Scottish Court of Session Decisions

At advising on 3rd December 1975,—

LORD JUSTICE-CLERK (Wheatley).—[His Lordship gave the narrative quoted at p. 35 and continued]—The pursuer's averments of fault are as follows:

" It was the duty of the defenders to show towards persons, such as Laura entering the said drying hall in respect of dangers therein such care as in the circumstances of the case was reasonable to see that they did not suffer injury or damage by reason of any such danger. Reference is made to section 2 (1) of the Occupiers Liability (Scotland) Act 1960 (cap. 30). The defenders knew or ought to have known that if said window was unlocked it could readily be opened and was liable to be left open from time to time. They knew or ought to have known, as was the fact, that young children resident in the said premises regularly accompanied adults to the said drying hall. They should therefore have appreciated that an unlocked window the base of which was situated about 6 to 7 inches above floor level constituted a danger to young children such as Laura who would be likely to be attracted to it and that they would be unlikely to appreciate the dangers of an open window and would be liable to fall out of it. It was the duty of the defenders to take reasonable care to see that young children, such as Laura, entering the said drying hall did not suffer any injury or damage by reason of said danger. In the circumstances it was their duty to take reasonable care to inspect the windows in said drying hall after the said block was built and to see to it that said window was locked or guarded by bars to prevent children falling out of it. In the circumstances, one or other of these precautions was obviously necessary. The defenders failed in their duties and as a result of their failure Laura fell out of the window and sustained injury. They failed to show towards Laura such care as was reasonable in the circumstances to see that she did not suffer injury or damage by reason of said danger. They negligently permitted said window to remain unlocked and unguarded with the result that Laura fell out as condescended on. Had the defenders carried out their said duties Laura would not have been injured. Some hours after the accident the defenders had a padlock fitted to the said window to keep it closed. They later put a new lock on said window and fitted steel bars across all the windows in said drying halls."

The defenders attribute the accident to the sole fault of the pursuer's wife. Their averments are as follows:

"Said accident was caused by the fault and negligence of the pursuer's wife. It was her duty to take reasonable care for the safety of Laura. It was in particular her duty to refrain from opening said window while Laura was present and liable to be in proximity to the opening. In any event, it was her duty to close said window or at any rate to remove Laura from said drying hall while said window was open. The pursuer's wife failed in said duties and so caused the accident. She opened said window when Laura was present and liable to be in proximity thereto. In any event she failed to close said window and failed to remove Laura from said drying hall while it was open."

At this point it is convenient to mention that the Lord Ordinary's finding that the defenders had failed to prove that the pursuer's wife had herself opened the window was accepted by them.

In the result the Lord Ordinary found that the pursuer had failed to prove his case. In particular he held that the pursuer had failed to prove that from the time the tenants took occupancy (which was 1965 or 1966) until May 1969 the said window was never locked. On the other hand he accepted the evidence that it had been open on a number of occasions between May 1969 and 16th October 1969, and since none of the women using the drying room had a key for the window lock he thought, it seemed to follow that the window was left unlocked during this later period. In that situation he considered that the issue turned on whether it had been established that there was a duty of inspection by the defenders during that period.

The purpose of the inspection desiderated by the pursuer was to ascertain whether the lock was in an open or closed position, but in the absence of any record and evidence as to what form the inspection should take and at what intervals, or any record and evidence of practice, he came to the conclusion that the pursuer had failed to establish the foundation for his case. His view was that since the defenders were not said to have any duty to lock the window or put bars across it unless they knew that it was unlocked, and since it was not suggested that without inspection they had, or could have had, such knowledge the pursuer's stated case of fault failed. The Lord Ordinary, however, went on to consider another, and what he conceived to be a simpler ground for finding against the pursuer. The pursuer's case being (and it being held) that when his wife went into the drying room with Laura the window was open, the defenders, in judging the degree of care requisite in all the circumstances, were not bound to foresee that a mother of a two year old child would fail to take the obvious and elementary precaution of closing the window. Nor were they bound to foresee that if a child was allured by the window the accompanying adult would do nothing to counteract the allurement but would allow the child to go unobserved to a window so obviously dangerous. On this latter point he expressed the view that his observation thereon would apply whether the window was open or shut.

It is perhaps worthy of note that the Lord Ordinary only sustained the defenders' third plea-in-law, and made no finding on the defenders' fourth plea-in-law which ascribes the accident to the fault and negligence of the pursuer's wife. This would indicate that he was looking solely from the point of view of foreseeability in relation to the defenders' duty. In view of the various permutations of fact and law presented by pursuer's counsel as justifications for a successful answer whether the defenders were at fault, it is desirable to ascertain the facts of material importance and then see whether on these facts the case as pleaded by the pursuer has been established.

There were, I think, four questions of materiality posed to this court namely:—

1. (1) For how long was the window unlocked?

2. (2) Could it be opened by a screwdriver?

3. (3) Was it a danger if it was closed but unlocked? and

4. (4) Was the fact that the window was unlocked discoverable inspection which the defenders could and should have carried out?

(1) The Lord Ordinary held that it was not proved that the window was unlocked from the time that the flats were occupied in 1965 or 1966 until May 1969, but that it was proved that it was unlocked between May 1969 and the date of the accident. In my opinion he was fully justified in so finding from the evidence adduced before him and I mainly content myself by adopting his reasons for reaching these conclusions. I would only add for good measure that if the window had been unlocked between 1966 and 1969 it is unlikely that it would not have been opened, and been seen to have been opened for the purpose of drying clothes, as it undoubted was during the later period. Yet apart from two occasions, which apparently were during the maintenance period, there was nothing in the evidence to indicate that the windows had been unlocked during that earlier period of three years. It seems to me to be an unjustified inference that because the window was proved to be unlocked on two occasions during the maintenance period it remained unlocked during the whole of this extended period, and that despite the fact that it would normally be inspected at the end of the maintenance period, and according to Allan, the defenders' former clerk of works for the building, it was. Although the Lord Ordinary has stated that he was not greatly impressed by Allan's evidence, he did not say that he disbelieved Allan's evidence that when he made an inspection at the maintenance period in 1966 the window was locked, and the fact that such an inspection would normally be made at that time was spoken who was the defenders' senior clerk of works at the time. Mrs M'Laughlin, who deponed that she had complained to a master of works about the window being open on one occasion during the maintenance period, could not whether the master of works to whom she complained was the servant of the defenders or the builders.

Defenders' counsel accepted the Lord Ordinary's findings and while pursuer's counsel challenged the first of them, I found nothing in their arguments which satisfied me that the Lord Ordinary was not the conclusion which he did.

