1992 PLP 2369 (CLC)

But the common law does not remain static. It is "a developing entity' in the hands of the Judges; and they develop it by Applying .."the well tried method of moving forward in accordance with principle as fresh facts emerge and changes in society occur". Also, it always leaves a residue to be completed by common sense. The Courts in England have, therefore, moved on from the position taken in Addie's case in 1929 "by classical methods of experience, analogy and logic" without, however, "the too complacent assumption that our present age is humaner than was that of 40 years ago"; but taking "the benefit of experience" and recognizing "fresh situations‑‑especially those of extreme danger, which have become typical". And by that method, since 1929, "attempts have been made to confer on child trespassers greater rights and to impose on occupiers greater obligations than are consistent with the decision of this House in Addie's case".

8. Addie's case was considered in a number of cases but. it will be sufficient to refer to three of them, namely, Commissioner for Railways v. Quinlan (1964 A.C. 1054) by the Privy Council, Herrington v. British Railways Board (1972 A.C. 877) by the House of Lords of England and Southern Portland Cement Ltd. v. Rodney John Cooper (1974 A.C. 623) again by the Privy Council. In Quinlan's case, a trespasser driving a truck over a private level crossing at 5‑20 a.m. was struck by a train coming round a bend in the line which failed to give timely warning of its approach. The main argument for the trespasser was that as he was reasonably to be anticipated to be present. there was a new fact which introduced a relationship between the occupier of proximity with the intruder. The argument was that the duty was to ' use reasonable care. In that case, however, Viscount Radcliffe said at page 1070: "More particularly, they consider that it is not correct in principle to suppose that the mere fact that there was a likelihood, apparent to the occupier, of a trespasser being present on the crossing at some time or another is sufficient to impose upon the occupier any general duty of care towards such a trespasser. The consequences of such a supposition would be far‑reaching indeed." In Herrington v. British Railway Board, the facts were that the plaintiff, then a child of six years old, was playing with other children on. National Trust Property at Mitcham which was open to the public. Immediately adjoining this property, the defendant, British Railway Board, had an electrified railway line a few yards from the boundary. Their boundary was marked by a‑fence, which, if it had been in good repair, would have sufficed to prevent the plaintiff from reaching the railway line. But it was in very bad repair so that when the plaintiff strayed away from his playmates, he was able to get through or over it. He then went a few yards farther and came in contact with the live electrified rail. Fortunately, he was rescued but he had already sustained severe injury. His age was such that he was unable to appreciate the danger of going on to the railway line and probably unable to appreciate that he was doing wrong in getting over the fence. In Cooper's case, the facts were these. The plaintiff sustained very severe injuries while a trespasser on land occupied by the defendants by coming in contact with 33,000 volt electric cable. He was then 13 years of age. The defendants carried on a business of quarrying limestone at South Marulan in a rather remote area. There was a township of over 40 dwelling houses, most being occupied by the defendants' employees, with a school and other buildings situated immediately east of the working area where limestone was quarried, crushed and loaded into railway wagons. Over 40 children attended the school. The quarry was in the southern part of the working area. Limestone was crushed near the quarry and then conveyed in a north westernly direction to bins adjacent to and over a railway line so that wagons could be loaded there. A high tension electric cable belonging to the county council brought power for the defendants' operation. Some months before the accident, it was decided to extend the back shunt southwards to give room for more and larger wagons. To make this extension, it was necessary to raise the ground level considerably. So waste material from the crushing operations referred to as "fines" or coarse sand had to be dumped there in large quantities. It spread outwards and created a slope of some 60 degrees and in the course of spreading it partially buried some of the poles which carried the electric cable. The school children were in the habit of playing at various places not far from the working area. They were informed that this area was out of bounds. 'On the afternoon of Sunday, July 30, 1907, the plaintiff and a companion had been playing in one of the areas to the west of the defendants' land. When returning home by crossing the railway line to the north of the bins they met three other children and they all decided to walk southwards along the railway line past the bins to the backshunt sandhill. There they begin to play. While the plaintiff was on the slope, his arm came in contact with the electric cable with disastrous results. It was within his reach and it would seem that he must have grabbed it either When stumbling or for some other reason.

9. As will be presently seen, the rule in Addie's case was not only departed from, but underwent a complete transformation in Herrington's case and Cooper's case. The law as laid down in these cases and the reasons by which it was supported may be summarised as follows.

