Scottish Court of Session Decisions

Peter Taylor, clerk, Maryhill, Glasgow, pursuer, brought an action against the Corporation of the City of Glasgow, defenders, in which he claimed £500 as damages for the death of his son, aged seven, in consequence of eating the berries of a poisonous shrub in the Botanic Gardens, Glasgow. The defenders were proprietors and custodians of the Gardens, which were used and open to the public as a public park.

The pursuer averred—“(Cond. 2) On 20th August 1919 the pursuer's said son, aged seven, proceeded with some other young children to the playground in said Gardens surrounding the bandstand there. This part of the Gardens, as the defenders were well aware, was and is much frequented by young children. (Cond. 3) On said date, and for some time prior thereto, the defenders had growing on a small piece of ground in said Gardens immediately adjoining said playground, specimen plants and shrubs of various kinds. Inter alia, there were specimens of wheat, barley, oats, &c., and also a shrub Atropa belladonna, bearing berries rather similar in appearance to small grapes, and presenting a very alluring and tempting appearance to children. The said plot of ground, which was enclosed by a wooden fence, was open to the public, access being obtained by a gate in said fence, and as the defenders knew was frequented by members of the public of all ages. With reference to the statements in answer, admitted that said ground was frequented by students. Admitted that there is a wire loop on said fence which may be passed over the end of the gate.… Explained that the said gate and fence are only three feet in height and that the gate is a light rustic gate which, even when held in position by said wire hoop, can easily be opened by a child of tender years. (Cond. 4) On said date, being attracted while passing the place by the beautiful and tempting appearance of said shrub which was covered with said berries, and which extended to about 5 feet in circumference and overhung the adjoining path to the extent of about 2 feet, the pursuer's son and some of his companions picked a few of the berries and ate them. Shortly afterwards they became seriously unwell, and although he received medical attention the pursuer's son died the following morning. With reference to the statements in answer, admitted that said shrub did not overhang said fence. Explained that there are a number of plants on the enclosed piece of ground on which said specimens are grown. Admitted that the pursuer's son obtained access by said gate. Explained that said shrub is only a yard or two inside the fence and is quite visible from said playground, and that pursuer's son and his companions first noticed it while they were on said playground. (Cond. 5) The death of pursuer's son was solely due to the fault of the defenders and of their servants in charge of said gardens, for whom they are responsible. The attractive and striking appearance of said berries is accurately described in a well-known book on botany as follows:—‘The attractive character of the berries, looking as they do to the uncritical eyes of young children like cherries or big black currants, has led to many serious accidents.’ The poisonous character and the inviting and deceptive appearance of said berries were well known to the defenders and their said servants. They knew or ought to have known, if they had exercised reasonable supervision, that said shrub was growing in a conspicuous position in said Gardens in a part open to and much frequented by children, and that it was probable and indeed practically certain that children would be tempted and deceived by the appearance of said shrub, and wouldeat the berries, which have a sweet taste. The defenders and their said servants knew or ought to have known that said berries were a deadly poison, and that if one or two of them were eaten by a child it was certain to cause dangerous illness and likely to result in death. The defenders were in fault in having the said shrub growing in a part of said Gardens open to children and frequented by them, without taking any precautions, as they ought to have done but failed to do, to warn children against the danger or to prevent children from reaching said shrub and picking the berries. (Cond. 6) There was no notice of any kind in said Gardens warning the public of the presence of poisonous

