Scottish Court of Session Decisions

John Boyd, steelworker, Motherwell, pursuer, brought an action against the Glasgow Iron and Steel Company, Limited, Glasgow, defenders, for £250 damages for the death of his son.

The pursuer averred—“(Cond. 1) The pursuer's son Robert Freeland Boyd, aged ten years, died on or about 9th July 1922 in consequence of injuries sustained by accident after condescended on. The defenders are a limited company, and are proprietors of an old pumping engine-house abutting on the road to Kirklea. Many years ago the engine-house was used to pump water

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from the river Calder to the defenders' works at Motherwell, but it has not been in use for at least twenty years, and is in a state of disrepair. There is no roof to the building, and there are breaches in nearly all the walls, which made them easy and attractive to children to climb. This condition has existed for many years. … (Cond. 2) The said building in its state of disrepair is not securely fenced off from the public road on which it abuts, and there is no notice prohibiting persons from entering the building. In fact the public has passed through and close by the building for many years without objection from and to the knowledge of the defenders. Immediately contiguous to the said building are dwelling-houses. The defenders' explanations are denied. The alleged gate is derelict. It is in two portions, and the right-hand portion is utterly broken down and useless for its purpose. The left-hand portion has been used by one of the said tenants of the said dwelling-houses to enclose poultry which he keeps. (Cond. 3) For many years children have been in the habit of playing constantly in the said building, and that with the knowledge of the defenders. It was an attractive playground for children, and as birds built their nests in the crevices of the walls, boys were in the habit of bird-nesting in the building and climbing up the breaches in the walls, which looked quite safe to climb. This was well known to the defenders, who allowed children to resort to the building although it was in its condition a trap dangerous to children climbing the walls. (Cond. 4) On or about 6th July 1922 the pursuer's said son, accompanied by some companions, had been to Shaws Banking, which is reached by the road on which the said building abuts, and on their return the pursuer's son climbed up one of the breaches in the wall of the said building in search of birds' nests. He sat on a stone in the wall and was putting his hand into a crevice where he thought there was a bird's nest when the stone fell to the ground and the pursuer's son with it. This stone appeared to be securely embedded in the wall and safe to sit upon, but owing to the said disrepair it was not really so, although this was unknown to the pursuer's son. He sustained a severe concussion of the brain and died on 9th July 1922. … (Cond. 5) The accident was entirely due to the fault and negligence of the defenders. They knew that the said building was a dangerous allurement to children, and they knowingly allowed them to use it as a playground and to climb up the walls, and the pursuer's son was ignorant of the danger, and the defenders did nothing to protect the children, and in particular the pursuer's son, from the said danger. It was their duty, in the knowledge which they possessed, either to securely fence off the building and take adequate measures to prevent children getting into the building or to have the building in a safe condition. They knew it was unsafe, and that parts of it had from time to time fallen down. They entirely failed to perform their duty, and so caused the accident to the pursuer's son, which resulted in his death. Had they taken, as they were bound to take, reasonable precautions to exclude children from the said building or to put the said building in a safe condition, the accident would not have occurred. On the contrary, they allowed them to play in and upon the insecure and dangerous building, and the death of the pursuer's son was the natural and probable result of their failure to take the said precautions. …”

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.”

The pursuer proposed an issue in ordinary form.

On 2nd January 1923 the Lord Ordinary ( Ashmore) sustained the first plea-in-law for the defenders and dismissed the action.

Opinion.—“In this case the pursuer is suing the defenders for £250 as damages for the death by accident of his son, a boy ten years of age.

The pursuer makes averments as to the circumstances under which the accident happened, to the following effect:—( a) that the defenders are proprietors of an old engine-house which has not been in use for at least twenty years, that it is in a state of disrepair, that it has no roof on it, and that there are breaches in nearly all the walls, which makes them easy and attractive to children to climb; ( b) that for many years children have been in the habit of playing constantly in the said building with the knowledge of the defenders, that it was an attractive playground for children, and as birds built their nests in the crevices of the walls, that boys were in the habit of bird-nesting in the building and climbing up the breaches in the walls, which looked quite safe to climb, and that this was well known to the defenders, who allowed children to resort to the building although in its condition it was a trap dangerous to children climbing the walls; and ( c) that on 6th July 1922 the pursuer's son climbed up one of the breaches in the wall of the building in search of birds' nests, that he sat on a stone in the wall and was putting his hand into a crevice in which he thought there was a bird's nest when the stone fell to the ground and the pursuer's son with it; that the stone appeared to be securely embedded in the wall and safe to sit on, but owing to the disrepair of the building it was not really safe, although that was unknown to the pursuer's son.

