Scottish Court of Session Decisions

Adam Johnstone, miner, Launcherhead, Lochgelly, pursuer, brought an action against the Magistrates of Lochgelly, defenders, for £500 damages in respect of the death of his child, which he alleged was due to the fault or negligence of the defenders in allowing a rubbish heap in which the refuse of the burgh was deposited to remain unfenced and unprotected, and in causing or permitting waste paper to be burnt there.

The pursuer averred—“(Cond. 2) Behind the house where the pursuer resides at Launcherhead aforesaid is a large grass park which slopes gradually downwards towards the railway. The railway is distant about 150 yards from the pursuer's house, which is part of a row of four houses at the west end of Launcherhead. At the lower end of said field, and about 75 yards distant from pursuer's dwelling-house, there

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is a large area which the defenders have used for many years, and which they still use, as a coup for the depositing of the refuse brought in by the refuse carts from the lower part of the town of Lochgelly. (Cond. 3) Said grass park is accessible from the south by an entry about 20 feet wide, between two rows of houses in Launcher-head. There is no gate or other obstacle to prevent persons getting access to said park by said entry, and the entry is in fact habitually used by the public as an access to said park, which is treated as a public park. The entry from the south is to the higher part of said grass park, which slopes gently down towards the place where the defenders have the free coup above mentioned. There is no fence of any description to cut off the said coup or refuse depot from the other part of said park, which is all in grass. On the west side of said park, and extending from the pursuer's said dwelling-house alongside of said grass park and coup, and bordering the road leading to the Cartmore Farm, there is a barbed-wire fence about 4 feet in height. Said fence is, and has been for at least five years past, in a very bad state of repair, and is so much broken down that it is possible to walk between most of the pairs of paling stobbs without difficulty and without being impeded by the wire of the fence. Further, there was originally a large wooden gate, such as is usual for the entry to a grass field, which opened on to the centre of said coup or refuse depot. Said gate, which would be about 15 feet long, has been for some years and still is lying broken flat on the ground, with the result that between the two paling stobbs which originally formed the support for said gate there is an open entry of about 15 feet. There are many other breaks in said fence between said gate and the dwelling-house occupied by the pursuer, which are at least 5 feet in extent. On the east side of said park and coup or refuse depot there is a plantation of trees, and behind the said trees are the houses fronting the Station Road of Lochgelly. From between two of the said houses there runs a pathway about 5 feet in width, which leads on to and across said grass park, and said footpath has been for many years and still is used regularly by the occupiers of the houses in the Station Road, and other members of the public, to cross from Station Road to the road leading to Carlmore Farm and vice versa. (Cond. 4) Amongst the other refuse which is daily deposited at said coup or refuse depot there is always a large quantity of paper, rags, and other inflammable material got from the various dustbins which are emptied daily by the servants of the defenders or of those for whom they are responsible. In particular, the refuse from various shops in the lower part of the town of Lochgelly is deposited in said coup. As a consequence of the daily deposit of said refuse, the paper and other inflammable material becomes detached and is blown about said park, along said footpath, until it reaches the houses fronting the Station Road of Lochgelly. It is also apt to be blown up to the houses occupied by the pursuer and others in Launcher-head. In order to obviate the trouble and annoyance to occupiers of said houses it has been the practice of the defenders, or of those for whom they are responsible, and of those whom they permit to use the said coup or refuse depot, to collect the papers and other inflammable material together at any one point on said coup and to burn them. This has in particular been a regular practice by the ragpickers who have frequented said coup for many years. No objection has ever been offered by the defenders or by those for whom they are responsible to the burning of said rubbish, though they knew or could not fail to be made aware of the fact that said papers and other inflammable material were so burned at irregular intervals. Further, the pursuer believes and avers that the carters employed by the defenders for the collection and depositing of said refuse had and still have instructions to make a fire and burn the papers on the said coup whenever they had or have occasion to think that the papers and other refuse were or are blowing about and causing annoyance to the occupiers of the houses in the Station Road or in Launcherhead, Explained that on 27th March 1912, subsequent to the accident to pursuer's child afterwards condescended on, one of the defenders' carters named Paterson, acting upon instructions from the defenders or of those for whom they are responsible, set fire to some paper and other refuse on said coup and left it burning. Previous to the accident pursuer and his wife were unaware that burning refuse was ever left unattended on said coup. (Cond. 5) Said grass park, which is open to all the occupiers of the houses in Launcherhead and in the Station Road of Lochgelly, is the usual playground for the children of the residenters there, and as there are often articles deposited in said coup which the children make use of for playthings, they are induced to go on to the coup in search of such things as picture-books, pencils, rubbers, and other small articles. This practice of the children in the neighbourhood has been well known to the defenders or their servants for many years, and no objection was ever made by them to the children or other members of the public frequenting said park or going to said coup or refuse depot until after the accident hereinafter condescended on. In particular, the police never attempted to warn the children away from said coup or refuse depot. (Cond. 6) About the middle of the month of December 1911 the children in the neighbourhood began to be specially attracted towards said coup or refuse depot. At that time the merchants in the town had begun to make preparations for their Christmas trade, and there were a large number of picture-books and other playthings deposited in the coup. There were also a large number of gaily-coloured papers and other such material. As a consequence of these articles being deposited there, the children in the neighbourhood

