The Landmark Case of British Railways Board v Herrington

MERTON HISTORICAL SOCIETY

LOCAL HISTORY NOTES – 32

THE LANDMARK CASE OF BRITISH
RAILWAYS BOARD v HERRINGTON

Alan Walker

Senior Lecturer in Law

School of Architecture, Design and The Built Environment

Nottingham Trent University

Introduction

The common law is judge-made law, built over centuries by courts deciding individual
cases. Each time a novel case involving the definition of, say, negligence or corporate duties
comes before the courts, the judges determine how old principles apply or new ones must
be originated. The judicial development of the law is thus a case-dependent but haphazard
business. In 1870 Sir Thomas Erskine Holland captured the essence of the common law by
defining it as ‘chaos with a full index’.

This narrative recounts how an incident in Merton led to a change in the law and a new Act of
Parliament. On 8 June 1965 The Times reported:

Boy Burnt by Rail

A boy aged six was found seriously burnt on the railway line near Mitcham, Surrey,
yesterday, lying between a live rail and a running rail. He is Peter Herrington of Love
Lane, Mitcham.

2

Above: Railway bridge over a channel of the Wandle, looking upstream to Morden Hall Park.

Below: looking downstream. Bunce’s Meadow is on the left.

Photographs taken in March 1991, reproduced by courtesy of Judith Goodman

3

Background to the case

In the 1960s, before Croydon Tramlink arrived, about 400 yards from Morden Road there
was a high footbridge over the railway. This was part of a two-mile stretch of line between
Mitcham Junction and Morden Road station. From this footbridge it was possible to see the
railway bridges over the two streams of the Wandle. South of the railway lay Morden Hall
Park; north was Bunce’s Meadow, an ancient riverside and grazing meadow, misused as a
dumping ground, and at one time notorious for prize-fighting.1 A footpath led from the railway
through the meadow to Phipps Bridge, a quarter of a mile off.

At about midday on Whit Monday, 7 June 1965, Peter Thomas Herrington, aged six, and his
two older brothers, aged seven and eight, were playing in Bunce’s Meadow. Shortly after going
there, the older boys missed their little brother, and went to look for him. One of them went
through a gap in the railway fencing from the meadow and found his brother on the railway
track, lying between the ‘live’ conductor rail and the running rail and opposite the point where
the fence was broken down. He was unconscious. Help was called, and a rescue effected;
but Peter had been gravely injured. He had suffered severe burns. Mrs Herrington had not
known that her children were going to Bunce’s Meadow that day. She had warned them never
to go on the railway line. The two older brothers understood. Peter was too young to do so.

The incident led to a leading common law case and later still, an Act of Parliament, clarifying
the civil law relating to an occupier’s responsibility to trespassers.

The generally complacent attitude of the railways management at that period is demonstrated by
the annual report for 1971 by the Chief Inspecting Officer of Railways, Colonel J.R.H. Robertson,
in which ‘the excellent safety record of the railways’, as he put it, ‘merited congratulation’.2
He noted that 1971 was the first year for some time in which risks on the railways had been
reduced, with a significant fall in accidents.

But, he insisted, ‘nearly one-third of train accidents were caused by the public – through
carelessness, stupidity, or malicious acts of hooligans’. Hooliganism had increased. Colonel
Robertson blamed parents for the deaths of children upon the railway. He pointed out that in
the three years to 1971, 86 children had been killed trespassing – over 30 electrocuted and
even more struck by trains. There had been many serious injuries. Thirty-one youngsters killed
were aged six or younger, and seven as young as three years old.

The Inspector described how difficult it was for ‘British Railways, keeping children out,
maintaining good, sufficient fencing. Parents should keep their children under proper control,
and report incidents to the police or railway authorities when seeing trespassers or any railway
fence being broken down’. We can assume he knew of the litigation in the Royal Courts of
Justice, consulting the Board’s Chairman, Sir Peter Parker. However, Colonel Robertson’s
report was not the complete story.