I proceed to explain the grounds alleged by the pursuer as the basis of his claim for damages.

His averments to the effect that the accident was entirely due to the fault and negligence of the defenders may be summarised as follows:—( a) that the defenders knew that the building was a dangerous alluremeut to children, and knowingly allowed them to use it as a playground and to climb up the walls; ( b) that the pursuer's son was ignorant of the danger; ( c) that

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the defenders did nothing to protect the children from the danger; and ( d) that the defenders knew that the building was unsafe and that parts of it had fallen from time to time, and that it was the duty of the defenders either (1) to fence off the building securely so as to prevent children from getting into it, or (2) to have it put in a safe condition.

The defenders repudiate liability on various grounds, and at the diet for adjusting the issue, proposed by the pursuer for the trial of the case by jury, the defenders objected to the relevancy of the pursuer's averments.

The questions which I have to determine—accepting for that purpose the pursuer's own averments regarding the state of the building, the defenders' knowledge, and the circumstances generally—are these—( a) Did the building constitute a trap in the sense that it subjected the pursuer's son to risks and dangers which were concealed from him but which were known to the defenders; and ( b) was the accident which occurred one which the defenders ought reasonably to have anticipated and to have provided against by fencing the building so as to exclude children, or by putting the building in a condition safe for children when climbing its walls.

In support of the contention that the building as described by the pursuer constituted a trap, counsel for the pursuer maintained that the decision of the House of Lords in Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, is directly in point. He argued that just as in the case of Cooke the turntable allured the child of four years old, and while seeming safe to so young a child, was really a dangerous trap, so in the present case the wall with its breaches allured the pursuer's son, ten years old, seeming to him to be safe to climb, whereas it, too, was a dangerous trap.

In view of the description given by the pursuer of the condition of the roofless building, out of use for twenty years and with breaches in its walls, I see no reasonable justification for regarding it as a trap in the sense of its having risks and dangers which were concealed from the pursuer's son but which were known to the defenders.

On the contrary, having regard to the pursuer's own averments, I think that any risk and danger attending a climb of 15 or 20 feet up the wall must have been at least sufficiently obvious to a boy of ten years.

Moreover, so far as appears from the pursuer's averments, it seems extravagant to suggest that the defenders could be reasonably expected to anticipate and provide against such an accident as occurred to the pursuer's son on his birdnesting climb by a complete overhaul of the building and its restoration from its broken-down condition to a state of repair.

Then as regards the suggestion of fencing, if the building itself did not deter the pursuer's son from climbing, it is not likely that any ordinary fence would have deterred him. ‘It is perhaps fortunate,’ said Lord M'Laren, ‘that there is no rule of law imposing on proprietors the impossible task of fencing their lands so as to keep out schoolboys—for the more difficult the fence was made the greater would be the temptation to overcome the obstacle.’— Devlin v. Jeffray's Trustees, 1902, 5 F. 130, at p. 134.

After considering the case in the light of the decisions in this branch of the law, I have come to the conclusion that the pursuer's averments are irrelevant. In the circumstances disclosed by the pursuer I am of opinion that the principle given effect to in the case of Cooke is inapplicable in this case, and out of the various decisions I select two which seem to me to embody the true principle for the decision of this case. In the first place I refer to Thomson v. Lanarkshire and Dumbartonshire Railway Company, 1897, 24 R. 1025.

In that case the pursuer sued the railway company for damages for the death of his son aged ten. The defenders' railway line was separated from a public court by a wall 5 feet high on the side facing the court but with a drop of 25 feet on the other side. The wall was flat on the top—14 inches wide. A heap of rubbish 2 feet in height had been left by the defenders against the wall in the court, and the pursuer's son mounted the wall and was walking along the top when he fell on to the railway and was killed.

For the pursuer it was maintained that the defenders were in fault in not fencing the dangerous place and in adding to the risk by permitting the heap of rubbish to remain. The Second Division of the Court, however, held that no relevant case had been set forth, and accordingly refused trial by jury and dismissed the action.

The other case is Horsbrugh v. Sheach, 1900, 3 F. 268. In it the pursuer sued for damages for the death of his son aged seven.

A wall 8 feet high separated a public street from a mill pond 10 feet deep. The defender, a builder, deposited a large heap of building materials close to the wall and reaching to within 30 inches from the top, and the pursuer's son, when playing with other children on the top of the heap, fell over the wall into the pond and was drowned.