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frequented said coup for the purpose of getting playthings from it. (Cond. 7) On Monday, 18th December 1911, and about twelve o'clock forenoon on that day, pursuer's child Isabella, aged two years and nine months, was playing in pursuer's dwelling-house with another child of a like age. At it was a bright day, pursuer's wife gave the children some sweets and told them to go along to the house of her mother (the grandmother of the child Isabella), who resides at the other end of the row of four houses of which the pursuer's house forms one, and close to the opening leading to the south end of said grass park. As the children had often gone to the grandmother's house in similar fashion, the pursuer's wife did not watch to see that they went into her mother's house. After the children left the house pursuer's wife went on with her domestic duties for another quarter of an hour or twenty minutes, and then shut the door of her own house and went along to her mother's house. She had just reached her mother's house and had seen the children were not there, when another playmate of pursuer's child came running up from the coup and shouted that Isa was burning. Pursuer's wife at once ran to the coup, where she discovered her child with most of her clothes in flames. She extinguished the flames and brought the child to the house and sent for the doctor. Dr Dickson arrived in a few minutes, but on examination he said there was no hope of recovery, and the child died about four hours later. (Cond. 8) Said accident occurred through the fault or negligence of the defenders or of those for whom they are responsible. The defenders or their servants were well aware that said coup was not fenced off from the other portion of the grass field of which it is a part on the south and east sides thereof, and they are also aware that the fence which originally bordered said grass park and coup on the west side thereof was in a ruinous condition, and also that the gate which was originally put in said fence for the convenience of their carters in entering said coup was at the time of the accident, and for some years previous thereto, lying broken flat upon the ground. They were also aware that the children of the occupiers of the houses in Launcherhead and in the Station Road were at the time of the accident and for years previous thereto in the habit of going to the coup in search of playthings, and that said park was used as a thoroughfare between Station Road and Cartmore Farm Road. They were also aware that their servants had instructions to burn the papers and other inflammable material found among the refuse when these became so numerous as to cause annoyance to the householders in the district, and they knew or ought to have known that these instructions had been acted upon, and that their servants gathered the papers together and set fire to them as occasion required. They also knew or ought to have known that the ragpickers who frequented the coup had been in the habit of burning papers and other material on said coup. If the defenders had taken reasonable precautions to avoid the occurrence of an accident, they would have seen that said coup was properly fenced off from the other portion of said park, and also that the children in the neighbourhood were warned away from the coup and made aware that they had no right to play about it or to go there in search of playthings. No notice of any kind was exhibited at said coup. The defenders ought also to have taken precautions to ensure that so long as said coup was not fenced or protected that any fires kindled thereon should have been properly watched while there was any material burning, and they ought to have instructed their servants to see that any fire was properly extinguished before they left the coup. The defenders, however, failed to take all or any of these reasonable precautions, and the accident whereby the pursuer's said child Isabella lost her life was a direct and natural consequence of their negligence to take reasonable precautions for the safety of the children and others whom they knew to be in the habit of playing about the coup and frequenting said park. (Cond. 9) In particular, said accident resulted from the fault or negligence of the defenders or their servants in failing to see that a fire which had been lit on said coup on the morning of 18th December 1911 was properly extinguished by their servants or those whom they permitted to light fires there. The defenders' said carter Paterson was aware that said fire was burning and failed to see that it was extinguished. The death of pursuer's child was caused by her clothes catching fire from burning paper or other material on said coup. If the defenders had taken reasonable precautions such an accident could not have happened. …”

