LAW NOTES.

Wairarapa Daily Times, 22 August 1929, Page 6

LAW NOTES.

(By P. R. Waddy, 8.A., LL.M., Bar-rist<jr-at-Law, author of Waddy’s Mercantile Law of N.Z.).

Liability for Accidents to Trespassing -Children.

A matter of paramount importance, involving liability for accidents to children trespassing on dang< uus premises, has just formed the subject of an authoritative judgment of the House of Lords. The case turned upon the duty of occupiers of land, on which they had set machinery in motion without fencing the land or guarding the machinery, towards children trespassing on the spot after repeated warnings, and the liability of such occupiers for injuries sustained by the children caused by the machinery. A fatal accident happened in a field at a spot about a hundred yards from a public road. The field formed part of View Park Colliery, in the Scottish county of Lanarkshire, and was used as a dump for the deposit of ashes from the pithead. It was separated from the public road by a hedge in which there were at the time large gaps, including a gap of ten feet opposite the point at which the accident happened. Thcr were two gates to the at One ‘ of which ( . nf , vc , a notice-board bearing the words “Trespassers will be Prosecuted.” The haulage system consisted of an endless wire cable operated from time to time, as might be

necessary, for the purpose of removing ashes from the pithead by an 8-horse power electric motor situated at the pithead, while at the other end of the system (which was not visible from the pithead) there was a heavy horizontal iron wheel round which the cable passed and returned at a speed of from 2 to 24 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 S or 9 inches deep in the centre from ashes to covering board, and rather more at the sides. The father of the child who was killed had warned the child not to enter the colliery premises <*r 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 View Park Colliery proprietors, habitually traversed by members of the public as a short cut and frequently by youth and children of all ages. The colliery employees at times warned children out of the field and reproved adults, but, as the colliery proprietors knew, the children disregarded warnings and the adults continued to frequent the field. The watch kept by the colliery employees was casual and ineffective, except insofar as it was directed to guarding the wood piles and coal bins, and the ground in question was, to the knowledge of the colliery proprietors, 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 colliery employees.

The deceased child’s father brought an action against the colliery company, in the Scottish Court of Session, and recovered £IOO damages, whereupon the company appealed to the House of Lords.

Viscount Hailshani, L.C., after recapitulating the facts, said that the only question which arose for determination was the capacity in which the deceased child was in the field and at the wheel on the occasion of the accident. His Loj'dship said that there were three characters in which persons visiting premises belonging to another person may fall, viz.:—(1) By the invitation, express or implied, of the occupier. (2) With the leave and li-

cense of the occupier. (3) As trespassers. “The duty,” said the Lord Chancellor, “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 license, 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. To-

wards the trespasser the occupier has no duty to- take reasonable care for his protection or even to protect him from concealed danger. The trespasser conies on the premises at his own risk. An occupier is in such a ease 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 deliberate intention to do harm to the trespasser, or, at least, some act done with reckless disregard of the presence of the trespasser.” The case of Cooke v. Midland Great Western Railway of Ireland, (1909) A.C. 229, where a child was seriously injured on a dangerous turntable upon ‘which children were iu the habit of playing, with the tacit permission of

the railway company, was distinguished as resting upon the ground that there was evidence from which the jury was entitled to infer that the plaintiff was on the turntable with the leave and license of the railway company, and that the turntable was in the nature of a trap. The case was “near the line” and the evidence very weak, and it throws no light, said the learned Lord Chancellor, upon the question as to any duty owed by the occupier of premises to a trespasser. A few years ago, Lord Justice Serutton laid it down that “if children were trespassing, the landowner was not entitled to injure them or to put dangerous traps for them, intending toinjure them, but was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business; against these he was under no obligation to guard trespassers.” —Hardy v. The Central London Railway, (1920) J K.B. 459, C.A. “My Lords,” said Viscount Hailsham, L.C., in the case now under review, “I believe that that sentence accurately summarises “ n 0 English law.” “The sympathy fmc help feeling foi un p a ppy father, ’J added learned Lord Chancellor, “ 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 (the octogenarian Judge) agreed, adding further,— “I do not know of any law and none was cited to us which puts a duty on a proprietor to fence his property so as to prevent trespassers running into danger through the working of machinery which he is quite legitimately using on his property.” Lord Shaw of Dunfermline, Lord Buckmaster and Lord Carson concurred. Appeal allowed. —Robert Addio and Sons (Collieries), Limited v. Dnmbreck (1929), 34 Com. Cas. 214, H.L.