The condition of liability was stated to be some willful act involving something more than the absence of reasonable care - 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.
To illustrate binding precedent within the tort of negligence, remembering how the common law often reflects social change, consider Addie v Dumbreck Collieries whereby a precedent regarding injury to a child trespasser was bound under stare decisis for 43 years. Although the decision was originally considered fair, Society’s viewpoint of children changed, forcing the judiciary to apply extra-ordinary measures to work around this binding precedent and allow ‘fairness’ within a changing socio-political climate.
The occupier of land has no duty towards a trespasser 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 liable to a trespasser only where the injury
suffered by the trespasser is due to some wilful act involving
something more than the absence of reasonable care. There must be
some act done with the deliberate malicious intention of doing harm
to the trespasser, or at least some act done with such reckless
disregard of the presence of the trespasser as to be tantamount to
malicious acting. And this is so where a trespasser who is injured
is a child, and so in such a case the special duty of care towards
children of tender years who may come into contact with dangerous
things does not exist.
Per VISCOUNT DUNEDIN: There is no duty on the occupier of land to fence it against the world so that, if he does not take that or some other measure to stop trespass, a trespasser becomes a licensee [or now a "visitor" within the Occupiers' Liability Act 1957].
Appeal from an interlocutor of the First Division of the Court of Session (the Lord President and LORD SANDS, LORD BLACKBURN dissenting) affirming the decision of the sheriff-substitute of Lanarkshire at Glasgow, and finding the present appellants liable in damages to the respondent to the amount of 100 pounds in respect of the death of the respondent's son, Andrew Douglas Dumbreck, who received fatal injuries at a wheel, part of a haulage apparatus on the appellants' premises of View Park Colliery, Uddingston, on 21 April 1926.
The case was initiated in the Sheriff Court by the respondent, a foreman bricklayer, whose son, aged slightly over four years, was accidentally killed through being crushed in the terminal wheel of a haulage system belonging to and worked by the appellants. The haulage system was situated in a field belonging to the appellants, which was used partly for the deposit of ashes brought by the haulage system from the appellants' pithead. The haulage wheel was dangerous, being set in motion intermittently by a motor from the pithead without warning by the appellants from time to time. It was attractive to children and insufficiently protected. The field abutted on the public road, near which was a group of houses, in one of which the respondent lived with his family. Between the field and the public road was an old hedge full of wide gaps which allowed a practically unrestricted access from road to field. The respondent alleged that the child's death had been caused by the negligence of the appellants, who, accordingly, were liable to make reparation to the respondent as the child's father in name of solatium.
The main question of law which arose for decision on the appeal was whether in the circumstances in which the accident occurred, the appellants owed any duty of care towards the respondent's son to protect him from danger of contact with the haulage system or the wheel. The First Division of the Court of Session held, LORD BLACKBURN dissenting, (i) that the defenders had been guilty of negligence, in respect that, as the pursuer's son was one of a class of persons who, to their knowledge, habitually went near to their haulage system, they owed him a duty, which they had failed to fulfill, of taking care to prevent his being injured when the machinery was set in motion; and (ii) that neither the pursuer nor his son had been guilty of contributory negligence in respect (a) that the danger was not obvious, (b) that the child was too young to be capable of negligence, and (c) that it was the recognised custom of working-class parents to allow young children to wander near their homes unattended. The defenders appealed.
The facts are stated in the opinion of the Lord Chancellor.
To illustrate binding precedent within the tort
of negligence, remembering how the common law often reflects social
change, consider Addie v Dumbreck Collieries whereby a precedent
regarding injury to a child trespasser was bound under stare decisis
for 43 years. Although the decision was originally considered fair,
Society’s viewpoint of children changed, forcing the judiciary to
apply extra-ordinary measures to work around this binding precedent
and allow ‘fairness’ within a changing socio-political climate.
In British Railways Board v Herrington the HL recognised that society considered children in a different light to 1929 and that the existing precedent stood against the “common humanity” owed by an occupier to a trespasser, illustrating how the judiciary although controlled by binding precedent saw fit to develop the law in light of current social thought.