Scottish Court of Session Decisions

This was an action of damages in the Sheriff Court at Glasgow at the instance of the widow and children of the deceased Francis Brady against John Parker for fatal injuries which the deceased had sustained through the alleged negligence of the defender and his servants. The facts of the case were these:—

On 3d December 1885, about five o'clock in the evening, the deceased, who was a dealer in coals and firewood at Milton Lane, Glasgow, went into the premises of the defender, a soap manufacturer and oil merchant, 117 Port Dundas Road, Glasgow, for the purpose of buying empty barrels to be broken up for firewood. There were two entrances to these premises, one at Port Dundas Road, which was the usual entrance, and the other at Stirling Road, which was the entrance for carts. The defender had no sale or purchase transactions in the works, these transactions taking place in the office in Frederick Street. On the road leading from the entrance gate at Port Dundas Road there was a hatch for raising goods from the cellar underneath the warehouse to the ground above. This hatch was in the form of a platform which moved up and down, worked either by steam or hydraulic pressure,

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so that when not in use it was flush with the ground. There were short stone pillars at each corner of the space in which the hatch moved, and the hatchway was fenced by chains being attached to the pillars. Brady entered by the cart entrance at Stirling Road and asked one of the defender's servants whether there were any tar barrels for sale. He was directed to go upstairs to the clerk in the warehouse, who told him that the defender did not sell tar barrels. Brady then came downstairs and proceeded to go out by the Port-Dundas Road, but afterwards turned round and went towards the Stirling Road entrance, by which he had entered the premises. In passing a lorry which was drawn up alongside the hatch he fell down the well and sustained such injuries that he died on 7th December. At the time of the accident one of the chains at the pillars was off its fastenings, and the platform was down at the bottom of the well, although the hatch was not then in use. A lamp which was hung over the hatch was not lighted.

The defence was that the deceased was not invited to go into the premises, and was there simply for his own ends, and that the selling of barrels was no part of the defender's business. The defender also averred that the deceased was wandering about in the premises, as he had no right to do, when the accident happened.

The defender pleaded—“(2) The defender not being responsible for the safety of the said deceased, he having entered the defender's works of his own accord, and solely for his own interests, ought to be assoilzied. (5) In any event, the deceased having by his own negligence materially contributed towards the accident libelled, the pursuers are barred from insisting in this action.”

The import of the proof is stated above and in the notes of the Sheriffs and opinions of the Judges.

The Sheriff-Substitute after pronouncing findings in fact substantially in terms of the above narrative, found, under reference to his note, that there was no liability, sustained the defences and assoilzied the defender.

“ Note.—… In a sense, no doubt, it may be alleged there was fault on the part of defender in not having chains up between the pillars on the outside of the hoist, and in there being no light in its vicinity on a December night about five o'clock, when the place was no doubt dark. But the deceased went into the place knowing it was dark. He remarked to the witness Norrie that it was dark. He went up the stair to the clerk, had a conversation with him, learned that there were no tar barrels for sale, and came down, and did not go out directly the way he had come in by. That that is so is proved by the evidence of the witness Anderson, who gave his evidence clearly, saying, among other things, that the deceased appeared to him to be perfectly sober. This witness says, ‘I stood to the one side and allowed him (the deceased) to pass the hoist and the lorry. He passed them both.’ He then states that immediately thereafter he heard a thud. It is obvious from the context of Anderson's evidence that the time spoken to when the deceased passed the hoist and the lorry must have been after deceased had come downstairs from his interview with the clerk. Therefore, after having passed Anderson, the deceased must have come back and got in on the other side of the lorry. No explanation is able to be given of what his object was in so doing, except, I suppose, that being in the dark he did not know where he was going. Now, in the circumstances above detailed I cannot hold there is liability. It seems to me, in the first place, that the deceased had no right to be where he was. The defender does not transact business of a commercial kind in the premises. The door in Stirling Street, which I myself saw along with the respective agents, holds out no invitation to the public to enter. On the contrary, its appearance is that of a strictly private entrance. But it is said that the witness Norrie invited him to enter by telling him to go upstairs and see the clerk. It seems to me it would be out of the question to hold that defender would be responsible on some theory that the deceased had been properly invited into the premises, because an employe of defender, who knew nothing of the details of the business, on being asked a question of this kind, said the deceased had better ask the clerk. Be that however as it may, after the deceased had gone downstairs, no explanation is given of why he did not immediately go out. In any view, after the interview with the clerk, there was no invitation, and no licence to wander about the premises. I agree with defender's agent that at the very highest the deceased's position was not more than a mere licensee. An interesting discussion upon liability in cases of license, and numerous authorities, which I need not specify here, but which are collected in the passage to which I refer, will be found in Messrs Roberts & Wallace's Duty and Liability of Employers, pp. 448 to 450, inclusive—[ TheSheriff-Substitute then referred to Walker v. The Midland Railway Company, as reported in the Law Times Reports, vol. ii. p. 450], It appears from that report that a gentleman in the St Pancras Hotel, in the middle of the night, intending to go to a W.C., went into what was called a service room in the hotel, where there was the sound of a drip of water, and fell down the cavity of a hoist in this room, whereby he was killed. It was held by a majority of the Judges in the House of Lords that there was no liability. I do not intend to go into the details of this case, but I think the report referred to clearly shows that if there was no liability for the deceased Smith falling down a hoist in premises where he was paying for his living, a fortiori there can be no liability in this case, where the deceased at his own hand went into premises which the defender did not open to the public.”

