Robert Addie & Sons (Collieries), Ltd. v. Dumbreck

LORD HAILSHAM, LC.

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.

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.


VISCOUNT DUNEDIN:

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.

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.