Titchener v British Railways Board [1983] 1 WLR 1427 House of Lords
The Claimant, a 15 year old girl, was out walking with her boyfriend who was 16. They took a short cut across a railway line and they were both hit by a train. He was killed and she was seriously injured. There was a gap in the fence at the place where they crossed and there was a pathway leading to this gap which suggested that there was repeated trespass. Also it was accepted that either the Defendant was aware of the gap or would have been aware upon reasonable inspection. The Defendant raised the defence of volenti under s.2(3) of the Occupiers Liability (Scotland) Act 1960

Held:

The scope of the duty owed to trespassers varies on the circumstances. On the facts of this case the Defendants did not owe a duty to a 15 year old trespasser who was fully aware of the risks. Even if the Defendant did owe a duty of care the defence of volenti under s.2(3) would succeed.

Lord Ross:

"In my view, the pursuer's own evidence referred to above, along with the other evidence in the case, is, in my opinion, sufficient to establish the defence of volenti non fit injuria. Such defence is open to the defenders under section 2 (3) of the Occupiers' Liability (Scotland) Act 1960, and no duty under section 2 (1) of the Act is imposed upon an occupier to a person entering on the premises in respect of risks which that person has willingly accepted as his. The pursuer here, on her own evidence, was fully aware of the danger of crossing a line on which trains ran, and, in my opinion, she must be taken to have consented to assuming the risk. There is a passage in her cross-examination which proceeded as follows:

"Q. And you knew that it would be dangerous to cross the line because of the presence of these trains? A. Yes. Q. Well why did you do it if you knew it would be dangerous? A. Because it was shorter to get to the brickworks. Q. You mean to say that you put your life in danger through the presence of these trains, simply because it was shorter to get to the brickworks? A. Well, before my accident I never ever thought that it would happen to me, that I would never get hit by a train, it was just a chance that I took."

A person who takes a chance necessarily consents to take what comes."

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