Scottish Court of Session Decisions

The pursuer in this action, James Dawson, sues this action as guardian of his son, James Dawson, Junior whose date of birth is 28 September 1983. I shall refer to the son in this judgment simply as "James". On 27 September 1994, the eve of his eleventh birthday, James was injured when crossing a steel perimeter fence which surrounded the defenders' electricity sub-station on Kirkhill Road, Wishaw.

The sub-station is located in a largely residential area of Wishaw but its construction obviously pre-dates the houses and buildings that have been erected round it. As required by electricity regulations, the sub-station is surrounded by a six foot high steel fence, each upright of which has an arrangement of spikes and barbs on the top to deter persons from attempting to cross it. At intervals there are supporting uprights for the fence in the nature of stanchions on the inside of the perimeter. These do not have spikes and barbs on their top. At various points on the fencing and on the gate into the sub-station there are signs warning of potential electrocution and advising, "Danger of Death. Keep Out." The signs, of course, are referable to what lies within the sub-station building and not to what may be encountered in the area between the building and the fence. On one side of the sub-station a betting shop, a private garage, and a large public house were built. A substantial car park was built to serve the Cherry Tree public house and Ladbrokes Betting Office. For many years prior to September 1994 and certainly since 1989 when James moved with his family to live at a house at 4 Netherdale Crescent, about one hundred yards away, boys played football in the car park. That was hardly surprising, it seems to me, since the car park, as is evident from the photographs, presents a large, flat open space, ideal for football. From time to time footballs were kicked accidentally over the fence and into the area surrounding the sub-station. (Balls were not the only objects to find their way in there. Bottles and other debris were decanted there and so, from time to time, the defenders would carry out a cleaning up operation in that area). According to the evidence which I heard, most balls were retrieved at least by the bigger boys who were able to cross the fence and return to the car park in safety. They did not, however, have to surmount a six foot high fence. In the course of time, and probably as a result of later construction developments, earth and grass built up against the base of the fence in the region of the private garage and especially behind it. That was also an area in which debris was deposited. As a result, the height of the fence became reduced to about four feet or perhaps even less in that area. Indeed the pursuer, shortly after his son's accident, measured the fence from ground level at that point and found it to be four feet high.

In order to cross the fence boys approached it at its lowest point. If they did what James did, they grasped the metal stanchion upright with their left hand, levered themselves up on that so that their right foot rested on the cross member of the fence, moved their left foot across the top of the fence until their left heel rested on the ledge of the cross member, and then jumped inside the sub-station perimeter. Having kicked the ball back out, they re-crossed the fence in much the same way. On the day of his accident James had been playing football after school with two friends when the ball went across the fence into the perimeter. He said that he decided to go in after it. He was then about four foot ten inches in height. So the fence at its lowest point behind the garage was lower than he. He carried out the manoeuvre which I have described above, except that his left foot slipped and to prevent himself falling he put out his right hand instinctively towards the top of the fence. As he fell, his body weight caused his right hand to be impaled on the spike and barbs of an upright, and he suffered serious injury to his right ring finger. He did however succeed in getting into the perimeter, and having kicked the ball back out, he made his way through the fence into a friend's house at number 12 Netherdale Crescent, the home of Karen and Joseph Smith.

One of his companions was Robert McKay who gave evidence before me. He claimed to have witnessed the accident and maintained that James sustained his injury on the way out of, not on the way in to the perimeter of the sub-station. According to Robert McKay, James made his way out into the car park despite his injury. I do not accept that the injury happened in this way. I believed the pursuer, and considered that he gave his evidence throughout frankly and fairly. According to his father, James said to him in the Smiths' car as he was being driven to Law Hospital for treatment shortly after the accident, that the accident had happened as he was going into the perimeter of the sub-station. If, as Robert McKay said, he had been injured on the way out of the defenders' premises, there would have been little reason for him to go into the Smiths' house when his own house was only one hundred yards away. If, on the other hand, he was injured going in, he would have had difficulty under these circumstances in climbing back out. So it made sense for him in these circumstances to make his way through the fence to the Smiths' house which lay next door to the perimeter of the sub-station.

According to the defenders' witness, John Pietrynszak, a project manager with the defenders, a claim on behalf of James made by local solicitors was intimated to the defenders on 7 October 1994. The defenders' practice was to respond to such a complaint within three days. Being in the faults department it was his job to carry out an investigation of the sub-station and fence. This he did, he recalled, on 10 October 1994. It was he who took the photographs number 14/1 of process, when he made the visit to the sub-station. (These, inexplicably, are dated 10 November 1994). The notices seen in the photographs were all in place. Except for the notice on the gate into the sub-station, the other notices appeared to have been there for some time. I may say that I accept that evidence because it is apparent that the bolts fixing the notices to the fence are of long-standing. It is not the case that they were replaced shortly after the accident and before Mr Pietrynszak made his visit. He did not know where the accident had happened. He accepted that there was an increase in the ground level adjacent to the fence at one point. He did not however measure the fence there. As designed, the fence was six feet in height. The purpose of the fence was to prevent access to the sub-station building itself and vandalism of it. It was properly described as a palisade fence.

