In Derbyshire there has been for well over a hundred years a railway line owned by the defendants. We were told that George Stephenson himself made it. The defendants use it so as to carry limestone from their quarries at Crich down to Ambergate. It is a small gauge line, only three feet, three inches wide, and is 2 1/2 miles long. On that small line there are two tunnels. One of them, with which we are concerned, is only about eight feet or nine feet high, and it is just sixty-six yards long.
On 12 February 1953, the plaintiff was walking through the tunnel when she suddenly realised that a train was coming up behind her. She got down on to the ground to seek what safety she could, but unfortunately the train ran over one of her legs and cut it off. She now claims damages against the defendants saying that it was their fault. If she were a trespasser on this railway, she would, of course, have no cause of action; but she says that the defendants had acquiesced for years in the villagers of Crich walking along this railway down to Ambergate and back.
It was a short cut for them. The defendants had done nothing at all to show that they resented the villagers using it, and the villagers had in fact used it for years. The judge has found, and I think there can be no doubt, that she was what we call in law a licensee – not a trespasser who was unlawfully there, but a person who was permitted and allowed by the owners to be there – not for any matter in which they had an interest, but only for her own purposes. It has been urged before us that, as she was licensee and not an invitee, the uty of the defendants and their servants is greatly affected: and that it is much less on that account. The judge did not take that view; he held that there was a duty on the defendants’ servants to take reasonable care in their operations, and he held that they had not taken that care. He found that instructions had been given to the drivers that on entering the tunnel they were to keep their heads down, they were to blow the whistle, and they were to slow down. On this particular occasion those instructions were not observed.
It was in the winter. They had not been able to quarry fresh limestone up at Crish; they were using the existing stock; and, indeed, instead of having the train pulled by one little steam engine, they had a diesel engine on too. On coming up from Ambergate, the steam engine was in front and the diesel engine pushing behind. In the ordinary way, if the steam engine had been on its own, being the only engine pulling, the driver would have stopped before he entered the tunnel, and he would have whistled.
On this occasion, the driver of the steam engine did not keep it pulling because he wanted to save up the steam for the gradient beyond but the diesel engine went on pushing behind. So the train did not stop at the entrance to the tunnel, the steam engine did not whistle at the entrance to the tunnel, and it did not slow down to a walking pace or stop. It went on at a pace which the judge put at eight miles an hour through the tunnel. He found that in the circumstances it was going too fast, and that it failed to whistle; and that was negligence on the part of the driver for which the defendants were responsible.
It seems to me that the judge’s finding on that point cannot be disturbed. Counsel for the defendants stressed the fact that the plaintiff was only a licensee and urged that this was on special significance. I do not think so … The duty of the occupier is nowadays simply to take reasonable care to see that the premises are reasonably safe for people lawfully coming on to them: and it makes no difference whether they are invitees or licensees. At any rate, the distinction has no relevance to cases such as the present where current operations are being carried out on the land.
If a landowner is driving his car down his private drive and meets some one lawfully walking on it, then he is under a duty to take reasonable care so as not to injure the walker; and his duty is the same no matter whether it is his gardener coming up with plants, a tradesman delivering goods, a friend coming to tea, or a flag seller seeking a charitable gift … So here it seems to me that the defendants, in carrying on their operations, were under a duty to take reasonable care not to injure anybody lawfully walking on the railway, and they failed in that duty. Counsel for the defendants next relied on the maxim volenti non fit injuria.
He said that the plaintiff must have known that it was dangerous to walk along this little tunnel and she must be taken voluntarily to have incurred the risk of danger from trains. He also said that that danger was an obvious one, and a licensee could not complain of dangers which were obvious or known to him or her … [I]t seems to me that, when the plaintiff walked in the tunnel, although it may be said that she voluntarily took the risk of danger from the running of the railway in the ordinary and accustomed way, nevertheless she did not take the risk of negligence by the driver.
