Lord Chancellor (Lord Hailsham).—This is an appeal from an interlocutor of the First Division of the Court of Session, pronounced on appeal from a decision of the Sheriff-substitute of Lanarkshire, whereby the appellants were ordered to pay to the respondent Â£100 damages in respect of the death of the pupil son of the respondent, who received fatal injuries at the wheel pit of the haulage apparatus on the appellants' premises, at View Park Colliery, Uddingston, on 21st April 1926. [His Lordship stated the facts in the passage quoted supra, and continued]—
The first, and in my opinion the only, question which arises for determination is the capacity in which the deceased child was in the field and at the wheel on the occasion of the accident. There are three categories into which persons visiting premises belonging to another person may fall; they may go (1) By the invitation, express or implied, of the occupier;
(2) With the leave and licence of the occupier; and (3) As trespassers. It was suggested in argument that there was a fourth category of persons who were not on the premises with the leave or licence of the occupier, but who were not pure trespassers. I cannot find any foundation for this suggestion either in English or in Scots law, and I do not think that the category exists.
The duty 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 licence, 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 premises, which is not apparent to the visitor, but which is known—or ought to be known—to the occupier.
Towards the trespasser the occupier has no duty to take reasonable care for his protection, or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case 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 the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser.
It was suggested in argument for the respondent that the cases of Cooke v. Midland Great Western Railway of Ireland  AC 229 and Lowery v. Walker showed that, even towards trespassers, the duty was higher than that which I have stated. In my opinion these two cases afford no ground for such a contention. In the case of Cooke v. Midland Great Western Railway of Ireland the railway company kept a dangerous turntable on their land close to a public road; the company knew that children were in the habit of playing on the turntable, to which they obtained easy access through a well-worn gap in a fence which the respondents were bound by statute to maintain; a child between four and five years of age having been seriously injured on the turntable, it was held that there was evidence for a jury of actionable negligence on the part of the railway company. Lord Macnaghten (at p. 235) expressly treats the case as one in which the children were resorting to the turntable with the tacit permission of the railway company; Lord Atkinson says (at p. 240):—“If the plaintiff entered upon these premises and played on this turntable with the leave and licence of the defendants, then these latter owed to the child a duty not to permit the machine to be in the moveable and dangerous, because moveable, condition in which they permitted it in fact to be.” Lord Collins says (at p. 241):—“I think all these facts in combination were evidence from which a jury might well infer not merely a licence, but an invitation, which fixed the defendants with a high responsibility towards those people to whom such an invitation would mainly appeal.” Lord Loreburn agreed with the judgment of Lord Macnaghten expressly on the ground that the place was to the defendants' knowledge a habitual resort of children, and that the defendants took no steps to prevent the children's presence, but he regarded the case as “near the line” and the evidence as very weak. In my opinion the decision in Cooke's case rests upon the ground that there was evidence from which the jury were entitled to infer that the plaintiff was on the turntable with the leave and licence of the railway company, and that the turntable was in the nature of a trap; it therefore throws no light upon the question as to any duty owed by the occupier of premises to a trespasser.
The case of Lowery v. Walker was an appeal from the decision of a county court judge. The facts were that the respondent put a savage horse, which he knew to be dangerous to mankind, into a field, which he knew people were in the habit of crossing on their way to a railway station, and that the plaintiff was injured by the horse when so crossing the field. The Court of Appeal treated the county court judge's judgment as amounting to a finding that the plaintiff was a trespasser, and accordingly decided in favour of the defendant. This House reversed the decision expressly on the ground that the county court judge's finding amounted to a decision that the plaintiff was in the field as a licensee. Lord Loreburn says (at p. 12):—“I think the effect of his finding is that the plaintiff was there with the permission of the defendant”; Lord Halsbury agrees; and Lord Atkinson says (at p. 14):—“On the interpretation which I think is most rightly and properly put upon the findings of the learned county court judge, it is clear that the plaintiff was lawfully in the place where the injury happened to him.” Lord Shaw expressly reserved any opinion as to the legal position, if the plaintiff had been a mere trespasser. It is clear, therefore, that this case also affords no support to the respondent's contention. A like explanation of Cooke's case was most clearly given in the Court of Appeal in the judgment of Hamilton, L.J., (as he then was) in Latham v. R. Johnson and Nephew, Limited, a judgment with which I find myself in full agreement. Apart from these two cases, counsel for the respondent were bound to confess that they were unable to find any case, either in the English or in the Scottish reports, which lent any support to the doctrine that there was any duty owed by an occupier to a trespasser, apart from the duty not maliciously to cause him injury.
