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British Railway v Herrington

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British Railways Board v Herrington [1972] AC 877, a House of Lords decision on occupiers liability and trespassers, this case overruled Addie v Dumbreck, establishing the fact that trespassers are owed more than a duty to not cause deliberate harm.


British Railway had negligently omitted to maintain its fences next to an electrified railway, a part of the fence has been breached and people especially children have been using the breach in the fence to get onto the rail. British Railway Board had been informed several times however they did not take action. On one occassion a child six years of age was electrocuted by the railway.


The court held that trespassers are owed more than a duty to not cause deliberate harm. They are owed the same duty of care as any other entrent so long as they can satisfy the following:

  • The occupier has knowledge of the trespasser
  • The occupier has knowledge of the danger (non obvious)
  • The Likelihood of danger must be high enough to justify the occupiers' duty to take precautionary measures

This test was later polished by OLA'84 s.1(1)(3).

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