Her knowledge of the danger is a factor in contributory negligence, but is not a bar to the action … [K]knowledge of the danger is only a bar where the party is free to act on it, so that his injury can be said to be due solely to his own fault … Where knowledge of the danger is not such as to render the accident solely the fault of the injured party, then it is not a bar to the action but only a ground for reducing the damages. So here the knowledge of the plaintiff of danger is not a complete bar. It is a factor in contributory negligence.
The judge pointed out that, if she had been paying attention, she should have heard the train approaching, especially the diesel engine, which made a loud noise, and if she had looked back she ought to have seen or realised that the train was coming. He found that she was guilty of contributory negligence because anyone having due regard for his or her own safety on entering a tunnel would have paused and thought whether a trial was coming. So she was at fault; and the consequence of that is that, whereas in the old ays she would have failed altogether, now it is a matter for reducing the damages to which she would otherwise be entitled. The judge put her responsibility at forty per cent and the defendants’ at sixty per cent. Counsel for the defendants has urged strongly before us that those proportions do not represent the right shares of responsibility; but we in this court always pay the greatest attention to the view of the judge who tried the case, heard the witnesses and had all the circumstances before him. On the whole, this is not, I think, one of those cases where we can interfere with the proportions.
In the result, I think the judge was right on all points in his decision, and I would dismiss the appeal. Full text DENNING LJ: In Derbyshire there has been for well over a hundred years a railway line owned by the defendants. We were told that George Stephenson himself made it. The defendants use it so as to carry limestone from their quarries at Crich down to Ambergate. It is a small gauge line, only three feet, three inches wide, and is 2 ? miles long. On that small line there are two tunnels. One of them, with which we are concerned, is only about eight feet or nine feet high, and it is just sixty-six yards long.
On 12 February 1953, the plaintiff was walking through the tunnel when she suddenly realised that a train was coming up behind her. She got down on to the ground to seek what safety she could, but unfortunately the train ran over one of her legs and cut it off. She now claims damages against the defendants saying that it was their fault. If she were a trespasser on this railway, she would, of course, have no cause of action; but she says that the defendants had acquiesced for years in the villagers of Crich walking along this railway down to Ambergate and back.
It was a short cut for them. The defendants had done nothing at all to show that they resented the villagers using it, and the villagers had in fact used it for years. The judge has found, and I think there can be no doubt, that she was what we call in law a licensee – not a trespasser who was unlawfully there, but a person who was permitted and allowed by the owners to be there – not for any matter in which they had an interest, but only for her own purposes.
It has been urged before us that, as she was licensee and not an invitee, the duty of the defendants and their servants is greatly affected: and that it is much less on that account. The judge did not take that view; he held that there was a duty on the defendants’ servants to take reasonable care in their operations, and he held that they had not taken that care. He found that instructions had been given to the drivers that on entering the tunnel they were to keep their heads down, they were to blow the whistle, and they were to slow down.
On this particular occasion those instructions were not observed. It was in the winter. They had not been able to quarry fresh limestone up at Crish; they were using the existing stock; and, indeed, instead of having the train pulled by one little steam engine, they had a diesel engine on too. On coming up from Ambergate, the steam engine was in front and the diesel engine pushing behind. In the ordinary way, if the steam engine had been on its own, being the only engine pulling, the driver would have stopped before he entered the tunnel, and he would have whistled.
On this occasion, the driver of the steam engine did not keep it pulling because he wanted to save up the steam for the gradient beyond but the diesel engine went on pushing behind. So the train did not stop at the entrance to the tunnel, the steam engine did not whistle at the entrance to the tunnel, and it did not slow down to a walking pace or stop. It went on at a pace which the judge put at eight miles an hour through the tunnel.