The pursuer pleaded, inter alia—“(1) The defenders having been the authors and users of said coup or refuse depot, there was a duty upon them in the circumstances condescended on to take precautions to prevent danger to children and others frequenting said coup or refuse depot, which they negligently failed to take, and the death of pursuer's child having resulted from such failure, all as condescended on, they are liable to the pursuer in damages. (4) The accident whereby the pursuer's child lost her life being a direct result of the fault or negligence of the defenders or of those for whom they are responsible, decree should be granted as craved, with expenses.”

The defenders, inter alia, pleaded—“ (1) The averments of the pursuer are irrelevant.”

On 8th November 1912 the Sheriff-Substitute ( Umpherston) dismissed the action as irrelevant.

Note.—[After narrating the pursuer's averments]—“There are numerous decisions in cases arising out of injuries to young children, and it is difficult to maintain that they are all consistent. Nor do I think it possible to deduce from them a series of propositions which differentiate injuries to

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children from injuries to adults. Every person who has control of a piece of land, whether as owner, tenant, or public authority, is under certain obligations arising out of that control. There may be similar duties unconnected with land—and illustrations are to be found in the decisions with reference to leaving a dangerous machine or a horse and cart unguarded or unwatched in a public street— Campbell v. Ord & Maddison, 1 R. 149; Morison v. M'Ara, 23 R. 564—but in the present case it is the control of land which gives rise to the duties in question. If a road authority has a duty to keep a road safe, it must be reasonably safe for the public who use it, and that may include children — Greer v. Stirlingshire Road Trustees, 9R. 1069; Gibson v. Glasgow Police Commissioners, 20 R.466. If the public have a right to go on private ground, the duties of the owner are measured by the rights of all who go there, and these may include children. If a man owns land adjoining a public road he must not have on his land anything which will cause danger to a person lawfully using the public road, whether the person is young or old, or middle aged— Black v. Cadell, M. 13,905. The public includes people who are able to take care of themselves and people who are not, and young children belong to the latter class. A duty to the public must therefore be commensurate with the probabilities attending all classes which compose it. But there is no special canon of liability in respect to young children.

“When there is no public right to go on private ground, there may be something akin to an invitation to certain persons or classes of persons to do so. In that case the person who has control of the land is under obligation for the safety of the licensees, as they have been called. And again, the obligation is measured by the capacity for taking care of themselves of those to whom invitation or licence is extended— Innes v. Fife Coal Company, Limited, 3 F. 335; Hamilton v. Hermand Oil Company, Limited, 20 R. 995.

“But people may go on private ground who have no right to do so. They go as trespassers and take the risks of trespassers. In my opinion it has been definitely settled that an owner or a person who has the control of land is under no obligation to provide for the safety of a trespasser, and it does not matter whether the trespasser is capable of taking care of himself or not. Nor does trespassing cease to have that character because the person who has control of the land takes no steps to prevent it. No one is bound to prevent trespassing on his land, and the fact that one takes no steps to do so does not lay on him any obligation to protect the trespasser from the risks he has taken upon himself. Here, again, there is no special duty towards children any more than to others. If a young child is liable to wander into dangerous places where he has no right to be and so to incur danger, his proper guardian is his parent, not the owner of the place to which his unguided footsteps may take him. Of course there may be cases in which trespassing becomes almost technical, as in Cadell v. Black ( supra), or where, if there is trespassing, it is a matter of no moment, as where a danger attractive to a young child is so close to a public place as to invite the attention of inexperienced youth, which seems to me to have been the ground of decision in Finlay v. Angus, 14 R. 312. But that was not the case here. The coup was in the field where the child had neither right nor invitation to go, and the duty of preventing her from going there was not on the defenders but on her parents. The present case, in my opinion, belongs to the class of Devlin v. Johnstone, 5 F. 130, and Cummings v. Darngavil Coal Company, Limited, 5 F. 513, and not to those previously mentioned.