On appeal the Sheriff ( Berry) adhered.

“Note.—I concur entirely in the view which the Sheriff-Substitute has taken of this case. The facts as found by him are not disputed by either of the parties in any material particular. It was suggested indeed, on the part of the pursuer, that the finding to the effect that the defender did not sell tar barrels, or had transactions of purchase or sale at the works where the accident occurred is not supported by the evidence. I think however that that finding is justified by the evidence of the defender and his clerk, Ferguson, who both say that all the commercial part of the business is carried on at the office in Frederick Street. There was no invitation to the deceased to come into the work. The gate in Stirling Street by which he entered had

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no name upon it; it was not the principal entrance to the works, and was such an entrance door as may be seen in any of the numerous works in Glasgow which it is not intended that any of the public should use, being meant solely for the service of the works. A man going into such a work in the dark has only himself to blame if he unexpectedly meets with an accident from encountering an obstruction, or falling into an open well for a hoist, as there was in this case. There was not, in short, in my opinion, any obligation on the defender in a question with the deceased to have the works free from dangerous obstructions or pitfalls. The place was one in which the deceased had not any right or legitimate occasion to be, and it seems to me, therefore, it is impossible to hold the defender liable for the accident. I agree with the Sheriff-Substitute that it is impossible to rely on what the witness Norrie said to the deceased as an invitation to the deceased to enter the premises for which the defender can be made responsible.

“I am inclined to hold, as the Sheriff-Substitute seems to have done, that the deceased is not shown to have been intoxicated at the time of the accident, but I do not think that is material. A number of authorities were quoted in illustration of the law on this subject. These authorities, although often involving important questions of law, generally depend so much on circumstances that it is necessary carefully to distinguish between different cases in applying the law of one to the circumstances of another. But the nearest case to the present is that of Walker v. Midland Railway Company, decided in the House of Lords, March 26, 1886, which seems as yet to be reported only in the Times Law Reports, referred to in the Sheriff-Substitute's note. The judgment in that case implies a fortiori, as the Sheriff-Substitute says, that in the present case no liability can attach to the defender.”

The pursuers appealed and argued—On the following proved facts they were in law entitled to the damages concluded for:—(1) The deceased was on an errand which was perfectly legitimate. There being no notice of “No admittance” over the entrance door he had a right to enter and ask for the barrels— White v. France, June 7, 1877, L.R., 2 C.P.D. 308; Indermaur v. Dames, Feb. 26, 1866, L.R., 1 C. P. 274; Sarch v. Blackburn, Feb. 24, 1830, 4 C. P. 297. (2) He was not wandering aimlessly about. (3) The hatch was in an unnecessarily dangerous condition, for ( a) it was not flush with the ground as it should have been when not in use; ( b) it was unfenced, the chains being off the pillars— Cairns v. Boyd, June 5, 1879, 6 R. 1004; ( c) it was unlit, although a lamp was hung over it for purposes of illumination— Southcote v. Stanley, June 4, 1856, 1 H. & N. 247, vide opinion of Baron Bramwell, p. 250. (4) The deceased was invited immediately on his entry to go and ask for the barrels— vide Whiter. France, supra. The general principle of Walker v. Midland Railway Company, March 26, 1886, T.L.R., was in reality favourable to the appellants here, although the actual decision was the other way. It was decided on the ground that in the special circumstances of the case the person injured had no reasonable grounds for entering the lift. Here the deceased had reasonable grounds to believe he was entering a place he was entitled to enter.

The defender replied—There was no liability on him in respect (1) the deceased entered the premises by a gate by which the public were not admitted; (2) he entered public works in which goods were never sold by retail; (3) he could not be said to have received any invitation to enter, for he was only directed to the clerk after he had actually entered the premises— Walker v. Midland Railway Company, supra, which was exactly in point here— Wilkinson v. Fairrie and Another, Nov. 25, 1862, 32 L.J., Exch. 73; Batchelor v. Fortescue, June 22, 1883, L.R., 11 Q.B. Div. 474; Gantret v. Egerton, Feb. 11, 1867, 2 L.R., C.P. 371; Balfour v. Baird & Brown, Dec. 5, 1857, 20 D. 238. The case of Indermaur v. Dames, supra cit., relied on by the pursuer was really by implication an authority for the defender, for the decision would not have been pronounced had not the Court held that the injured man was in the premises where he was injured in order to fulfil a contract made by the householder, and was therefore there by invitation.

At advising—