Andhra HC (Pre-Telangana)
Mirza Mahboob Ali Baig Aslam vs Union Of India (Uoi) on 8 December, 1994
Equivalent citations: 1995(1)ALT239
ORDER S. Parvatha Rao, J.
1. This is plaintiffs appeal against the judgment and decree of the learned Secnad Additional Juge City CiviL Court Hyderabad in Q.S. No. dated 29-1-1982 dismissing his suit for recovery of damages of Rs.2,22,000/-from the defendant (Union of India, represented by the Genera! Manager, South Central Railway, Secunderabad) due to loss of his left leg from below the knee at an accident which occurred at Aurangabad on 15-3-1977 in which he was run over by a goods wagon during the shunting operations.
2. At the time of the accident the plaintiff was aged about 5 years and, being a minor, in the suit (earlier O.P. No. 47 of 1978) he was represented by his father who at the time of the accident, has been working as Senior Signallor in the defendant's railway establishment at Aurangabad and had been living with his wife and children, including the plaintiff, in the railway quarters allotted to him. The said railway quarters was located near the station, and to go to the market and town-ship by shortcut one had to cross the railway lines. On the fateful day, according to the plaint, the plaintiff was proceeding to the market about 5-30 p. m. To proceed to the market in the town, he had to cross the railway lines and while he was crossing the railway lines, he was run over by 808 UP Goods Train. The crucial plaint allegations as regards the occurrence of the accident and the consequent loss of his left leg below the knee and for his claim for damages, are as follows:-
"The said goods train came alt of a sudden without any indication. The goods train which was stationary on the second loop line suddenly moved and the Plaintiff was taken unawares. The Plaintiff further states that before he could make any attempt to escape he was under the wheels. At the time when the goods train started moving, the Guard of the Train was not present nor were there any pointsman to give the Engine Driver clearance to move. As a result of the accident, the Plaintiff's left leg had to be amputated from below the knee. Immediately after the accident the Plaintiff was rushed to the Government Medical College Hospital, Aurangabad for two days. Later the plaintiff was admitted in the Railway Hospital Lalaguda, where his left leg was amputated. On account of the accident there was injury to the right leg and the boy is not able to use even the right leg fully. The plaintiff was thereafter treated by a private doctor. The plaintiff further submits that the accident to his body by 808 UP Goods Train was due to the negligence and misconduct of the defendant, its Officers and- staff. As an occupier the defendant has a duty to take such reasonable care in the operation of trains to prevent harm to others."
The plaintiff claimed Rs. 1,92,000/- towards permanent disablement and loss of earning capacity calculated at Rs. 400/- per month for 40 years; Rs. 5,000/- towards the expenditure incurred by the plaintiff's parents for medical treatment; and Rs. 25,000/- towards mental shock suffered by him and his parents i.e., in all Rs-2,22,000/-towards compensation for amputation of the left leg and for medical treatment and the shock suffered by him and his parents. The plaintiff claimed the said sum in the lawyer's notice dated 4-7-1988 issued on his behalf to the defendant Under Section 80 CPC. The defendant sent a reply dated 12-7-1977 stating that enquiries were being made and that they would advise further in the matter. The plaintiff sent a fresh notice dated 7-8-1977 informing the defendant that only one leg was amputated and not both legs as mentioned in the earlier notice, and the said notice was also received by the defendant. However, as the defendant did not come forward to settle the said claim of the plaintiff, the present suit was filed by presenting the plaint on 13-12-1977.
3. In the written statement filed on behalf of the defendant, it was admitted that the plaintiff was involved in an accident on 15-3-1977 and that his left left was amputated at Lalaguda Hospital; but it was asserted that there was absolutely no negligence and misconduct on the part of the defendant and that the plaintiff and his father were alone to be blamed for the accident and that the plaintiff was not entitled to claim any damages from the defendant. The defendant also had taken the stand that the plaintiff's father had been absolutely negligent in allowing his son to trespass and wander on the railway lines and that he being a railway employee ought to have known his responsibility as the father and not to allow his minor children to play on the lines and cross in between the wagons and that the accident was purely and entirely due to the negligent conduct of the plaintiff's father as the plaintiff and his brothers were allowed to play and walk on the railway lines which resulted in an accident. The defendant had denied that persons occupying railway quarters would have to invariably cross railway lines running the risk of their lives to go to market and the town-ship. It was stated that a separate passage through the gate opening on the second platform and the main gate on platform No. 1 had been provided for persons occupying railway quarters for crossing the railway lines and that persons who moved about across the railway lines at a place not meant for use as passage were mere trespassers and that if any trespassers were involved in an accident for no fault of the defendant, the defendant could not be held liable or responsible for the same. As regards the occurrence of the accident, it was stated in the written statement as follows:-
"This defendant further submits that on 15-3-77, on second loop line at Aurangabad station shunting operations of 808 UP Goods Train was in progress. The plaintiff aged 5 years attempted to cross in between the couplings of the wagons, when they (wagons) were moving. As a result, the plaintiff was trapped under the wheels. On hearing the shoutings, the shunting staff had immediately stopped the shunting and removed the injured boy and admitted him to the Government Medical College Hospital at Aurangabad for treatment. The boy was kept there for 2-3 days when the medical authorities opined for amputation of leg. The plaintiff's father did not agree and shifted the boy to some private nursing home. Later on the plaintiff was brought to Lalaguda Railway Hospital at Secunderabad. It is submitted that shunting operations were done in the normal conditions and were properly supervised by the guard of the train. There was no negligence on the part of the operating staff performing the shunting. Enquiries revealed that the plaintiff had come under oil tank on second loop line. During the process of shunting the oil tankers moved a little and consequently the plaintiff who was under the oil tanker sustained injuries. The presence of the plaintiff" under the wagon was never noticed by anybody in spite of due care and caution. No person expects the plaintiff at the place of accident, when the shunting operations were on. The plaintiff alone was responsible for the injuries to which his father who was bound to protect the plaintiff was also the cause of being negligent in not protecting his own children. It is submitted that the departmental enquiry ordered for and conducted in this connection, has also revealed that the administration was not at all at fault. It was absolutely the plaintiff's carelessness that resulted in the accident. The plaintiffs father has no business or right or authority to let loose his children on the railway track when the shunting operations were on. Even otherwise, on the railway lines in between the wagons there cannot be a passage for going to market or crossing the lines. But if anybody passes through does so at his own risk."
4. On the said pleadings, the following issues were framed in the suit:-
"1. Whether the Goods Train in question was moving in shunting area following the procedure and taking necessary precautions?
2. Whether the plaintiff entered into the shunting area carelessly and negligently as pleaded by the defendant?
3. Whether the accident was due to the negligence and fault of the defendant?
4. Whether the plaintiff is entitled to claim any damages and if so to what amount?
5. Whether the suit claim is barred by limitation?
6. To what relief."
On the plaintiff's side, his father and his nephew were examined as P.Ws.1 and 2 respectively and Exs. A-1 to A-4 were marked, A-1 and A-3 being office copies of the legal notice dated 4-7-1977 and that dated 7-8-1977 respectively, A-2being the reply given by the defendant and A-4 being the postal acknowledgment. On the defendant's side, the guard was examined as D.W.1, the Assistant Station Master working in Aurangabad Railway Station during the relevant period was examined as D.W.2, and the Pointsman who was giving signals during the shunting operations on the relevant day was examined as D. W.3, and the sketch plan of the place of accident was marked as Ex.B-1. After considering the evidence and the rulings placed before him, the learned Second Additional Judge, City Civil Court, Hyderabad held: on issue No. 1, that the goods train in question was moving in the shunting area following the procedure after taking the necessary precautions; on issue No. 2, that the plaintiff carelessly and negligently tried to cross the railway lines and met with the accident as contended by the defendant; on issue No. 3, that there was no negligence on the part of the defendant-railway and its staff; and consequently on issue No. 4, that the plaintiff was not entitled to claim any damages. He did not enquire into the quantum of damages. On issue No. 5, he held that the claim was not barred by limitation. In the result, he dismissed the suit.