“ I ought not to omit notice of an argument for the pursuer which was founded on Kerr v. E. Orkney, 20 D. 298; Rylands v. Fletcher, L.R., 3 E. and I. App. 330; and Chalmers v. William Dixon, Limited, 3 R. 461. It was said that the creation of this coup was a non-natural use of land, which I understand to mean, in the words of the Lord Justice-Clerk in Chalmers' case, ‘the construction of an opus manufactum, the bringing an article upon the land which creates a hazard which did not exist before.’ And it was argued that a person who did this was liable for any damage that ensued. But the principle of these cases was authoritatively declared by Blackburn, J., in Rylands' case, to be ‘that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so is prima facie answerable for all damage which is the natural consequence of its escape.’ What escaped in Kerr and Rylands' was water dammed or stored up; in Chalmers' it was the fumes from a burning bing. In the present case nothing escaped, and the child would not have met her death if she had not gone to the coup which, left alone, was perfectly safe. To say that the coup was dangerous if unfenced does not therefore add anything to the record of a relevant nature, because it was perfectly safe for the public, who had no right or duty to be on it.”

The pursuer appealed to the Sheriff ( Morison), who on 25th January 1913 recalled his Substitute's interlocutor, and allowed a proof before answer.

The Sheriff-Substitute having thereafter, on 6th May 1913, appointed a diet for proof, the pursuer required the cause to be remitted to the First Division for jury trial, and the case was heard in the Summar Roll on 24th June 1913.

The defenders argued—The pursuer's averments were irrelevant, for it was not averred that the defenders were the owners or tenants of the ground in question, or that they invited children to play there, or that their servants had lit the fire. Esto that the defenders' servants had deposited rubbish there, that did not render them liable where, as here, the rubbish was not in itself dangerous— Latham v. R. Johnson & Nephew, Limited, [1913] 1 KB 398, per Farwell,

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L. J., at p. 405. The cases of Lowery v. Walker, [1911] AC 10; Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229; and Findlay v. Angus, January 14, 1887, 14 R. 312; 24 S.L.R. 237, were distinguishable, for in Findlay the door was insufficiently fastened, in Lowery the horse was known to be vicious, and in Cooke the turntable was in itself dangerous. Esto that there might be a duty on the defenders to extinguish fires even when lit by third parties, it was not averred that the defenders knew of the existence of this fire. Esto that the coup was an attraction to children, that was not enough to make the defenders liable where, as here, it required the intervention of a third party to render it dangerous— Devlin v. Jeffray's Trustees, November 19, 1902, 5 F. 130, 40 S.L.R. 92; Cummings v. Darngavil Coal Company, Limited, February 24, 1903, 5 F. 513, 40 S.L.R. 389; Sneddon v. Nimmo & Company, Limited, July 4, 1903, 5 F. 1036, 40 S.L.R. 750; Hastie v. Magistrates of Edinburgh, 1907 S.C. 1102, 44 S.L.R. 829; Stevenson v. Corporation of Glasgow, 1908 S.C. 1034, 45 S.L.R. 860; Holland v. Lanarkshire Middle Ward District Committee, 1909 S.C. 1142, 46 S.L.R. 758; Grand Trunk Railway of Canada v. Barnett, [1911] AC 361, at p. 370. The action therefore should be dismissed.

Argued for pursuer—Where, as here, the defenders were aware that children were in the habit of frequenting this coup, and that fires were frequently lit there, there was a duty on them to see that children playing there were protected against injury— Cooke ( cit.); Lowery ( cit.); Findlay ( cit.); Haughton v. North British Railway Company, November 29, 1892, 20 R. 113, 30 S.L.R. 111; Innes v. Fife Coal Company, Limited, January 10, 1901, 3 F. 335, 38 S.L.R. 239. Where, as here, the defenders were reasonably bound to anticipate danger to children they were bound to guard against it— Reilly v. Greenfield Coal and Brick Company, Limited, 1909 S.C. 1328, 46 S.L.R. 962. That being so, they were liable if in fact danger resulted— Holland ( cit.), at 1909 S.C., p. 1149; Lowery ( cit.), at [1911] A.C., p. 14; Latham ( cit.), at [1913] 1 K.B., p. 413. An object of allurement such as this coup was might well prove a trap for children. The question was one of fact in each case, and it was therefore for the jury to say whether it was so here.

At advising—