United Kingdom House of Lords Decisions

Lord Chancellor (Loreburn)—I think that this case should be determined upon the actual findings of the learned County Court Judge. It is true that there has been some question about what he decided, and it appears that some little time after he had delivered his judgment he made an alteration in regard to a phrase which he had used. I think that it was quite legitimate to do so, because the word which he used was capable of being misunderstood, or understood in one sense rather than in another; and I see no objection to his explaining to the Court and to the parties the sense in which he used the word. He has found certain facts. He has not found them according to the letter of legal phraseology, but he has presented to us a view of the facts; and I think that what that view—by which we are bound—amounts to is this: He will not find whether there was a right-of-way or not; therefore the plaintiff did not establish that he was in the field according to a right to be in the field. Again, the learned Judge, I think, found that there was no express leave given to the plaintiff to be in that field; but I think that the effect of his finding is that the plaintiff was there with the permission of the defendant, because he finds that the field had been habitually used by the public as a short cut, and he says that the defendant was guilty of negligence in putting a horse—which he knew to be dangerous—into a field which he knew was habitually used by the public. That being the case, I think that we ought not to refine upon the language which the learned Judge has used. Perhaps it would have been better—indeed I think that it would have been better—had he been more explicit in saying what it was that he did find and what it was that he did not find; but I think that in substance it amounts to this—that the plaintiff was not in this field of right at all; that he was there as one of the public who habitually used the field to the knowledge of the defendant; and in those circumstances it cannot be right that the defendant should with impunity allow a horse which he knew to be a savage and dangerous beast to be loose in that field without giving any warning whatever, either to the plaintiff or to the public, of the dangerous character of the animal. I will not enter upon the further field of law—itself somewhat wide and not free from many difficulties—because I do not think that the facts of this case require that we should enter upon that field. Under those circumstances and for those reasons I think that the appeal ought to be allowed.

Earl of Halsbury—I entirely concur with the judgment which the Lord Chancellor has delivered and with the reasons which he has given, and I only wish to say one additional word with regard to the question of what the learned County Court Judge has found. The learned Judge used an ambiguous word. I suppose that nine out of ten people would distinguish between a person who was at a place as of right and a person who was a mere trespasser. The learned Judge did, I think inadvertently, in the first instance use the word “trespasser,” which would have carried the learned counsel for the respondent all the way that he wants to get, to a somewhat difficult and intricate question of law upon which various views may be entertained. But seeing that there was a misapprehension—or might be a misapprehension—of the sense in which he used the word “trespasser,” the learned Judge himself points out in terms that he does not find, and did not intend to find—as I think indeed the whole substance of his judgment shows that he did not intend to find—-that the injured man was a trespasser in the sense in which that word is used strictly and technically in law. I think that we are bound by the finding of the learned Judge, and I should hesitate very much to assent to the view which Vaughan Williams, L. J., seems to have entertained, that there was something wrong in his adding that to

Page: 727↓