On the other hand, there are a number of decided cases in England, Scotland, and Ireland to the contrary effect. So far as English law is concerned, it is sufficient to refer to the case of Hardy v. Central London Railway Co., in which a child was injured on a moving staircase on the underground railway, where he had no right to be. Scrutton, L.J., says (at p. 473): “If the children were trespassers, the landowner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure 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 those he was under no obligation to guard trespassers.” I believe that that sentence accurately summarises the English law. In Ireland the law has been similarly stated in the Court of Appeal in the case of Coffee v. M'Evoy . The Scots law seems to me to be the same, and to be supported by a large number of authorities, In Haughton v. North British Railway Co., where children had been injured on the railway line in the course of shunting operations, it was held that the pursuers could only succeed in raising a relevant case by an averment which stated that the persons engaged in the shunting knew, when they proceeded to shunt, that the children were upon the line. In Devlin v. Jeffray's Trustees Lord Kinnear says (at p. 135): “It was said that there is a doctrine admitted in the law of England which has not been received in our law, that when people come on the lands of others for their own purposes, without right or invitation, they must take the lands as they find them, and, if they are exposed to injury from unseen dangers, they must take care of themselves, and cannot throw any responsibility upon the persons on whose lands they have trespassed. If that is a correct statement of the law, I am of opinion that there is no such distinction as is supposed between English and Scotch law, and that this doctrine is just as clearly a part of our law as it is said to be of the law of England.” In Holland v. Lanarkshire Middle Ward District Committee, where children who had been in the habit of playing upon a strip of waste ground got access to the defenders' ground through a gap in a fence and fell into a disused and unfenced quarry, the defenders were assoilzied on the ground that there was no duty on them to fence the quarry. In Reilly v. Greenfield Coal and Brick Co., where a child had been injured at a level crossing, it was held that the company was responsible, because the child was lawfully on the road when the accident happened. In Mackenzie v. Fairfield Shipbuilding and Engineering Co., where a child was killed by a fall of sand in a pit belonging to the defenders, the pursuer's averments were held relevant, because they contained a statement that the defenders knew of the children's practice of entering the ground and using the pit as a playground, and allowed it, and the Lord Justice-Clerk says (at p. 216): “The real ground of liability as alleged is the fact that the defenders allowed the children to make use of the pit.” In Boyd v. Glasgow Iron and Steel Co. 1923 SC 758 , where a boy was killed by falling from the wall of a ruinous engine-house while bird-nesting, the Court of Session held that the pursuer had stated a relevant case for inquiry, because he averred that the defenders knew the condition of the building, and knew and tolerated the practice of children playing there. The Lord Justice-Clerk points out (at p. 763) that on the pursuer's statement the pursuer's son was a licensee, and that, as such, it was the duty of the defenders to protect him against any concealed danger or trap; and Lord Ormidale says (at p. 764): “The pursuer's son … was not a trespasser, but was doing what he did with the leave and licence of the defenders.” Turning finally to the law as laid down by the Privy Council, we find in Grand Trunk Railway of Canada v. Barnett, where the plaintiff was injured by a collision which took place on the appellants' railway line, it was held that the plaintiff could not recover, because he was a trespasser on the train; and Lord Robson, in giving the decision of the Board that the defendants were not liable, states (at p. 370) : “The general rule, therefore, is that a man trespasses at his own risk.”