Herrington v the British Railways Board

Peter Herrington, the plaintiff, lived about a mile away, in Love Lane, Mitcham.3 He was
an ‘infant’ in the eyes of the law, and so was unable to bring the case to court. His mother,
Kathleen Louise Herrington, issued a writ in February 1968, as his next ‘friend’. Her action,
claiming damages, alleged that the British Railways Board was negligent in not maintaining
its fencing, and not taking sufficient or effective steps to protect children from the dangers
of the conductor rail or trains.

The case came before the Queen’s Bench Division of the High Court. The trial took place in
February 1970. Mr Justice Cairns presided. The action was defended by the British Railways
Board. Mrs Herrington won her civil action because of the Board’s negligence and breach of
statutory duty – which meant the Board had failed in its job of managing its property safely.
She was awarded £7,440 in damages, a not insubstantial sum of money, for her son. Then the
lawyers took charge, creating such a ‘nice’ point of law.

The legal action moved like a slow train on a branch line; firstly, to the Court of Appeal in
October 1970, where the British Railways Board lost its appeal against the High Court’s
decision, and then at last to be scrutinised by the Judicial Committee of the House of Lords,
the highest court in the land. The final hearing in front of their Lordships lasted some seven
days, in the middle of November 1971, over six years after the incident in which Peter was
injured. The decision of the learned Law Lords was pronounced after much careful deliberation
on 16 February 1972.

The British Railways Board’s stewardship and the railway line at Merton

The British Railways Board had been created by Harold Macmillan’s government. It was a
large corporation with wide powers – operating since 1963, as successor to the British Transport
Commission, and owning huge areas of railway land. The Southern Regional Railway Board
owned and was responsible for the electrified track from Mitcham to Wimbledon.

The land either side of the railway, by the Wandle – Morden Hall Park and Bunce’s Meadow
– was owned by the National Trust, and was popular with the general public: an area of open
space, in a heavily populated suburban area, where children were accustomed to play.

Children playing by the Wandle in Morden Hall Park c.1950,

reproduced by courtesy of Merton Library & Heritage Service

Mr Justice Cairns observed that the railway was fenced off on both sides from Park and
Meadow, with chain-link fencing, four feet high, supported by concrete posts, eight feet six
inches apart.

It was noted in the evidence there was a footpath through Bunce’s Meadow alongside the
River Wandle, providing access through a gate at the road at Phipps Bridge to a point near
the railway fence. This path turned at right angles and ran parallel to the fence, towards the
public footbridge over the railway, but in June 1965, the evidence was of a ‘desire line’ across
the ground, straight to the railway’s fence. A map helps to visualise the scene.

PHIPPS
BRIDGE

Bunce’s Meadow

MORDEN
ROAD
STATION

footpath

*

footbridge

*

LOVE LANE

Morden Hall Park

Annotated detail from a modern street map, showing the site of the accident.

Reproduced by permission of Merton Design Unit, London Borough of Merton

Two views of the site of Peter Herrington’s accident.

Reproduced from Wimbledon to Beckenham before Tramlink (2001)

(Middleton Press: 01730 813169)

At the point where the line of the trodden down undergrowth reached the railway fence, the
chain-link fence was detached from one of the posts and had been pushed down so that the
top was bent to ten inches or so from the ground. The lower part of the fence was rusty and
lying on the ground. Mr Justice Cairns heard evidence that on the Park side there was a hole
in that fence, too. People had clearly been in the habit of using these gaps, as a shortcut,
without using the footbridge nearer Morden Road station.

Evidence was given by two youths, who had visited Bunce’s Meadow several times over
six weeks before 7 June 1965, that the fence adjoining the meadow had been in disrepair for
several weeks. The judge decided the fencing had probably been broken down for months.
The railway line would have been regularly patrolled. The House of Lords would later seize
on this, observing that, over several weeks, the Board’s linesmen/gangers would, or should,
have noticed the state of the fencing and realised the danger particularly for small children
playing in the meadow and park; so close to the attraction and hazard of the line and the live
rail. Their lordships considered that its employees had allowed the risk to continue. Whilst the
fence marked the railway boundary, it should undoubtedly, they thought, have been repaired
to stop children entering.