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or dangerous specimens growing therein. It was the duty of the defenders and their said servants to have a notice in the vicinity of said shrub which would warn the public, both adults and children, of the poisonous and dangerous character of said berries or to have the said shrub fenced off for the protection of children. They failed to perform) this duty, and took no steps of any kind to warn children or protect them from said danger, and the death of the pursuer's son was the natural and probable result of their negligence. Until after the death of the pursuer's son they failed to take even the usual necessary and obvious precaution of placing near said plant a label bearing the word ‘Poisonous.’ Belladonna is one of the scheduled poisons which under the Pharmacy Act 1868 are required to be distinctly labelled with the word ‘Poison.’ With reference to the statements in answer it is believed that there was a small label bearing in very small lettering the words quoted by defenders [Deadly Night shade— Atropit belladonna, L.] on the ground near said shrub. Explained that the label was very small and the inscription in minute characters, and that said label was placed in the ground under the shrub solely for the information of persons interested in botany. At the time when the pursuer's son picked the berries said label and inscription were covered by the shrub and were practically invisible. … Explained that the defenders' bye-laws contain no reference to the presence of poisonous or botanical specimens in said Gardens and no warning to the public in connection therewith, and that any bye-laws published by the defenders were solely for the protection of their plants and shrubs and not for the protection of the public.”

The defenders pleaded, inter alia—“1. The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”

On 2nd June 1920 the Lord Ordinary ( Hunter) sustained the first plea-in-law for the defenders and dismissed the action.

Opinion.—“The pursuer in this action seeks to recover damages from the Corporation of the City of Glasgow for the death of his son John Mackay Taylor, who died on 21st August 1919. It appears that on 20th August of that year the pursuer's son, aged seven, proceeded with some other children to the Botanic Gardens, Glasgow. The defenders are the proprietors and custodians of these Gardens, which are open to the public as a public park. On the date in question the children are said to have been playing on ground surrounding the bandstand. In the vicinity of this place there is an enclosed plot of ground in which specimen plants and shrubs of various kinds are grown. A wooden fence surrounds this plot of ground, access being obtained by a gate in the fence. According to the pursuer's case the defenders knew that this plot of ground was frequented by members of the public of all ages.

Among the plants growing in the plot of ground was a shrub, Atropa belladonna, bearing berries rather similar in appearance to small grapes and presenting a very alluring and tempting appearance to children. The pursuer says that his son and some of his companions were attracted by the beautiful and tempting appearance of the shrub, that they picked some of the berries and ate them, that shortly afterwards they became seriously ill, and that although he received medical attention the pursuer's son died the following morning.

The berries of the Atropa belladonna shrub are poisonous, and the pursuer maintains that the death of his son was solely due to the fault of the defenders and of their servants in charge of the Gardens, for whom they are responsible. He says that the poisonous character and the inviting and deceptive appearance of the berries were well known to them. ‘They knew, or ought to have known if they had exercised reasonable supervision, that said shrub was growing in a conspicuous position in said Gardens, in a part open to and much frequented by children, and that it was probable, and indeed practically certain, that children would be tempted and deceived by the appearance of said shrub, and would eat the berries, which have a sweet taste. The defenders knew, or ought to have known, that said berries were a deadly poison, and that if one or two of them were eaten by a child it was certain to cause illness and likely to result in death. The defenders were in fault in having the said shrub growing in a part of said Gardens open to children and frequented by them without taking any precautions, as they ought to have done but failed to do, to warn children against the danger or to prevent children from reaching said shrub and picking the berries.’ It is also made a ground of fault that the defenders did not have a notice warning the public of the presence of poisonous or dangerous specimens growing in the Gardens. It is not, however, said that it is usual in botanic gardens to have such notices, and it is clear that such a notice would not have been any protection to the pursuer's son, who could not have read it. I attach no importance to the averment as to absence of notice about the plant being poisonous. The pursuer's real case, if he has one, is that the defenders were in fault in having the plant in a place to which with their Knowledge children had access. At this stage all I have to consider is whether the record contains averments which if proved would entitle a jury to find for the pursuer.

The pursuer relies upon the decision of the House of Lords in Cooke v. Midland Great Western Railway Company of Ireland, 1909 AC 229. According to the head note in that case a railway company kept a turntable unlocked (and therefore dangerous for children) on their land close to a public road. The company's servants knew that children were in the habit of trespassing and playing with the turntable, to which they obtained easy access through a well-worn gap in the fence which the company were bound by statute to maintain. A child between four and five years old, playing with other children on the turntable, having

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been seriously injured, held that there was evidence for a jury of actionable negligence on the part of the railway company. Lord Macnaghten quoted the following statement of Lord Denman in Lynch v. Nurdin, 1 Q.B. 29—“If I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer may have redress by action against both or either of the two, but unquestionably against the first.’ His Lordship continued—‘If that proposition be sound, surely the character of the place, though of course an element proper to be considered, is not a matter of vital importance. It cannot make very much difference whether the place is dedicated to the use of the public or left open by a careless owner to the invasion of children who make it their playground.

