Scottish Court of Session Decisions

This was an action for damages in the Sheriff Court of Wick by Alexander Cormack, shoemaker in Wick, against the School Board of the Burgh of Wick and Pulteneytown, for injuries sustained by his pupil son Robert Cormack.

It appeared that Cormack, who was seven years of age, was a scholar at Pulteneytown Academy. At the entrance to the playground of this school there was a large iron gate made in two halves, each half weighing about 1 cwt. Both halves opened inwards, and there was an iron stop in the ground which was intended to prevent them from opening outwards. This stop was worn, and the two halves of the gate could be swung both outwards and inwards. While some school boys were swinging on one of the halves of the gate, it was driven with violence against the pillar supporting it, and wrenched from the hinges. It fell upon Cormack and injured him severely. There was a conflict of evidence as to whether Cormack was swinging on the gate when it fell.

The defenders pleaded that they were not in fault, and that the boy had contributed by his negligence to the accident.

The Sheriff-Substitute ( Harper) found that the accident had occurred by the fault of the defenders, and assessed the damages at £40. The result of the proof before the Sheriff-Substitute appears from the following passage in his note:—“On the evidence of Bruce, Sutherland, and Shepherd—all skilled men—it appears that the gate was not sufficiently hung, that the stop was in a useless condition, and that the accident was caused by the gate swinging outwards, past where a stop would have checked it, and coming against the pillar, which, acting as a fulcrum, so told upon the insufficient hanging as to bring the gate down. The evidence of Mr Brims, too, is of great importance. He is a member of the School Board, and the Board's architect. He does not speak to the gate being insufficiently hung, but he says, ‘My opinion is that from the want of the stop the gate was in a dangerous condition;’and further, ‘My opinion is that it was the leverage caused by the swinging of the gate against the pillar that broke the hinge.’ The evidence of the three Swansons—father and two sons, the sons being examined for the pursuer, and the father for the defenders—is also important, as it was they who last hung the gate before it fell. They admit that the cover was not screwed closely up; and although they all say, as was to be expected, that the gate was in their judgment sufficiently hung, yet the father admits that it would have been better if the bolts had been screwed up tight, as the gate would then have stood more violence.”

On appeal the Sheriff ( Thoms) recalled the interlocutor of the Sheriff-Substitute, and assoilzied the defenders.

The pursuer appealed and argued—The gate was in a dangerous state, and the defenders were in fault in allowing this. It was no defence that the boy had swung upon it. The defenders should have expected this, and provided against it.

Appellant's authorities— Beveridge v. Kinnear & Company, December 21, 1883, 11 R. 387; Findlay v. Angus, January 14, 1887, 14 R. 312; Lynch v. Mudin, 1841, 1 Adolp. & Ellis, 29; Marshall v. School Board of Ardrossan, December 10, 1879, 7 R. 359; Virtue v. The Police Commissioners of Alloa, December 12, 1873, 1 R. 285; Mersey Dock Trustees v. Gibbs and Others, Mersey Dock Trustees v. Penhallon and Others, June 5, 1866, 1 L.R. (H. of L.) 93; Brady v. Parker, June 7, 1887, 14 R. 783; School Board Act; The Education (Scotland) Act 1872, sec. 36 (35 and 36 Vict. cap. 62).

The respondent argued—The School Board could not be responsible in damages for such an accident as this. They were a statutory body appointed for a special purpose. Any damages to the pursuer must be paid out of the rates, and the School Board had only a strictly defined sum out of the rates, which was all applied to strictly defined objects. The gate was safe so long as it was not interfered with. Competent tradesmen had been employed shortly before to put the gate in order, and they had taken what they thought were the proper steps, therefore the School Board were freed from blame— Fraser v. Edinburgh Street Tramway Company, December 2, 1882, 10 R. 264; Hughes v. Macfie and Others, December 7, 1863, 2 Hurl. & Colt. 745.

At advising—