Written material – children on the line

The evidence included written documents. A memorandum dated 17 April 1965 (a few weeks
before the accident) from the stationmaster’s office, Mitcham Junction, to the ‘line manager’
described how the guard on the afternoon train two days before had, upon arriving at Merton
Park station, reported to the signalman at Mitcham, that children had been seen on the line
between Mitcham and Morden Road, and the Mitcham police were requested to investigate.
There was no information from the office to say if any action had been taken about that report.

In a statement of its case the Board asserted it had inspected the fences the very day of
the accident – ‘our evidence is that the fence was found in good order’. But they called no
witness to support this, or to refute the evidence given by the youths. It was concluded that
the Railways Board had had plenty of warning of an alarming state of affairs involving, as
Lord Justice Edmund Davies would put it in the Court of Appeal, a high probability of the
gravest danger to young children, with the defendants having done ‘nothing to deal with it’.

Evidence of damaged fencing

There were other Southern Regional memoranda, written on the date of the accident too. One
of them recorded an examination of fencing in the vicinity of Bunce’s Meadow at 3.10 pm
(after the incident), when three places had been discovered where children could have got
through to the line. ‘Control’ noted it had ordered the stationmaster of Mitcham Junction to
examine the fences and instruct the ‘ganger’ to get them repaired. The engineer’s department
was involved, and instructed to carry out repairs immediately. A letter of 7 June from the
divisional manager recorded that the fence at the site of the accident was indeed in ‘a rather bad
state’, and noted three gaps. A further memorandum from the stationmaster to his divisional
manager confirmed that the engineer’s department was called out, and that fences were at last
repaired, later that very day.

Later, in the House of Lords, Lord Morris was dismissive, in the light of all the evidence, about
a claim made during the proceedings by the Board’s engineer that an inspection had been made
by him and ‘the fence was found to be in good order earlier on the day of Peter’s incident,
but found damaged after it; temporary repairs being necessary and carried out afterwards;

followed by more permanent repairs’. Lord Reid observed that the ‘path’ to the railway fence
in the meadow had been well trodden down, concluding that there was no inspection of the
railway fencing, nor any system for inspection by railway staff. It was not disputed in any of
the proceedings that Peter would not have been able to appreciate the danger of straying upon
the line or that what he had done was wrong.

Principle of law

But what was the nature of the duty owed by the Board as ‘controller’ and occupier of its
property (land, railway – including the dangerous conductor rail – and fencing) towards
trespassers, indeed a child trespasser, and a very small boy, at that? The Board asserted that
there was no duty to ensure trespassers did not enter their land, and none to consider making
the railway safe for any trespasser entering, let alone to survey and assess if danger might
exist. The law as it stood supported their view.

The judgements in the Court of Appeal and the opinions of the Law Lords, in trying to determine
the right approach to the civil law, run to too many pages for detailed commentary here. So
we shall summarise the position.

Normally the common law – the courts – makes an objective examination of the evidence
in negligence cases where the requirement for a legal duty of care had already long been
recognised. If a person chooses to assume a relationship (as we all do in our lives) with
members of the public, say by setting out to drive a car, it is straightforward: the law requires
him to drive, as any reasonable person should, with adequate skill, knowledge and resources.
The principle might also seem simple enough in the example of a guest in a hotel who comes
into the premises – the hotel owner being required to take care of him/her.

The problem with trespassers in the eyes of the law

Before Peter’s case the conundrum was what to say about an occupier (the British Railways
Board in this case) who does not choose to have any relationship with trespassers.4 The courts
had failed, despite Addie’s case (below) to truly examine the issue. It had never been clear
how to approach this key question: what, if any, duty of care is owed to another person who
should not to be there anyway; especially small children like Peter (who posed an unwanted
moral problem)? Now, in the Herrington case they felt they could and should not ignore the
problem, as Colonel Robertson had done.