(2) Could the window be opened and closed by the use of a screwdriver or similar object? The defenders averred that it could, but the pursuer denied this in his general denial. Paradoxically, the only person who said that it could be opened by a screwdriver was the pursuer himself, while the only other witness who expressed an opinion on this, namely Allan, said that it could not. Neither the pursuer nor Allan had tried to open the lock by using a screwdriver and the Lord Ordinary has made no express finding on the point. What he did say was that "the lock was certainly of simple construction and could readily be opened by anyone such as a window cleaner who was in possession of the requisite piece of metal to operate it." The lock and key (or their equivalents) are in process, and they would certainly seem to justify the Lord Ordinary's view, but it is difficult to know how far a judge is entitled to proceed on his own personal impression. It must have been within the contemplation of the defenders, as M'Guiness their chief master of works at the time accepted, that the windows would be opened by window cleaners. That it might be left unlocked at least for a time was therefore a possibility, and in view of their averment on the point it is hardly in the defenders' mouths to say that it ought not to have been reasonably within their contemplation that the window might be opened by unauthorised means. Certainly they did not intend the tenants to open the windows as they were not supplied with keys. The fact remains, however, that it is accepted that the window was unlocked during the 5 to 6 months prior to the accident, and that, as the Lord Ordinary pointed out, takes the matter right into the fourth question, namely the duty of inspection.

(3) Was the window a danger if closed but unlocked? The evidence of each of the women witnesses (including the pursuer's wife) who used the drying room varied on this point. The Lord Ordinary who had the advantage of hearing and seeing the witnesses has preferred those passages in their evidence where they said that they did not apprehend any danger from a closed but unlocked window. He found confirmation in this in the fact that they took their own children into the drying room and seemed satisfied for their safety if the window was closed. "Actions" he said "speak louder than words." There was evidence from the women users of the drying room that the window opened easily by pulling it inwards from the top. These were all adults. The pursuer said that it was just a case of leaning against the window (at the bottom) and it would swing open, and the women users, to quote the Lord Ordinary, accepted that Laura might have pushed against the window and fallen through. But none of these witnesses tried to open the window from the foot and could not say, therefore, what force would be required so to open it. And no evidence of an expert nature was adduced by the pursuer to speak to this and to give a view as to what force would be required from a child leaning against or pushing the foot of the window in order to open it outwards. The Lord Ordinary expressed the opinion that the weight of the evidence was to the overwhelming effect that with the window closed the danger was gone. For my part I would prefer to rest my conclusion on the view that the pursuer has not proved that with the window closed but unlocked a danger existed because of the ability of a child such as Laura opening it from the bottom.

(4) Was the fact that the window was unlocked discoverable by any reasonable inspection which the defenders could and should have carried out?

Of course, if there was no danger if the window was closed but unlocked the question in this form does not arise as a material point in the case. I prefer, however, to deal with it on the broader issue, namely, would a reasonable inspection which the defenders could and should have carried out have revealed a danger which was foreseeable? If there was no danger to a child like Laura from a closed but unlocked window, and in my view it has not been proved that there was, then the foreseeable danger that the pursuer must rely upon was the danger of and from the window being open. If such a danger was foreseeable then one can appreciate the argument that since an unlocked window might be opened the defenders should have taken steps either to see that the window was kept locked or that bars were placed in a position to prevent people from falling out, as was done some two years after the accident. But was it reasonably foreseeable that a window which was designed to be locked would be unlocked as the pursuer avers? I shall deal with that point later. If that was not so, then the question of failure in duty on the part of the defenders would turn on whether in any event there should have been an inspection and if so what form that inspection should have taken. The practical question relates to the 5 to 6 months period prior to the accident when the window was open, and accordingly unlocked on a number of occasions. The evidence that users either opened or closed the window during this period indicates that it was not permanently open. There was admittedly no inspection during this period and for that matter since the end of the maintenance period in 1966.

In that situation I turn to examine the pursuer's case as presented on record in relation to the defenders' duty to inspect. His factual averment was that the window had not been locked or secured in any way since the block of flats was built in or about 1965. That, as I have already noted, has not been proved so far as the period up until May 1969 is concerned. His counsel however, submitted that a duty to inspect arose from the following facts:

1. (1) The drying room was in the possession and control of the defenders.

2. (2) None of the tenants had a key to the window.

3. (3) So far as the defenders were concerned there was no lock on the drying room door, so that anyone, including children, had free access to the drying room.

4. (4) The nature of the window was such that if unlocked it was a lethal danger to a child and should have been foreseen to be such.

The first three points are not in dispute. When pursuer's counsel was asked whether the fourth was established by evidence or was simply self-evident he replied "Both." As I have already said, the fourth was not proved by the evidence, and I do not think that the court is in the position to say that it was self-evident. Counsel argued that on the basis of these four facts there was a duty to inspect ab initio and throughout the whole period. The averment of fault pleaded against the defenders is:

"In the circumstance it was their duty to inspect the windows in said drying hall after the said block was built and to see to it that said window was locked or guarded by bars to prevent children falling out of it. In the circumstances, one or other of these precautions was obviously necessary."