The pursuer averred that the defender knew that children were in the habit of playing on the top of the heap, and that he was guilty of negligence in leaving the heap or in failing either to fence it or to adopt some other precaution to protect children from the danger. The Second Division of the Court, however, refused the pursuer an issue for trial by jury, and dismissed the case as irrelevant. Lord Justice-Clerk Macdonald said—‘If the deceased had been a grown up person, or a child of ten years, I do not think that there would be a shadow of doubt that the defender was not responsible. The deceased was a child of seven, but even in such a case I do not think that the defender was bound to contemplate that a child of seven would climb on to the wall from a pile of gravel, the top of which was 30 inches below the level of the wall.’

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In the two cases to which I have been referring the circumstances are, of course, different in details from those in this case, but nevertheless I think that these cases support the principle to which I am giving effect in this case, viz., that the occupier of private ground owes no duty to persons whom he permits to come on the ground for recreation in the way of protecting them from ordinary and obvious risks and dangers.

It is that principle and not the principle underlying the decision in the case of Cooke which seems to me to be applicable in the circumstances set forth by the pursuer in this action.

Counsel for the pursuer, however, further contended that in view of the pursuer's averments this case involved a question of negligence which ought to be remitted to a jury for determination. I think that the contention was based on a failure to recognise and discriminate between the appropriate functions of the judge and the jury. On this matter I refer to Lord Kinnear's opinion in Stevenson v. Corporation of Glasgow, 1908 S.C. 1034, at p. 1040. I select these sentences—

‘It was said that this is a question of negligence, and that this is always a question for the jury, which is the only proper tribunal by which it can be tried.

I cannot assent to that view. Whether the defender has or has not been negligent in point of fact in a particular case is a question for the jury, but there is, first of all, upon the relevancy of the record a question whether the negligence alleged constitutes a ground of legal liability, and that is a question for the Court.’

For the reasons which I have given I will find that the pursuer's averments are irrelevant, and will disallow the issue proposed by the pursuer, and sustain the first plea-in-law for the defenders, and dismiss the action; and I will find the defenders entitled to expenses.”

The pursuer reclaimed, and argued—There was a duty on the defenders either securely to fence off the building and take adequate measures to prevent children getting into the building or to have the building in a safe condition. This duty the defenders had failed to perform. The insecure stone on which the boy sat constituted a trap within a trap— Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, per Lord Atkinson at 240; Taylor v. Glasgow Corporation, 1922 SC (HL) 1, 59 S.L.R. 14, per Lord Atkinson at 1922 S.C. (H.L.) 5, 6, and 7, 59 S.L.R. 16 and 17, Lord Shaw at 1922 S.C. (H.L.) 12, 59 S.L.R. 20, and Lord Sumner at 1922 S.C. (H.L.) 14, 59 S.L.R. 21; Mackenzie v. Fairfield Shipbuilding and Engineering Company, Limited, 1913 S.C. 213, 50 S.L.R. 79, per Lord Ormidale at 1913 S.C. 215, 50 S.L.R. 80; M'Kinlay v. Darngavil Coal Company, 1923 S.C. (H.L.) 34, per Lord Chancellor (Cave) at p. 36, 60 S.L.R. 440; Mitchell v. M'Harg & Son, 60 S.L.R. 393, per Lord Ormidale; Fairman v. Perpetual Investment Building Society, [1923] A.C] 74, per Lord Buckmaster at 80; Craig v. Beveridge, 1914, 2 S.L.T. 435; Latham v. R. Johnson & Nephew, Limited, [1913] 1 KB 398, per Hamilton, L. J., at 419; M'Call v. John Porter & Sons, 1909, 2 S.L.T. 407; Findlay v. Angus, (1887) 14 R. 312, 24 S.L.R. 237; Lynch v. Nurdin, (1841) 1 Q.B. (Ad. & E.) 29.

Argued for the respondents—The defenders had not failed in any duty which they owed to the pursuer's son. The building did not constitute a trap— Stevenson v. Corporation of Glasgow, 1908 S.C. 1034, per Lord Kinnear at 1042, 45 S.L.R. 860; Latham v. R. Johnson & Nephew, Limited, cit., per Farwell, L.J. at 408, and Hamilton, L.J., at 410, 411, and 418; Taylor v. Glasgow Corporation, cit., per Lord Dundas at 1921 S.C. 274, 58 S.L.R. 164, Lord Buckmaster at 1922 S.C. (H.L.) 4, 59 S.L.R. 15, and Lord Atkinson at 1922 S.C. (H.L.) 5, 59 S.L.R. 16; Cooke v. Midland Great Western Railway of Ireland, cit., per Lord Atkinson at 238; M'Kenna v. Henry Widnell & Stewart, Limited, 1922 S.L.T. 172.

At advising—