The only question, therefore, that remains for decision in this case is whether, upon the findings of fact of the First Division (which are not open to review), the respondent's son may properly be regarded as having been at the wheel at the time of the accident with the leave and licence of the appellants. If this had been proved, I should have been prepared to hold that the wheel, which was at times stationary and which was started without any warning, and which was, in the words of the First Division, “dangerous and attractive to children and insufficiently protected at the time of the accident,” amounted to a trap, and that the respondent would therefore have been entitled to recover. But, in my opinion, the findings of fact effectually negative that view. It is found that the appellants warned children out of the field and reproved adults who came there, and all that can be said is that these warnings were frequently neglected, and that there was a gap in the hedge through which it was easy to pass on to the field. I cannot regard the fact that the appellants did not effectively fence the field, or the fact that their warnings were frequently disregarded, as sufficient to justify an inference that they permitted the children to be on the field, and, in the absence of such a permission, it is clear that the respondent's child was merely a trespasser. The sympathy which one cannot help feeling for the unhappy father 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.
I cannot do better than preface my remarks by a quotation from the exceedingly comprehensive and able judgment pronounced by Lord Sumner, at that time Hamilton, L.J., in the case of Latham v. Johnson (at p. 410): “Where a question arises, not between parties who are both present in the exercise of equal rights inter se, but between parties of whom one is the owner or occupier of the place and the other, the party injured, is not there as of right, but must justify his presence there if he can, the law has long recognised three categories of obligation. In these the duty of the owner or occupier to use care, if it exists at all, is graduated distinctly, though never very definitely measured. … Contractual obligations of course stand apart. The lowest is the duty towards a trespasser. More care, though not much, is owed to a licensee—more again to an invitee. … The owner of the property is under a duty not to injure the trespasser wilfully; ‘not to do a wilful act in reckless disregard of ordinary humanity towards him’; but otherwise a man ‘trespasses at his own risk.’ On this point Scotch law is the same. In English and Scotch law alike, when people come on the lands of others for their own purposes without right or invitation, they must take the lands as they find them, and cannot throw any responsibility upon the person on whose lands they have trespassed—per Lord Kinnear, Devlin v. Jeffray's Trustees . The rule as to licensees, too, is that they must take the premises as they find them apart from concealed sources of danger; where dangers are obvious they run the risk of them. In darkness where they cannot see whether there is danger or not, if they will walk they walk at their peril.”
With every word of this passage I agree, and I agree that it is the law of Scotland as well as that of England. What I particularly wish to emphasise is that there are three different classes—invitees, licensees, trespassers. I think, in the Scottish cases at least, there has been a little laxity in distinguishing between invitees and licensees. The best test of who is an invitee is, I think, given by Lord Kinnear in Devlin's case. He must be on the land for some purpose in which he and the proprietor have a joint interest. A licensee is a person whom the proprietor has not in any way invited—he has no interest in his being there—but he has either expressly permitted him to use his lands or, knowledge of his presence, more or less habitual, having been brought home to him, he has then either accorded permission or shown no practical anxiety to stop his further frequenting the lands. The trespasser is he who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.
Now, the line that separates each of these three classes is an absolutely rigid line. There is no half-way house, no no-man's land between adjacent territories. When I say rigid, I mean rigid in law. When you come to the facts it may well be that there is great difficulty—such difficulty as may give rise to difference of judicial opinion—in deciding into which category a particular case falls, but a judge must decide and, he having decided, then the law of that category will rule, and there must be no looking to the law of the adjoining category. I cannot help thinking that the use of epithets, “bare licensees,” “pure trespassers,” and so on, has much to answer for in obscuring what I think is a vital proposition, that, in deciding cases of the class we are considering, the first duty of the tribunal is to fix once and for all into which of the three classes the person in question falls.
