Playing with trains
Trespassing and vandalism on the railways are ever more tempting for children growing up in urbanised communities with limited playing space. A railway depot is an oversized playground in the eyes of an imaginative child or a place to be reckless in the eyes of
another.Chris Price looks at the duty owed by occupiers of railways and how to reduce the risks of potential claims
T
he Occupiers’ Liability Act 1984 was enacted following the case of Herrington v British Railways Board (1972). The case involved an accident where a six-year-old boy had got through a hole in a fence next to a railway line and was injured on an electrified line. Even though the boy was trespassing, it was found that the Railway Board owed a ‘common duty of humanity’.
The act governs the duty owed by occupiers to anyone who does not have express or implied permission to be on the premises. An occupier is anyone who has a ‘sufficient degree of control over the premises’. This could include the relevant owner of the railway lines, someone with control over the premises or someone with control over any fixed or moveable structure, including any vehicle 0r train. Under the 1984 Act trespassers have a limited right to bring a claim for damages for personal injury but not damage to
property where an occupier: • Is aware of a danger or has reasonable grounds for believing it exists;
• Knows or has reasonable grounds for believing that a non- visitor is in or might come into the area;
• There is a risk against which the occupier could be reasonably expected to provide protection. Children will inevitably explore places they should not and
Tocs may find themselves defending claims for catastrophic injuries. However it is important to remember that a duty only arises in certain situations. According to section 1(5), the duty arising can be discharged by taking steps that are reasonable in all the circumstances of the case to give warning of a danger concerned, or to discourage a person from incurring the risk. It is helpful to look at case law and the court’s position on
claims arising out of trespassing on railways and claims involving children generally. In Scott v Associated British Ports (2000) two teenagers lost
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limbs in separate, unconnected accidents after climbing through a hole in a fence and ‘surfing’ trains on the defendant’s railway line. In the first case, no duty was owed as the railway occupier was unaware of the risks. Newspaper coverage of the first accident meant that a duty of care was owed under section 1(1) (a) of the act to the second claimant who had an accident four years later. However, the court found that the absence of a robust fence was not the cause of the claimant’s injuries. The court found that at the age of 13 the claimant was fully aware of the risk he was running and the defendant relied on the defence of voluntary assumption of risk under section 1(6). The case of Keown v Coventry Healthcare NHS Trust (2006) emphasised the notion that where the risk of injury arises primarily from the claimant’s activity, rather than the state of premises, no duty will be owed. In this case, an 11-year-old boy climbed the underside of a fire escape and fell. The court found that the fire escape was not inherently defective or dangerous and therefore there was no danger arising from the state of the premises.
State of premises Even where the premises are dangerous, there could be a defence. The more recent case of Paul Tyrone Mann v Northern Electric Distribution Ltd (2010) confirmed that where it is not reasonably foreseeable that a child will injure itself on the premises, no duty will be owed. In this case, a 15-year-old boy climbed over a four-meter high wall using a ‘make-shift’ ladder and into a 66,000 v sub-station where he was electrocuted. The claim was dismissed on the basis that the means of access employed by the boy was not reasonably foreseeable. Erecting clear warning signs may also provide a defence. In
Tomlinson v Congleton Borough Council (2003), the council owned a country park that included a lake created by flooding
Shutterstock/ Tumarkin Igor Alekseevich
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