He found that in the circumstances it was going too fast, and that it failed to whistle; and that was negligence on the part of the driver for which the defendants were responsible. It seems to me that the judge’s finding on that point cannot be disturbed. Counsel for the defendants stressed the fact that the plaintiff was only a licensee and urged that this was on special significance. I do not think so. The Law Reform Committee has recently recommended that the distinction etween invitee and licensee should be abolished, but this result has already been virtually attained by the decisions of the courts. The classic distinction was that the invitor was liable for unusual dangers of which he knew or ought to know, whereas the licensor was only liable for concealed dangers of which he actually knew. This distinction has now been reduced to vanishing point. The decision of this court in Hawkins v Coulsdon & Purley Urban District Council ([1954] 1 All ER 97) shows that a licensor too, as well as an invitor, is liable for unusual dangers of which he knew or ought to have known.
The broken step in that case was not a concealed danger, but it was an unusual danger. The local authority did not know that it was a danger, but they ought to have known it, and they were held liable. They duty of the occupier is nowadays simply to take reasonable care to see that the premises are reasonably safe for people lawfully coming on to them: and it makes no difference whether they are invitees or licensees. At any rate, the distinction has no relevance to cases such as the present where current operations are being carried out on the land.
If a landowner is driving his car down his private drive and meets some one lawfully walking on it, then he is under a duty to take reasonable care so as not to injure the walker; and his duty is the same no matter whether it is his gardener coming up with plants, a tradesman delivering goods, a friend coming to tea, or a flag seller seeking a charitable gift. That is made clear by the decision of this court in Dunster v Abbott ([1953] 2 All ER 1572), which was applied by Finnemore J very recently in Slade v Battersea & Putney Group Hospital Management Committee ([1955] 1 All ER 429).
So here it seems to me that the defendants, in carrying on their operations, were under a duty to take reasonable care not to injure anybody lawfully walking on the railway, and they failed in that duty. As the learned judge said: ‘I, therefore, hold that the defendant’s servants were guilty of negligence in exposing the plaintiff to a risk which the defendants, their servants and agents were well aware of, putting her in a position of great danger and failing to take the necessary reasonable precautions to prevent such danger arising. ’ Counsel for the defendants next relied on the maxim volenti non fit injuria.
He said that the plaintiff must have known that it was dangerous to walk along this little tunnel and she must be taken voluntarily to have incurred the risk of danger from trains. He also said that that danger was an obvious one, and a licensee could not complain of dangers which were obvious or known to him or her. On this matter counsel very properly drew our attention to the decision of Asquith J in Dann v Hamilton ([1939] 1 All ER 59), where a passenger took a lift with the driver of a car who was obviously under the influence of drink.
There was an accident due to the negligence of the driver, and it was said that the passenger had no cause of action against the driver because she had voluntarily incurred the risk. Asquite J held that the maxim volenti non fit injuria had no application to the case; and he gave judgment in favour of the injured passenger. I must say that I agree with him. I know that the decision has in some quarters been criticised, but I would point out that Lord Asquith himself wrote a note in the Law Quarterly Review for July, 1953, vol 69, at p 317, which explains what he decided. He wrote: The criticisms … were to the effect that even if the volenti doctrine did not apply, there was here a cast iron defence on the ground of contributory negligence. I have since had the pleadings and my notes exhumed, and they very clearly confirm my recollection that contributory negligence was not pleaded. Not merely so, but my notes show that I encouraged counsel for the defence to ask for leave to amend by adding this plea, but he would not be drawn: why, I have no idea. As the case has been a good deal canvassed on the opposite assumption, I hope you will not grude the space for this not unimportant corrigendum. ’
In so far as he decided that the doctrine of volenti did not apply, I think the decision was quite correct. In so far as he suggested that the plea of contributory negligence might have been available, I agree with him. Applying that decision to this case, it seems to me that, when the plaintiff walked in the tunnel, although it may be said that she voluntarily took the risk of danger from the running of the railway in the ordinary and accustomed way, nevertheless she did not take the risk of negligence by the driver. Her knowledge of the danger is a factor in contributory negligence, but is not a bar to the action.
Even in cases which concern the condition of premises, like London Graving Dock Co Ltd v Horton ([1951] 2 All ER 1), which was mentioned to us, knowledge of the danger is only a bar where the party is free to act on it, so that his injury can be said to be due solely to his own fault. I tried to explain as much in Greene v Chelsea Borough Council ([1954] 2 All ER 318), and Cuthbert v Mason (19 January 1956, unreported). Where knowledge of the danger is not such as to render the accident solely the fault of the injured party, then it is not a bar to the action but only a ground for reducing the damages.
