McGlone v. British Railways Board 1966 S.C. (H.L.) 1
Citation:McGlone v. British Railways Board 1966 S.C. (H.L.) 1
Rule of thumb:If a gate is locked/fenced up, does a person entering the land have any rights? No, they do not – in these circumstances they are a trespasser with no rights. If an objection is not made timeously to new facts or amended facts what happens? The right to object to this is lost.
Background facts:
The facts of this case were that a boy suffered an electric shock on a booster transformer on the railway line. A personal injury case was lodged by the boy over whether the railway company were in breach of ‘occupier’s liability’ law.
Parties argued:
The railway argued that the boy was a trespasser and that a lower duty of care was owed to trespassers than normal occupants who are allowed on. They concluded that they did not breach occupier’s liability law in relation to trespassers. The boy argued that sufficient warning was not placed on the booster transformer about the danger of it, and it was not sufficiently protected either. He argued that he was not a trespasser as so many people went in and out of the railway.
Judgment:
The Court held that the boy was a trespasser – there was barbed wire on the fence of the railway that it was believed showed that it was intended to be private land. It was held further that the boy was not so young as to be completely naïve, meaning that the boy was only owed a slightly higher duty of care. The Court further held that transformer booster was not excessively dangerous state for trespassers – the boy had to actually climb up onto it in order to get shocked. There was no breach of occupier’s liability law and the boy was not entitled to damages for the electric shock. In the course of the trial the pursuer lodged wholly new evidence during the trial when the witnesses were actually on the stand, namely that were gaps in the meshed fence of the railway suggesting that people were permitted onto it and he was not a trespasser. The railway board could have objected to this being relied upon as it was not referred to in the pleadings and not allowed it to be a part of the trial. However, an objection was not raised timeously to it and this meant that it was allowed to be included. With the emotion and adrenaline of a trial process sometimes it can be hard to be alerted when a whole new body of evidence is lodged by the other side. The appeal of the boy still failed however despite this new line of evidence about the mesh fence being allowed. The Railway Board got lucky in not objecting to this new evidence being included.
This seminal case affirmed the ‘proper notice and objection’ principle. In litigation the other side in the case must be given full written notice in the pleadings of the case, otherwise an ‘objection’ can be raised timeously. Objections do not have to be immediate, but if they are extremely late then they will not be accepted. Where parties are not given ‘proper notice’ of the case in the pleadings then they are unfairly prejudiced in the case. During litigation nobody is expected to come up with legal and factual arguments on their feet off the top of their head. They are expected to have pre-prepared arguments on the facts and the legalities. Where new facts or legal arguments are raised that written notice has not been provided of in the pleadings an objection should be lodged timeously with the Judge. A ‘proper notice objection’ can be raised at a procedural hearing or the actual trial. At a procedural hearing there should be an ‘objection’ and a motion to delay/continue/stay the proceedings so that pleadings and arguments can be adjusted in light of the new facts and legal arguments being raised. At a trial an objection should be raised to ensure that this new evidence will not be allowed to be relied on by the other side. It should be cautioned however that not every single fact has to be written in the pleadings. It is expected that the details of facts can be expanded upon in the Court process.
Ratio-decidendi:
‘I agree with the Lord President that proper notice must ordinarily be given on record of the attack made upon the other side. The reason is that the other side may be prejudiced by the failure to give proper notice. But the respondents can scarcely object on this ground when they allowed such evidence to be led and failed until the last witness to table an objection to the evidence. Pleadings are to be used as servants and not masters. For these reasons I do not accept that the ground of fault sustained by the Lord Ordinary was not one on which as a matter of pleading the appellant was entitled to rely." Lord Guest, at 15 ... "In the course of his evidence the pursuer suggested that the gaps between the ends of the meshed fence and the vertical wall should have been closed by prolonging the size of the meshed fence to the top of the wall. No objection was taken at that stage. Then, when the injured boy gave evidence he was cross-examined as to whether such prolongation of the meshed fence would have kept him out. I agree with the Lord President that this ground of fault was not covered by the pursuer's record and, if objection had been taken timeously, I think that it ought to have been sustained, leaving the pursuer to amend his record, if so advised. But no objection was taken until, in the course of cross-examination of the defenders' witness, the pursuer's counsel put it to him that the sides of the meshed fence ought to have been prolonged. There may, no doubt, be cases where objection cannot reasonably be expected to be taken at the first moment when evidence is led regarding a ground of fault not pleaded, but in my view in this case there was ample opportunity to take this objection at a much earlier stage in the proof and I think that the Lord Ordinary was right in not sustaining the objection at the stage when it was taken... The live wires were only a danger to a boy old enough to climb up this structure, and I think that the respondents could properly assume that such a boy would understand that the barbed wire was intended to keep him out and that there would or might be danger if he forced his way into this small enclosure. This is not a case of danger to a child too young to understand such things. The evidence shows that the boy knew quite well that the barbed wire was intended to keep him out and that to climb the transformer was dangerous. But he knew little or nothing about electricity and he did not know about live wires. So, even if he had read the notices, he would have learned little from them. In a case like this an occupier does in my view act reasonably if he erects an obstacle which a boy must take some trouble to overcome before he can reach the dangerous apparatus’, Lord Reid at 12-14
‘The care required is such care as is reasonable and it may be reasonable to require a greater degree of care in one such case than in another. In deciding what degree of care is required, in my view regard must be had both to the position of the occupier and to the position of the person entering his premises and it may often be reasonable to hold that an occupier must do more to protect a person whom he permits to be on his property than he need do to protect a person who enters his property without his permission. Trespassers on the steep bank were so frequent that I would be prepared, if necessary, to hold that licence to play on the bank could be implied. Certainly the respondents ought to have expected that boys would play on it near this transformer and the respondents’ witness admitted that, when such apparatus is erected at places open to the public, means are taken to warn people against climbing transformers. The question here is whether the means which were taken were sufficient to discharge the statutory duty.’ ‘ The live wires were only a danger to a boy old enough to climb up this structure, and I think that the respondents could properly assume that such a boy would understand that the barbed wire was intended to keep him out and that there would or might be danger if he forced his way into this small enclosure. This is not a case of danger to a child too young to understand such things. The evidence shows that the boy knew quite well that the barbed wire was intended to keep him out and that to climb the transformer was dangerous. But he knew little or nothing about electricity and he did not know about live wires. So, even if he had read the notices, he would have learned little from them. In a case like this an occupier does in my view act reasonably if he erects an obstacle which a boy must take some trouble to overcome before he can reach the dangerous apparatus’, Lord Reid
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.