darkness where they cannot see whether there is danger or not if they will walk they walk at their peril."

With every word of this passage I agree and I agree that it is the law of Scotland as well as that of England. What I particularly wish to emphasise is that

there are the three different classes - invitees, licensees, trespassers. I think, in the Scottish cases at least, there has been a little laxity in distinguishing between invitees and licensees.

The best test of who is an invitee is, I think, given by LORD KINNEAR in Devlin's Case (7). He must be on the land for some purpose in which he and the proprietor have a joint interest. A licensee is a person whom the proprietor has not in any way invited - he has no interest in his being there - but be has either expressly permitted him to use his lands or knowledge of his presence more or less habitual having been brought home to him, he has then either accorded permission or shown no practical anxiety to stop his further frequenting the lands. The trespasser is be who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to. The line that separates each of these three classes is an absolutely rigid line. There is no half-way house, no no-man's land between adjacent territories. When I say rigid, I mean rigid in law. When one comes to the facts, it may well be that there is great difficulty - such difficulty as may give rise to difference of judicial opinion - in deciding into which category a particular case falls, but a judge must decide, and, having decided, then the law of that category will rule and there must be no looking to the law of the adjoining category. I cannot help thinking that the use of epithets, "bare licensees," "pure trespassers" and so on, has much to answer for in obscuring what I think is a vital proposition; that, in deciding cases of the class we are considering, the first duty of the tribunal is to fix once and for all into which of the three classes the person in question falls.

Accordingly, in the present case the first query I put to myself is: Was this child a trespasser or a licensee? As to invitee, there is obviously no question. On this point I am bound to take the findings as they stand. Accorded permission is out of the case, but licence may be either expressed or implied. There is no finding in terms that licence was implied. Taking the situation as it is disclosed on the findings as a whole, I am of opinion that implied permission is not proved. It is here that I think this becomes a case of great importance. Judgments on this class of case are so numerous that it is impossible to review them all and a mere citation of a string of authorities is inimical to clear decision, but there are certainly to be found among them expressions which would countenance the idea against which I wish to raise my protest - that, unless a proprietor takes such measures as effectually to stop trespass, the trespasser becomes a licensee. Something has been said about fencing. There is no duty on a proprietor to fence his land against the world under sanction that, if he does not, those who come over it become licensees. Of course, a proprietor may do nothing at all to prevent people coming over his lands and they may come so often that permission will be held to be implied, or he may do something, but that something so half-heartedly - as to be equivalent to doing nothing. For instance, a mere putting up of a notice, "No Trespassers Allowed" or "Strictly Private," followed, when people often come, by no further steps would, I think, leave it open for a judge or jury to hold implied permission. But when a proprietor protests and goes on protesting, turning away people when he meets them as he did here, and giving no countenance in anything that he does to their presence there, then I think no court has a right to say that permission must be implied. As I have said, circumstances vary infinitely and one cannot ab ante furnish a test which will fit every case; but it is permission that must be proved, not tolerance, though tolerance in some circumstances may be so pronounced as to lead to a conclusion that it was really tantamount to permission. I, therefore, find that the child who met with an accident in this case was a trespasser.

I do not quote further from VISCOUNT SUMNER'S judgment in Latham's Case (3). In that case he was content to take the child as a licensee. On the duty to trespassers there is a considerable body of authority. There is no duty, save only that of not inflicting malicious injury. LORD HALSBURY mooted the question in Lowery v Walker (2) the case where the proprietor of a field where there was a frequented

pathway put a horse which he knew to be vicious into the field. The county court judge had used the word "trespasser" and then in a subsequent note said that he did not mean trespasser in the legal sense, and LORD HALSBURY says ([1911] AC at p 12):

"The learned judge did, I think, inadvertently, in the first instance use the word 'trespasser' which would have carried the learned counsel for the respondent [the proprietor] all the way he wants to get, to a somewhat difficult and intricate question of law upon which various views may be entertained."

This does not lay down the law but at least it shows clearly, even if it were doubtful before, that Lowery's Case (2) was decided upon the view that the person injured was a licensee.

Later in the same volume came the Privy Council case of Grand Trunk Rail Co of Canada v Barnett (12) where a trespasser on a railway company, a trespasser by having taken his place in a train not meant for passengers, was held not entitled to recover for the negligence of the servants of the proprietors of the line which had caused an accident. The judgment of LORD ROBSON is a little confused as to Lowery v Walker (2) but that does not affect the judgment. Then there is Hardy v Central London Rail Co (4) the case of the moving staircase. That had been decided by the court below as the case of a licensee. The Court of Appeal on the facts held that the child was a trespasser, not a licensee, and found for the defendant. BANKES LJ there says ([1920] 3 KB at p 467):

"If the plaintiff is a trespasser then he has no right of action, as there is no evidence of allurement with malicious intent to injure,"

and quotes HAMILTON LJ in Latham's Case (3) and LORD ROBSON in the Grand Trunk Case (12). WARRINGTON LJ takes the same course. SCRUTTON LJ says ([1920] 3 KB at p 473):

"If the children were trespassers, the landowner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business. Against those he was under no obligation to guard trespassers."

