RAILWAY TRESPASS (ACCIDENT) (Hansard, 24 March 1949)

§ Mr. Gallacher (Fife, West)
I have to raise the question of a railway accident of a somewhat tragic and heartbreaking character. It is one to which I want the 706 Minister of Transport to give some consideration. The accident occurred on 1st April last year to a bonny little boy, five years old. Across from the house where he lived there was a fence, guarding the railway, which was made of upright sleepers. One of the sleepers was lying on the ground, leaving a gap leading directly on to the railway lines. It was lying there for close on three weeks, and nothing was done to repair the break in the fence. A boy of five crawled through, and lost both his legs above the knee. The morning after the accident, at eight o'clock, the sleeper was back in place. I do not want to take up too much time at this late hour, and I think that hon. Members and the Ministry of Transport representative will get a better understanding if I read one or two letters in connection with the case. This little lad and his parents are not entitled to compensation of any kind. The mother writes: It was appalling to think that the gap in the fence, which was only 3 feet 6 inches from the first door step, and in the centre of the only playground the children had in this particular vicinity (the street) was left open for three weeks before the accident and was then replaced about 8 a.m. the morning following the accident. The parents, who are ordinary working class people with very little means, got a solicitor to take up their case with an advocate in Edinburgh. The advocate gave his advice to the solicitor, who in turn advised the parents of the boy. The name of the advocate is Mr. Hunter, and in a letter to the parents the solicitor states: Mr. Hunter says that, in law, Alexander "— that is the name of the boy, Alexander Whyte— was clearly a trespasser and the Railway Company's duty towards him was to avoid wilful injury. He says it is settled law that a Railway Company is not under a duty to construct an impenetrable unclimbable or childproof fence. This was decided as far back as 1883 in a case where the gap in the fence had been in existence for several months as compared with approximately two weeks in the present case. That is the advice given to the solicitor, and the solicitor advised the parents that there was no use in trying to take a case to law. That means, that arising out of a decision given some 60 years ago, this lad is denied any opportunity of taking a case for compensation. I wrote a letter to the Minister of Transport arising out 707 of the case being brought to my notice, and I said: I am enclosing a letter from my agent in Fife, with an accompanying letter from a firm of solicitors and a photograph relating to the case with which the letter deals. This story is a terrible one. An infant of five years of age, with both legs amputated above the knees, and no compensation of any kind from the Nationalised Railways. The photograph show s the sleeper-fence which guarded the Railways, but there was a gap where a sleeper was missing. The sleeper in the photograph with the cross above it was put in the day following the accident to close the gap. In the Debate which took place yesterday on the Coal Industry Bill, Mr. Sylvester, M.P. for Normanton, in the course of his speech was anxious to impress the House with the fact that there was a greater measure of humanity in the Coal Industry since nationalisation than there t ad ever been before. In this connection he said: I was walking down the street in my home town and met a man who in September last had lost an arm just below the elbow. Being an old colleague of his, naturally asked him how he was getting on. He first of all to d me how well he had been treated in hospital and then said that to his great surprise one of the under-managers had come to see him. Two days after that visit two deputies also came to see him. I asked whit was remarkable about that. His reply was that in the old days they would never have dreamed of going to see injured millers.' He had more to say on this line in regard to compensation treatment. While he was speaking I thought of the infant Alexander Whyte of whom I had heard when I was in Fife at the week-end. I appeal to you to take this matter up with the Railway Commission and ask them to review it not from the point of view of the legal decision in 1883, but with the humanity that should go with a great nationalised industry. I received the following letter from the Minister of Transport: Thank you for sending me, on 30th November, correspondence from the West Fife Constituency Committee. Fernies Buildings, Oakfield Street, Kelly, about the accident to Alexander Whyte of 9 East Park Street, Cow denbeath. I was very sorry to hear about this. As the question is now a matter for the Transport Commission to consider, I have today passed your letter on to them direct. Should you wish to get in touch with them, you should communicate with Sir Cyril Hurcomb, the Chairman of the Transport Commission at 55, Broadway, S.W.1. I got into touch with the Transport Commission, but the Minister had already passed the correspondence on to them. I got the following letter from the Transport Commission on 15th December: 708 I write with reference to the enclosed correspondence which you sent to Mr. Barnes. I have had this case carefully looked into, and feel sorry for this child who was so grievously injured. I am advised that no liability of any kind lies against the Railway Executive as, indeed, the advocate consulted on behalf of Mr. Joseph Whyte has confirmed. That being so, I regret that there is no step which the Railway Commission can take in regard to compensation. That is what comes from the Railway Executive. I want to make a couple of suggestions to the Minister that should have been considered by the Railway Executive. In the first place, I want to draw his attention to a photograph that appeared in the Press. The boy had to go to Newcastle to get artificial legs and training. His mother took him there, and at Newcastle there was another mother with a boy of the same age who had also lost both his legs. He had already had his training and was able to run about on his artificial legs, and so he was given the job of teaching little Alexander Whyte how to use his artificial legs. If the Parliamentary Secretary will look at this photograph, he will see this bonny little lad, Alexander Whyte, being given his training by the other little boy. The other little boy, David Johnsen, lost both his legs as a result of an accident with a bus. He was awarded £1,500 damages. Mrs. Whyte and the boy are staying at Newcastle with Mrs. Johnsen, but Mrs. Whyte's little boy gets nothing from the Railway Commission.
It seems to me that the letter from the Railway Executive is utterly heartless. Surely it was possible for them to consider the question of this boy and the tragic accident he suffered with the terrible handicap that now faces him. Surely it was possible for the Railway Executive to consider an ex gratia payment. At the moment, friends are organising concerts and socials to help the boy and his parents. Surely the Railway Executive could have considered the possibility of an ex gratia payment even though they were relieved of responsibility for compensation by a decision in 1883. Along with an ex gratia payment surely the Railway Executive might have said they felt so deeply for this boy and his parents and recognised the terrible handicap this means to him in his future life, that they would guarantee, as the lad grows up into manhood, to find suitable 709 employment for him, so that neither his parents nor he need have any fear for what the future may hold.
I ask the Parliamentary Secretary to the Ministry of Transport to get his right hon. Friend to take up this case. I wrote to the Railway Executive after I received their letter that I understood when I wrote to them that they had no legal responsibility after the decision of 1883, but they had a human and moral responsibility. I say to the Parliamentary Secretary that the Minister of Transport has a human and moral responsibility towards this little lad. I hope he will take the matter up with the Railway Executive and see whether an ex gratia payment can be made and that something is guaranteed by the Railway Executive to ensure the future of this unfortunate lad who met with such a terrible accident.

