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Title : Titchener v British Railways Board
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Status:  Positive or Neutral Judicial Treatment

*1427  Mcginlay or Titchener v British Railways Board

House of Lords

24 November 1983

[1983] 1 W.L.R. 1427

Lord Hailsham of St. Marylebone L.C. , Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord
Roskill and Lord Bridge of Harwich

1983 Oct. 24, 25; Nov.24

Occupiers' Liability—Trespasser—Railway—Fence in dilapidated condition to knowledge of

Railways Board—Gaps through fence used as short cut—Adolescent struck by train and seriously
injured—Whether general duty of care— Occupiers' Liability (Scotland) Act 1960 (8 & 9 EliZ. 2, c.
30), s. 2(1)(3)

Volenti Non Fit Injuria—Railway—Injury to trespasser—Whether risk of physical injury accepted

On the night of February 23, 1974, the appellant who was then aged 15, was struck by a train
and very seriously injured whilst crossing the railway line between two suburban stations in
Glasgow. She was accompanied by a young man aged 16 who was killed in the accident. The
accident occurred in the vicinity of a bridge by which the railway line crossed over a street. In
the area of the bridge pedestrian access to the railway could readily be obtained by climbing
an embankment and passing through gaps which existed in the respondents' fencing. That
fencing had originally consisted of railway sleepers placed vertically side by side in the ground.
Such fencing as remained in February 1974 was old and dilapidated, and no effective steps
had been taken for many years by the respondents to renew or maintain it. The route across
the line where the accident occurred was, to the respondent's knowledge, used as a short cut
to a housing area and also to a brick works. The appellant and her companion had crossed the
railway line to and from the brickworks on several previous occasions. The appellant brought
an action for damages *1428  under the Occupiers' Liability (Scotland) Act 1960 1 , against the
respondents in which she claimed that the accident was caused by the respondents' failure to
maintain the fence along the railway line in a reasonable state of repair. The Lord Ordinary
(Lord Ross) found for the respondents. On appeal by the appellant, the Court of Session
affirmed that decision.

On appeal by the appellant:—

Held, dismissing the appeal, (1) that the duty owed by the occupier under section 2(1) of the
Act of 1960 was towards the particular person who entered the premises in question, and that
the respondents' duty of care towards the appellant was sufficiently discharged by the
presence of such fencing as existed despite the gaps in it since it constituted a sufficient
warning to the appellant to keep out from property where she knew that there was a dangers
from trains, and that the respondent owed no duty in the circumstances to maintain the
fencing in a reasonable state of repair (post, pp. 1429C, 1432E, 1433A–C, E, 1435A–B).
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(2) That the respondents had established a defence under section 2(3) of the Act since it had
been shown that the appellant had willingly accepted the risks of walking across the line(post,
pp. 1429C, 1434C, E-F, 1435A–B).

M'Glone v. British Railways Board, 1966 S.C.(H.L.) 1, H.L.(Sc.) applied .

Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264, C.A. distinguished .

Per curiam . The existence and extent of the duty of a railway operator to fence depends 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
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
(post, pp. 1429C, 1432H–1433A, 1435A–B).

Decision of the Extra Division of the Inner House of the Court of Session, 1983, S.L.T. 269
affirmed .

The following cases are referred to in their Lordships' opinions:

0 M'Glone v. British Railways Board, 1966 S.C, (H.L.) 1, H.L.(Sc.)

0 Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264; [1956] 2 W.L.R, 232; [1956] 2 All E.R. 625,
C.A.

The following additional cases were cited in argument:

0 Dumbreck v. Addie & Sons (Collieries) Ltd., 1928 S.C. 547 .

0 Imperial Chemical Industries Ltd. v. Shatwell [1965] A.C. 656; [1964] 3 W.L.R. 329; [1964] 2
All E.R. 999 H.L.(E.)
0 Osborne v. London and North Western Railway Co. (1888) 21 Q.B.D. 220, D.C.
0 Smith v. Charles Baker & Sons [1891] A.C. 325, H.L.(E.)
0 Stapley v. Gypsum Mines Ltd. [1953] A.C. 663; [1953] 3 W.L.R. 279; [1953] 2 All E.R. 478,
H.L.(E.)