Hamilton, L.J. (now Lord Sumner) in Latham, v. B. Johnson & Nephew, Limited (L.R., 1913, 1 K.B. 417) said that ‘case ( i.e., Cooke's case) has been several times considered both in England, Scotland, and Ireland. The Court of Appeal in Ireland in Coffee v. M'Evoy ( 1912, 21 R. 290) declined to regard it as a case on the duty of an owner or occupier of property towards a trespasser, and decided against the injured plaintiff there because he clearly was a trespasser. In Lowery v. Walker ( 1910 L.R., 1 K.B. 173) in the Court of Appeal—the reversal of which case in the House of Lords does not affect the present point—Buckley, L.J., treats the decision as being one upon which the liability “may arise from the fact that the landowner knows that he is exposing the persons whom he allows to pass over his ground to danger of which he is aware and they are not;” and Kennedy, L.J., says of it—“That it is in my opinion a decision of plainly limited application … depending upon the special circumstances … that there was an allurement to children by reason of the condition in which the defendants kept their premises and the existence thereon of this unprotected machine, and that they knew that such a machine would be likely to allure children.” In Jenkins v. Great Western Railway ( 1912 L.R., 1 K.B. 525), in this Court, all the members of the Court (the Master of the Rolls at p. 532, Fletcher Moulton, L.J., at p. 534, and Farwell, L.J., at p. 534) stated that in their opinion Cooke's case was decided on the assumption that Cooke was licensed by the railway company not merely to come upon the land but to play with the turntable, and it is the case that the jury had found in terms that the child was allured “through the hedge and up to the turntable.” Lord Kinnear says the same in Holland v. Lanarkshire Middle Ward District Committee ( 1909 S.C. 1142), that in Cooke's case the railway company had “tempted children to play.”’

In the present case I do not think it can be said on the pursuer's averments that the defenders tempted his child to eat. It is well known to all who frequent botanic gardens that the plants and shrubs are not intended to be tampered with, and in particular that berries or fruit growing on trees are not to be eaten. There's nothing in the pursuer's averments to suggest that the defenders in the management of their garden failed to take precautions which are usually taken in connection with similar gardens. The berries of many plants, some of them common plants that grow wild in different parts of the country, are dangerous if indiscriminately eaten by children. It is not clear from the record what precautions the pursuer suggests should be taken by the defenders to protect children from the consequences of their own ignorance or thoughtlessness. On his averments I do not think that a jury could hold that the defenders were in neglect of ordinary care in growing the belladonna plant where they did. The case appears to me to be covered by the decision of the First Division in Stevenson v. Corporation of Glasgow, 1908 S.C. 1034. That action was brought against the present defenders in respect of an accident which had also occurred at the Botanic Gardens, Glasgow. An infant child was drowned in the river Kelvin while playing in the garden. An action of damages was brought by the father of the child against the defenders on the ground that it was their duty to fence the river as it was a danger to the public and especially to children. The Court dismissed the action as irrelevant. At the end of his opinion Lord Kinnear said—“There is nothing unlawful in making a public garden or in opening a garden to the public in a place where there are streams or ponds, and if the place is made safe for persons of average intelligence I know of no rule of law which requires the proprietors to take further precautions. It is impossible to lay upon the defenders a duty to protect children from risks which arise only from their own childishness and helplessness. That is the office of their parents or guardians,”