10. The term "trespasser" is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another's land, the walker blithely unaware that he is stepping where he has no right to walk, or the wandering child, all may be dubbed as trespassers. The House of Lords in Addie's case held that no duty at all arose until the trespassers were known to be on the land. It is easy to extend that to a case when the occupier as good as knows, where he shuts his eyes: he will not then ' be heard to say that he did not know. But he has no duty to do anything before the trespasser arrives. If, on the other hand, a duty were to arise before the trespasser's arrival, when that arrival is merely foreseeable or probable, the situation would be very different. The occupier would have to do what that duty required him to do to prepare for the trespasser's arrival. But that is precisely what Addie's case says he need not do. A duty to act with humanity towards a trespasser known to be there is one thing. A duty of care towards probable trespassers is of a different order. It would completely transform the whole picture and completely supersede the Addie duty in all cases where the arrival of the injured trespasser had been probable or foreseeable.

11. Child trespassers have for a very longtime presented to the Courts an almost insoluble problem. They could only be completely safeguarded in one or other of two ways. Either parents must be required always to control and supervise the movements of their young children, or occupiers of premises where they are likely to trespass must ‑be required to take effective steps to keep them out or else to make the premises safe for them if they come. Neither of these is practicable. The former course was practicable at one time for a limited number of well‑to‑do parents but that number is now small. The latter, if practicable at all, would in most cases impose on occupiers an impossible financial burden.

12. How far occupiers are to be required by law to take steps to safeguard such children must be a matter of public policy. The ' law was uncertain when Addie's case was decided. That decision was intended to make the law certain. It did so. It was held as a matter of public policy that the occupiers should have no duty at all to keep out such children or to make their premises safe for them. Their only duty was a humanitarian duty not to act recklessly with regard to children whom they knew to be there.

13. It may have been arguable forty years ago that that was good public policy. But it is not arguable today. So we are confronted with the choice of following Addie's case and putting the clock back or drastically modifying the Addie rules.

14. Normally the common law applies an objective test. If a person chooses to assume a relationship with members of the public, say by setting out to drive a car or to erect a building fronting a highway, the law requires him to conduct himself as a reasonable man with adequate skill, knowledge and resources would do. He will not be heard to say that in fact he could not attain that standard. If he could not attain that standard, he ought not to assume the responsibility which that relationship involved. But an occupier does not voluntarily assume a relationship with trespassers. By trespassing, they force a "neighbour" relationship on him. When they do so, he must act in a humane manner and that is. not asking too much of him. The fundamental difference between the relationship of occupier and trespasser and other relationships which give rise to a duty of care is that the occupier's relationship with a trespasser is forced on him against his will, whereas other relationships are generally undertaken voluntarily. So it cannot be said that a man ought not to enter into a relationship with others unless he has the ability and resources necessary for the proper performance of the duties which that relationship entails. In. holding, therefore, that the nature and extent of an occupier's duty to a trespasser must be based on considerations of humanity, the Courts are not breaking any new ground. An occupier's duty to a trespasser must, therefore, vary according to his knowledge, ability and resources. It has often been said that the trespassers must take the land as they find it. "I would rather say that they must take the occupier as they find him".

15. So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. it would follow that an impecunious occupier with little assistance at hand would often be excused from doing something which a large organisation with ample staff would be expected to do. One would have to look at his problem as a whole and ask whether if he had thought about the matter, it would have been humane or decent of him to do nothing. That may sound a low standard but in fact an occupier's failure to take any preventive steps is more often caused by thoughtlessness than by any shirking of his moral responsibility. "I think that current conceptions of social duty do require occupiers to give reasonable attention to their responsibilities as occupiers and I see nothing in legal principles to prevent the law requiring them to do that".

16. In their Lordships' judgment, the Addie formulation of the occupier's duty was so narrow that it would not cover many cases "where humane consideration would clearly impel an occupier to do something to avoid or lessen danger to trespassers. It is not enough to say that he must not act recklessly or maliciously. His duty must be formulated in broader terms". There was no difficulty in holding that in a case where any warning would have been ineffective, the occupier was bound to do a good deal mote than merely giving warning. So this limitation does not prevent a broad formulation of the occupier's duty to a child trespasser.

17. Apart from any statutory provisions, it is a matter of ordinary common knowledge that children will roam and will explore. If a fence marks a boundary, an adult, who climbs over it will appreciate what he is doing. A small boy who finds a part of a fence so dilapidated that there is no real obstacle to his progress will not or may not know that he is at once a "trespasser" if he goes on.