5. It is unfortunate that there is no evidence in this case as to the actual occurrence. P.Ws.1 and 2 admit that they were not present at the scene at the time of occurrence. D.W.1 was goods train guard at that time and he stated that he was supervising the shunting of the goods train at the time of accident He stated that the accident took place when the wagons moved and that the wagons movement during the shunting would be very slow. He also stated that he did not see the plaintiff and that there is no possibility of seeing him. D.W.3 was working as pointsman at Aurangabad at the time of the accident and his duties were for shunting the trains at the station yard. He stated that shunting was done under the instructions of D.W.1 and that the process was done very slowly, and that the accident took place while the oil tankers were being shunted in the lines for attaching them to goods train No. 808 UP. He also stated that he did not see the plaintiff moving on the lines at that time. D.W.2 was the Assistant Station Master of Aurangabad at that time and he stated that he gave instructions to D.W.1 and other concerned for the shunting and that when the shunting was going on, the accident took place. It does not appear that he was present at the scene of occurrence at the time of the accident. In order to give a clear idea about the place of occurrence, a sketch plan was prepared showing the location of the railway platform, railway lines, station building and other buildings and structures in the railway premises at Aurangabad and the same was marked as Ex.B-1. The exact spot where the accident took place is marked in Ex.B-1. D.W.1 spoke about it. He stated that the place where the accident took place was not a passage. Ex.B-1 sketch was not disputed on the plaintiffs side. From Ex.I5-l it is dear that the spot where the accident took place was by the side of platform No. 2 and that it was on the railway line running parallel and adjacent to platform No. 2. In the cross-examination, D.W.1 stated that the shunting took place on the line by the side of platform No. 2 and at that time there were about 5 to 7 oil tankers standing on the line. It was opposite to the quarters occupied by the plaintiff's father. He also stated that the place where the accident took place was not a passage. In the sketch Ex.B-1 trolly pathways in between platform No. 2 and platform No. 1 are shown and the off pt where the. accident took place was quite away from the trolly pathways closest to it, D.W.2 also stated that Ex.B-1 was the sketch showing the topography of the railway station and that the accident did not take place near the level crossing or trolly crossing and that it took place at the station yard and that the place where it took place was not a passage. D.W.3 also stated that the place of accident there was no passage or level crossing and that the level crossing gate was at a distance of about 100 metres from the railway station. There was no disputation on the plaintiff's side as regards the actual spot of the occurrence as deposed by the three witnesses on the defendant's side and as shown in Ex.B-1. P.W.1, the father of the plaintiff himself stated that after he came to know about the accident, he went to the spot of the accident and that it was "on the second loop-line" and that he found blood marks there and that therefore he could know that was the place of the accident. In the cross-examination, he stated that on 15-3-1977 on the second loop-line of Aurangabad Railway Station shunting operation of 808 UP goods train was in progress during the eventing time, and that he came to know that at the time of accident the wagons were moving and that the accident took place during that movement. He admitted that he did not have any personal knowledge as to how the accident took place and that he did not come across with any eye-witness of the accident. He also stated that he did not make any enquiries about the accident and how it took place. He also admitted that there were points at that area for changing the wagons from one line to another and that there was no passage for people to walk in between the two lines and that still his children were walking in between the two lines. On the basis of this evidence the learned Second Additional Judge, City Civil Court, Hyderabad rightly accepted Ex.B-1 plan as rough sketch indicating the correct topography of Aurangabad Railway Station and that the accident took place by the side of platform No. 2 which was noted in red in Ex.B-1. From the evidence I am satisfied that the spot where the accident took place was on the railway track by the side of platform No. 2 and that there was no passage for crossing the railway lines at that spot. From Ex.B-1 sketch it is clear that even the trolly passage was some distance away from the spot. The learned counsel for the appellant-plaintiff did not also dispute this fact.
6. The learned Counsel for the appellant-plaintiff Mr. K.G. Kannabhiran, points out that the place of occurrence was opposite to the quarters occupied by the plaintiff's father and that when the defendant provided quarters for its employees within the precincts of the station, it ought to have taken care to safeguard the children of its employees who occupy such quarters by providing fencing so as to keep away the children from the railway tracks and from the danger of the moving trains thereon. According to him, the defendant ought to know that the children of the employees who live in such quarters, especially those of tender ages, are prone to be playful and tend to walk on to the railway tracks as they are ignorant of the danger involved. He also submits that it will be too much to expect of the parents to take care of all children all the time and to keep them away from the mischief.
7. Before proceeding further, it is necessary to consider the obligation of a Railway Administration for fencing railway lines. Section 13 of the Indian Railways Act, 1890 (hereinafter referred to as 'the old Act') provides:-
"The Central Government may require that, within a time to be specified in the requisition, or within such further time as it may appoint in this behalf,-
(a) boundary marks or fences be provided or renewed by a railway administration for railway or any part thereof and for roads constructed in connection therewith;
(b) xxxxxx
(c) xxxxxx
(d) xxxxxx The relevant provision in Section 18(a) of the Railways Act, 1989 (hereinafter referred to as 'the New Act") is identical. The obligation imposed on the railway administration under the old Act and the new Act is not absolute. The position in India as regards fencing of railway lines when the old Act came to be enacted was stated in Henry Conder v. Balaprasad Bhagwandin, (1895) Un.P.J. of Bom. H.C. 91 by Sir Charles Sargent, C.J. as quoted in B.N. Ry. Co. v. Tara Prasad, AIR 1928 Calcutta 504 at 508.
"The obligation imposed on railway companies of fencing their railway by Section 21, Act 18 of 1854 was repealed by Act 25 of 1871, and in lieu thereof there was substituted the power to the Governor-General or Local Government to make rules for fencing as provided by Section 21 of the Act... Nor have any rules been issued to the company under the Acts 4 of 1879 of 9 or 1890."
In Vijay Shanker v. Union of India, a Division Bench of the Punjab High Court considered the position under the old Act, when a claim was made for damages based on the alleged negligence of Railway in not fencing the track in front of residential houses and quarters so as to be a barrier and prevention for the children of the public in general from crossing over the railway track. After referring to Section 13 of the old Act, the Division Bench of the Punjab High Court observed that unlike Section 68 of the English Railway Clauses Consolidation Act, 1845, the Indian statute did not impose any imperative obligation on the Railway to fence a line, but gave power to the Central Government to require the Railways among other matters, to provide fences and to maintain the same and that as the Central Government did not require the Railway to put up fencing on either side of the track in the particular locality in that case, there was no statutory obligation on the part of the Railway to maintain the fencing on either side of the track at or about that place. The Division Bench further held as follows:-
"The question then is whether under the general law there is any such obligation on the Railway to fence the Railway track and particularly if more than 20 years, as in this case, after the track was laid residential houses and quarters have sprung up on either side of the track near and about the particular place where the accident occurred. There appears to be no such obligation, apart from statute, under the general law."
A reference was also made to the following observations of Lord Viscount Dunedin in Robert Addie and Sons (Collieries) Limited v. Dumbreck, 1929 Appeal Cases 358.
"Something has been said about fencing. There is no duty on a proprietor to fence his land against the world under the sanction that, if he does not, those who come over it becomes licensees."
As observed in another English case, even under the English Act, that is, the Railway Clauses Consolidation Act, 1845, "there is no duty in a Railway Company to fence their line of railway as towards passengers or persons already on the line; the duty in them is towards persons of the line to prevent the latter from getting or straying upon it". Therefore, I do not see any substance in the contention of Mr. Kannabhiran that there is a duty on the part of the respondent to fence the Railway line so as to prevent children from getting over the railway tracks. It cannot be his contention that providing fencing to the railway quarters located in the precincts of the station would safeguard the evidence whatsoever that the railway quarters of the plaintiffs father was not provided with fencing. Even if such fencing is provided, the Railways cannot be blamed if children are allowed by the parents to go out of the fencing. Another aspect to be noticed in this case is that the place where the accident occurred was next to Platform No. 2. It cannot be contended that Railways should provide a fencing to the railway track even inside a station at the platform. A platform is intended for a train to halt to enable the passengers from getting on and out of the train. At such a place, it is inconceivable that a fence is to be provided preventing people from going on to the track adjacent to the platform.
8. The main contention of Mr. K.G. Kannabhiran, the learned Counsel for the appellant-plaintiff, is that the servants of the respondent-defendant incharge of the shunting operations were negligent, but for which the accident resulting in the loss of one of the legs of the plaintiff would not have occurred. He submits that the defendant is in the position of an occupier indulging in dangerous operations in his property and that such an occupier is under duty to all person entering his property to take care that they are not harmed by the dangerous operations in his property. He further submits that when the defendant provides for residential accommodation to its employees by the side of the platform, it should have foreseen that children of such employees are prone to move around in the absence of fencing and therefore when dangerous operations like shunting are conducted, it should have provided for a look out and taken the necessary precautions to see that accidents of this nature do not occur. According to him, the facts of the present case speak by themselves and it is for the defendant to explain how the accident took place inspite of all reasonable care and precautions on the part of the defendant's employees and that in the absence of any such evidence, as in this case, liability fastens to the defendant and compensation has to be paid to the plaintiff. He relies on the decision of the House of Lords in Cooke v. Midland Great Western Railway of Ireland, 1909 Appeal Cases 229 and in Excelsior Wire Rope Company Limited v. Callan, 1930 Appeal Cases 404. He also relies on the decision of the Supreme Court in M.C. Mehta v. Union of India, and in particular the following observations therein:-
"We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. We are of the view that an enterprise which is engaged in hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to ensure that no harm results to any one on account of hazardous inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part."
That is a case dealing with oleum gas leak. The learned Counsel also relies on the decision of the Supreme Court in State of Rajasthan v. Ms. Vidhyawati, in support of his contention that the defendant is vicariously liable for the tortious acts of its employees committed in the course of their employment.
9. The learned Standing Counsel for the Railways, Mr. S.R. Ashok, contends that the plaintiff has not established any negligence on the part of the employees of the railways. He submits that the accident occurred at a place where the plaintiff was never expected to be and that, on the facts of the present case, the plaintiff was a clear trespasser. He also submits that the nature of the accident was such that it could not have been avoided inspite of any amount of care and caution on the part of the servants of the defendant. He contends that the evidence in this case clearly discloses that those involved in the operation of shunting were not aware of the presence of the plaintiff and the place of occurrence was such that they could never expect the presence of the plaintiff. He submits that the plaintiff came forward with a case that the accident occurred while he was crossing the railway track. But the facts proved in this case establish that it was not a place where the plaintiff was expected to cross the railway track. The evidence in the case discloses that the place where the accident took place was not a passage and that the accident took place while the shunting operations were in progress and that neither D.W.1, the goods train-guard supervising the shunting of the goods train at the time of accident, nor D.W.3, working as Pointsman at the time of the accident, saw the plaintiff. He relies on the decision of the Madras High Court in M. & S.M. Ry. v. Jayammal, AIR 1925 Madras 304 and of the Punjab High Court in Vijaya Shanker v. Union of India (3 supra) and the decision of the House of Lords in Robert Addle And Sons (Collieries) Limited v. Dumbreck (4 supra).