While, as I have held, the danger was only proved to exist when the window was open, I am prepared to consider the broader issue of the window being unlocked on the basis that if it was unlocked it could be opened and thus present a danger, particularly to young children. From the defenders' point of view, the window was made to lock and the tenants were not supplied with a key. It was accordingly not intended to be opened and closed except by an authorised person. It has not been proved that it was unlocked during the whole period between the completion of the building and May 1969, and it was not proved that on the two occasions when it was unlocked during that period that fact was brought to the notice of the defenders. Nor has it been established that the defenders' attention was drawn at any time to the fact that the window was unlocked or open. All that being so, it cannot be said in my opinion that there was ab initio a duty to inspect to see that it was unlocked, and I do not consider that the "pavement" cases cited to us provide any parallel. In those cases there was an admitted duty to inspect to look for defects. That to my mind is quite different from a duty to inspect to see that a window which was initially locked and should only be opened by persons authorised by them was otherwise kept locked. There is certainly no record for this. I do not consider that there was any duty to inspect to see that authorised persons had closed the window after opening it unless their attention had been drawn to the fact that it was being left unlocked. Even on the basis that it should have been within their contemplation that the window might be unlocked by an unauthorised person and by unauthorised means, thus creating a danger for children who might resort to the drying room, and that there was accordingly a duty to inspect, again there is no record for this, and the record and the evidence are silent on when, at what intervals and how this inspection should have been carried out. In the absence of such particulars the pursuer's pleadings can be read as meaning that a single inspection after the building was occupied to see to it that the window was locked would have sufficed. The only evidence on inspection was adduced by the defenders, and that was to the effect that an inspection was carried out at the end of the maintenance period. That, however, avails the pursuer naught because it was negative of his case of fault in any of its aspects. Admittedly there was no other inspection. The need for a record for a case of inspection and evidence to support it was pointed out by Lord President Normand in Riddell v. Reid 1941 S.C. 277 at p. 283. That in itself seems to me to be fatal to the pursuer's whole case on inspection, in respect of which the duty was said to exist from the time of occupancy. None the less, I shall now consider the case in its narrower form, namely, the period from May 1969 up to and including the accident. While I do not consider that it has been positively proved that the window was continuously unlocked during that period, the fact that it was open from time to time by unauthorised persons and presumably by unauthorised means was amply established. It may well have been locked in between times, but none of the users said that they unlocked it. As they admitted opening it, it seems reasonable to infer that it remained unlocked at least for substantial periods, if not for the whole period during that time. But there was no evidence that this fact was ever drawn to the defenders' notice. Subject to what I have said previously on this topic that fact in itself could be fatal to the pursuer's case of inspection. There is, however, another formidable objection to it. In the absence of any record or evidence as to the periods over which inspections should have been carried out, and in the absence of any evidence that the attention of the defenders had been drawn to the fact that the window was unauthorisedly being unlocked and/or opened, it cannot be said that if the defenders had carried out a duty of inspection, the inspection would have covered the period and revealed the fact that the window was being unlocked and/or opened during that 5 to 6 month period. Counsel's own suggestion as to what would have been reasonable periods of inspection is no substitute for a record or evidence.

I am accordingly of the opinion that the basis of the pursuer's case fails. It is averred that "they negligently permitted the said window to remain unlocked and unguarded with the result that Laura fell out as condescended upon." The negligence founded upon which resulted in them permitting the window to remain unlocked and unguarded was based either on their duty to inspect, which the pursuer has failed to establish, or on a foreseeability which the pursuer has not pled. But basically it all comes back to inspection. Since the pursuer has failed to prove that a system of inspection would have covered this later period he has failed to establish that a failure to inspect was causally connected with the accident.

It was argued by pursuer's counsel that his case of providing bars was alternative to and independent of his case of inspection. I disagree. His basic averment of fault which I have quoted supra, seems to me to proceed on the basis that if the inspection desiderated had revealed the danger, it was the defenders' duty either to see that the window was locked or provide bars to prevent children from falling out. On that view, if the case of inspection fails so must the case of providing bars. The only ground on which a case of providing bars independent of inspection could be argued is that even in the absence of any knowledge on the part of the defenders, either by inspection or complaint, that the window was being left unlocked, it was reasonably foreseeable that the window might be unlocked by unauthorised persons or by unauthorised means. No such case is made on record and that seems to me to foreclose that argument even if, contrary to my view of the pleadings, it was open.

The Lord Ordinary has stated that there was a simpler ground on which the case could be decided but leading to the same result. In view of the conclusion which I have already reached, it is not really necessary to examine this "simpler" ground, but as I disagree with the Lord Ordinary on it I feel constrained to say a few words about it. He proceeded on the basis that the defenders were entitled to assume that any adult taking a young child into the drying room would act reasonably, and that in the particular circumstances of the instant case Laura's mother would close the window, which in its open condition was an obvious danger to the child when she entered the drying room. He founded his reasoning on what Lord Shaw said in Taylor v. Glasgow Corporation 1922 SC (HL) 1 at p. 11 and on Phipps v. Rochester Corporation [1955] 1 Q.B. 450. As the decision in the latter case proceeded on Lord Shaw's dictumI shall confine myself to that dictum. It appears to me that the Lord Ordinary has misread the situation. What Lord Shaw was considering was the situation where the danger was familiar and obvious both to defenders and to parents of young children. In that situation he stated that the owner of the property is entitled to take into account that reasonable parents will not permit their children to be sent into the midst of familiar and obvious dangers except under protection or guardianship. To equiparate the instant case to that it would have to be shown that the danger which the Lord Ordinary had in mind was familiar and obvious to the defenders. That is what in the other branch of the case he has held not to have been proved, rightly in my opinion and for the reasons I have already given. I accordingly see no profit in pursuing that line of argument. If the defenders had been proved to have been at fault in the circumstances of this case, then any fault on the part of the mother would not have exonerated the defenders. In all the circumstances, therefore, I am of the opinion that the pursuer has failed to establish that the Lord Ordinary reached the wrong conclusion on the merits.

The Lord Ordinary, however, very properly dealt with the question of damages, and perforce we are obliged to do the same. There has been a significant change in the situation since the Lord Ordinary dealt with the question of damages. At that time the prognosis was that the child's expectancy of life was 2–3 years. In the event we now know that this unfortunate child only survived the proof by some seven months. Two issues were raised on the question of damages, namely: (1) had the Lord Ordinary taken the right approach in his assessment? and (2) should the fact that the child died some 18 months before the earliest period the Lord Ordinary had in contemplation for her death result in a scaling down of the damages however assessed?

I shall deal with the second issue first. Defenders' counsel asserted that the fact that the child had died earlier than anticipated made such a material difference that it would be an affront to common sense to ignore it. Support was sought for this from the opinion of the Court in the seven Judge case Rieley v. Kingslaw Riding School and Others 1975 S.L.T. 61. I cannot subscribe to this. It was pointed out in that case that normally damages are assessed and reviewed upon evidence led at the proof. That principle is so important that the Court will only exercise its discretionary power to depart from it in very exceptional circumstances. I do not consider that such very exceptional circumstances have been established here. In Rieley the Lord Ordinary proceeded on the basis that the girl's leg would not be amputated, and in effect treated that as a fact although it was based on an opinion that the possibility of her losing her leg in the future was very remote. In fact the leg was amputated between the date of the Lord Ordinary's judgment and the case being considered in the Inner House. In the present case it was the medical view that the girl would die within a relatively short time from the proof. The opinion expressed was that it would be about two to three years. The fact of relatively imminent death has not changed. All that has happened is that in what can only be described as an area of uncertainty an opinion has been proved to be wrong, although not to any substantial extent. It seems to me that it falls within that class of case envisaged by Lord Wilberforce in Mulholland v. Mitchell [1971] A.C. 666 when he said that fresh evidence ought not to be admitted when it bears upon matters falling within the field of uncertainty. Accordingly, although by the amendment which this Court has allowed to regularise the pursuer's capacity to carry on the action in the light of supervening events we now know that Laura died on 14th July 1975, in my opinion, and for the reasons which I have stated supra, that fact does not constitute such exceptional circumstances as to justify us departing from the normal rule that damages are assessed and reviewed upon the evidence led at the proof. I therefore reject the defenders' submission on this point.