These are English cases. In Scotland in Thompson v North British Rail Co (13) a man who had jumped into the guard's van without a ticket was held to have no case against the railway company for damages caused in respect of a collision occasioned by the negligence of the company's servants. Then came Devlin v Jeffrey's Trustees (7) from which HAMILTON LJ made the quotation in Latham's Case (3) with which I began, but it is worth remarking that LORD KINNEAR's dictum is stronger than the quotation, which omits a few words. The actual words of LORD KINNEAR were:

"When people come on the lands of others for their own purposes, without right or invitation, they must take the lands as they find them, and, if they are exposed to injury from unseen dangers they must take care of themselves, and cannot throw any responsibility upon the person on whose lands they have trespassed."

Then Cummings v Darngavil Coal Co Ltd (14) is exactly the same as the present case. There there was the contrivance of a wheel set in motion from time to time to haul trucks over the bing. The place was known to be frequented by children, who strayed in from a public road within eighteen yards of the wheel, but the case was held irrelevant. I have, indeed, considerable doubt whether on the averments there ought not to have been allowed an inquiry whether the child was a licensee, but on the assumption that. he was a trespasser, the case is a ,direct authority. LORD TRAYNER says in so many words (5 F (Ct of Sess) at p 517):

"I agree entirely with what LORD KINNEAR said in the case of Devlin (7). I think that if the case set forth on record is a case of trespass the trespasser

must take the risk of trespass - that he must take all risks incidental to his use of another's property."

LORD YOUNG says, at p 517 - this has a direct bearing on a former part of my opinion:

"I do not know of any law, and none was cited to us, which puts a duty on a proprietor to fence his property so as to prevent trespassers from running into danger through the working of machinery which he is quite legitimately using on his property."

So far the positive authority, but then comes the cogent fact that the respondent's counsel was unable to produce any case in which there was laid down any duty towards a trespasser except that of abstaining from maliciously injuring him.

He could only quote various pronouncements as to the special duty of care towards children of tender years, but these pronouncements were all either in cases of licensees or in the class of case which may at once be put aside in which the injured person, though on land belonging to the defender, is at a place on a road where the public has a confirmed habit of passage, eg Reilly v Greenfield Coal and Brick Co Ltd (9). At first sight Haughton v North British Railway Co (6) might seem an authority. The facts were that there was a railway siding adjoining a public square, from which it was separated by a fence and a gate. The gate was left open, children strayed through on to the siding, shunting operations were going on, and a child was killed. LORD ADAM specially states that the child was a trespasser and an issue was allowed, LORD M'LAREN dissenting. But when the case is more narrowly looked into it is really an authority all the other way. When the case was first brought there were only averments of carelessness in leaving the gate open and allowing children to get into danger and these were held irrelevant, but the pursuer was given the opportunity to amend. He did amend, and it was only the last sentence of his amendment which made LORD KINNEAR, who, be it remembered, had said what he had in Devlin's Case (7) and the Lord President hold that it was relevant. That sentence set forth that the defendant's servants who began the shunting knew that the children were on the line - in other words, that was malicious injury to a trespasser.

The truth is that in cases of trespass there can be no difference in the case of children and adults, because, if there is no duty to take care, that cannot vary according to who is the trespasser. It is quite otherwise in the case of licensees, because there you are brought into contact with what is known as trap and allurement. Allurement, I take it, is just the bait of the trap, itself a figurative expression. HAMILTON LJ deals with these expressions in Latham (3) and I need not quote, but obviously what is allurement and a trap to a child is not so to an adult. And then one has the doctrine of contributory negligence affecting an adult, but not affecting a very young child. To take concrete instances: The learned judges in Hardy's Case (4) the moving staircase, say explicitly that, if they could have held the children to be licensees, they would have held the defendants liable; yet an adult would have found no allurement in playing with the strap. In the present case, had the child been a licensee I would have held the defendants liable; secus if the complainer had been an adult. But if the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him: he may not shoot him; he may not set a spring gun, for that is to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found, but they all come under the same head-injury either directly malicious or an acting so reckless as to be tantamount to malicious acting. I concur in the motion made.