10. Before the learned IInd Additional Judge, reliance was placed on behalf of the plaintiff on Liddle v. Yorkshire (North Riding) County Council, (1934) 2 King's Bench 101, Adams and Anr. v. Naylor , (1944) 1 King's Bench 750 and the decision of the House of Lords in Cooke's case (5 supra). The first two cases have not much relevant. The defendant relied on Vijay Shanker's case (3 supra). The learned Additional Judge relied on Vijay Shaker's case(3 supra) and finding that the accident took place when the plaintiff was indulging in some childish play, held that he carelessly and negligently tried to cross the railway lines and met with the accident and that there was absolutely no negligence on the part of the railway department as he found that goods train in question was moving in shunting area following the procedure after taking necessary precautions. He also observed that sympathies towards the injured because he lost one of his limbs permanently, cannot have claim in deciding the questions at issue.
11. Before proceeding further, the factual matrix of the present case has to be clearly kept in view. The accident took place while the shunting operations of 808-UP goods train were in progress on 15-3-1977 around 4-30 p.m. and the plaintiff lost the left leg having been run over by the wheels of an oil tanker. The employees of the respondent who involved in the shunting operations only could give evidence as regards the accident and how it occurred. It is not in dispute -on the other hand it is admitted in paragraph 4 of the written statement - that the plaintiff was aged 5 years only at the time of the accident and that he was residing with his parents and brothers in the railway quarters situated on 10. the other side of the platform No. 2 just opposite to the place of accident as per Ex.B-1 plan. D.W.1 the goods train guard in fact stated in his examination in chief that the accident took place in front of the plaintiff's house.
12. The plaintiffs case is that to proceed to the market, he had to cross the railway lines from his house and that while he was crossing the railway lines he was runover by the said goods train as it came all of a sudden without any indication, and that at the time when the goods train started moving, the guard of the train was not present nor were there any pointsman to give the Engine Driver clearance to move. But there is absolutely no evidence adduced to establish these facts. Neither the father of the plaintiff who was examined as P. W. 1 nor P.W.2, who claims to be the nephew of P.W. 1, were eye-witnesses and they were nowhere near the scene of occurrence at the time of the accident. Nobody else was examined on the plaintiff's side to estbalish his version of the occurrence. The plaintiff himself being aged only 5 years at the time of the accident and being the victim, could not have narrated with any cogency about the occurrence.
The case set up by the defendant is that the plaintiff and his brothers were allowed to play and walk through the railway lines due to the negligence of the plaintiff's father and that plaintiff and his brother used to move about and play near and underneath the wagons on the railway lines. The plea taken in the written statement is also that "the plaintiff and his brother instead of proceeding on the specified passage for crossing the railway lines, had entered the shunting area and were moving about near and under the wagons and crossing the lines berserk and unmindful of the wagons, lines and the engines". As regards the actual occurrence, the relevant passage in the written statement has already been extracted earlier. The version given is that the plaintiff attempted to cross in between the couplings of the wagons when they were moving and as a result, the plaintiff was trapped under the wheels and that on hearing the shoutings, the shunting staff had immediately stopped the shunting and removed the injured boy. It is also stated: "after the accident the brother of the plaintiff who is aged about 9 years shouted. Immediately the pointsman and the guard made signals to the driver to stop the engine at once". In the cross-examination of P.W.1, suggestions were also put that his children would be playing on the railway lines and even underneath the wagons, which he denied. But P.W.1 admitted in the cross-examination as follows:-
"We are aware that if our children cross the railway lines they will run the risk. On previous occasion when I happend to see my children crossing the railway lines from my house I prevented them. I do not know whether my wife prevented the plaintiff from the crossing the railway lines on railway authorities never invited our children to cross the lines at that place. My wife told me that she sent the plaintiff and 2nd son to market at that time."
He also admitted that he did not come across with any eye-witness to the accident and that subsequently he did not make any enquiries about the accident and how it took place. Significantly he also admitted there is no passage for people to walk in between the two lines: Still my children were walking in between two lines."
13. However, none of the witnesses on the defendant's side speak anything about the plaintiff and his brother playing at the time of the accident. It is their case that they did not notice the plaintiff or his brother. D.W.1 states that at the time of the accident the engine was taken ahead and was put on the second line and then the oil tankers were taken to the other line and when the wagons moved, the accident took place and that he did not see the plaintiff and that there was no possibility of seeing him. He also states in the cross examination that at that time there were 7 or 8 oil tankers standing on line No. 2 prior to the accident D.W.3, who was the pointsman at that time stated in his examination-in-chief that the shunting was done under the instructions of D.W.1 and that the process was done very slowly and that they did not see the plaintiff moving on the lines at that time and that there was no negligence on their part in the happening of the accident. He denies the suggestions that they were not observing the movements of the presons at the time of shunting operations. But he admits "whenever there was no movement of the trains children will be crossing the Railway lines at the station". He denied the suggestion that they were negligent at that time and they were not given proper signals. He also states that the accident was because of the carelessness of the plaintiff.
14. No suggestion was put to D.Ws.1 and 3 in their cross-examination that they were no present at the time of the accident. On the other hand, the cross- examination proceeded on the basis that they were present. Therefore, the plea taken in the plaint that at the time when the goods train started moving, neither the guard nor the pointsman were present, is not substantiated. Though in the plaint there was no mention about the presence of the elder brother of the plaintiff, P.W.1 in his evidence states that his wife told him that she sent the plaintiff with the 2nd son to the market at that time. In the plaint it was stated that the second son was aged about 8 years. Though D.W.1 and D.W.3 did not state in their evidence about the presence of the elder brother of the plaintiff and about their playing at that time, in the written statement, it is stated that the plaintiff and his elder brother aged about 9 years were "moving about and playing nearby and underneath the wagons on the railway lines "and that as the plain tiff" attempted to cross in between the couplings of the wagons, when they (wagons) were moving" he "was trapped under the wheels" and that when his brother shouted "the shunting staff immediately stopped the shunting and removed the injured boy...." It is also stated that "enquiries revealed that the plaintiff had come under oil tanker on 2nd loop-line. During the process of shunting, the oil tankers moved a little and consequently the plaintiff, who was under the oil tankers, sustained injuries. The presence of the plaintiff under the wagons was never noticed by anybody inspite of due care and caution". The defendant is bound by these pleas though these facts were not adduced by the defendant through its witnesses D.W.1 and D.W.3 who were presentat the time of the accident. It has also to be noticed in this connection that suggestions were 14. put to P.W.1 in his cross-examination about his children playing on the railway lines and even underneath the wagons. In Nagindas v. Dalpatram, held as follows:-
"Admission in pleadings or judicial admissions, admissible Under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
The statement of D.W.1 that he did not see the plaintiff and that there was no possibility of seeing him, and of D.W.2 that they did not see the plaintiff moving on the lines at that time, have to be viewed in the context of the pleas in the written statement amounting to admission regarding the movements and playfulness of the plaintiff and his elder brother and that the accident took place when the plaintiff was trying to cross the lines on which the tanker wagons stood, by passing through the couplings. This is supported by what D.W.3 said in his cross-examination that whenever there was no movement of the trains children would be crossing the railway lines at the station.
15. The question that arises then is whether the shunting staff of the respondent were negligent and whether the respondent can be held to be vicariously liable for their negligence. So far as the vicarious liability of the State is concerned, it is well settled that the State would be vicariously liable for the tortious acts of its employees done in the course of employment. In State of Rajasthan v. Mst. Vidhyawati (8 supra), a Constitution Bench of the Supreme Court, after a review of the case law, held as follows:-
"Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalists notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own Courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. Now that we have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not be held liable vicariously for the tortious act of its servant....... "
16. The important and troublesome question that remains to be considered the part of the shunting staff making them responsible for the accident and liable for compensation to the plaintiff for the loss of his leg etc. Negligence depends on the duty owned. Therefore, the question that also arises is what is the duty of care to be exercised by the respondent plaintiff on the railway lines while the shunting operations were in progress. Vijay Shanker's case (3 supra), relied upon by the learned IInd Additional Judge turned on the question whether the Union of India was negligent in not fencing the railway track in front of the residential houses and quarters so as to be barrier and prevention for the children and the public in general from crossing over the track. The railway track in that case existed for more than 40 years and it passed through residential buildings and quarters on both sides. On the afternoon of the accident, the plaintiff in that case was playing near the track. cross the track. The other children crossed and while he was crossing the track, he was struck by the train. The engine driver whistled and applied vacuum brakes. But before the train could come to halt, the plaintiff was run over by the train causing serious injuries to both his legs which had to be later amputated. The Division Bench of the Punjab High Court observed that negligence on the part of the driver of the train was neither pleaded not proved. However, incidentally, the Division Bench also observed that the plaintiff was trespasser on the railway track and that the owner or occupier of land or premises owed no obligation or duty to a trespasser through he must not set up a trap for him or cause wilful injury to him. The Division Bench also observed that the House of Lords approved in Robert Addie and Sons Limited vs. Dumbreck (4 supra) the rule as to trespassers indicated in Lowery v. Walker, 1911 Appeal Cases 10 and stated in Grand Trunk Railway Company of Canada v. Barnett 1911 Appeal Cases 361 which is as follows:-
"The owner of the property is under the 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".
The Division Bench also held that there was no difference in the case of child trespasser as compared to an adult trespasser relying on the following dictum approved by the House of Lords in Robert Addie's Case (4 supra).
"If the Children were trespassers, the land-owner 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."
But all these observations made by the Division Bench were not necessary in that case because, as observed by the Division Bench, no negligence on the part of the engine driver was pleaded and the claim of the plaintiff in that case was based on the ground that, as the railway track was between residential houses and quarters on both sides, it was the duty of the railways to provide adequate and effective fence.