On the first issue, pursuer's counsel submitted that the Lord Ordinary was wrong in holding that the decision of the House of Lords in the case of West & Sons v. Shephard [1964] AC 326 was not binding on him (although he had in effect followed the line taken by the majority of the Judges in that case). The argument ran thus. It was decided in Allan v. Scott and Anr. 1972 S.C. 59 that solatium in Scotland is strictly equivalent to general damages for pain and suffering and loss of amenities in England. That being so, a decision of the House of Lords, albeit in an English case, was binding on the Scottish Courts when it related to a matter which was common to the laws of both countries. I pause to observe that none of the Judges in Allan said that the English authorities were binding on the Scottish Courts. Of course, the only English authorities which could be binding on our Courts are appropriate decisions of the House of Lords. Lord Walker said that it appeared to him to be neither good sense nor good law to ignore English precedents. Lord Milligan said that English precedents may competently be looked at. Lord Fraser said that there was no reason why awards in English cases should not be looked at for comparison when making awards in Scotland. The issue raised by the parties in Allan was whether the English cases were or were not helpful in the assessment of damages, and so the question of whether a House of Lords decision in an English case such as West & Sons (which was in fact cited in Allan) was binding on the Scottish Courts when a similar or equivalent matter was involved was not canvassed or decided. The question whether a decision of the House of Lords in an English case is binding on the courts in Scotland is not free from difficulty. In the seven Judge case of Virtue v. Commissioners of Police of Alloa (1874) 1 R. 285 the Judges were divided on the point as it arose in that case. Lord President Inglis, Lord Justice-Clerk Moncrieff, Lord Benholme and Lord Jerviswood thought that the English authority was binding, Lord Cowan, Lord Deas and Lord Neaves in varying degrees thought that it was not. Doubts were expressed by the minority Judges as to whether the legal point in issue in that case was the same as the legal point in the English case. Lord President Inglis said at p. 296:

"I think it is an error in constitutional law to represent the House of Lords as sitting at one time as a Scottish Court and at another time as an English Court. That House, I apprehend, sits always in one character, as the House of Lords of the United Kingdom, and as such the Imperial Court of Appeal for the whole three parts of the United Kingdom. It has occasion to administer at one time the law of Scotland, at another the law of England, and at another the law of Ireland. But in appeals coming from all three countries it has to deal with principles of law that are common to the whole three."

He went on to state that it was with such principles—the rules applicable to the construction of statutes of the Imperial legislature—that the House was dealing in the previous conflicting decisions of the House in appeals from the courts in Scotland and England. Lord Justice-Clerk Moncrieff said at p. 304 that he thought that the Scottish Courts were entitled to take as a precedent a House of Lords decision in an English case where on a question of general jurisprudence or of mercantile law the two systems concur. Lord Cowan on the other hand said at page 299:

"I cannot hold the judgment, even of the House of Lords—sitting as a Supreme Court of Appeal, and determining a purely English case under an English local statute—as a binding precedent on the courts of this country."

In Orr Ewing's Trustees v. Orr Ewing (1886) 13 R. (H.L.) 1 Lord Chancellor Selborne said at p. 3:

"A decision of this House, in an English case, ought to be held conclusive in Scotland, as well as England, as to questions of English law and English jurisdiction which it determined. It cannot, of course, conclude any question of Scottish law. So far as it may proceed upon principle of general jurisprudence, it ought to have weight in Scotland; as a similar judgment of this House on a Scottish appeal ought to have weight in England. If, however, it can be shown that by any positive law of Scotland, or according to authorities having the force of law in that country, a different view of the proper interpretation, extent or application of these principles prevails there, the opinions on those subjects, expressed by noble and learned Lords when giving judgment on an English appeal ought not to be held conclusive in Scotland."

In Glasgow Corporation v. Central Land Board 1956 SC (HL) 1 Lord Normand stated at pp. 16 and 17 that a decision in the House of Lords in an English case wherein no question of Scots law fell to be decided is not binding on the Scottish courts nor in the House of Lords sitting as a court of ultimate appeal in a Scottish case.

The difficulty is not just one of deciding which of the conflicting views our courts should adopt. It is one of finding an all-embracing and definitive formula to regulate the cases where a decision of the House of Lords in an English case should be regarded as a binding precedent in our courts. Manifestly, in my view, a decision on a U.K. statute which has equal or similar applicability in both countries, is one such case. (I note in parenthesis that this does not apply to appeals in criminal cases in Scotland, where the ultimate court of Appeal is the High Court of Justiciary or the Court of Criminal Appeal, and decisions of the House of Lords in criminal cases in England are not binding on these Scottish courts even in relation to the interpretation of U.K. statutes applicable equally to both countries.) How far beyond that can the principle extend? Here I find myself inclined to resort to what might be regarded as an age-old cliché, but what is the practical answer to so many questions, namely, that each case must be determined on its own circumstances. I feel, however, that something more positive is required. Since we have in Scotland our own system of law, then in my opinion no legal issue in Scots law should be held to be governed by a House of Lords decision in an English appeal, unless the point in issue is based on legislation which has equal applicability and force in both countries, or has been decided by an authoritative and binding court to be exactly the same and have the same legal significance in both countries.