The pursuers reclaimed, and argued—The pursuers had averred facts and circumstances relevant to go to trial. There was a recognised difference in law between the duty of public authorities to a child and an adult. This had been authoritatively recognised by the House of Lords in the case of Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, 46 S.L.R. 1027. The judgment of the House of Lords in that case, while it gave conclusive recognition to the distinction in question, followed what had already been recognised in numerous decisions in the Courts of the United Kingdom— Campbell v. Ord and Maddison, 1873, 1 R. 149, 11 S.L.R. 54; Green v. Stirlingshire Road Trustees, 1882, 9 R. 1069, 19 S.L.R. 887; Forbes v. Aberdeen Harbour Commissioners, 1888, 15 R. 323, per L. J.C. Moncreiff at p. 325, 25 S.L.R. 239; Cormack v. School Board of Wick and Pulteneytown, 1889, 16 R. 812, 26 S.L.R. 599; Findlay v. Angus, 1887, 14 R. 312, 24 S.L.R. 237; Gibson v. Glasgow Police Commissioners, 1893, 20 R. 466, 30 S.L.R. 469; Morrison v. Macara, 1896, 23 R. 564, 33 S.L.R. 384; Reilly v. Greenfield Coal and Brick Company, Limited,

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1909 S.C. 1328, per Lord Johnston, Ord., at p. 1334, 46 S.L.R. 962; Lynch v. Murdin, 1841, 12 B. 29; Ponting v. Noakes, [1894] 2 QB 281, per Collins, J., at p. 291; Williams v. Eady, 1893, 10 T.L. R. 41; Robinson v. W. H. Smith & Sons, 1901, 17 T.L.R. 423; Sullivan v. Creed, [1904] 2 I.R. 317. The case of Stevenson v. Corporation of Glasgow, 1908 S.C. 1034, 45 S.L.R. 860, founded on by the defenders, was not really an authority contra. The dicta of Lord Kinnear in that case at p. 1043 were no doubt sweeping, but they were not the true ground of judgment, and in any event they were overruled by the subsequent case of Cooke v. Midland Great Western Railway of Ireland. Further, in Johnstone v. Magistrates of Lochgelly, 1913 S.C. 1078, at p. 1089, 50 S.L.R. 907, Lord Kinnear expressed views which were not consistent with the theory that he intended to lay down a rule in Stevenson's case that a young child was entitled to no more protection than an adult from public authorities. In that case he expressed the view that the degree of duty varied with the relationship to the person injured, and that the liability for negligence varied according as the person injured was an adult or a child. Further, Lord Dunedin never concurred in the wide expression of the principle which Lord Kinnear appeared to give in Stevenson's case. In Reilly v. Greenfield Coal and Brick Company, Limited, all he did was to approve of Lord Kinnear's exposition of the law in Stevenson v. Corporation of Glasgow, as to how far a court was bound to allow a jury to try such a question. Hastie v. Magistrates of Edinburgh, 1907 S.C. 1102, 44 S.L.R. 829, only ruled Stevenson v. Corporation of Glasgow so far as the nature of the risk was concerned, but it had no general application such as was sought to be deduced from the latter case. Later cases were inconsistent with the view that there was no difference between the liability to children and to adults, and were consistent with the general principle affirmed in Cooke v. Midland Great Western Railway of Ireland, and Mackenzie v. Fairfield Shipbuilding and Engineering Company, Limited, where it was expressly recognised that a thing might be a danger to children which was not a danger to adults, and that in a place which was supposed to be closed to children; Taylor v. Dumbarton Tramways Company, 1918 S.C. (H.L.) 96, and per Findlay, L.C., at p. 100, 55 S.L.R. 443; Jackson v. London County Council and Chappell, 1912, 28 T.L.R. 359; Latham v. R. Johnston and Nephew, Limited, [1913] 1 KB 398, per Hamilton, L.J., at pp. 410, 413, and 414. A similar duty had been recognised as owing to blind persons— M'Kibbin v. Corporation of Glasgow, 1920, 59 S.L.R. 476. In all such cases the age, relationship, places, and kind of danger were of importance— Morrison v. Sheffield Corporation, [1917] 2 K.B. 866, per Viscount Reading at p. 870. The present case was really a fortiori of Cooke v. Midland Great Western Railway of Ireland, because that was a case of trespass, while in the present case the access was as of right. This was not a botanic garden in the proper sense of the term. It was really a public park. There was, therefore, an absolute duty on the controlling authority not to put a poisonous plant where children were playing. In the present case the plant was in an adjacent plot to which children had access. No precautions, however, had been taken, and there was not even a notice on the bush calling attention to its dangerous character. The distinction that it was a thing of nature was not tenable. No doubt a child must take nature as he found it and the risks attached thereto, but in the present case, though the plant was found growing wild, it had been artificially transplanted to its present position. The defenders must be taken to expect the consequences which would naturally flaw from their act, and the accident in the present case was such a consequence— Scott v. Shepherd, 1771, 3 W.Bl. 892. Liability in all such cases was a question of circumstances. This made the question preeminently a jury question— Toal v. North British Railway Company, [1908] S.C. 29, per Loreburn, L.C., 45 S.L.R. 45. The unusual character of the risk was an additional reason for allowing a jury trial— Scott's Trustees v. Moss, 1889, 17 R. 32, 27 S.L.R. 30. Further, the risk in the present case was of the nature of a trap, because it was attractive berry that looked like fruit, placed in a public place. In this respect the case differed from Stevenson v. Corporation of Glasgow, which dealt with a natural danger which was patent to everyone