§ The Parliamentary Secretary to the Ministry of Transport (Mr. James Callaghan)
The hon. Gentleman the Member for West Fife (Mr. Gallacher) has recited the facts of this case and I have no quarrel with his presentation of the accident. I do not think anybody can either read the papers about this case or listen to a recital of the story without feeling what a grievous hurt this wee laddie has suffered. A small boy of five playing around climbs through a fence with a hole in it and the next thing he knows is that a freight train has run over him and his legs have been amputated above the knees—a dreadful handicap for any wee lad throughout life. I think everybody in this House will sympathise very deeply with the parents and Wee Alec himself for the misfortune that has overtaken him so early in life.
I do not know whether the hon. Member was imputing some negligence to the railway in the matter of leaving the fence unrepaired. He said the sleeper had been lying there for three weeks and was put up again within a matter of hours after the accident had taken place. The hon. Member knows the area and probably knows the difficulties the railway has in keeping a fence maintained at all. It is a constant matter of boys being boys and tearing down fences and the railway putting them right.

§ Mr. Gallacher
No; there is no question of boys taking down a sleeper like that.

§ Mr. Callaghan
I have seen the photographs and I have had a description of the position and I think there is not the slightest doubt that in regard to many fences—I am not limiting myself to this particular area—the railway are constantly having to fight against wilful damage by boys and other people who want to get through. There is no suggestion that could be sustained that the railway has been neglectful in any way in the matter of repairing fences in this particular area. As the hon. Member has said, a compensation claim was made. It was rejected, not because of any railway by-law, but on the general law of trespass. When we get into the realms of law, and get a small lad of five caught up in all the legal paraphernalia, the consequence is that, according to the law of trespass, which was accepted by the parents or their advocate, no possible claim for legal compensation can lie against the railway.
That matter has been made quite clear. The railways have to be exceedingly careful about this sort of matter. They suffer very much indeed from youthful trespassers. I am not here speaking of Alec, but I am speaking -of the general position. It would come as a shock to most people, as it came as a shock to me, to realise that 213 persons were killed or injured while trespassing on the railways last year. It is an extraordinarily high figure. The railways have had, therefore, to adopt what seems, perhaps, an extremely harsh view in the matter of compensating those who are on their property without invitation and indeed whose presence would he very strongly objected to if it was known, if they happen to suffer hurt.
It will be seen that with 213 people being either killed or injured on the railways this is a substantial problem. I am glad to say so far as Alec is concerned, he seems to be going on well at the moment, and here I would like to pay a tribute to the work of the Minister of Pensions who acts as an agent for the National Health Service and from whom I have got some information about what is being done for Alec. He did not have to go to Newcastle for legs and I do not think the hon. Gentleman the Member for West Fife meant that. He had two artificial limbs supplied at Cowden beath but because an account of the small 711 boy Douglas Johnsen appeared in a newspaper, Mrs. Whyte asked that Alec should go to Newcastle to learn to walk. One of the most affecting pictures I have ever seen, is that of the two small boys stumbling towards one another trying to walk. It is a moving picture.
I am told by the Regional Officer of the Ministry of Health that this little boy is getting on well. Three weeks ago, after they had made certain adjustments to this pair of legs they were able to order a duplicate set. He is now getting to the stage where he will be able to go to school shortly. That is fine, but nothing can remove the perpetual handicap from which he is going to suffer for the whole of his life. Trespass is a harsh term to use about a small boy of five, but talking in legal terms, it is the way one has to describe these things. I suppose that this case must be practically unique. I cannot imagine more terrible injuries for a small boy like this.
I think this is certainly the sort of case which, in the light of the facts that have been recited, is one that I ought to ask 712 the railway authorities to look at again. Clearly they are free from all legal entanglements, and no one disputes that, and if they consider the matter again it must be on that understanding. I shall ask them to see what they can do on an ex gratia basis to help this wee laddie to make his path through life easier. The hon. Gentleman said it was a matter of moral responsibility. I do not think it is a matter of responsibility at all. This is as I see it a matter of common humanity. My right hon. Friend, the Minister of Health has said that bigness is the enemy of humanity. To me it seems that what he meant was that big institutions tend to be impersonal and judicial in their dealings with individuals and that is something we ought to fight. I hope very soon that the railway authorities will be able to demonstrate to my right hon. Friend that a big institution can have not a hard head, but a kind heart, and I hope the hon. Gentleman will accept that assurance.