Counsel for the pursuer, as already noted, argued that, since it had been decided in Allan v. Scott and Anr. (supra) that, to use Lord Walker's phrase (at p. 63), solatium in Scotland is strictly equivalent to general damages for pain, suffering and loss of amenities in England, that was a decision binding on this Court. Therefore West should be regarded as a binding precedent here. As I have pointed out already, all that the Judges were saying in that case was that it would be wrong to ignore the English precedents when seeking to assess damages. They did not say that House of Lords decisions in English cases were binding on that question. Although the ingredients of solatium and general damages may be the same, the assessment of the individual items incorporated therein is a matter for the individual court. Historically as between Scotland and England there have been some different attitudes towards the emphasis on and the standard of damages to be awarded in respect of these individual items. This has resulted in apparently grave discrepancies in awards for what appear to be similar injuries. Making use of precedents in the other country will hopefully iron out these discrepancies, but the approach to assessment of damages and the weight to be given to particular aspects of the claim must remain the function of the awarding court. In Scotland that court must accept as binding principles which regulate these matters as determined by authoritative courts in Scottish cases. It is not bound, in my view, by decisions of whatever eminence in English cases. No doubt opinions expressed and decisions in English cases, and particularly those decided in the House of Lords, will receive, as indeed they ought to, the highest respect, and full regard should be paid to their persuasiveness. I am accordingly of the opinion that the Lord Ordinary was right in holding that he was not bound by the majority decision in West. Nonetheless West, being a decision of the House of Lords, has to be treated with the greatest respect. The difficulty is that the case was decided by a 3 to 2 majority, and basically different principles were applied by the majority and minority Judges. These competing principles are so fully set out and argued in the case of West and have been so fully reviewed in subsequent cases that I do not find it necessary to repeat them at large. Briefly they are respectively, (1) the fact of unconsciousness should not affect the quantification of damages in respect of the loss of physical faculties; and (2) the fact of unconsciousness and the consequential lack of appreciation of the loss of physical faculties should be taken into account and result in the compensation for that loss being moderate. The difficulty is aggravated by the fact that in Wise v. Kaye [1962] 1 QB 638 these two competing views had been reflected in the split decision in the Court of Appeal, the majority favouring the first and the minority the second; that in the High Court of Australia in the case of Skelton v. Collins 1969 A. L.J.R. 480 four out of the five Judges adopted the approach of the minority Judges in West; and in Andrew v. Freeborough [1967] 1 Q.B. 1 the three Judges of the Court of Appeal while applying the principle of the majority in West stated that they did so because that decision was binding on them, and expressed the view that if they had been free agents they would have adopted the principle enunciated by the minority.

While decisions of courts of such high standing as those in the above cases must always be treated with the greatest respect when guidance is being sought, the exercise becomes more puzzling than helpful when such conflicting views are so powerfully argued by such eminent Judges.

There are three heads of damages in a solatium claim (a) pain and suffering; (b) loss of faculties and amenities; and (c) loss of expectation of life. In the instant case there is admittedly no claim for pain and suffering—the unfortunate girl was virtually unconscious throughout. Damages for loss of expectation of life are restricted to a conventional sum. This is established by the authorities and was accepted by pursuer's counsel. It is inherent in what I have called the minority view in West and its supporters that damages have to be awarded for loss of faculties or amenities even when the victim has been unconscious throughout, and that despite its apparent illogicality—an observation which can equally be applied to damages for loss of expectation of life in like circumstances. It is accepted that the fact that the victim may not derive any personal or financial benefit from the award is irrelevant. The majority view on the authorities is that the concept of the conventional award of damages, as determined in Benham v. Gambling [1941] A.C. 147, should be restricted to the element of damages therein considered, namely the loss of expectation of life. The only question is, having regard to the injuries sustained and their sequelae, should these damages be moderate as proposed by Lord Devlin or substantial as indicated by Lord Morris of Borth-Y-Gest in West. In my view the fact that the victim was throughout unaware of the loss of faculties and amenities was a matter which properly fell for consideration under the head of pain and suffering, and ex concessu no award falls to be made at all under this head. That still leaves for consideration the question of what the scale of damages should be in respect of the objective loss sustained. The Lord Ordinary has summarised the injuries as follows:

"Laura's injuries were catastrophic … she suffered a severe head injury. From this there has been no recovery. She is blind and doubly incontinent and has no voluntary movement of the limbs. She requires to be fed by tube. Except for occasional moaning sounds her responses are negative. To all intents and purposes she has been unconscious since the date of the accident and will remain so until the date of her death.… The fact that she still survives is due entirely to the devoted attention given to her by the medical and nursing staff … Laura is not expected to live for more than two to three years … It seems that she suffers no pain, but she has, of course, suffered a total loss of all amenities of life. She is left with the fact of physical existence and nothing more."

We now know that Laura died on 14th July 1975.

Leaving aside the subjective element, namely the awareness of the Joss and deprivation occasioned by the injuries, which, as I have said, falls properly within the element of pain and suffering, the actual mutilation of the body seems to me to call for damages on a scale commensurate with the nature of the injuries and not simply on a conventional scale which has no real relationship to these injuries. I have accordingly come to the conclusion that we should accept and be guided by the view that the damages should be substantial. In saying that I think that in making the assessment all factors should be taken into account—the nature and consequences of the injuries, the age of the victim, and the period of life, such as it was, during which she was deprived of life's activities and amenities. I do not consider that this can be done by any mathematical formula. The Lord Ordinary said that the sum by which damages fell to be assessed would have to be a random one. It might amount to the same thing, but I would say that it is a sum arrived at when regard is had to the factors to which I have referred, using a broad axe with a blunt edge. The Lord Ordinary has assessed the damages at £14,000. This Court is always slow to interfere with a Lord Ordinary's assessment of damages unless he has made a substantial error one way or another. Thus, if we had been awarding damages I would have been hesitant to vary the Lord Ordinary's assessment of £14,000. Nevertheless I feel that even taking into account the changing value of money, the factors in this case would not have warranted an award of more than £10,000 for loss of amenities and physical faculties and expectation of life. That, however, is academic since in the event damages are not being awarded. In all the circumstances I move your Lordships to refuse the reclaiming motion.

LORD KISSEN .—The circumstances which gave rise to this action for damages and the subsequent events have been stated by your Lordship in the Chair and there is no need for me to repeat them.

On the first of the two grounds on which the Lord Ordinary found against the pursuer, the major contention by pursuer's counsel was that the Lord Ordinary erred in finding that the pursuer had not established that the window, which was involved in the accident, had been unlocked since the block was built in or about 1965. The conclusion of the Lord Ordinary was that it was only established that the window had been unlocked from about May 1969 until the accident on 16th October 1969.

The argument on this contention was twofold.

It was said, firstly, that the Lord Ordinary had failed to give proper weight to evidence which supported the pursuer's case on this. The only positive evidence that the window had ever been locked during the period between 1965 and 1969 was, it was argued, that of Allan, whose evidence did not greatly impress the Lord Ordinary. Excerpts were quoted from the evidence of Mr Dalgleish, Mrs Lamont, Mrs McLaughlin and Mrs McGreechan, which were said to show that these witnesses thought that the window was unlocked between about 1966 and 1969, it being agreed that the window was seen to be unlocked on or about two occasions in 1965/1966. That evidence, not surprisingly, did not satisfy the Lord Ordinary. When it is examined and the evidence of each witness considered as a whole, it is clear that there was no basis for such assertions as they did make in support of this aspect of the pursuer's case. That evidence was examined in minute detail by counsel but I do not intend to do so. On a reading of the evidence, I would have reached the same view as did the Lord Ordinary, who had the additional advantage of seeing and hearing the witnesses.