17. In Jayammal's case (9 supra) a 7 year old girl was run over by a locomotive engine and she lost her right arm and right leg while she was passing along the line. The girl was carrying a basket full of grass over her head. There was evidence that people living in the neighbourhood were in the habit of crossing the railway line first over the over-bridge nearby and then from the platform crossing the station yard in a direction which led to a wicket gate for going out Coutts Trot-awarded damges of Rs. 3,500/-.On appeal before a Division Bench, his decision was reversed by Spencer, Officiating C.J., and Srinivasa Iyengar, J., delivering separate judgments. Spencer, C.J., held that the girl was capable of appreciating danger and was old enough to have a sense of circumspection and that the causans of the accident was the negligence of Jayammal. He held as follows:-
"The danger of being run over by a passing engine, when crossing the railway lines imposes a necessity for the utmost caution on all persons walking on or near the track. Persons who cross an open railway line at an unrecognised crossing do so at their own peril. The plaintiff (Jayammal), if not a trespasser, was at least a licensee; and, where licensee is concerned, the owner of the premises is not liable for damage caused by the negligence of the licensee, provided that he does not place any trap in the way of those who come upon his premises."
Very significantly, he further held as follows:-
"The facts of present case do not support the inference that the Railway Companys' servants were negligent, supposing the driver had seen the plaintiff coming from the wicket gate towards the line, there was no reason fro him to anticipate that she would attempt the very rash act of crossing in front of the engine. Every day drivers of cars and carriages seeing foot passengers on the public road proceed on the assumption that they will act rationally and not commit the imprudence of running in the front of car or carriage. It would not be reasonable to compel drivers to from a mental estimate as to the age and capacity of taking care of themselves of every one of the pedestrians that they may meet in their way through traffic and to adjust their speed accordingly, though they would naturally proceed slowly past a school or playground where children are likely to congregate, as children are notoriously careless owing to their inexperience."
Referring to the decision of the House of Lords in Cooke v. Midland Great Western Railway of Ireland (5 supra) the learned Officiating C.J., held that the ground of that decision was "that there was leave and licence to play with a turn-table which was a dangerous machine and that it was because the person injured availed himself of that leave and licence he was injured" and observed: "if the railway staff had left an unattended locomotive with steam up standing in the station yard for boys to play with, I have no doubt that that would have constituted an allurement and the Company would have been responsible for the consequences. But I cannot agree that the failure of the Railway Company to prevent passengers from crossing the line through the wicket gate opposite the platform at the Wallajah Road Station was an invitation or allurement either to adults or children to cross the railway lines without proper circumspection". Srinivasa Aiyangar, J., on the other hand, was inclined to take a view agreeing with Coutts-Trotter, J., that the special look out spoken to by the engine driver was not true and that therefore the railway company was guilty of negligence. However, he held that the proximate or effective cause of the accident was negligence of the plaintiff Jayammal. In holding so, Srnivasa Aiyanger, J., held that it could be said "that the danger of a running engine would not be obvious to a child of even 7 years in this country". He further observed as follows:-
"But if indeed the plaintiff was so young as not to realise that a running engine was an obvious danger, we are only relegated back to the dilemma and compelled to hold that the plaintiff had no right whatever to be there and that her parents had no right whatever to allow her to be there. We might say that the appellant Railway Administration while allowing persons of ordinary intelligence to cross a line of rails cannot be supposed to have licensed them not to look and see whether there was an approaching engine or train before they stepped on the track."
18. In Cooke's case (5 supra), a railway company kept a turn table unlocked on their land close to a public road. The Company's servants knew that children were in the habit of trespassing and playing with the turntable to which they obtained easy access through a well-worn gap in a fence which the railway company were bound by statute to maintain. A child of about 5 years old playing with other children on the turntable was seriously injured. The unlocked turntable was dangerous. Thus it was a dangerous allurement to unsuspecting children. Lord Macnaghten held as follows:-
"Persons may not think it worth their while to take ordinary care of their own property, and may not be compellable to do so; but it does not seem unreasoanble to hold that, if they allow their property to be open to all comers, infants as well as children of matured age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission, and who are unable, in consequence of their tender age, to take care of themselves."
In that case Lord Atkinson took the view that the children who had access to the turntable were in the position of licensees. That was a case where a dangerous machine in disuse was left unlocked, unfastened and unattended with easy access to unsuspecting children who were allowed to play with it, and a child playing with it had his leg crushed - the accident did not take place while the turntable was being used. The railway company was found liable for damages.
19. In Robert Addie and Sons (Collieries) Limited v. Dumbreck (4 supra) a four year old boy was killed by an horizontal iron wheel of a haulage system belonging to a Colliery Company which was set in motion by the Colliery servants without noticing the boy. The haulage system was located in a field surrounded by a hedge which did not help in keeping out the public and the said field was being used as a play ground by young children, to the knowledge of the Colliery Company. Lord Chancellor Halisham observed that there were three categories in which person visiting premise belonging to another person might fall - (i) invitees i.e., those who visit by invitation, express or implied, of the occupier, (ii) licensees i.e., those who visit the leave and licence of the occupier and (iii) trespassers. He was not inclined to agree that there could be another category in between licensees and trespassers. As regard s duties of the occupier to visitors falling in each of those three categories, he held as follows:-
"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 said 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 his premises at his own risk. An occupier is in such a case liable only where the injury is due to some will ful 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."
On the facts of the case on hand, the Lord Chancellor held that it was proved that the boy was only a trespasser and not licensee as follows:-
"The only question is whether, upon the findings of fact of the Court of Session (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 Court of Session, '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 the 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 gap in the hedge through which it was easy to pass on the field. I cannot regard the fact that the appellant 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 other Law Lords agreed with the Lord Chancellor. Viscount Dunedin observed that in deciding cases of the type he was dealing with, the first duty of the Tribunal was to fix once and for all into which of the three cases, - invitees, licensees, trespassers - the person in question fell. He found the boy a trespasser and not licensee. Lord Buckmaster agreed with him and held that there was nothing in that case to show that the presence of children upon the spot was ever sanctioned by the Colliery Company. Then he stated the law as regards care towards child trespassers as follows:-
"If it once be held that the child was a trespasser, innocent as the trespasser was, there was no legal duty cast upon the appellants (Colliery Company) to afford protection against the danger which they must have known use of the land by the children almost necessarily involved.........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."
Cook's case (5 supra) was distinguished by Lord Chancellor Hailsham on the ground that there was evidence in that case to inter 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; and that therefore that case did not throw light upon the question as to any duty owed by the occupier of premises to a trespasser.
20. In Robert Addie's case (4 supra), Lord Chancellor Hailsham in his judgment referred to Haughton v. North British Railway Co.,(1892) 20 R. 113 had observed as follows:-
"In Haughton v. North British Ry. Co., (1892) 20 R. 113 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 person engaged in the shunting knew when they proceeded to shunt that the children were upon the line."
Viscount Dunedin also referred to Haughton's case (1892) 20 R. 113 and observed as follows:-
"The facts (in Haitghton's case) 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 through on to the siding, shunting operations were going to 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 averment 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 Delvin's case (5 F. 130,135) and the Lord President held 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 trespasser. The truth is that in cases of trespass there can be no difference in the case 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.........
And then you have the doctrine of contributory negligence affecting an adult but not affecting a very young child.......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 see 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 injury either directly malicious or an acting so reckless as to be tantamount to malicious acting."
21. Haughtdns's case (I3supra)this was distinguished on the basis that occupant's servants who began the shunting knew that the children were on the line and under those circumstances the injury caused to them was wilful or malicious - the occupier was held liable because even though there is no duty owed to a trespasser to take care, yet he cannot be harmed wilfully or maliciously. Hanghton's case (15 supra) can also be justified on the basis that the children were being allowed to stray on the siding without any objection and the action of the occupier in not preventing them from entering the siding would amount to children's presence being licensed or the children being Wire Rope Company limited v. Callan (6 supra), decided without any theoritical inhibitions, on the first flush, extempore. The appellant before the House of Lords in that case was a company which set up a siding in a piece of land under a licence from its owner. The siding consisted of a pulley block attached to post fixed to the ground. A wire rope passed through the pulley. The machinery was used about 3 times a week and the period of its operation would be only a few minutes. Adjoining this piece of land was a public play ground used by children who used to stray into the bit of land licensed to the appellant and play round the pulley block. It was not in dispute that children "swarmed about the place'. On one occasion two of the appellant's employees as per their usual practice walked to the pulley for the purpose of seeing that the wire rope was properly set around the pulley and of driving the children away. After the men went back to start the machine, a little girl aged 5 years was seen swinging on the rope and when the machine was started, the movement of the rope caused her hands to be caught in the pulley and crushed. Her 9 year old brother was also injured in trying to rescue her. There was no direct evidence as to what actually happened. Lord Buckmaster in a very short judgment observed and held as follows :-
"There is no doubt that these people (the two servants of the company) do what is obviously their duty to do in the circumstances, that is, go and adjust the wire, and when doing that see if there are any children before they start the work. They did that on this occasion, but they went back and started the machinery without being clear that the wire was free from children, and one little child who was either sitting on it or playing with it - what she was actually doing no one knows - got her hands entangled in the machinery, and her little brother, who came to help her, got his hand injured too. It is in respect of those injuries that these proceedings have arisen, and it is argued that in the circumstances there was no duty whatever on the part of the Excelsior Wire Rope Company to these children, and consequently the action must fall.
My Lords, if I have adequately explained the facts as they present themselves to my mind, they answer the whole proposition. To the knowledge of the Excelsior Wire Rope Company these children played uninterruptedly round this post, there was nothing to prevent them doing it, and I cannot find that there is any evidence to show that, except at the moment when this machine was going to be set in action, they were ever driven away. It was therefore well known to the appellants that when this machine was going to start it was extremely likely that children would be there and, with the wire in motion would be exposed to grave danger.