18. At the same time, the rights and interests of the occupier must have full consideration. No unreasonable burden must be put on him. With 'regard to dangers which have arisen on his land without his knowledge he can have no obligation to make inquiries or inspection. With regard to dangers of which he has knowledge but which he did not create he cannot be required to incur expenses. If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realise the danger he may have to do more. The more serious the danger the greater is the obligation to avoid it. And if the dangerous thing or something near it is an allurement to children that may greatly increase the chance that children will come there.

19. Such consideration should be all embracing. On the one hand, the occupier is entitled to put in the scales every kind of disadvantage to him if he takes or refrains from action for the benefit of trespassers. On the other hand, he must consider the degree of likelihood of trespassers coming and the degree of hidden or unexpected danger to which they may be exposed if they come. He may have to give more weight to these factors if the potential trespassers are children because generally mere warning is of little value to protect children.

20. The problem then is to determine what would have been the decision of a humane man with the financial and other limitations of the occupier. Would he have done something which would or might have prevented the accident, or would he, regretfully it may be, have decided that he could not reasonably be expected to do anything. Their Lordships adopted the statement of Lord Uthwatt in Read v. I. Lyone & Co. Ltd. ((1947) A,C. 156,158): "There is demanded of him a standard of conduct no higher than what a reasonably minded occupier of land, with due regard to his own interests, might well agree to be fair and no lower than a trespasser might in a civilised community reasonably expect."

21. The above is, if I may say so with great respect, the correct enunciation of the law and I would gratefully adopt and follow it. To this may be added the voice of Best, J. in Illot v. Wilkes (1820) 3 B. & Ald. 304 and 319 where he could claim: "Humanity requires that the fullest notice possible should be given, and the law of England will not sanction what is inconsistent with humanity." And what he as Chief Justice proclaimed in Bird v. Holbrook (1828) 4 Bing. 628 at page'643: "But we want no authority in a case like the present; we put 'it on the principle that it is inhuman to catch a man by means which ‑may maim him or endanger his life, and, as far as human means can go, it is the object of English law to uphold humanity, and the sanctions of religion."

22. These passages are, so observed Lord Morris of Borth‑y‑Gest in Herrington's case (at page 905), of interest as showing that the learned Judge thought that even inaction, when humanitarian impulses would prompt action, might amount to a breach of a duty owed to a trespasser, and would bring such a case within the category of acts done with a "deliberate intention of doing harm to a trespasser".

23. We should, I think, adopt these principles because they are in accord with our own religion. Islam is a religion of peace. It commands Adl and Ihsan (Al‑Quran 16:90); Adl and Ihsan are expressions of widest amplitude. Adl or justice, as observed by Abdullah Yousaf Ali in his commentary, "is a comprehensive term, and may include all the virtues of cold philosophy. But religion asks for something warmer and more humane, the doing of good deeds even where perhaps they are not strictly demanded by justice, such as returning good for ill, or obliging those who in worldly language 'have no claim' on you; and of course a fortiori the fulfilling of the claims of those whose claims are recognised in social life". One of the grounds on which, in Herrington's case, Lord Morris held the Railways Board liable was that a child, in such a case, must be regarded as a 'neighbour'. When Lord Atkin posed the question in (1932) A.C. 562, 580, "who, then, in law is my neighbour?", he said that the answer seemed to be‑‑ "persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." The Holy Qur'an ordains, by its verse 4:36:', "And do good to parents, kinsfolk, orphans, those in need, neighbours who are near, neighbours who are strangers ........

24. Mark the words 'neighbours who are strangers'; if I may venture to say so, persons like the plaintiff herein should be regarded as. one of the neighbours who are near, and in any case, the words 'neighbours who are strangers' are wide enough to include persons like the plaintiff in this case. And as to what standard of conduct is required of a Muslim towards his neighbour, we have the saying of the Holy Prophet (peace be upon him): Nobody can be a Muslim unless he wishes the well‑being of his neighbour as much as he wishes it for himself. Apply this test to the facts of this case. Suppose that the defendant were a natural person. Suppose further that the plaintiff were his own child. Or, suppose that the plaintiff were the son of one of the employees of the defendant. Would he not do all that he could possibly do to prevent his stepping on to the railway line and be hurt. Naturally, he would. That is precisely what Islam expected him to do to protect the plaintiff.