JUDGMENTBY-3: LORD SHAW:

JUDGMENT-3:
LORD SHAW:

I agree. The facts of the case have been stated by your Lordships who have preceded me. The substance of them is as follows. The appellants, who are colliery owners, are proprietors of the field in which there is haulage machinery working over a considerable extent of ground. Part of this machinery consists of an endless chain passing at its outer end over a horizontal pulley and

working very near the ground. By means of this apparatus the waste from the pitmouth can be distributed in bings from hutches hauled by the chain. The field adjoins a public road, in what has for a period of years been a populous neighbourhood. The field is quite insufficiently fenced from the road, there being large gaps in it. It has been for a considerable period traversed on occasion as a short cut to a chapel and a railway station, and has been often used by children as a playground. To these the moving apparatus was an attraction. This invasion has not been consented to by the owners. On the contrary, they have frequently warned trespassers from the ground. They were aware, however, that these warnings were ineffectual and that the trespass continued. The machinery when in motion was dangerous. The owners gave no special warning when it was put in motion and neither fenced the field nor the machinery. They did not appoint a watchman to warn off intruders or to give notice of the starting of the chain and hutches.

Upon these facts, had the question of principle been open, it is plain that a delicate question might have arisen as to the duties, if any, of public and of owner respectively or mutually. A perusal of the most careful judgment of the learned Lord President makes this plain. His Lordship says:

"I think it is clear that the defenders owed a duty to the pursuer's child to prevent any accident occurring to him by reason of the pulley wheel because he was a member of a class of persons whom the defenders knew to be in the habit of resorting to the field and the neighbourhood of the haulage system."

His Lordship founds upon the failure sufficiently to fence the field, saying with much force:

"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,"

while with regard to the moving machinery and the danger caused by that to trespassers he adds:

"I think it is clear that while nothing in the shape of positive permission for public resort to the field and the neighbourhood of the pulley wheel can be charged against the defenders, they did but little to prevent it and knew that what they did do was ineffectual."

I can hardly figure the considerations in support of the view of an owner's liability in such cases being more clearly stated than in the sentences which I have taken the liberty to quote. But, I need express no opinion upon the general question, for I think it to be concluded by legal authority. When I reach that point I do not find that there is any difference between the laws of England and Scotland; and having considered the decided cases very fully I am humbly of opinion that the dissenting opinion of LORD BLACKBURN must be preferred. I can, indeed, come to no other conclusion upon the state of the law under the decided cases than those formed upon them by my noble and learned friend, LORD DUNEDIN, with whose judgment I agree. Excluding, as, of course, I do, all instances of loss and injury wilfully inflicted, I am of opinion that the digest of the decided law of England and Scotland on the point under consideration is compressed in the few words of LORD KINNEAR in Devlin's Case (7) when he says (5 F (Ct of Sess) at p 135):

"When people come on the lands of others for their own purposes, without right or invitation, they must take the lands as they find them, and if they are exposed to injury from unseen dangers, they must take care of themselves, and cannot throw any responsibility upon the persons on whose lands they have trespassed."

JUDGMENTBY-4: LORD BUCKMASTER:

JUDGMENT-4:
LORD BUCKMASTER:

It is essential in considering this case first to determine in what capacity the child was upon the appellants' premises when the most

lamentable accident occurred which robbed it of life, and, secondly, to keep clearly in mind the distinction between a moral and a legal obligation.

The conclusion, to my mind, is irresistible that the child, who could know nothing of the law of trespass or licence, was in fact a trespasser. The only alternative to that conclusion is that the child was there by licence. Licence may either be express or implied by conduct. Express licence is out of the question in the present case and I can find no sufficient material from which it can be implied. There is nothing in the findings to show that the presence of children upon this spot was ever sanctioned by the appellants. It is quite true that there was a large unfenced gap through which children might reasonably be expected to wander, and it may have been that a few strands of barbed wire would at a little cost have prevented their entrance, but there was no legal obligation to establish such a barrier, and it is only the legal obligation with which we are concerned.

The learned Lord President, who gave judgment against the appellants, admitted there was no duty to fence, but said that the fact that the owner allows the fence enclosing his private property to fall into more or less permanent disrepair, has a certain evidential value on the question whether he consented to the use of his property. That, I think, is true, but by itself it cannot amount to a licence, and the best that can be urged in favour of the respondent is that the appellants were aware that the children disregarded the warnings which from time to time were given by the appellants' employees and continued to frequent the field. There is, however, no evidence that they were tacitly permitted to do it and nothing which, in my judgment, can justify the inference that the appellants so acquiesced as to cause the use of the field by the children to be lawful. It is this fact that is the clear distinction between the present case and the case of Lowery v Walker (2) where this House held that the circumstances relating to the use of land by a person injured upon it amounted to a licence, which threw upon the owner of the land the duty of taking steps to avoid the existence of a danger due to the presence of a fierce animal. If it once be held that the child was a trespasser, innocent as the trespass was, there was no legal duty cast upon the appellants to afford protection against the danger which they must have known use of the land by the children almost necessarily involved. The cases have already been examined, and there is no need to discuss them anew. I agree in thinking that they show that in the circumstances of this case there was no legal duty cast upon the appellants to guard against the deplorable consequences out of which these proceedings have arisen.

LORD HAILSHAM stated that he had been desired by LORD CARSON to say that he concurred in the opinions which had been already expressed.

DISPOSITION:
Appeal allowed.