In such circumstances the duty owed by appellants, when they set the machinery in motion, was to see that no child was there, and this duty they failed to discharge."
Earlier about children, Lord Buckmaster observed :
"It really is a ridiculous thing to imagine that you can expect the same gravity and decorum from children as that which is sometimes associated with advanced years, and for the purpose of this case it is important to remember that the duty which we are about to examine is a duty to these children."
Viscount Dunedin referred to Addie's case (4 supra) and observed as follows:-
"In Addie's case (4 supra), I called attention to the necessity, in order to find the criterion of duty, to fix within which of the three classes of invitees, licensees, or trespassers a person falls; but the negligence here was such that, inasmuch as the greater always includes the less, it does not matter in which class you find him. Assuming, as did Scrutton L.J., that the children were trespassers, I think that, to use the words of Viscount Hailsham in Addie's case, the appellants' servants acted 'with reckless disregard of the presence of the trespasser'; or, to use my own, that the acting was reckless as to amount to malicious acting'................
The appellants here had the right to keep children away from the sheave, and if it had been necessary I would have been prepared to find that the children were licensees in the sense of the decided cases, because I think that the word' licensee' in the cases that have to do with this subject, though not probably a perfectly accurate word, is certainly intended to include another class, if you so call it, which I may coin a word to represent -namely, a permittee (the appellants) permitted the children to use the post as they did."
Lord Warrington of Clyffe observed that the question whether the children were invitees, licensees or trespassers for the purposes of a case in which the defendant had a dangerous machine on his own land was not a question which need engage their attention. On the facts he held :
"It seems to me quite plain that there was a duty upon the present appellants, by their servants, when they wee about to put this machine in motion, so that it would become a danger to any children who might be in the neighbourhood, to see whether or not at that moment there were children in such a position as to be exposed to danger. That duty was plainly neglected and under the circumstances I think the appellants have rightly been held liable."
22. The line between Callan's case (6 supra) and Robert Addie's case (4 supara) is very thin. Though Callan's case (6 supra) made a healthy departure, the justification for it and the departure from Robert Addie's case (4 supra) came a little later perhaps persuaded by the views of the Australian Courts which were more considerate and liberal in laying the duty to the trespasser.
23. In Edwards v. Railway Executive, 1952 Appeal Cases 737 a young boy of 9 years sustained electric burns and shock from contact with a live electric rail upon the railway line of the respondent's railway and lost his right arm owing to the subsequent passage over it by a train of the respondents which was travelling along that line. The boy went through the gap in a fence separating the respondent's railway lines in search of a ball when dared by his friends to go across the lines before a train came fast and look for the ball. It was found that the boy never had been through the fence earlier and that there was no allurement; he went through the fence to get his ball over the rails because he was dared to do so. The question that arose was whether the boy could be considered as a licensee. Lord Porter observed that the boy knew that the fence was there to keep him and other children out and that he had no right to cross it and that he also knew that it was dangerous to cross the lines but may not have appreciated the danger of the live rail. The distinction between Cooke's case (5 supra) and the present case pointed out by Lord Porter is that in Cooke's case (5 supra) there was evidence to show that children were regularly going and playing with the turntable - ''mere was an open and well worn pathway leading to .table on which children children could ride and which was an allurement to them. Apparently the whole station staff in that case knew of the practice of children to congregate there and ride upon the turntable and no attempt was made to stop them" - Whereas in Edivards case, there was no evidence that any child had been seen passing on to the track. Lord Porter further observed that it was for the plaintiff to establish a licence and that there was no evidence in that case to justify such a finding. It is significant that he observed as follows;-
"An open pathway, as in Cooke v. Midland Great Western Railway of Ireland (5 supra) or knowledge that a track is and has long been constantly used, coupled with a failure to take any steps to indicate that ingress is not permitted, as in Lowery v. Walker (13 supra) may well amount to tacit licence. But I do not accept the theory that every possible step to keep out intruders must be taken and, if it is not, a licence may be inferred."
However, Lord Goddard struck a different note when he observed as follows:-
"An if it be child that is injured reliance is sure to be placed on that hard worked case Cooke v. Midland Great Western Railway of Ireland (5 supra), which was in fact decided on points as unusual and special as any could be. If a owner, whether a railway company or a private individual, for years has allowed part of his premises to be used as a children's playground some care must be taken for the safety of those who will take advantage of the facility or amenity that appears to be offered them. If a land owner allows them to play in proximity to a dangerous thing that he maintains on his land, he must guard it or make it safe. But repeated trespass of itself confers no licence; the owner of a park in the neighbourhood of a town knows probably only too well that it will be raided by young and old to gather flowers, But because he does not post a number of keepers to chase away intruders how is it to be said that he has licensed what he cannot prevent? In this respect children, small boys especially, resemble burglars; if they want to get in they will, take what precautions you may".
24. In Videan V. British Transport Commission, (1963) 2 Queen's Bench 650 an infant aged 2 years, the son of a village station master who lived with his family in the station master's house adjoining the platform, strayed on to the railway track from the platform. Nobody knew now this Happened. By the time he discovered the child on the railway track, his father, the station master, saw a power-driven trolly approaching the station and the child at a considerable speed. The porter also saw it. They waved their hands in an attempt to convey to the trolley driver to stop it who misunderstood their gesticulations by the time the trolley driver saw the child and applied brakes it was rather late. In a bid to save his child, the station master jumped on to the track in front of the trolley, and though he could barely save the child he was killed. The child also received several injuries. Damages were claimed both for injuries to the infant as well as for the death of the station master, by his widow. Lord Denning found Addie's case (4 supra) standing as rode in the way of the infant's claims. Lord Denning found that the rule in Addie's case (4 supra) that the occupier of the land owed no duty to a trespasser to take care for his protection except that he should not do anything with the deliberate intention of doing harm to the trespasser or with a reckless disregard of the presence of the trespasser, would work most unfairly in the case of an innocent trespasser without any wicked intent like a child too young to do wrong or a grown-up who had lost his way. He observed:-
"Hence the shifts to which generations of judges have been put to escape the rule. They have time and again tuned a trespasser into a licensee so as to give a remedy for negligence when otherwise he would have none. Notably in Cooke v. Midland Great Western Railway of Ireland (5 supra) and Loweryv. Walker (13 supra) 1911 Appeal Cases 10, where persons came on the land without any permission in fact, but were held, by a fiction, to be there by the leave and licence of the occupier.
In recent years a new way has been found to mitigate the harshness of the old rule about trespasser. It has been done by observing that it only applies when it is sought to make the occupier liable, as occupier, for the condition of his premises. It leaves untouched his duty towards his neighbour to conduct his activities with reasonable care. Thus he may be liable as neighbour for negligence when he would not be liable as occupier. I drew attention to this distinction in a speech which I delivered in the House of Lords in Miller v. South of Scotland Electricity Board (1958 S.C. (H.L.Q20) and it has been made manifest by an illuminating trilogy of cases in the High Court of Australia namely. Thompson v. Bankstown Corporation ((1953) 87 C.L.R. 619), Rich. v. Commission for Railiways ((1959) 101 C.L.R. 135), and Commission for Railways v. Cardey (1960) 104 C.L.R. 274. But I must need make it good to-day."
Lord Denning then went on to discuss the duty owed by a contractor or any one else, (not being by the occupier) who conducts activities on land towards a person who was lawfully there and found that there was no distinction in the duty of occupier or contractor towards persons who were lawfully present on the land and that there could not be any distinction also in the case of duty towards trespassers owed by them. He then introduces the test of foreseeability in the case of trespassers and elaborates as follows:-
"What is the duty ? He is clearly under a duty towards alt persons lawfully on the land. He owes them a duty to use reasonable care in doing his work not to injure them. But what is his duty towards a trespasser ? The answer, I think, is to be found by applying the test of foreseability which is so ample established in our law by Donoghue v. Stevenson (1932) A.C. 562) - The true principle is this; In the ordinary way the duty to use reasonable care extends to all persons lawfully on the land, but it does not extend to trespassers, for the simple reason that he cannot ordinarily be expected to foresee the presence of a trespasser. But the circumstances may be such that he ought to foresee even the presence of a trespasser; and then the duty of care extends to the trespasser also. Children's cases afford a good illustration. As I said in Miller's case (1958 S.C.(H.L)20: 'He ought to have children in contemplation if he knows that they are in the vicinity or are likely - then or later - to be attracted to the spot. It does not avail him to say: They are 'trespassers' and wash his hands of all responsibility. He cannot take refuge in the thought. I am not going to bother about them-they have no permission to be there. He must bother about them if he knows or ought to know that they are likely to be affected by what he is doing. He must take reasonable care to prevent injury to them. Once he foresees their presence, he owes them the common duty of care, no more and no less. I would not restrict it to a duty, 'to treat them with common humanity, for I do not know quite what that means. I prefer to say that he is to take reasonable care."
He then points out the various factors that have to be taken into account like the gravity and likelihood of the probable injury depending on the nature of the activity, the character of the intrusion by the trespasser, the nature of the place where the trespass occurs, the knowledge which the occupier has or ought to have, of the likelihood of trespassers being present etc. he summed up as follows:-
"I am not disturbed by the suggestion that it is difficult to distinguish between a man's activities on land and the static condition of premises. I should have thought that whenever an occupier does things on land, whether he runs a moving staircase or puts a bull into a field, or drives a railway engine, or uses land as a cinder tip, or even digs a hole, he is conducting activities on the land and he is under a duty of care, even to trespassers, if he ought to foresee their presence: and he is none the less under that duty because he is an occupier."