Accordingly, in the present case, the first query I put to myself is: Was this child a trespasser or a licensee? As to invitee, there is obviously no question. On this point I am bound to take the findings as they stand. Accorded permission is out of the case, but licence may be either expressed or implied. There is no finding in terms that licence was implied. Taking the situation as it is disclosed on the findings as a whole, I am of opinion that implied permission is not proved. It is here that I think this becomes a case of great importance. Judgments on this class of case are so numerous that it is impossible to review them all, and a mere citation of a string of authorities is inimical to clear decision, but there are certainly to be found among them expressions which would countenance the idea against which I wish to raise my protest, that, unless a proprietor takes such measures as effectually to stop trespass, the trespasser becomes a licensee.
Something has been said about fencing. There is no duty on a proprietor to fence his land against the world, under sanction that, if he does not, those who come over it become licensees. Of course, a proprietor may do nothing at all to prevent people coming over his lands, and they may come so often that permission will be held to be implied, or he may do something, but that something so half-heartedly as to be equivalent to doing nothing. For instance, a mere putting up of a notice “No Trespassers Allowed” or “Strictly Private,” followed, when people often come, by no further steps, would, I think, leave it open for a judge or jury to hold implied permission. But, when a proprietor protests and goes on protesting, turning away people when he meets them, as he did here, and giving no countenance in anything that he does to their presence there, then I think no Court has a right to say that permission must be implied. As I have said, circumstances vary infinitely, and you cannot ab ante furnish a test which will fit every case; but it is permission that must be proved, not tolerance, though tolerance in some circumstances may be so pronounced as to lead to a conclusion that it was really tantamount to permission. I therefore find that the child who met with an accident in this case was a trespasser.
I do not quote further from Lord Sumner's judgment in Latham's case. In that case he was content to take the child as a licensee. On the duty to trespassers there is a considerable body of authority. There is no duty, save only that of not inflicting malicious injury. Lord Halsbury mooted the question in Lowery v. Walker, the case where the proprietor of a field where there was a frequented pathway put a horse which he knew to be vicious into the field. The county court judge had used the word “trespasser” and then in a subsequent note said that he did not mean trespasser in the legal sense, and Lord Halsbury says: “The learned judge did, I think inadvertently, in the first instance use the word ‘trespasser,’ which would have carried the learned counsel for the respondent [the proprietor] all the way he wants to get, to a somewhat difficult and intricate question of law upon which various views may be entertained.” This does not lay down the law, but at least it shows clearly, even if it were doubtful before, that Lowery's case was decided upon the view that the person injured was a licensee. Later in the same volume came the Privy Council case of Grand Trunk Railway of Canada v. Barnett, where a trespasser on a railway company, a trespasser by having taken his place in a train not meant for passengers, was held not entitled to recover for the negligence of the servants of the proprietors of the line which caused an accident. The judgment of Lord Robson is a little confused as to Lowery v. Walker, but that does not affect the judgment. Then there is the case of Hardy, the case of the moving staircase. That had been decided by the Court below as the case of a licensee. The Court of Appeal on the facts held that the child was a trespasser, not a licensee, and found for the defendants. Bankes, L.J., there says (at p. 467): “If the plaintiff was a trespasser, then he has no right of action, as there is no evidence of any allurement with malicious intent to injure,” and quotes Hamilton, L.J., in Latham and Lord Robson in Grand Trunk. Warrington, L.J., takes the same course. Scrutton, L.J., says (at p. 473): “If the children were trespassers, the landowner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure 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 those he was under no obligation to guard trespassers.”
These are English cases. In Scotland in the case of Thompson v. North British Railway Co., a man who had jumped into the guard's van—he had a ticket—was held to have no case against the railway company for damages caused in respect of a collision occasioned by the negligence of the company's servants. Then came the case of Devlin, from which Hamilton, L.J., made the quotation in Latham's case with which I began, but it is worth remarking that Lord Kinnear's dictum is stronger than the quotation, which omits a few words. The actual words of Lord Kinnear were (at p. 135): “When people come on the lands of others for their own purposes, without right or invitation, they must take the lands as they find them, and, if they are exposed to injury from unseen dangers, they must take care of themselves, and cannot throw any responsibility upon the persons on whose lands they have trespassed.”
