Scottish Court of Session Decisions

This was an action of damages in the Sheriff-Court of Lanarkshire by Peter M'Martin against A. Hannah, for the death of his child. The Sheriff-Substitute ( Murray) found for the petitioner, and gave £20 as solatium. The Sheriff (Bell) adhered, and added the following Note to his interlocutor, from which the facts and questions of law sufficiently appear:—“The first question to be disposed of in this case is whether the child Christina M'Martin met her death by accidentally falling through the gap in the stair railing, occasioned by the absence of one of the bannisters. Although no one actually saw the occurrence, the circumstantial coincidence, including the facts of some of her hair being found on the gas bracket immediately adjoining the gap, and of her being physically incapable of climbing over the cope of the railing, is such as to leave no rational doubt that the above question must be answered in the affirmative. The next is, whether there was such culpable or undue negligence on the part of the defender in permitting the existence of so dangerous a state of disrepair in his property as to subject him in damages? This question must also be answered in the affirmative, in respect it is proved that the state of disrepair had continued for at least six months; that the gap was quite large enough to admit of a child falling through; that the stone of the step in which the bannister had been fixed was itself worn away, which would the more readily lead to a child missing its foot; that the defender's factor and overseer had been warned of the state of matters, and that nothing was done till the fatal occurrence took place. It is true that if either a child or a grown person wilfully or carelessly expose themselves to danger, and injury ensues, no claim for compensation will lie against a party making a lawful use of his property, as was found in the recent case of Grant, Dec. 10, 1870, referred to by the defender. But, on the other hand, the law requires an owner to keep his property in an ordinarily safe condition; and if he does not, and some one suffers in consequence, carelessness is not to be presumed on the part of the sufferer, the fault of the proprietor being apparent. The last consideration in the case is, what is the fair sum of ‘damages and solatium’ to be awarded to the pursuer. He did not suffer any pecuniary loss by the death of his child, she being, on the contrary, a burden on him, and likely to have continued so, as she was weakly and decrepit. A father, however, may in certain circumstances be entitled to large compensation for the distress of mind occasioned to him by such a death. But in the present instance it is proved that the pursuer deserted his wife before the deceased was born; and although he afterwards contributed to the support of his family, and occasionally came to see them, he did not live with them in the ordinary domestic relationship, and cannot therefore be supposed to have felt the ties of parental affection very strongly. On the whole, therefore, the Sheriff is of opinion that the sum fixed on by the Sheriff-Substitute is sufficient in name of solatium.”

The defender appealed.

R. V. Campbell for him.

Mackintosh for the respondent.

The following authorities were referred to— Begbie v. Fraser, 20 D. 81; Allison on Torts, 582; Robertson v. Adamson, 24 D. 1231.

At advising—