Applying that test, Lord Denning found in that case that the railway line is not open to the public and it could not be reasonably foreseen that a trespasser would be there and that not even a child trespasser could be foreseen, for there is no evidence that children were in the habit of trespassing there at all. Harman L.J. and Pearson LJ. agreed with this view. Harman L.J. held:
"The cases, however, do show that there may be a duty even to trespassing children in some circumstances...........
Robert Addie & Sons (Collieries) ltd. v. Dwnbreck (4 supra), which was decided the other way and seems difficult to distinguish on its facts from the Excelsior case (6 supra), turned, I think, on the older view that occupiers of land had no duty towards a trespasser. I do not for myself concur in the view that a different degree of liability rests on an occupier and some other persons doing some act on the land. The occupier, if he does the like acts, has the same responsibility as the outsider. In both cases foreseeability is the test.
Negligence in law involves a duty - see per Scrutton L.J. in Mourton v. Poulter ((1930) 2 K.B. 183). See also Lord Porter's observation in Hay or Bourhill v. Young ((1943) AC 92), where he says this: 'In the case of a civil action there is no such thing as negligence in the abstract. There must be neglect of the use of care towards a person towards whom the defendant owes the duty of observing care, and I am content to take the statement of Lord Atkin in Donoghue v. Stevenson, (1932) AC 562) as indicating the extent of the duty".
Lord Pearson pointed out how a trespasser differed from lawful visitor as follows:-
''the trespasser differs from lawful visitors in two main respects. First he has no right to enter on the land, or, having entered, to remain there. Secondly, so long as he is an unknown and merely possible trespasser, his presence and his movements are unpredictable."
After elaborating on that, he pointed out:-
"If, however, the presence of the trespasser is known to, or reasonably to be anticipated by, the person concerned (whether he be the occupier, or a servant or agent of the occupier, or his invitee or licensee, or a person the trespasser, because he must treat even a trespasser with common humanity. The trespasser is a neighbour, though an under privileged neighbour. It must be said that the duty of care owing to a trespasser by the person who knows of or ought reasonably to anticipate his presence is radically different from the duty of care owing to a lawful visitor.
xxxx xxxx xxxx The two principles governing liability to trespassers seem to have emerged clearly. If the person concerned does not know of or have good reason to anticipate the presence of the trespasser, that person owes to him no duty of care because he is not within the 'zone of reasonable contemplation' and is not a 'neighbour'. If the person concerned knows of or has good reason to anticipate the presence of the trespasser, that person owes to the trespasser a duty of care which is substantially less than the duty of care which is owing to a lawful visitor, because the duty to a trespasser is only a duty to treat him with common humanity and not a duty to make the land and operations thereon safe for the trespasser in his trespassing.
If those are the principles, there is no longer any excessive rigidity in the law........ Also there is flexibility, and some scope for development of the law, in determining what constitutes breach (or performance) of the duty which is owing to trespassers whose presence is known or reasonably to be anticipated........... But it is a breach of the duty to show reckless disregard of the presence of a trespasser I do not think the phrase 'reckless disregard', illustrative though it is, should be considered as an exhaustive statement or as an inflexible formula."
25. Then there are two decisions, one of the House of Lords in British Railways Board v. Herrington, 1972 Appeal Cases 877 and another of the Privy Council in Southern Portland Cement Ltd. v. Cooper ,(1974) 1 All.E.R. 87 which mark a departure from Robert Addie's case (4 supra), and strike a liberal note as a regards the care of an occupier towards the trespasser. Cooper's case, (1974) 1 All.E.R. 8 however, was preceded by an earlier decision of the Privy Council in Commissioner for Railways v. Quinlan, 1964 Appeal Cases 1054. That was also a case which came from Australia like Cooper's case.
Viscount Radcliffe, who delivered the judgment in Quintan's case, 1964 Appeal Cases 1054 stated the type of knowledge which the occupier should have to impose on him the duty not to be wilful or reckless towards the man to whom otherwise he would owe no duty at all i.e., trespasser. He observed:
"......such knowledge is something a great deal more concrete than a mere warning of likelihood. The presence, if it is to be treated as anticipated, must be 'extremely likely', to use Lord Buckmaster's words in the Excelsior Wire Rope Co.'s case (6 supra). There was 'great likelihood, not to say certainty of boys and others coming upon the site, per Dixon C.J., in Commissioner of Railways (N.S. W.) v. Cardy (104 CLR 274): the trespasser must be one whose coming is 'expected or foreseen'. In the same case Windeyer J,, says that 'the occupier's immunity from actions by trespassers may be qualified if he knows that they are or very probably may be present'. This is the same thing as was said by Evatt, J., in Barton's case, (49 CLR 114), 'As a general rule the plaintiff must show that the occupier knew of the actual, or, at least, the very probable, presence of the trespasser on his land at the very time when some activity fraught with danger to the trespasser was being continued'. In their Lordships' opinion, if an occupier is being charged with breach of duty towards a trespasser in not giving him warning of some dangerous activity that is conducted on the occupier's premises and by which the trespasser has been injured, the law requires that the occupier's knowledge of the other's presence at the material time should be established in some such terms as those quoted above."
Commenting on Haughton's case (15 supra) Lord Radclifee observes:-
"The shunting case ..........where injury was inflicted on children known to be in the path of moving railway trucks, must also be regarded as one in which 'malicious injury' was caused to trespassers."
26. In Harrington's case (18 supra), a child aged about 6 years was injured on a live electrified rail of a railway line. The railway line passed by the side of a meadow where the children lawfully played and the fence, which was supposed to make the railway line in accessable, was in disrepair and the people passed through it from the meadow to take a short-cut across the line. Children had been seen on it but no repairs were made to the fence. On the fateful day, the child, who was playing in the meadow, crossed over to railway line through the fence and came into contact with the electrified line and sustained severe injuries, though rescued. Action was brought by him through his mother for damages for negligence etc., against the British Railways Board. The rule in Robert Addie's case (4 supra) and the test of foreseeability laid by Lord Donning came up for consideration. Lord Reid observed that if Lord Denning's foreseeability test was applied to the fact so Addie's case (4supra) it should have been decided the other way because in that case the presence of the children was not only foreseeable, but it was very probable. He further observed that in Addie's case (4 supra) it was held that no duty at all arose until the trespassers were known to be on the land and that duty was to act with humanity towards trespasser and not to act recklessly. Lord Reid moulds the test of foreseeability not satisfied with the law laid in Addie's case (4 supra) restricting the duty of the occupier to trespassers known to be on the land or who had arrived on the land, in the following manner:-"
"But an occupier does not voluntarily assume a relationship with trespassers. By trespassing they force a 'neighbour' relationship on him. When they do so he must act in humane manner - that is not asking too much of him - but I do not see why he would be required to do more.
So it appears to me that an occupier's duty to trespassers must vary according to his knowledge, ability and resources. It has often been said that trespassers must take the land as they find it. I would rather say that they must take the occupier as they find him.
So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give any thought to their safety. He might often reasonably think, weighing the seriousness of the danger and the degree of likelihood of trespassers coming against the burden he would have to incur in preventing their entry or making his premises safe, or curtailing his own activities on his land, that he could not fairly be expected to do anything. But if he could at small trouble and expense take some effective action, again I think that most people would think it in humane and culpable not to do that. If some such principle is adopted there will no longer be any need to strive to imply a fictitious licence, xxxx xxxx xxxx .......One would have to look at his (occupier's) problem as a whole and ask whether it would have been humane or decent of him to do nothing. That may sound a low standard but in fact I believe that an occupier's failure to take any preventive steps is more often cause by thoughtlessness than by any shirking of his moral responsibility. I think that current conceptions of social duty do require occupiers to give reasonable attention to their responsibilities as occupiers, and I see nothing in legal principle to prevent the law from requiring them to do that."
Applying that test Lord Reid held the British Railways Board liable for the accident in that case. Lord Morris of Borth-y-Gest also departs from the Addie's rule. He poses the question:
"Though, generally speaking, an occupier is not obliged to fence his land and though, generally speaking, there is no obligation to prevent somebody from becoming a trespasser - are there some circumstances in which a duty arises to take some action to lessen the risk of peril both in the case of a potential or prospective trespasser and in the case of someone who has become a trespasser?"
He observes that in Addie's case (4 supra) it was held that an occupier owed no duty to a potential or prospective trespasser and that it was expressly and indeed inexorably laid down that towards an actual trespasser he owed no duty apart from the duty not maliciously to cause him injury. Then he goes to the old English cases dealing with injuries caused by spring guns like Ilott v. Wilkes (1820 3 B & ALd. 304 where Best, J. observed:
"Humanity requires that the fullest notice possible should be given, and the law of England will not sanction what is inconsistent with humanity."
As regards the duty to warn about the presence of the spring guns in the occupiers land, because it was 'common understanding of mankind' that such notice ought to be given. He then observes:-
"The spring gun would be placed on land because the possible presence of a trespasser would either be expected or foreseen - and there would be the circumstance that injury was intended. Though the conditions of danger on the railway track in the present case were not created with any intention of doing injury to anyone, if it could be expected or foreseen that some trespasser (such as a young child) might run into the danger unawares, was there some and, if so, what duty to take some and what steps to seek to avert such an occurrence? If humanity is to be a guide should it not operate to lessen the risk of foreseeable injury from a danger which has been created even though such injury is not intended?