Then the case of Cummings v. Darngavil Coal Co. is exactly the same as the present case. There there was the contrivance of a wheel set in motion from time to time to haul trucks over the bing. The place was known to be frequented by children who strayed in from a public road within eighteen yards of the wheel, but the case was held irrelevant. I have, indeed, considerable doubt whether on the averments there ought not to have been allowed an inquiry as to whether the child was a licensee, but, on the assumption that he was a trespasser, the case is a direct authority. Lord Trayner (at p. 517) says in so many words: “I agree entirely with what Lord Kinnear said in the case of Devlin. I think that if the case set forth on record is a case of trespass, the trespasser must take the risk of trespass—that he must take all risks incidental to his use of another's property.” Lord Young says (at p. 517)—this has a direct bearing on a former part of my opinion—“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 from running into danger through the working of machinery, which he is quite legitimately using on his property.” So far the positive authority; but then comes the cogent fact that the respondent's counsel was unable to produce any case in which there was laid down any duty towards a trespasser except that of abstaining from maliciously injuring him. He could only quote various pronouncements as to the special duty of care towards children of tender years, but these pronouncements were all either in cases of licensees or in the class of case which may at once be put aside, in which the injured person, though on land belonging to the defender, is at a place on a road where the public has a confirmed habit of passage—e.g., Reilly v. Greenfield Coal and Brick Co. At first sight the case of Haughton v. North British Railway Co. might seem an authority. The facts were that there was a railway siding adjoining a public square, from which it was separated by a fence and a gate. The gate was left open, children strayed on to the siding, shunting operations were going on, and a child was killed. Lord Adam specially states that the child was a trespasser, and an issue was allowed, Lord M'Laren dissenting. But, when the case is more narrowly looked into, it is really an authority all the other way. When the case was first brought, there were only averments of carelessness in leaving the gate open and allowing the children to get into danger, and these were held irrelevant, but the pursuer was given the opportunity to amend. He did amend, and it was only the last sentence of his amendment which made Lord Kinnear—who, be it remembered, had said what he had in Devlin's case—and the Lord President hold that it was relevant. That sentence set forth that the defenders' servants who began the shunting knew that the children were on the line; in other words, that was malicious injury to a trespasser. The truth is that in cases of trespass there can be no difference between the cases of children and adults, because, if there is no duty to take care, that cannot vary according to who is the trespasser. It is quite otherwise in the case of licensees, because there you are brought into contact with what is known as trap and allurement. Allurement, I take it, is just the bait of the trap, itself a figurative expression. Hamilton, L.J., deals with these expressions in Latham, and I need not quote; but obviously what is allurement and a trap to a child is not so to an adult. And then you have the doctrine of contributory negligence affecting an adult but not affecting a very young child. To take concrete instances:—The learned judges in Hardy's case (the moving staircase), say explicitly that, if they could have held the children to be licensees, they would have held the defendants liable; yet an adult would have found no allurement in playing with the strap.
In the present case, had the child been a licensee, I would have held the defenders liable; secus if the complainer had been an adult. But, if the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him; he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found, but they all come under the same head—injury either directly malicious or an acting so reckless as to be tantamount to malicious acting.
I concur in the motion made.
The field adjoins a public road, in what has for a period of years been a populous neighbourhood. The field is quite insufficiently fenced from the road, there being large gaps in the fence. The field has been for a considerable period traversed on occasion as a short cut to a chapel and a railway station, and has been often used by children as a playground. To these the moving apparatus was an attraction. This invasion has not been consented to by the owners. On the contrary, they have frequently warned trespassers from the ground. They were aware, however, that these warnings were ineffectual, and that the trespass continued.