The other argument in support of this major contention, which apparently was not submitted to the Lord Ordinary, was that the agreed facts that the window was unlocked on two occasions in 1965/1966 and again for about six months before the accident raised a prima facieinference that the window must have been unlocked during the intervening three years. The observations of Lord Pearson in Henderson v. Jenkins [1970] A.C. 282 at p. 301 on what he called "the evidential burden of proof" were quoted in support. I do not think that this inference can reasonably be drawn in the circumstances of this case. The period in question is the long period of three years. The fact that it was seen to be open on about two occasions in the early period in 1965/1966 and not seen to be open for more than three years thereafter is consistent with Allan's evidence about the window being locked at the time of the joint maintenance inspection in or about 1966. The two occasions when it was found to be open probably occurred, according to the evidence, before that time, that is, during the maintenance period of one year after completion of the building, when the contractors still had the responsibility for it. The fact that, in the period before the accident, when it was known that the window was unlocked, the women who lived in the building frequently opened the window because of the assistance that it gave to drying clothes seems to me to point to the window being locked in the earlier three years. It is difficult to understand otherwise why the women deprived themselves of the assistance which they thought an open window gave them. In this connection pursuer's counsel sought to make something of the fact that the tenants were not provided with a key to open the window, and there was some argument on whether or not it was easy to open the window with a screwdriver or some other tool. The Lord Ordinary has expressed no concluded view on this latter matter for reasons which he has given and with which I agree. I do not think that this or the vague references in the evidence to cleaners having to open the window in the drying room in order to clean them can affect the position.

On this factual aspect of the case, that is, the question of the period of time during which it was proved that the window had been unlocked, nothing was said which, in my opinion, could justify a different conclusion from that of the Lord Ordinary.

Before I consider the other arguments submitted by pursuer's counsel, I have some observations to make on some aspects of the case made by the pursuer, on his pleadings and the evidence, and on the effect of the finding by the Lord Ordinary in regard to the period when the window was unlocked.

The factual basis of the pursuer's case, on the pleadings, is that the window "had not been locked or secured in any way since the block was built in or about 1965 …". On a narrow technical view, failure to establish that must mean failure in the case. Even if that factual basis had been established, the pursuer could not succeed unless a breach of duty was established. The duty averred is in these terms, viz:—

"In the circumstances it was their duty to take reasonable care to inspect the windows in said drying hall after the said block was built and to see to it that said window was locked or guarded by bars to prevent children falling out of it. In the circumstances, one or other of these precautions was obviously necessary."

On one view, this averment means that a single inspection only was necessary and that, thereafter, the window being, on that inspection unlocked, the defenders should then have locked it or guarded it by bars. On that view, if Allan's evidence is accepted—and it was not rejected in terms by the Lord Ordinary—that inspection was made and the window was then locked, the result being that there was no breach of duty by the defenders. I also think that the Lord Ordinary was correct in holding that the case on duty set out by the pursuer in regard to precautions was plainly alternative. I refer to this again later.

Alternative contentions by pursuer's counsel, in attacking the decision of the Lord Ordinary on his first ground, were based on the finding by the Lord Ordinary that it had only been proved that the window was unlocked for the six months prior to the accident.

This line of attack, which ignored some of the pursuer's pleadings and the basis on which the evidence was led, appeared to be that the window, locked or unlocked, was a serious hazard to a child, whether accompanied by an adult or not, and that, accordingly, a duty arose to inspect the window and, if it appeared that locking would not have prevented the likelihood of an accident, to bar the window. In developing this line of attack, stress was laid on the possibility that, as the pursuer alone said, in evidence, the window could easily be unlocked by a screwdriver.

This line of attack ignores the basis on which this case was pled and fought. How, in the first place, did this duty to inspect arise? On the factual basis on which the alternative argument rested, that is, that the window had been locked up to six months before the accident, why should the defenders have anticipated that it might become unlocked? As the Lord Ordinary correctly said, that basis is not dealt with in the pleadings nor in the evidence. Unless they knew or should have known that it was unlocked, of which there was no evidence and for which there was no basis, there could be no duty to inspect. Some support was sought for the imposition of this duty to inspect by reference to a number of cases which dealt with the duty of inspection of property or pavements. These cases are of no assistance in that the duty to inspect was accepted there and the purpose was to look for defects and not a transitory condition, such as an unclosed lock. Failure to establish a duty to inspect is, I think, fatal to the pursuer's case, on this alternative contention.

If there was a duty to inspect, what was to be its nature? Was one inspection to be enough or was a series of periodic inspections to be required? It was agreed by defenders' counsel that evidence about periodic inspection was given without objection and, quantum valeat, that it could be considered. Nothing, however, was said about the frequency of such inspections and that seems to me to be fatal to the pursuer. Apart altogether from the observations of Lord President Normand and Lord Moncrieff in Riddell v. Reid 1941 S.C. 277 at pp. 283 and 287 respectively, which apply here, I agree entirely with the way in which the Lord Ordinary has dealt with this.

I earlier mentioned that the Lord Ordinary expressed the view that the pursuer's case, in regard to precautions, was alternative and that I agreed with this. The argument for the pursuer on this was that the pursuer's case was not alternative and that the averment meant that, if inspections would not have prevented the accident, the pursuer's case was that bars should have been provided. Witnesses were asked about bars but there is no basis for the suggestion that the pursuer's case was, at any time during the proof, that bars should have been fitted ab initio. To attempt to make such a case on the evidence without proper notice to the defenders, even if the evidence justified it, which it did not, could not be permitted because of the possible prejudice to them.