APPEAL from an Extra Division of the Inner House of the Court of Session.

This was an appeal by the appellant, Anne Marie McGinlay, against an interlocutor pronounced
by an Extra Division of the Inner House of the Court of Session (Lord Hunter, Lord Avonside
and Lord Grieve) dated December, 1, 1982 adhering to an interlocutor of the Lord Ordinary
*1429  (Lord Ross) dated September 25, 1980, whereby the Lord Ordinary granted decree of
absolvitur of the defenders from the conclusion of the summons in the action pursued by the
appellant against the respondents, the British Railways Board.

The facts are set out in the opinion of Lord Fraser of Tullybelton.

Representation

0 W.C. Galbraith Q.C. and Philip Brodie (both of the Scottish Bar) for the appellant
0 A.M. Morison Q. C. and J. W. McNeill (both of the Scottish Bar) for the respondents.

LORD HAILSHAM OF ST. MARYLEBONE L.C.

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Their Lordships took time for consideration.

Novembers 24, 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 , 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 alternative 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.

*1430

LORD FRASER OF TULLYBELTON

My Lords, on February 23, 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 (Lord Hunter, Lord
Avonside and Lord Grieve) 1983 S.L.T. 269 , dismissed the appellant's appeal and adhered to
the Lord Ordinary's interlocutor. The appellant had now appealed to this House.

The accident occurred at a place where the railway line runs through a built-up and populous
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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 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 *1431  have been aware that people from time to time
did cross the line in the vicinity of bridge.”

The appellant has no recollection of the accident or of the events immediately before it, as she
suffers from post-traumatic amnesias. Her last recollection before the accident is of events in
the morning of February 23, some 12 hours earlier. But she is familiar with the neighborhood
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 seem 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 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
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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 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 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. Section 2(1) of that Act provides as
follows:

“(1) The care which an occupier of premises is required, by reason of his occupation
or control of the premises, to show towards a person entering thereon in respect of
dangers which are due to the state of the premises or to anything done or omitted to
be done on them and for which the occupier is in law responsible shall … be such care
as in all the circumstances of the case is reasonable to see that that *1432  person
will not suffer injury or damage by reason of any such danger.”

Subsection (3) of section 2 provides as follows:

“(3) Nothing in the foregoing provisions of this Act shall be held to impose on an
occupier any obligation to a person entering on his premises in respect of risks which
that person has willingly accepted as his; and any question whether a risk was so
accepted shall be decided on the same principles as in other cases in which one
person owes to another a duty to show care.”

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 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 the 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
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than they were obliged to do, because this appellant already knew that the railway was there,
and therefore needed on 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 fortiori they 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 *1433  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 of 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 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 upon 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 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 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 across-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 the M'Glone case, 1966 S.C.(H.L.) 1 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, at p. 11, described the suggestion that the defenders owed
him a duty to surround the transformer with an impenetrable and unclimbable fence as “quite
26/12/2019 Delivery | Westlaw India Page  8

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 least partly because she was wearing platform shoes. The Lord Ordinary
disbelieved her evidence on this point, *1434  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 concluded 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 Act of 1960 by proving that the appellant had willingly accepted the risks of
walking across the line. As Lord Reid said in the M'Glone case, 1966 S.C.(H.L.) 1 , 13,
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 Act of 1960 are concerned, the principle is expressly stated in
subsection (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 & Heuston on
Torts , 18th ed. (1981), 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
the 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 the M'Glone case, 1966 S.C.(H.L.)1 , 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 have 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 the train operated properly, in the “ordinary and accustomed
way": see Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264 ,271, per Denning L.J. 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.

*1435

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
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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.

J.A.G.

Representation

0 Solicitors: Asher Fishman & Co. for Allan McDougal & Co. S.S.C. Edinburgh; Chief Solicitor and
Legal Adviser, British Railways Board for Solicitor for Scotland, British Railways Board,
Edinburgh.

Appeal dismissed.

______________________________________________________________________________________________

0 1.   Occupiers' Liability (Scotland) Act 1960, s. 2(1) (3) : see post, pp. 1431H–1432B.
(c) Incorporated Council of Law Reporting for England & Wales

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