The machinery when in motion was dangerous. The owners gave no special warning when it was put in motion, and fenced neither the field nor the machinery. They did not appoint a watchman to warn off intruders or to give notice of the starting of the cable and hutches.
Upon these facts, had the question of principle been open, it is plain that a delicate question might have arisen as to the duties of public and of owner respectively or mutually. A perusal of the most careful judgment of the learned Lord President makes this plain. His Lordship says: “I think it is clear that the defenders owed a duty to the pursuer's child to prevent any accident occurring to him by reason of the pulley wheel, because he was a member of a class of persons whom the defenders knew to be in the habit of resorting to the field and the near neighbourhood of the haulage system.” His Lordship founds upon the failure sufficiently to fence the field, saying with much force: “The point is not that the fence should be impenetrable or unclimbable, but that it should present an obstacle to an invader, adult or infantile, which the invader must consciously overcome”; while with regard to the moving machinery and the danger caused by that to trespassers, he adds: “I think it is clear that, while nothing in the shape of positive permission for public resort to the field and the neighbourhood of the pulley wheel can be charged against the defenders, they did but little to prevent it, and knew that what they did do was ineffectual.” I can hardly figure the considerations in support of the view of an owner's liability in such cases being more clearly stated than in the entences which I have taken the liberty to quote.
But I need express no opinion upon the general question, for I think it to have been concluded by legal authority. When I reach that point, I do not find that there is any difference between the law of England and the law of Scotland; and, having considered the decided cases very fully, I am humbly of opinion that the dissenting opinion of Lord Blackburn must be preferred.
Excluding, as of course I do, all instances of loss and injury wilfully inflicted, I am of opinion that the digest of the decided law of England, and Scotland on the point under consideration is compressed in the few words of Lord Kinnear in Devlin's case, when he says: “When people come on the lands of others for their own purposes, without right or invitation, they must take the lands as they find them, and, if they are exposed to injury from unseen dangers, they must take care of themselves, and cannot throw any responsibility upon the persons on whose lands they have trespassed.”
The conclusion, to my mind, is irresistible that the child, who could know nothing of the law of trespass or licence, was in fact a trespasser. The only alternative to that conclusion is that the child was there by licence. Licence may be either express or implied by conduct. Express licence is out of the question in the present case, and I can find no sufficient material from which it can be implied. There is nothing in the findings to show that the presence of children upon this spot was ever sanctioned by the appellants. It is quite true that there was a large unfenced gap through which children might reasonably be expected to wander, and it may have been that a few strands of barbed wire would at a little cost have prevented their entrance, but there was no legal obligation to establish such a barrier, and it is only the legal obligation with which we are concerned. The learned Lord President, who gave judgment against the appellants, admitted there was no duty to fence, but said that the fact that the owner allows the fence enclosing his private property to fall into more or less permanent disrepair has a certain evidential value on the question whether he consented to the use of his property. That, I think, is true, but by itself it cannot amount to a licence, and the best that can be urged in favour of the respondent is that the appellants were aware that the children disregarded the warnings which from time to time were given by the appellants' employees, and continued to frequent the field. There is, however, no evidence that they were tacitly permitted to do it, and nothing which, in my judgment, can justify the inference that the appellants so acquiesced as to cause the use of the field by the children to be lawful.
It is this fact that is the clear distinction between the present case and the case of Lowery v. Walker, where this House held that the circumstances relating to the use of land by a person injured upon it amounted to a licence, which threw upon the owner of the land the duty of taking steps to avoid the existence of a danger due to the presence of a fierce animal.
If it once be held that the child was a trespasser, innocent as the trespass was, there was no legal duty cast upon the appellants to afford protection against the danger which they must have known use of the land by the children almost necessarily involved. The cases have already been examined, and there is no need to discuss them anew. I agree in thinking that they show that, in the circumstances of this case, there was no legal duty cast upon the appellants to guard against the deplorable consequences out of which these proceedings have arisen.