I turn to the alternative ground on which the Lord Ordinary found against the pursuer. I do not think that his decision on this ground was justified on the reasons which he gave. The cases of Taylor v. Glasgow Corporation 1922 SC (HL) 1 and Phipps v. Rochester Corporation [1955] 1 Q.B. 450 to which he referred and the case of Sproat v. Magistrates of Prestwick 1955 S.C. 271 to which we were referred were different on the facts in at least two important respects. In these cases the child was not accompanied by a parent or adult but was allowed to go unaccompanied to the place where the danger lay. In the second place, in these cases the defenders knew or ought to have known of the particular danger, not obvious to a child, which caused the accident. There is the further distinction that in these cases the defenders were in control of places to which the public had access. Mutual reliance by each party on the other party acting reasonably can readily be seen as the proper principle in the particular circumstances of these cases but cannot so be seen as the principle to be applied to the different circumstances in this case. I do not think that this principle can have any application in a case such as this where it has not been proved that the defenders knew or ought to have known that there was an open window which constituted a danger to children. Reliance by one party on the other cannot arise in such circumstances as it could arise in Taylor and the other cases. The Lord Ordinary says that the defenders were entitled to assume … that any adult taking a young child into the drying room would act reasonably and, in particular, that if she found a window wide open so as to constitute a manifest and serious danger to a young child she would close the window. She might act reasonably but be guilty of a momentary act of negligence or a momentary act of inadvertence. An example might be the child running to the window while she was attempting to close it. On this approach of the Lord Ordinary, it would follow that even if the defenders were guilty of negligence in not locking the window, when they knew about it or should have known about it, they would escape liability even if the parent was only guilty of a momentary act of inadvertence which they themselves should have anticipated as, at least, reasonably possible when a parent tries to control a very young child. It seems to me that in a case such as the present the decision on responsibility and liability must depend on the ordinary principles of negligence. The principle stated by Lord Shaw of Dunfermline does not, in my opinion, have any application in the very different circumstances of this case. The argument about the safety of a window which was closed but unlocked does not arise in the view which I take and I say no more about it.

Although the reclaiming motion must be refused and although the question of damages is accordingly academic, I must next consider the submissions which were made on behalf of the defenders in regard to the assessment by the Lord Ordinary of the damages which he would have awarded if he had found for the pursuer. The Lord Ordinary would have assessed total damages at £14,000. It was argued, firstly, that he adopted a wrong approach in assessing solatium to be awarded to a person who is completely unaware, now and in the future, of the physical injuries and the loss of amenities suffered. It was argued, secondly, that, in any event, the assessment by the Lord Ordinary was based on a life expectancy for the child of two/three years from the date of his decision (December 1974) and that this assessment fell to be considered in the light of the fact that the child died in July 1975. I consider each of these submissions separately.

A preliminary matter raised in the first submission was whether a decision of the House of Lords in an English appeal (West & Sons v. Shephard [1964] AC 326) was binding on this Court in a matter where the law is the same in both countries. The fact that the law was the same in both countries in regard to assessment of damages for personal injury was, it was said, supported by Allan v. Scott and Anr. 1972 S.C. 59. Reference was made to the seven Judge case of Virtue v. Police Commissioners of Alloa (1874) 1 R. 285, Orr Ewing's Trs. v. Orr Ewing (1886) 13 R. (H.L.) 1 and Glasgow Corporation v. Central Land Board 1956 SC (HL) 1. I do not find in any of these cases, where there is a considerable conflict of judicial views and where the facts and circumstances were different from those in the present case, support for the view that, in the present case, the decision in West is binding on this Court. It is, of course, entitled to very great respect and weight but that is another matter. It seems to me, to echo the words of Lord Norman in Glasgow Corporation at p. 16, that long-established rules of law and practice in Scotland should not be altered without adequate consideration of that law and practice. That was not done in West. I agree with the Lord Ordinary's view that West is not binding on this Court.

I agree with the general approach adopted by the Lord Ordinary in assessing damages in this case in so far as the award was not limited to a very moderate sum. I have read the cases which were mentioned to us, including, in addition to West and Andrews v. Freeborough [1967] 1 Q.B. 1, both referred to by the Lord Ordinary, Wise v. Kaye [1962] 1 QB 638 and Skelton v. Collins 1969 39 A.L.J.R. 480, the Australian decision where West was not followed. I do not repeat all the conflicting judicial opinions with the powerful arguments for and against awarding more than nominal damages for physical injury and loss of amenities, where the victim is unaware of the physical injury and the loss.

In West and in the other cases there was no difference of judicial opinion on the view that a very moderate award for loss of expectation of life is competent in a case where a pursuer has been and will continue to be completely incapable of appreciating the physical injuries sustained and the loss suffered. There was also no dispute in these cases that an award for physical injuries and loss of amenities could be made for the objective element. The judicial difference in these cases on this latter aspect was whether such an item should be very moderate and on the lines followed for loss of expectation of life in Benham v. Gambling [1951] A.C. 157 or a more substantial sum. The majority in West took the latter view. I take the same view. If the basis of an award is compensatory, as I think it is, and not punitive, it is difficult to find a logical basis for making any award at all either for loss of expectation of life or loss of amenities in a case where a pursuer is and always will be unaware of the losses. The fact that it is difficult to find a legal basis does not mean that the award for loss of amenities must be a nominal or very moderate sum because that is appropriate in a case of loss of expectation of life. These two elements are very different. I think that the element of loss of amenities in a solatium claim must vary with the circumstances and can vary from being very small to substantial, depending on the nature of the injuries, the age of the victim and the likely period of survival. Similar circumstances would be taken into account in assessing solatium in the case of a person who is aware of the loss and who would, in addition, receive an additional award for pain and suffering. The lack of knowledge of the loss, whether complete or partial or limited, would be taken into account and would mean a deduction from the award which would otherwise have been given for that loss. In some cases, this could mean the award of a substantial sum. In the present case, I think that the award would have been substantial for the physical injuries and the loss of amenities. On the basis which I would have followed I would have assessed damages at £8,000, including the item for loss of expectation of life, which would have been a small part of the total.

The second submission to the effect that the Court should reconsider the estimate of the award because the child died earlier than the Lord Ordinary anticipated was based on the recent seven Judge case of Rieley v. Kingslaw 1975 S.L.T. 61. The circumstances in that case were very different from those in the present case. The fact is that in the present case the pleadings had to be amended, because of the child's death, to include the fact of the death. There is no question of amendment being sought or evidence led to show a change of circumstances. It would, I think, be artificial to ignore a fact which is now properly and necessarily in the pleadings before this Court. I do not think, however, that this change in the facts is sufficiently material to justify a change in the assessment of £8,000 which I would have made.

On the whole matter and for the reasons which I have given, I agree that the reclaiming motion should be refused.

