Neutral Citation no.[2001] NIQB 44
Ref:   
KERF3548

 
Judgment: approved by the Court for handing down
Delivered:
04.12.2001
(subject to editorial corrections)

 

 
 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
 ________ 
BETWEEN:
STEPHEN HAUGHIAN
Plaintiff;
-and-
NORTHERN IRELAND RAILWAYS COMPANY LIMITED
Defendant.
 ________ 
 
KERR J
 
Introduction
 
The plaintiff is a young man of twenty-one.  In this action he claims damages from Northern Ireland Railways Ltd for injuries that he sustained on 30 July 1995 when he lost balance and fell while climbing over a fence that had been erected by the defendant in an area adjacent to the railway line in Lurgan, County Armagh.
Factual Background
The plaintiff’s date of birth is 18 August 1980.  He was within three weeks of his fifteenth birthday when the accident occurred, therefore.  At that time he lived with his parents at 37 Rectory Park, Lurgan, a short distance from the place where he was injured.  On the day of the accident he had been playing with some friends in an area of rough waste ground adjacent to the railway line.  The rough ground is near a residential area that included the plaintiff’s home.  It was a triangular open area on which children from the housing estate regularly played.  
On this occasion the plaintiff and three or four other young men were playing with golf clubs and balls on the waste ground.  The plaintiff sliced a shot and his ball skewed off in the direction of the railway line.  He and one of his friends, Michael McCaughley, went to retrieve the ball.  In order to do this they had to walk to the lower part of the waste ground where the grass was longer and the ground was marshy.  At this point there are two fences, one belonging to the local authority and the other to the defendant.  They run parallel and are some 9 or 10 yards apart, with the defendant’s fence naturally being closer to the railway line.  
The Council fence was in a state of some disrepair and it was possible for the plaintiff and Michael McCaughley to step through it and approach the railway fence beyond.  The latter is constructed of L shaped panels of welded mesh made from extruded galvanised steel that is between 4 mm and 7 mm inches thick.  It was erected in a “zigzag” fashion in 3 feet sections.  Thus constructed the fence did not require any posts to support it.  It was 75 inches in height.  The sections had been cut by a guillotine so that the top edge was a series of sharp spikes.  This is the only fence of its type used by NIR.  According to John Harold Gray, a permanent way relay engineer with the defendant, the fence had been erected in about 1985.  It had been “billed” as a vandal-proof, high security fence.  It had been erected to prevent people from gaining access to the railway track and had been somewhat more successful in this than conventional palisade fencing.  Mr Gray informed the court that Lurgan was an area where the railway company experienced considerable problems with young people going near to and on the railway track.
The plaintiff had climbed over the fence before; he estimates that he had done so up to ten or twenty times.  He had found it convenient to go over the fence in order to walk alongside the railway line to his home in Rectory Park.  He had seen other children do the same.  On those occasions that he had climbed over the fence previously he had always used an old piece of wood to climb up the fence to an area where it had been prised down to create a place where it was possible to sit and bring one’s legs over to the railway side.  It was agreed that this ‘prised down’ area reduced the overall height of the fence by about 5 inches.  
The piece of wood was in place when the plaintiff approached the fence on the occasion of his accident.  It was wedged into the corner of the zigzag.  The top of the piece of wood (which was propped up at an angle) was something over halfway up the fence.  It was about 6 inches wide and 2 inches thick.  The plaintiff climbed up the piece of wood using the fence mesh for handholds.  Before he had a chance to rest on the prised down area, however, he lost his footing and fell.  His arm caught on the fence in the area of the elbow and he sustained a nasty injury in the area of the antecubital fossa.
Edward Metcalfe was employed by the defendant as a track overseer at the time of the plaintiff’s accident.  Every other day he walked along the section of track adjacent to the fence where the plaintiff was injured.  He had seen the prised down area of the fence but had not deemed it worthy of report because he did not think that it constituted a hazard.  He did not see the piece of wood and it had not occurred to him that the prised down area of fence might have been used to facilitate persons climbing over it.  He had not seen people in this area of the railway track nor had he been aware of the fence being used to gain access to the railway line or the area beside it. 
The legal issues
Mr Ferriss QC on behalf of the plaintiff accepted that he had been a trespasser at the time that he suffered his injury.  He submitted that the fence constituted a danger for the purposes of the Occupier’s Liability (Northern Ireland) Order 1987 and that the defendant had reasonable grounds for believing that young persons such as the plaintiff might climb over it in order to gain access to the area beyond.  Mr Ferriss argued that the defendant therefore owed the plaintiff a duty to take such care as was reasonable in all the circumstances to prevent the plaintiff from sustaining injury on the fence.
For the defendant, Mr Ferrity submitted that the fence was not a danger; alternatively, the defendant did not know and had no reasonable grounds for believing that the plaintiff might be in the vicinity of the fence.  In any event, Mr Ferrity said, there was no reason to take precautions in relation to the fence since it was of sturdy construction and was still suitable for its purpose, namely, to deter people from going on to the track.  By way of final submission on the primary liability issue, Mr Ferrity claimed that the plaintiff’s claim was barred by reason of the volenti non fit injuria principle and the application of Article 3 (6) of the 1987 Order.  
The Occupiers Liability (Northern Ireland) Order 1987
Article 3 of the 1987 Order provides: -
3 Duty of occupier to persons other than his visitors
 