The approach by the courts in the Herrington case

The trial judge approached the issue simply; deciding that Peter’s presence on the line was
reasonably foreseeable and that the Board should answer in damages for its failure to foresee
the risk to him. No doubt the judge applied the standards expected of a reasonable man to
the Board’s activity at Merton (or lack of it) – its failure to check and maintain its fencing, to
reduce the risk to a child. The three judges of the Court of Appeal agreed with the trial judge
in finding for Peter’s mother against the Railways Board, but struggled to find the reason:
a principle of civil law which should bear scrutiny. Lord Justice Salmon and Lord Justice
Edmund Davies considered that a duty of care towards young Peter (he shouldn’t, when all
was said and done, have been on the railway) ought to be one owed to anyone – whether
lawfully there or not. The Court of Appeal felt it was not enough for the Board merely to
erect boundary fencing.

How the Law Lords approached the task

And so it was left to the Law Lords to decide the approach to a point of principle of public
importance. They made a reasonable job of it. Their task was no easier because the only Act
– the Occupiers’ Liability Act 1957 – had nothing to say about trespassers. Their lordships
carefully examined and analysed numerous legal cases, over 90 or so authorities being
argued and consulted. One case in particular exercised them – a Scottish case from 1929, an
acknowledged and unhappy House of Lords’ precedent called Addie’s case.5

Addie’s case

Robert Addie & Sons (Collieries) Ltd v Dumbreck involved a four-year-old boy, crushed and
killed in a haulage system belonging to a Lanarkshire colliery company. The system was used
for depositing ashes on a spoil heap. In a field next to the colliery was a wire cable, operated
from time to time from the pithead by an electric motor, while at the other end of the system,
not visible from the pithead, was a heavy horizontal iron wheel, round which the cable passed
and returned. The field was surrounded by a hedge, with gaps, inadequate to keep out the
public. The colliery company knew it was used as a playground by children. Colliery officials
warned children off, but the children didn’t heed the warnings and continued to enter. The
dangerous terminal wheel was attractive to children and not fenced off. The accident to the
four-year-old occurred when the wheel was set in motion by colliery workers without taking
precautions to avoid any accident. He had been warned by his father not to go near the field
or the wheel.

So the facts were similar to those in Peter’s case. The claim by the boy’s father against the
company was, at first, successful – £100 in damages being awarded; but after later appeals the
Law Lords held the boy to be a trespasser. When all was said and done, the lords considered
he was on the colliery premises at his own risk, so Robert Addie & Sons (Collieries) Ltd owed
no duty to protect him. The House of Lords then considered (in 1929, 40 years before our
case) that an occupier of land would (or should) not owe a duty of care for injury to a child
trespasser, save only that caused deliberately or recklessly. This meant in effect, practically
never, except only in deliberate and rare entrapment cases, such as a loaded spring-gun fired
on impact with a trip wire, already declared illegal.6

The approach adopted in the Herrington case

The term ‘trespassers’4 embraces many, from innocent children to others intent upon criminal
activity. But the learned lords in ‘Herrington’ discovered a formula: What an occupier must
do, is act towards a trespasser in a humane manner. The Law Lords’ reasons differed
subtly, but it is to Lord Denning in another Court of Appeal case7 reached shortly after the
‘Herrington decision’, that we can turn, to explain the conclusion to our case:

[T]he duty owing to a trespasser is not found by any general principle applying to all
trespassers alike – the long and the short of it is that you have to take into account
all the circumstances of the case and see whether the occupier [the British Railways
Board in our case] ought to have done more than it did.

Among the circumstances which might be taken into account would be the gravity and likelihood
of an injury; the character of the trespasser: ‘you may expect a child when you may not expect
a burglar’; the nature of the place where the trespass occurred – whether it is, for example, an
electrified railway line or merely a warehouse building entered; and the knowledge a defendant
had or ought to have had of the likelihood of trespassers being present. If in the circumstances,

a duty arises, the standard of care owing must, Lord Denning said, be described, following
‘Herrington’, as:

A duty to take such steps as ‘common humanity’ or whatever you might like to call it,
would dictate for the safety of children who might trespass upon the site.