If the passages to which I have referred show that even in days when property rights were jealously safeguarded it was firmly recognised that the dictates of humanity must guide conduct even towards trespassers, such recognition must surely be no less firm today. Indeed, it should be firmer. It is today basic to our legal thinking that every member of a community must have regard to the effect upon others of his actions or his inactions. If in all probability the boy in the present case would not have suffered injury had the fence been in ordinary repair instead of being left dilapidated for weeks on end the question might be asked - even so, as the boy would be a trespasser the moment he crossed the line of the fence, why and for what reason, should be railways board owe him any duty at all beyond that of not deliberately harming him thereafter or of acting with reckless disregard of his presence on their land? I would answer for reasons of common sense and common humanity. The nature and extent of any duty owed will call for separate consideration. But there must be some circumstances in which by reason of them, a duty is owed by an occupier of land to potential trespassers as well as to actual trespassers of whom he is positively aware. As my noble and learned friend, Lord Pearson, said in Videan v. British Transport Commission ((1963) 2 Q.B. 650, 677-678), it is a heresay to suggest that occupation of land is a ground of exemption from liability: on the contrary (he said) occupation of land is a possible ground of liability and if a duty of care is owed then any person to whom it is owed is a neighbour though the content of the duty will vary according to the circumstances."
He thus introduces commonsense, ordinary intelligence and civilized behaviour tests adopting Lord Atkin's view of 'neighbour' in Doioghue v. Stevenson ((1932) AC 562) that neighbours are:-
"Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
Adopting the approach of Lord Pearson in Videan v. British Transport Commission (17 supra), he observes as follows:-
"In agreement with him, I do not think that there is any sound basis of principle for differentiating sharply between liability for the static condition of land and liability for current operations of land. In general, therefore, a trespasser has not only to take the land as he finds it but the current operations on land as he finds them. Yet a potential or actual trespasser may on occasion be a neighbour and, as my noble and learned friend said at p.678: 'the expression 'duty to a neighbour' is more appropriately used as an aid to ascertaining whether or not there is a duty of care owing by one person to another rather than as a definition of the content of such a duty'. So, at pp.680-681:
"If the person concerned does not know of or have good reason to anticipate the presence of the trespasser, that person owes to him no duty of care because he is not with in the 'zone of reasonable contemplation and is not a 'neighbour'. If the person concerned knows of or has good reason to anticipate the presence of the trespasser, that person owes to the trespasser a duty of care which is substantially less than the duty of care which is owing to a lawful visitor, because the duty to a trespasser is only a duty to treat him with common humanity and not a duty to make the land and operations thereon safe for the trespasser in his trespassing."
Lord Wilberforce observes that Addie to some extent represented a step back in the direction of categorisation (invitee, licensee, trespasser) from an earlier more general attitude to the duty of care. He also points out that Callan's case one escapes from a narcotic pre-occupation with the occupier/trespasser relationship." After reviewing the various cases, he lays down the ground marks for deciding matters involving occupier - trespasser connection as follows:-
"In general, an occupier of land owes no duty to trespassers, or intending trespassers: he is not obliged to make his land safe for their trespassing. If he knows, or 'as good as knows' of the actual presence of a trespasser, he is under a duty as defined in Addie's case -not to act with the deliberate intention of doing harm to him or to act with reckless disregard of his presence.........
I see no reason to discard the alternative test of 'extremely likely' in relation to the trespasser's presence It excludes necessarily any lower duty of foreseeability in the general case by an occupier of trespassers' presence........
The question remains whether, in particular circumstances, a man may be under some duty of a particular kind, other than to abstain from wilful injury, or reckless disregard. A test more specific than that of 'foresight of likelihood of trespass' and a definition of duty more limited than that of 'the common duty of care' is required.
..........We must try at least to set up some boundary marks, I think it is safer to proceed by exclusion,...... An occupier is not under any general duty to foresee the possibility of likelihood of trespass on his land, or to carry out inspection to see whether trespass is occurring or likely.......
An occupier is under no general duty to fence his land against trespassers, or even against child trespassers, and in my opinion, in principle, this exclusion is valid whether or not the occupier iscarrying on operations on the land or whether some danger exists through a static condition.........
Exceptions may be found...........
(a) in the case of pitfalls and analogous situation of dangers created near a place where the victim had a right to go, (b) in the case of allurments to children. The principle behind the latter is, in my opinion, not one of imputing a licence, but that of a duty to take reasonable steps not to place in the way of small children potentially hurtful and attractive objects.
In the particular case of railway companies, there is no general duty to erect or maintain fence sufficient to exclude adults or children the only duty is to mark off the railway property .... The ingredients of such duty as may arise must stem from the inevitable proximity to places of access, including highways, from the continuous nature of the danger, from the lethal danger of contract and from the fact that to children the danger may not be apparent. There is no duty to make the place safe, but a duty does arise because of the existence, near to the public of a dangerous situation.
What is the nature of this duty of care? Again, it must be remembered that we are concerned with trespassers, and a compromise must be reached between the demands of humanity and the necessity to avoid placing undue burdens on occupiers. What is reasonable depends on the nature and degree of the danger. It also depends on the difficulty and expense of guarding against it. The law, in this context, takes account of the means and resources of the occupiers or other person in control-what is reasonable for a railway company may be very unreasonable for a farmer, or (if this is relevant) a small contractor."
Lord Pearson also seems to echo the same when he says:
"If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier has a duty to trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated, it is duty to treat the trespasser with ordinary humanity."
He points out that the formulation of that duty as given in Addie's case (4 supra) is severly restricted and is now inadequate and observes:
"It seems to me that the rule in Addie's case (4 supra) has been rendered obsolete by changes in physical and social conditions and has become an incumbrance impending the proper development of the law. With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardensor back yards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass. Also with the progress of technology there are more and greater dangers for them to encounter by reason of the increased use of, for instance, electricity, gas, fast-moving vehicles, heavy machinery and poisonous chemicals. There is considerably more need than there used to be for occupiers to take reasonable steps with a view to deterring persons, especially children, from trespassing in places that are dangerous for them."
Lord Diplock summarises the characteristics of an occupier's duty to trespassers on his land rejecting the formulation of the duty in Addie's case (4 supra) and so far as it is relevant for the present case, they are:
"First: The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or of facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger Secondly: Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser's presence of the risk to him involved, does not absolve the occupier from his duty to the trespasser if a reasonable man possessed of the actual knowledge of the occupier would recognise that likelihood and that risk.
Thirdly: The duty when it arises is limited to taking reasonable steps to enable the trespasser to avoid the danger. Where the likely trespasser is a child too young to understand or heed a written or a previous oral warning, this may involve providing reasonable physical obstacles to keep the child away from the danger.
Fourthly: The relevant likelihood to be considered is of the trespasser's presence at the actual time and place of danger to him. The degree of likelihood needed to give rise to the duty cannot, I think, be more closely defined than as being such as would impel a man of ordinary humane feelings to take some steps to mitigate the risk of injury to the trespasser to which the particular danger exposes him. It will thus depend on all the circumstances of the case: the permanent or intermittent character of the danger; the severity of injuries which it is likely to cause: in the case of children, the attractiveness to them of that which constitutes the dangerous object or condition of the land; the expense involved in giving effective warning of it to the kind of trespasser likely to be injured, in relation to the occupier's resources in money or in labour."
27. Now remains Cooper's case (19 supra) decided by the Privy Council. In that case, the claim for damages that came up for consideration was of a boy aged about 13 years who sustained very severe injuries while as a trespasser on the land occupied by a Cement Company (the appellant before the Privy Council) by coming in contact with a 33 K.V. live electrical cable. That electric cable was carried by poles and was about20 feet above normal ground level but at the time when and at the place where, the accident took place, some waste material was dumped thereby raising the ground level and consequently reducing the height of the cable within the reach of the boy on the waste dumpt. The school children were in the habit of playing near about that place. Children found the 'dumphill' alluring and no objection was taken to their playing there. The boy was playing with his friends on the dump hill at the time of the accident and his hand touched the live cable resulting in serious injuries to him, The question was, what were the duties of the Cement Company as an occupier to child trespassers? The appeal to the Judicial Committee arose form the decision of the High Court of Australia. The opinion of the Board was delivered by Lord Reid. He observes that in view of the wide variety of views which have been expressed in numerous cases, it is necessary to reexamine and restate the basis of the law relating to the duty of an occupier to a trespasser and that "the Addie formulation of the occupier's duty is so narrow that it will not cover many cases where humane considerations would clearly impel an occupier to do something to avoid or lessen danger to trespassers." He observes that "it is not enough to say that he must not act recklessly or maliciously. His duty must be formulated in broader terms." Heagrees that the occupier's duty to a trespasser cannot be extended so as to make it exceed his duty to a licensee. Then he lays down as follows:-
"The right and interests of the occupier must have full consideration. No unreasonable burden must be put on him. With regard to dangers which have arisen on his land without his knowledge he can have no obligation to make enquiries or inspection. With regard to dangers of which he has knowledge but which he did not create he cannot be required to incur what for him would be large expense.
If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realise the danger he may have to do more, there may be difficult cases where the occupier will be hampered in the conduct of his own affairs if he has to take elaborate precautions The more serious the danger the greater is the obligation to avoid it. And if the dangerous thing or something near it is an allurement to children that may greatly increase the chance that children will come there.
