Scottish Court of Session Decisions

John Ward, 26 Glasgow Road, Silverbanks, Cambuslang, as tutor of his pupil child Mary Ward, brought an action of damages in the Sheriff Court at Hamilton against Arthur Abraham, 2 Ardoch Gardens, Cambuslang; Charles Thomas, 5 Ardoch Gardens, Cambuslang; Gilbert Cunningham, 2 Ardoch Gardens, Cambuslang; and Charles Robinson, Rowanlee, Buchanan Drive, Cambuslang. The pursuer craved decree against the defenders jointly and severally, or severally, for the sum of £300.

The pursuer averred—“(Cond. 1)…The defenders the said Charles Thomas, aged 12, Gilbert Cunningham, aged 12, and Charles Robinson, aged 11 … are pupils. … (Cond. 2) The pursuer's house is part of a row of tenements, the back of which looks into the back of the house where the said A. Abraham resides. There is a back-green behind the pursuer's house for the use of the tenants in the tenement, and there is a similar green behind the house where the said A. Abraham resides. The respective tenants have the use of these greens, which are primarily for the purpose of a drying green and not a playground. The green in connection with pursuer's house is separated from the green in connection with the said A. Abraham's house by a stone wall 5 1 2 feet high and a lane about 11 feet in width. … (Cond. 3) On the evening of 2nd July 1908, between the hours of seven and eight o'clock, pursuer's wife was in the back-green behind her dwelling-house with the said Mary Ward.… Whilst there a cricket ball came unexpectedly and without warning from the defender A. Abraham's back-green and hit the pursuer's said daughter Mary on the back of the head, injuring her very seriously.… (Cond. 4) At the time of said accident and for sometime prior thereto the said Charles Thomas, Gilbert Cunningham, Charles Robinson, and A. Abraham had been engaged playing cricket in said back-green. The stumps were placed close up against the back wall of the building in which the said A. Abraham resided, and one of the four defenders was possessed of the bat, whilst another bowled to him, the other two in the meanwhile being engaged in fielding and consequently taking an active part in the game. It is believed and averred that the four took turns in batting, bowling, and fielding, and it was whilst in the course of said game that one of the four, whose name is presently unknown to the pursuer, hit the ball after it was bowled to him which caught the pursuer's said child as previously mentioned. … (Cond. 5) The pursuer's said child was injured through the fault of the defenders Charles Thomas, Gilbert Cunningham, Charles Robinson, and A. Abraham jointly and severally, or severally. They knew or ought to have known, in particular the said A. Abraham,

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who is an elderly man, that it was a highly dangerous and unlawful thing to play a game of cricket in a small enclosed place, such as was being done here. They knew or ought to have known that there was grave danger of the ball being hit outwith the boundaries of said back-green, as was done on several occasions prior to the accident to pursuer's child, into neighbouring back-greens, and even on to the public roadway contiguous to the green in which defenders were playing, with the attendant danger of causing injury to innocent third parties. No precautions were taken by the defenders or either of them even to warn people who were in places where they were lawfully entitled to be, that there was danger of the cricket ball being hit into such a position as might cause them injury. For their negligence, jointly and severally, or severally, the defenders are liable in damages to pursuer as craved.”

On 20th August 1909 the Sheriff-Substitute ( A. S. D. Thomson) assoilzied the defenders.

Note.—“I think the pursuer's case is quite insufficient as against the defender Arthur Abraham. I cannot see any duty upon him to police the back-yard of the tenement in which he and others were tenants.

“As regards the pupil defenders, the case seems to me irrelevant. The three children were playing ‘cricket’ in the backyard, and one of their number hit the ball a distance it is said of 55 yards, so that it fell into the yard of pursuer's tenement and struck a child of his. The affair was plainly a mere accident. No one apparently had ever warned them that they might injure someone in an adjoining tenement, and the possibility of such a thing happening could not have been present to such young children in connection with their little play.

It was argued that a pupil cannot be liable in damages for negligence, but I cannot accept this as sound. A baby might ruin a lady's dress or destroy a valuable vase, and certainly no action would lie against the baby, however rich it might be.