The Herrington case – conclusion

Using this approach, the Board in ‘the Herrington case’ was liable. They had brought on their
land a live and lethal rail,8 and, to a young child, a concealed danger. Most people would
regard it as a culpable failing not to give any thought to the child’s safety. The Railways
Board might reasonably have thought about the seriousness of the danger and likelihood of
trespassers coming to their land and weighed this against the cost of preventing their entry,
making the premises safe, or even curtailing railway activities. But they could not fairly be
expected to think of doing just nothing. If they could at small trouble and expense take some
effective action, most people would think it inhumane and culpable not to do that. Lord Reid
concluded ‘Herrington’ thus:

It would have been very easy for the Board to have a reasonable system of inspection
and to repair their boundary fence. They knew children were able and used to playing
on the other side of the fence, and must have known, had any of their employees given
the matter any thought, that a young child might easily cross through the defective fence
from Bunce’s Meadow and run into grave danger. Yet they did nothing. I do not think
that such a large organisation was acting with due regard to humane consideration, if
its officers did not pay more attention to safety. I would not single out the [Mitcham
Junction] Station Master for any blame. The trouble seems to have been general
slackness in the organisation.

The Board had hit the buffers! It was guilty – responsible and culpable. Peter’s mother had
prevailed in her civil action for him. The Railways Board were left ruefully to reflect upon
Colonel Robertson’s words, and to mend their fences.

A new Act of Parliament in 1984

‘Herrington’ was a statement, by the most senior judges, about the civil law of negligence
relating to defective premises, the concept of negligence having evolved since the early 1930s
to meet the demands of a modern era. There is no doubt that the judges in the Court of Appeal
reflected upon the context – the urban character of south London and of course the railway
line passing through open land, so attractive to children to play in, and on a Bank Holiday
too. The Law Lords were also influenced by the size of the Railways Board; the occupier’s
duty to trespassers must vary according to his (or its) knowledge, ability and resources. It is
not the only case in which the courts have in recent times taken note of a party’s resources.

The case was extensively reviewed by the Law Commission.9 Later still, the Occupiers’ Liability
Act 1984 was passed by Parliament.10 The Act in effect adopted the Lords’ approach, though
modified. However, to this day the ‘Herrington case’ remains an authoritative common law
decision illustrating the meaning of that Act.

Postscript: Lawyers and learned judges

The Board was represented by Robert Gatehouse QC and Robert Alexander, and Mrs Herrington
by David Hunter QC and Nicholas Chambers. Perhaps Mrs Herrington made her way each
day from Mitcham to Westminster to sit unobserved at the back, behind the bewigged counsel
and solicitors. The Gothic splendour of the Judicial Committee’s room, with its high ceilings;
the Law Lords seated in a semi-circle facing counsel, relentlessly probing one barrister after
another about this factor or that issue. As she sat quietly, occasionally peering through the
great windows at the Thames, Peter’s mother would have no doubt wondered what the fine
niceties of all the legal argument, lasting so many days, were about – the facts would have
been simple enough for her.

What of the judges? The case exercised some of the finest legal brains in the land – Lord
Justices Salmon, Edmund Davies and Cross, in the Court of Appeal. Lord Justice Salmon was
a Court of Appeal judge from 1964 to 1972 and became a Lord of Appeal in Ordinary. Lord
Justice Edmund Davies was one of the best-known judges of the 1960s and 1970s; his judicial
career in the High Court, Court of Appeal and House of Lords spanned more than 20 years.
He had been a well-known criminal barrister; he presided over the Great Train Robbery trial
at Aylesbury Assizes, and chaired the Tribunal of Inquiry into the Aberfan disaster. Then, for
the final appeal, the Lords of Appeal in Ordinary were Lord Reid, Lord Morris of Borth-Y-
Gest, Lord Wilberforce, the noted Chancery Judge and descendant of the great abolitionist
William Wilberforce, Lord Pearson, and Lord Diplock. The latter, a senior member of the
judiciary from 1956 until his death in 1985, chaired the commission set up to consider legal
measures against terrorism in Northern Ireland.