25. Returning to the facts of this case, the learned Courts below were right in holding that there was no statutory or general duty for the defendant to erect or maintain fences sufficient to exclude adults or children. It is also true that there was, in this case, no question of any body intending to do harm to the plaintiff. However, as there was no fence between the railway line and the residential place of the plaintiff, and the fact that the children were playing with a ball near the railway line was, or must have been, known to the railway employees, there was a real possibility that a child might step over the railway line and be struck by a passing train or a railway engine. So, the question arises whether the defendant had any obligation to take thought and having taken thought to take some action. The answer is ‑‑‑ yes. Did it take, as a conscientious humane person, the necessary steps to avoid or lessen danger to the life and limb of trespassers, child trespassers in particular. The answer in the facts of the case must be in the negative. The defendant, in my opinion, could not be heard to say that the moment the plaintiff stepped over the railway line, he was a trespasser and to a trespasser the defendant owed no duty to take reasonable care for his protection. In the facts of the case, I rind no difficulty in inferring that through the eyes and ears of one or other of their servants, the defendant did know the physical facts that made it likely that the children playing near the railway line would trespass on their line and if they did so, would run a serious risk of grave if not mortal injury from being struck by a railway engine. The plaintiff's evidence‑ consisted of the testimony of Qazi Abdus Sattar (P.W.3), Muhammad Tufail (P.W.4) and Mubarak Ali (P.W. 7); it was that the plaintiff was injured in the manner stated in the plaint, namely, that when the plaintiff went to retrieve the ball from the railway track, the engine started without whistling and the boy was run over. The defendant's stand in the written statement appeared to be inconsistent; it was said that the children were having a ride on the railway engine and it was in that process that the plaintiff's foot slipped and he was hurt; at the same time it was said that the drivet had been blowing the whistle as a warning to all concerned to get out of the railway line. However that may be, the defendant's evidence did not support its case as laid in the written statement. Manzoor Elahi (D.W.1) Assistant Railway Inspector had not seen the incident taking place. His evidence was based upon the information supplied to him by Trollyman Muhammad Sharif who told him that a child had been injured. Muhammad Sharif (D.W.2) was the said Trollyman. What he said was that during the shunting of the train, it was usual to whistle repeatedly. He too had not seen the plaintiff being run over. Noor Bakhsh (D.W.3) was the driver of the engine which had struck the plaintiff; he too had not seen the plaintiff being run over by his engine. He said that there was a distance of 200 yards between his engine and the last wagon of the train. He had been operating the engine on the instructions of the Guard. He went so far as to say that no child was run over by his engine. Muhammad Saeed (D.W.4) was the Guard who had controlled the movements of the engine. He too said that no child had been run over within his view. He learnt of the incident after the plaintiff had been removed from the spot by his parents. Thus, there was no evidence of the fact that the plaintiff was having a joy ride on the railway engine or that it was when he was doing so that his foot had slipped and he was run over by the engine. It is obvious that as the employees of the defendant were not even aware of the presence of the plaintiff on the railway line, they did not, and in truth, could not, claim to have taken the necessary steps to prevent the accident from taking place. The inevitable result must be that the defendant failed, despite its knowledge of the physical facts, ability and resources, to take care that the plaintiff should not go over to the railway line when the engine was engaged in shunting and to prevent his being hurt. I am, therefore, of the opinion that the learned Civil Judge rightly held that the plaintiff was entitled to recover damages. The plaintiff was content to accept the sum of Rs.10,460 awarded to him by the learned trial Court as damages and did not appeal against the learned trial Court's judgment. I would set aside the judgment and decree of the learned Additional District Judge and restore that of the learned Senior Civil Judge.

26. As the plaintiff was six years old at the time of the incident, he should be 36 years of age now. It is obvious that had he received the sum of Rs.10,460 in 1964 (and that was a handsome amount in those days), he would have usefully utilised it. This is, therefore, a case in which the Court will be eminently justified in directing the payment of interest under section 34 of the C.P.C. I, therefore, direct the defendant, respondent herein, to pay a sum of Rs.10,460 with interest at the rate of Rs.15% per annum from the date of the suit to the date of the decree and on the aggregate at the same rate viz. 15% per annum from the date of the decree to the date of payment. The defendant shall also bear the costs throughout. A.A./25‑J/L Appeal accepted.