Trespass – Plaintiffs injured by freight train on land owned by defendants – Whether defendants owing duty to persons other than their visitors – Occupiers’ Liability Act 1984 – Actions dismissed
The first defendant (ABP) owned land in the area of Hull Docks.The dock railway ran outside the operational area of the docks themselves and was operated by the second defendant (BRB). Since the closure of a passenger railway in 1964, the fencing had deteriorated and, by 1988, there was very little left. The two relevant plots of ABP land were unfenced to the north and there was unfettered access from the west. In April 1988 the first plaintiff (Scott), who was 15 years old lost a leg as a result of an accident on the Hull Docks Railway caused by jumping on to an access ladder attached to a moving wagon of a freight train. This was known as “surfing”. On 16 June 1992 the second plaintiff (Swainger), then almost 14 years old, lost a leg and an arm in the same manner. Following Swainger’s accident, the defendants re-erected some of the fencing. The plaintiffs submitted that, under the Occupiers’ Liability Act 1984, the defendants owed each of them a duty to fence the area, and they had failed in that duty. It was submitted that there had been an implied licence to enter the land.
Held: The actions failed.
For the purposes of section 1(1)(a) of the 1984 Act, the relevant risk was the potential for injury to, or death of, someone grasping a ladder that was attached to a moving wagon or, having done so, releasing his hold. Once that risk was identified, the next question was whether the defendants had actual knowledge of it or reasonably believed that it existed, as required by section 1(3). On the evidence, neither defendant had actual knowledge of such activities before Scott was injured in 1988. Accordingly, Scott could not establish that, by virtue of section 1(3)(a) of the Act, the defendants owed him a duty, and the question of breach did not arise.
However, four years later, at the time of Swainger’s injuries, the situation was different. Once Scott had been injured, the defendants knew that there was a risk of youths climbing upon moving trains. Swainger therefore came within the provisions of section 1(1)(a) of the Act. The next question was whether the risk was one against which, in all the circumstances of the case, the defendants could reasonably have been expected to offer the plaintiffs some protection in accordance with section 1(3)(c) of the Act. Swainger knew he was not supposed to be on or near the line, and he knew the inherent dangers. If any duty were owed, then section 1(4) expressed it as “to take such care as is reasonable in all the circumstances of the case” to see that no injury was suffered on the premises by reason of the danger concerned. What was reasonable differed according to the age and status of the trespasser. The plaintiffs were fully aware of the dangers, but voluntarily disregarded them. Each plaintiff failed to make out the existence of a duty owed to him to provide a fence: Ratcliff v McConnell 30 November 1998, CA, considered.
Kieran May (instructed by Philip Hamer & Co, of Hull) appeared for the first and second plaintiffs; David Pittaway (instructed by Constant & Constant) appeared for the first and second defendants.
Sarah Addenbrooke, barrister