SOURCES

Acts of Parliament

Occupiers’ Liability Act 1957: Eliz. II 1957 c. 31: Transport Act 1962: Eliz. II (1962) c.46

Occupiers’ Liability Act 1984: Eliz. II 1984 c. 3

Wimbledon to Croydon Railway Acts 1853 & 1855, 16 & 17 Vic. c. lxxxvi & 19 & 20 Vic. c. cv

Cases

Bird v Holbrooke (1828) 4 Bing 628

Donoghue v Stevenson (1932) A.C. 562 HL

Herrington v British Railways Board (1970) 214 E.G. 561 [1971] 2 Q.B. 107 CA; (1972) A.C. 877
HL, the facts reported mainly being from the opinions of Lord Reid and Lord Morris, House of Lords,
pages 893-912

Robert Addie & Sons (Collieries) Ltd v Dumbreck (1929) A.C. 358 HL

Pannet v P. McGuiness & Co Ltd (1972) 2 Q.B. 599

Page Motors Ltd v Epsom and Ewell BC (1981) 80 L.G.R. 337

Legal Reports and Articles

Law Reform Committee’s Third Report, Occupiers’ Liability to Invitees, Licensees and Trespassers,
(1954) Cmd. 9303

Reorganisation of the Nationalised Transport Undertakings, Note by H.M. Minister of Transport,
1960, Marples, E, NRO CAB 129/103

Liability for Damage or Injury to Trespassers and related questions of Occupiers’ Liability: Law
Commission Working Paper No. 52, 1973

Negligence in the Realms of Public Law: a Positive Obligation to Rescue? Bowman M.J. & Bailey
S.H., Public Law, 1984

Learned Sources

The Railway Magazine 1973, page 130, featuring the annual report of the Chief Inspecting Officer of
Railways, Colonel J.R.H. Robertson, to the Secretary of State for the Environment, 1973

Wimbledon to Beckenham before Tramlink, Gilham J.C. and Mitchell V., Middleton Press, 2001

The Railways of Merton, Green L., Merton Historical Society, 1998

Mitcham Histories 8: Phipps Bridge, Montague, E.N., Merton Historical Society, 2006

FOOTNOTES

1 Bunce’s Meadow is shown variously on the 25. O.S. map (in part) and a lease plan drawn in 1864; Montague,
pages 10 and 23. When the railway was built in 1855, the waterside meadows were cut in two: Wimbledon
to Croydon Railway Act 1853; Montague, pages 22-24.

2 The Railway Magazine 1973, page 130

3 The Times 8 June 1965, page 6

4 Trespassing might be described as unlawful interference with another’s property, without consent or permission
by law, embracing the activities of many, from an innocent child to anyone intending to commit a criminal
offence. The civil law of negligence and, in particular here, ‘occupiers’ liability’, which developed piecemeal
from the 19th century, focused initially upon the concept of a ‘duty of care’ owed to those who came to
premises by invitation, or with an implied permission (such as a deliveryman). But no duty of care (or at
least barely any) was laid down upon an occupier for negligent conduct towards trespassers. This remained
the situation after the Occupiers’ Liability Act 1957. The most unsatisfactory of earlier statements of the
common law was the House of Lords decision in ‘Addie’s case’ – it was indeed criticised by the Court of
Appeal in the ‘Herrington Case’.

The House of Lords was replaced as the highest, final domestic appeal court by the Supreme Court on 1
October 2009.

5 Robert Addie & Sons (Collieries) Ltd v Dumbreck – see Cases above

6 Bird v Holbrooke – see Cases above

7 Pannet v P. McGuiness & Co Ltd – see Cases above

8 The railway line at Merton was electrified from 1930, the electric service beginning on 6 July 1930;
Green, page 28.

9 Law Commission Working Paper No. 52, 1973

10 The Occupiers’ Liability Act 1984 received Royal Assent on 13 March 1984.

ISBN 978-1-903899-63-2

Published by Merton Historical Society – August 2012

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