28. Next comes the question to whom does the occupier owe a duty. Their Lordships have already rejected the view that no duty is owed unless the advent of the trespasser is extremely probable. It was argued that the duty could be limited to cases where the coming of trespassers is more probable than not. Their Lordships can find neither principle nor authority nor any practical reason to justify such a limitation. The only rational or practical answer would seem to be that the occupier is entitled to neglect a bare possibility that trespassers may come to a particular place on his land but is bound at least to give consideration to the matter when he knows facts which show a substantial chance that they may come there.
xxxx xxxx xxxx The problem then is to determine what would have been the decision of a humane man with the financial and other limitations of the occupier Their Lordhsips adopt the statement of Lord Uthwatt in Read v. j. Lyons & Co. Ltd. (1947) Appeal Cases 156):
.........there is demanded of him a standard of conduct no higher than what a reasonably minded occupier of land with due regard to his own interests might will agree to be fair and no lower than a trespasser.... might in a civilised community reasonably expect"
29. This exploration of the English Law is necessitated because the Indian decisions on this aspect of the law are few and far between. It is clear that the fixed and inflexible rule of Addie's no longer holds the field. The very learned discussions of the five Law Lords in Herrington's case (18 supra) seem to have led to the unanimous view of the Judicial Committee of the Privy Council in Cooper's Case(19supra) expressed by Lord Reid who was also one of the five Law Lords in Herrington's case. The applicability of Lord Denning's test of foreseeability was clarified and the concept of reasonable care was introduced. The resultant position emerging seems to be one of humane and civilised approach keeping in view the various factors and circumstances mentioned by Lord Reid in Cooper's case (19 supra) tracing the principle from what Best, J., said in 1820 in Ilott v. Wilkes ((1820) 3B. & Ald. 304, laws of England will no sanction what is inconsistent with humanity" and adapting that approach to modern conditions and developments enabling the present day occupier to engage in manifold activities in his property actually or potentially dangerous to unwary and innocent trespassers.
30. I am of the view that the law in our country as regards the duties of occupier to trespassers or intruders should be equally humane and civilised. M.C Metha's case (7 supra) is a pointer in that direction.
31. But it is not necessary for the purposes of this case to clear the entire ground on the question of the occupier's duty towards trespassers. I confine myself to the facts of the present case it relates to a child aged just about 5 years. He was living along with his four other brothers and parents in the railway quarters just by the side of the platform. It is not in dispute that these children used to cross the rails to go to the other side. It is not possible to believe the story of D.Ws.1 and 3 that they were not aware of the presence of the plaintiff and his elder brother before the accident took place. They say that they did not see the boys till the actual occurrence of the accident. Even if this is to be believed, this also establishes negligence. It cannot be said that the shunting operations are not dangerours. Therefore the danger was there and the possibility of the presence of the children was also there. D.W.3 stated that whenever there was no movement of the trains children would be crossing the railway lines. Shunting operations do not involve continuous movement. As Lord Reid observed in Herrington's case (18 supra) if the occupier knows before the accident that there was a substantial probability that trespassers will come it will be culpable failure not to give any thought to their safety and if he could at a small trouble and expense take some effective action it would be inhumane and culpable not to do that. Again in Cooper's case (19 supra) Lord Raid speaking for the Judicial Committee rejected the view that no duty was owed unless the advent of a trespasser is extremely probable and rejected the argument that duty could be limited to cases where the coming of trespassers is more probable than not and answered "that the occupier is entitled to neglect a bare possibility that trespassers may come to a particular place on his land but is bound at least to give consideration to the matter when he knows facts which show a substantial chance that they may come there. The present case was clearly not a case of bare possibility of children being present especially when they were living right by the side of the platform in the quarters provided by the respondent In the present case the minimum care that was required on the part of the shunting personnel was that there ought to have been a proper look out and they ought to have warned the children away and ought to have seen that they were nowhere near the shunting operations. This was not done in the present case. In this I am supported also by Srinivasa Aiyanger.J., in Jayammal's case (9 supra) where he found that the presence of the child in that case "in or about the place was or must have been anticipated by those in charge of the engine" and held "agreeing entirely in this respect also with the learned Trial Judge that the special look-out spoken to by the engine driver has not been proved and that therefore the appellant company was guilty of negligence on the occasion". This shows that Coutts Trotter, J., who was the Trial Judge on the original side also took the same view. It is obvious from this that in that case the stand taken by the railway company was that they had a look out But that was not proved- It is much worse in the present case because the case of the defendant was not that there was a look out at all; on the other hand, the defendant's witnesses feign that they were not aware of the presence of the boys, which, apart from being incompatible with the pleas in the written statements, is also unacceptable in the face of their own evidence. According to D.W.1 the accident did not occur immediately when the shunting started. He states "at that time the engine was taken ahead and was put on the second line and then the oil tankers were taken to the other line. Then the wagons moved. In that movement the accident took place". Thus the accident took place when the shunting operations were in progress after the wagons were taken to the second line. It is obvious from this that there was no look out. From this it is clear that no reasonable care was taken by the servants of the defendant during the shunting operations and this resulted in the accident involving the loss of leg by the plaintiff. The facts of the present case are similar to those of Haughton's case (15 supra) referred to earlier and also to Callan's case (6 supra). I am therefore of the view that the learned IInd Additional Judge was in error in holding that there was no negligence. I find that on the facts of the present case negligence is established.
32. It cannot be said that there is contributory negligence on the part of the plaintiff. The plaintiff is a child of 5 years and there cannot be contributory negligence on the part of children of that age as observed by Lord Dunedin in Addie's case (4 supra) in the passage referred to earlier. I am supported in this view by the decision of Karnataka High Court in R. Srinivas v. K.M. Parasivamurthy, AIR 1976 Karnataka 92, Delhi High Court in Delhi Transport Corporation v. Lalita, AIR 1982 Delhi 558 and of the Madras High Court in Muthusamy v. S.A.R. Annamalai, .
33. The learned IInd Additional Judge did not give any finding on the quantum of damages to which the plaintiff would been entitled on the ground that he held on issues 1, 2 and 3 against the plaintiff. The plaintiff claimed Rs. 1,92,000/- towards permanent disablement and loss of earning capacity calculated at Rs. 400/- per month for 40 years. He claimed Rs. 5,000/- towards the expenditure incurred by his parents for treatment and he claimed Rs. 25,000/- towards mental shock suffered by him and his parents. But no receipts for medical expenses were filed. P.W.1 states that he cannot give the basis for arriving at Rs. 25,000/- towards mental shock.
34. Reliance is sought to be placed on the decision of K. Ramaswamy, J., in A.A.C. No. 98 of 1986 dated 20-1-1989 which relates to a boy who lost both his legs in a motor accident when a lorry went over his feet. The Tribunal granted Rs. 50,000/- towards loss of earning capacity and Rs. 5,000/- towards pain and suffering and Rs. 3,000/- towards medical expenses. The learned Counsel for the appellant suggests that the same criteria should be adopted. But here the appellant did not lose both the legs. He lost only one leg. There was permanent injury to the other leg. In Srinivas's case a body aged about 6 years lost his left leg in a road accident, a compensation of Rs. 10,000/- was awarded on account of the loss of leg and a sum of Rs. 2,500/- was also awarded towards pain and suffering. In the Fazilka Dabwali Transport Company Put. Ltd. v. Madan Lal, , the left foot of a child was amputated as a result of the injury received in a motor accident; the Motor Accidents Claims Tribunal awarded Rs. 7,000/- as damages which was enhanced by the High Court of Punjab and Haryana to Rs. 12,000/ - on appeal by the child. The Supreme Court upheld the said enhancement on appeal by the Transport Company. The learned Counsel for the appellant relies on the judgment of the Supreme Court in Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar, AIR 1977 SC 1189. In that case a boy aged about 4 years sustained injuries in an accident while travelling in the appellant's bus. According to the Doctor who examined the boy, he was likely to develop a permanent limp and there was a chance of rectifying the deformity when the boy reached 16 years. The Tribunal awarded Rs. 10,000/- as general damages and Rs. 890/- as special damages and the High Court enhanced the general damages to Rs. 20,000/-. The evidence showed that the boy came from a well to do family. The Supreme Court was not inclined to interfere. The learned the damages should be more. In Rajasthan State Road Transport Corporation v. Om Prakash Gupta, 1981 ACJ 332, the injured was aged about twenty five years and his right leg had to be amputated above the knee. The Claims Tribunal awarded Rs. 25,000/- towards loss of earning capacity and lessened future chances of earningand reduced capacity to work; and the High Court of Rajasthan refused to enhance the compensation further in the appeal preferred by the injured. In the present case, the appellant was aged just five years at the time of accident and was not even going to school. Therefore compensation that can be awarded to the appellant aged about five years cannot be as higher at that. In U.P. State Road Transport Corporation v. Sarita, , the injured in a motor accident was a girl of of 8 years. Her right hand had to be amputated 8 inches below her shoulder and her left hand had been rendered useless for any work. The Tribunal awarded Rs. 25,000/- with 6% interest. The High Court on appeal by the Corporation confirmed the said award as proper, observing that she was deprived of the use of both the hands and become utterly dependent on others even for her daily chores and she had to be helped all her life for being dressed and fed, for her daily washing etc.
35. Taking guidance from the above decisions, I am of the view that on the facts and circumstances of the present case, the petitioner should be awarded Rs. 20,000/- for the loss of his left leg and the consequent privation for life and also Rs. 5,000/- towards pain and suffering. No evidence whatsoever has been adduced for establishing the expenses incurred for his medical treatment and for providing him with artificial limbs and therefore I am unable to award him anything on those counts. However, the petitioner suffered injury on 15-3-1977 and the instituted the present suit on 13-12-1977. There is much depreciation in the value of the rupee during these 17 years. I am therefore of the view that the petitioner should have also interest at 9% on the amount awarded to him from 13-12-1977 till the date of payment.
36. In the circumstances, the judgment and decree of the IInd Additional Judge is set aside and there shall be a decree in favour of the plaintiff for Rs. 25,000/- which shall carry interest at 9% per annum form the date of filing of the suit that is 13-12-1977 till payment. The appeal is accordingly allowed with costs.