But a boy of thirteen who wilfully broke the vase or injured the person of another might quite justly be held liable in damages. The question is one of fact in each particular case, regard being had to the age and mental capacity of the child and the nature of the act and its possible consequences.

It might be argued that if the matter at issue in this case be thus a question of fact I ought to allow a proof, but I think the pursuer avers enough to put his case out of Court,”

On 15th November 1909 the Sheriff ( Millar) recalled the interlocutor of the Sheriff-Substitute and dismissed the action.

Note.—“The ground of the action in this case is that the defenders played with a bat and a cricket ball in the back-green, which they knew was unsuitable for the game, and that they thereby must have foreseen that they exposed the neighbours to danger. The ground of action is under the maxim sic utere tuo ut alienum non lœdas.

So far as the pupil defenders are concerned it seems to me that the action fails, because the law will not presume that children of such tender years should have the prudence to see that the green was unsuitable for play and the foresight to anticipate danger to the neighbours. Accordingly I think the action should be dismissed quoad them as irrelevant.

With regard to the defender Arthur Abraham I have had much more difficulty. If four adults play together in a place which is unsuitable for the game, and they thereby expose the neighbours to risk, I should have thought that in the event of injury to the neighbour each of them would be held liable. In my view it would not matter which of them projected the ball which caused the injury, as they were all consenting to the dangerous game, and it was a mere accident that the ball was projected by one rather than the other. But then there is the case of Taylor v. Dick, 4 S.L.T. 297, in which the defender with three companions went out rifle shooting in Berrylaw Quarry, about half a mile from the pursuer's residence, and the pursuer's son was shot in the breast. Lord Kincairney, who was the Judge, directed the jury that it was necessary for the pursuer in order to establish his case to prove by reasonable evidence that the defender was the individual who fired the shot. In a novel question of this kind I think I am bound to accept the opinion of the learned Judge, and as the pursuer does not aver that the defender Abraham was the person who projected the ball into his back-green I think the case is irrelevant with regard to him also.”

The pursuer appealed, and argued—A small enclosed space like the back-green in question was not a suitable place for playing cricket. It was inevitable, sooner or later, that the ball should be sent out of the ground, and the defenders must have known that this would happen. The defenders were in fault because they had disregarded altogether the safety of the people who might lawfully be on the other side of the wall. The fact that three of the defenders were children could not exclude inquiry. The question of whether a child could be guilty of fault was a question of fact depending mainly on the intelligence of the child. A child of five had been held to be guilty of contributory negligence— Cass v. Edinburgh and District Street Tramways Company, Limited, 1909 S.C. 1068, 46 S.L.R. 734. If so, it could not be affirmed as a proposition of law that boys of twelve could not be guilty of negligence. It was not necessary for the pursuer to aver which of the defenders actually struck the ball. All the players were acting in concert, and were jointly and severally liable as co-delinquents— M'Lauchlan v. Monach, December 16, 1823, 2 S. 590, N.E. 506; Murray v. Brown, December 16, 1881, 19 S.L.R. 253; Scott v. Shepherd, Smith's Leading Cases, i, p. 438.

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Argued for the defenders—The defenders were liable only if they had been guilty of fault. They were not in fault merely because they played cricket in a back-green. This was not serious cricket, where it was part of the game to hit the ball out of the ground. If the ball were sent out of the ground the game would be stopped. Such an accident as the present was thus a remote contingency. It could not be anticipated even by adults, and the case of children was a fortiori. The amount of care required by the law varied with circumstances, and in particular depended on the degree of the risk run— Mackintosh v. Mackintosh, July 15, 1864, 2 Macph. 1357 ( per Lord Neaves). As the risk here was small, the pursuer was bound to aver that the game was negligently played. But that had not been relevantly averred. If there was any fault at all, it was the act of the striker in sending the ball out of the ground. But the pursuer had not averred which of the players struck the ball. As this was not a case of joint-wrongdoing, the other players were not liable for the act of the striker— Taylor v. Dick, February 6, 1897, 4 S.L.T. 297. The pursuer therefore had failed to state a relevant case.