(1)   The rules enacted by this section shall have effect, in place of the rules of the common law, to determine—
 
(a)   whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and 
 
(b)   if so, what that duty is
 
(2)   For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are—
 
(a)   any person who owes in relation to the premises the duty referred to in section 2 of the Occupiers’ Liability Act 1957 (the common duty of care), and 
 
(b)   those who are his visitors for the purposes of that duty.
 
(3)   An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if—
 
(a)   he is aware of the danger or has reasonable grounds to believe that it exists;
 
(b)   he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
 
(c)    the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
 
(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned. 
 
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk. 
 
(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another). “
 
The first question that arises is whether the fence constituted a danger.  Mr Ferrity submitted that it did not, since its very purpose was to prevent persons from entering an area of potential danger and that it remained effective for that object in that it could only be traversed with difficulty and required significant determination on the part of the plaintiff.  In my view, this argument is based on a misconception.  The fact that the fence is designed to prevent access to the railway line is not relevant to the question of whether it is itself dangerous.  The top of the fence had sharpened spikes.  They were capable of inflicting substantial injury, as, indeed, the plaintiff’s accident illustrates.  I consider that the fence was a danger to anyone who tried to climb over it.  
The next issue is whether the defendant was aware of or had reasonable grounds for believing in the existence of the danger.  The plaintiff claimed that he and his friends had used the prised down section of fence on a number of occasions.  The piece of wood that enabled them to climb over the fence was, according to him, a permanent fixture.  Mr Metcalfe had seen the section of fence but not the wood.  Although it did not occur to him that the fence had been turned down in order to allow people to climb over it, I consider that this was the obvious reason that part of the fence had been prised down.  When one has in mind that the defendant (through Mr Metcalfe) was aware that a section of the fence had been prised down, that young people were known to trespass on the rail track and beside it, that – as the defendant either knew or ought to have known - the waste ground was adjacent to a residential area and that young people used it as a play area, it is in my view irresistible that the defendant had reasonable grounds for believing that people – and in particular, young people – were climbing over the fence.  In consequence, the defendant ought to have known that young people were at risk of injury because they were using this part of the fence to gain access to the area beside the railway track.
I believe, therefore, that the defendant should have considered what steps were necessary to deal with the fact that this was happening.  It was a risk “against which, in all the circumstances of the case, [the defendant could] reasonably be expected to offer … some protection”.  Moreover, elimination of the risk (or, at least, its reduction) should not have been difficult.  If the prised down area had been returned to its original position it would (at a minimum) have discouraged young people from using the fence.  Alternatively, the sharpened spikes could have been bent over or blunted so that at least the risk of serious injury would not have been as great.  I have concluded, therefore, that the defendant is liable to the plaintiff.
I do not consider that the defence of volenti non fit injuria applies in this case.  As Lord MacDermott said in Kelly v Farrans Ltd [1954] NI 41, 45: -
“In claims for damages for personal injury caused by negligence the question raised by a plea of volenti is not whether the injured party consented to the risk of being hurt, but whether he consented to run that risk at his own expense so that he, and not the party alleged to be negligent, should bear the loss in the event of injury.  In other words, the consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk.”
 
There is no evidence that the plaintiff consented to run the risk of the defendant’s failure to take reasonable care for his safety.  In these circumstances, the defence of volenti non fit injuria is not available to the defendant.
Contributory negligence
At the time of the accident the plaintiff was aged 14.  His actions must be judged by the standards of a person of that age.  Although, in my view, the danger of the fence ought to have been obvious to those who erected it because they knew of the sharpened spikes, do not think that it would have been evident to a young man of fourteen.  I have not been persuaded that it has been established that he was guilty of contributory negligence.  The plaintiff is entitled to recover in full, therefore.
Damages
The injury to the plaintiff’s arm has recovered without loss of function but he is left with a substantial scar about which he is understandably extremely self-conscious.  He was fond of sport before he suffered this injury and I accept that he did not engage in many of his sporting activities as a result of his self-consciousness.
I consider that the appropriate award for general damages is £20000.  To this will be added the sum of £450 representing 2.25% interest.  The plaintiff will have judgment for £20450.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
 ________ 
BETWEEN:
STEPHEN HAUGHIAN
Plaintiff;
-and-
NORTHERN IRELAND RAILWAYS COMPANY LIMITED
Defendant.
 ________ 
 
J U D G M E N T
O F
KERR J
 ________