LORD LEECHMAN .—[After stating the issue, his Lordship continued]—In relation to the case of fault by the pursuer, however, involving alleged failure in duty by the defenders to take reasonable care to inspect the windows in the drying hall after the said "block" was built and to see to it that the window in question was locked, or guarded by bars, to prevent children falling out of it, the Lord Ordinary in the course of holding, on the first of two separate grounds for disposing of the action that no such duty had been made out, found in fact, further, that the window was locked or at least not shown to have been unlocked throughout a period of three years ending on 1st May 1969, and thus was unlocked before the occurrence for a period of at most six months. That factual finding was disputed by the pursuer whose argument came to this, that the window in question was known to have been open on occasions during the first six months or so of the tenants’ occupation of the block of flats ending about May 1966, that it was also known to have been unlocked, and open from time to time, during the period from 1st May to 16th October 1960, that the tenants at no time had been issued by the defenders with a key to operate the lock of the window, that the evidence by those who used the drying hall was, at worst from the pursuer's point of view, neutral upon the question of whether the window though closed was also locked during the period of three years ending on 1st May 1969, that the witness Allan had not been accepted by the Lord Ordinary to the effect that the window would have been locked from the end of the maintenance period—about May 1966, and that, the defenders not having shown positively that they had locked the window, the inference was that the window had remained unlocked throughout. It is not clear how far this argument was put to the Lord Ordinary, but in any event I think it plain that no such inference now falls to be drawn. Taking the evidence of those who were in the habit of using the drying hall, the Lord Ordinary plainly rejected bland assertions therein that the window had never been locked and preferred passages from those same witnesses wherein they confessed that they "thought it had been locked" or again that it "may well have been locked" during the three years 1966 to 1969, and all as tending to support as the "likeliest inference" that the window had been so locked. When there are added the two further considerations, (1) that the same users of the drying hall opened and closed the window in question for the purpose of regulating the flow of air in the hall during the period 1st May to 16th October 1969, yet never did so, and indeed at no time saw the window to be open, during the three-year period 1966 to 1969, and (2) that the evidence of the witness Allan, unreliable as it may have been in some respects, yet fitted in with the window having been locked as from the commencement of the said three-year period, the almost inevitable inference and the one which the Lord Ordinary was clearly entitled to draw was that the window had remained locked throughout the three-year period ending on 1st May 1969.

Proceeding upon that finding and upon an interpretation of the duty sought to be laid on the defenders as one of reasonable inspection of the windows of the drying hall, and, in that way, of seeing to it that the window in question was either locked or was guarded by bars to prevent children falling out of it, the Lord Ordinary reached the first of his said two separate grounds for rejecting the pursuer's claim, namely that, in the absence of any evidence as to practice or otherwise as to what was reasonable in relation to the nature and frequency of the inspection desiderated, the pursuer had failed to prove any such duty, and so had failed to set up the essential foundation of his case.

For the pursuer the contention then put forward—that is, on the assumption that the window had in fact remained locked throughout the said three-year period, but had been unlocked thereafter—was an alternative one, depending upon whether on the evidence the lock of the window could be operated only by a key, or whether on the other hand it could be readily operated also by such as a screwdriver. Proceeding on the first alternative, the contention was that, there being a danger in the window in question if unlocked, possession and control of the drying hall being with the defenders, no key for the window having been issued by them to any of the tenants, and the window having been found unlocked, a prima facie case of fault against the defenders had been set up which it was for them to displace. But one asks, "what fault?" Had the case alleged been that the defenders had, say, inspected the window for some purpose or another, and had negligently failed to lock it again, then no doubt the considerations referred to might have set up a prima facie case of fault against the defenders. But that is not the "fault" pled here. The essential fault here is failure in a duty of inspection and the considerations founded upon set up no prima facie case of that kind. In other words the situation is back again to that considered by the Lord Ordinary, with whose conclusion, supported as it is by the observations of Lord President Normand and Lord Moncrieff in the case of Riddell v. Reid 1941 S.C. 277 at pp. 283 and 287, I am in full agreement.

That leaves the second alternative contention for the pursuer, made still on the asssumption that the window was unlocked only from 1st May 1969, but on the further assumption that anyone using a screwdriver could have operated the window lock at any time. The pursuer's contention was that in that event, inspection being of little value in preventing the window being left unlocked, he was entitled to fall back on his alternative case that the window should have been guarded by bars. But on the pleadings the duty of barring the window is not stated as alternative to, but as dependent upon performance of the duty of inspection. Further and in any event, it is not permissible, because of the prejudice to the defenders which might otherwise result, simply to allow to be spelt out of the concluded evidence a case based on a defective or inadequate window locking device, of which no specification has been given on the Record. For these reasons the pursuer's alternative contention against the Lord Ordinary's first ground of judgment must fail, and in the result, the reclaiming motion must fail also.

As already noted the Lord Ordinary stated a second ground for refusing the pursuer's claim, namely that the defenders had not been shown to have failed to exercise such care as in all the circumstances was reasonable to see that the said child would not suffer injury by reason of the danger represented by said unlocked window, in respect that they were entitled to assume that the child's parent taking the child into the drying hall would act reasonably, and not unreasonably as had the parent on the occasion in question. I agree that no support for that proposition is obtained from the principle enunciated in the cases of Taylor v. Glasgow Corporation 1922 SC (HL) 1 per Lord Shaw of Dunfermline at p. 11 and Phipps v. Rochester Corporation [1955] 1 Q.B. 450, which has reference to familiar and obvious dangers only. So far as other dangers are concerned, I cannot think, under reference to the terms of section 2 (1) of the Occupiers’ Liability (Scotland) Act 1960, that a proper interpretation is that, where an accompanying parent, encountering such a danger acts unreasonably, but no more than negligently in a question with his child, those responsible for the existence of the danger are thereby automatically relieved of any duty of care towards that child. Just as in a public place, so within a place to which there is limited access but where parent and child are entitled to be, the parent may be up to 100 per cent to blame for the child's encountering a danger there. But that is a different proposition to that which appears to have commended itself to the Lord Ordinary. I am in disagreement with the Lord Ordinary on his second ground for disposing of the action, but the result of the reclaiming motion of course remains as already indicated.

Upon the only remaining consideration, that of assessment of damages, I am in full agreement with the approach of your Lordship in the Chair to the matter, and as to how far we should allow ourselves to be guided by authority not strictly binding on us. With your Lordship, I think the choice comes down to one between the majority and the minority views in the case of West & Sons v. Shephard [1964] AC 326, in particular as to whether the head of damage in respect of "loss of faculties and amenities" in a case of this kind should be substantial, or on the other hand, moderate or even modest. I agree that we should follow the majority view before referred to. Had I been assessing damages at the outset I would, in the particular circumstances of this case, have fixed a figure less than that arrived at by the Lord Ordinary. It is very much a matter of impression and I simply add that my first impression, which has endured, was of a figure around that arrived at by my Lord Kissen, viz. £8,000. I agree otherwise that the fact that the Lord Ordinary assumed that the child would probably have lived up to two years longer than she did, should not now be allowed to have any effect on his or what should have been his assessment. I agree that the reclaiming motion should be refused.