So here the knowledge of the plaintiff of danger is not a complete bar. It is a factor in contributory negligence. The judge pointed out that, if she had been paying attention, she should have heard the train approaching, especially the diesel engine, which made a loud noise, and if she had looked back she ought to have seen or realised that the train was coming. He found that she was guilty of contributory negligence because anyone having due regard for his or her own safety on entering a tunnel would have paused and thought whether a trial was coming.
So she was at fault; and the consequence of that is that, whereas in the old days she would have failed altogether, now it is a matter for reducing the damages to which she would otherwise be entitled. The judge put her responsibility at forty per cent and the defendants’ at sixty per cent. Counsel for the defendants has urged strongly before us that those proportions do not represent the right shares of responsibility; but we in this court always pay the greatest attention to the view of the judge who tried the case, heard the witnesses and had all the circumstances before him.
On the whole, this is not, I think, one of those cases where we can interfere with the proportions. In the result, I think the judge was right on all points in his decision, and I would dismiss the appeal. BIRKETT LJ: I am entirely of same opinion and have nothing to add. PARKER LJ: I also agree and would only add a few words in deference to the argument of counsel for the defendants. The only point on which the learned judge had held the defendants liable in this case is that their driver, the driver of the train, was negligent in two respects, in that he did not whistle before entering the tunnel, and, in effect, that he was going too fast.
On that issue it seems to me that the question of the relationship between the parties, licensor and licensee, is wholly immaterial except in this respect, to show that the plaintiff herself was lawfully on the land; and once the learned judge has found, as he did, that the driver well knew that people such as the plaintiff were used to going through this tunnel, it seems to me that he owed a duty to such a person to take reasonable precautions before entering the tunnel; and indeed his employers felt the same, because the instructions to the men were to below a whistle and to slow down, and when one realises that the maximum speed of the train was ten miles an hour, slowing down there is clearly slowing down to walking pace. In those circumstances counsel for the defendants is forced to attack the findings of the learned judge, and he points out, quite rightly, that in regard to the whistle there were only three persons who gave evidence. One was the plaintiff, who said she heard no whistle, and, as she did not even hear the train, not very much weight can be attached to that evidence. Then there was a man called Bradley, who was the driver of the diesel engine pushing the train. He was called by the plaintiff, and he said that he never heard a whistle. Counsel has quite rightly pointed out that he was far from satisfactory as a witness.
The only other witness was Mr Davenport, the driver of the steam train, who quite clearly was a very poor witness, to say the least, who alleged that he did sound the whistle. In those circumstances, the learned judge said that on the whole he accepted Mr Bradley and not Mr Davenport, and it seems to me that is clearly in accordance with the probabilities of the case, because on the return journey from Ambergate to Crich the ordinary practice was for the train to stop and the whistle would only be sounded when the train went on again. On this occasion, although Mr Davenport intended to stop, and so signalled to Mr Bradley, Mr Bradley from the rear of the train signalled him on and the train never stopped at all. It seems to me wholly in accordance with the probabilities that Mr Davenport never sounded his whistle.
Finally, as regards the speed of the train, it is true that all the witnesses spoke of the train going slightly faster than a normal walker speed or walking pace, or, at the most, six miles an hour; but the learned judge, it seems to me wholly refused to accept that evidence. Again he looked to the probabilities of the case and found, as it seems to me, rightly, that at any rate the train was going faster than the plaintiff, because it caught her up in the tunnel itself. He took the view – and I see no reason to disagree with him – that the train throughout must have been going at a considerable speed, be it six or eight miles an hour – considerable, of course, in relation to the maximum speed of the train. I see no way in which those findings can be successfully challenged and I think the learned judge came to a right conclusion. On all other points I agree entirely with what my Lord has said.