Argued for the defenders—The present case fell within the principle of Hastie v. Magistrates of Edinburgh, cit. sup., and Stevenson v. Corporation of Glasgow, eit. sup., viz., that the fact that young children go unattended to public places does not impose a greater liability on the authorities than they would otherwise have— per Lord President Dunedin in Hastie at p. 1105, and Lord Kinnear in Stevenson at p. 1043, foot. According to Lord Kinnear's exposition of the law in that case, there was a duty on public authorities to take all reasonable precautions, but they were entitled to expect that persons resorting thereto would take reasonable precautions for their own safety. If an unusual danger was introduced the duty would be higher, but if a child was injured through its own childishness that fact would not impose liability. It was the duty of parents and guardians to take precautions in such cases— Grant v. Caledonian Railway Company, 1870, 9 Macph. 258, 8 S.L.R. 192. Lord Kinnear's views in Stevenson were approved in Latham v. R. Johnson & Nephew, Limited, cit. sup., per Farwell, L. J., at p. 407, which was later in date than Cooke v. Midland Great Western Railway of Ireland, cit. sup., on which the appellant founded and in which the scope and effect of the decision in Cooke were considered. In order to bring his case within the ratio of that decision, the pursuer would have to show that the plant in question was such an inherently dangerous thing as to make the duty of protection absolute— Dominion Natural Gas Company, Limited v. Collins & Perkins, [1909] AC 640, per Lord Dunedin

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at p. 646, 47 S.L.R. 583. The Case of Cooke was simply an illustration of the principle that the owners of dangerous machines had a special duty to those who came on their premises, whether of licence or of right, to see that they were adequately protected against the risks to which they were thus exposed. The strength of the defenders' position was that, as the name of their Gardens implied, they were entitled to exhibit botanical specimens for the education of the public. The risk therefore was not due to an unusual or concealed danger. It was not therefore a trap. To hold that the defenders were liable in the present case would be to impose a novel liability on all persons throwing their gardens or grounds open to the public. The risk in the present case was not different in character from the risks to which all young children were exposed who went out unattended in the hedgerows, woods, and fields. It was in no sense a trap in the sense of the trap cases as it would have been if it had been growing among fruit bushes— Jenkins v. Great Western Railway, [1912] 1 KB 525; Lowery v. Walker, [1910] 1 KB 173; Coffee v. M'Evoy, [1912] 2 I.R. 290; Latham v. R. Johnson & Nephew, Limited. There was no warrant in authority for including a natural production like a berry in the category of trap. It could not be said that there was any invitation in the present case as there was in the case of Cooke— Holland v. Lanarkshire Middle Ward District Committee, 1909 S.C. 1142, per Lord Kinnear at p. 1149, 46 S.L.R. 758. There was further no sufficient averment of what precaution the defenders could have taken to avoid the accident.

At advising—