Having made a visit to the area in 1994 and again recently he accepted that children would be likely to play football in the car park, and that if they did, it would be likely that a ball would be kicked into the perimeter of the sub-station. If that occurred, it would be reasonably foreseeable that they would try to enter the property in order to get it back. That is why the fence was there: to deter children from attempting to recover a ball which had been accidentally kicked in.

Mr Stephen Grant is a health and safety consultant who at one time was director of the Health & Safety Executive in Scotland. He made a visit to the sub-station on 15 September 1998 and took measurements and photographs of the location. He noted the low height of the fence in the vicinity of the garage, as it was at least in September 1998. He said in his report:

Mr Grant concluded in his report as follows:

I may say that Mr Grant based his observations and conclusions on professional as well as personal experience, being the father of eight children, five of whom were boys, and having twenty four grandchildren.

In cross-examination he accepted that a two metres high fence was standard. That was approximately six foot six inches, not the seven foot high fence which the pursuer desiderated in his pleadings. For him, the final six inches were not essential. The general view in industry was that if danger existed within premises or it was desired to keep people out, the height should be not less than two metres. His view was that this fence at its lowest point was inviting. In places it was extremely easy and not difficult to cross. (In September 1998 it was only two and a half feet high at one point). Two metres presented quite an obstacle especially when there were no footholds available. For any normal child, that would be extremely difficult to climb and he would give up.

The pursuer pleads a case at common law and under the Occupiers Liability (Scotland) Act 1960 Section 2(1). Both cases can be dealt with together in my opinion. That sub-section of the Act provides that an occupier of premises must show towards a person entering them, in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible, such care as in all the circumstances of the case is reasonable to see that the person will not suffer injury or damage by reason of any such danger. The first question, as it seems to me, which has to be determined, is whether it was reasonably foreseeable on the part of the defenders that a person such as James would attempt to cross the perimeter fence. I express it in that way because, contrary to what Mr Weir submitted, the defenders do not have reasonably to foresee that James would decide to go over the fence on that day. I have accepted that boys of varying ages played football in the car park and that from time to time balls went over the fence. Having regard to Mr Pietrynszak's evidence I consider that it was reasonably foreseeable on the defenders' part that boys would play football there and that if footballs went into their premises, attempts would be made to retrieve such footballs, especially as the fence at its lowest point was only four feet in height. The lower the height of the fence, it seems to me, the less deterrence it presented to anyone wishing to recover a football. That originally the fence was intended to deter is demonstrated, firstly, by its original height of six feet and, secondly, and perhaps more importantly, by the spikes and barbs that lay on top of all the uprights. But these spikes and barbs equally presented a danger which was reasonably foreseeable on the part of the defenders to those whom they could reasonably foresee would attempt to cross the fence. In this case, obviously, it is the fence itself which presents the danger. On its facts, therefore, this case is quite different from those of McGlone v B.R.B. 1966 S.C. (H.L.) 1 and Titchener v B.R.B. 1984 SC (HL) 34. In both these actions the pursuers' cases were that the fencing was inadequate to prevent them from exposure to danger that lay within the fenced area. Mr Weir drew my attention to what Lord Fraser of Tullybelton said in Titchener cited above at pages 54 and 55. On page 55 he said:

But his Lordship was considering a quite different question and that was, as he said, the existence and extent of a duty to fence off a railway line in relation to a 15 year old pursuer who at the time of the accident was attempting to cross the railway line with her 16 year old boyfriend. At page 54 Lord Fraser referred to what Lord Guest had said in McGlone cited above at page 15 and went on:

When one looks at the terms of Section 2(1), that must be right, but whether reasonable care has been shown by the occupier to such a person depends upon the circumstances of each case. James Dawson belongs to just that group of persons who could reasonably have been foreseen to attempt to cross the fence. The way in which Lord Denning, M.R., put it in Pannett v P. McGuinness Limited 1972 3 A.E.R. 137 at page 141, was thus:

For the reasons I have already given I consider that the defenders in all the circumstances ought as occupiers to have done more than they did, if they were to fulfil the duty of reasonable care upon them. In fact, they did precisely nothing: but instead allowed the fence at one point in particular to drop as low as four feet above ground level. What, then, should they have done? The pursuer avers that a four foot high fence was not high enough to deter a child like James from attempting to climb over it. In order to deter children like James from attempting to climb over it, the perimeter fence required to be at least seven feet in height. Mr Weir submitted, in effect, that seven feet meant just that. Nothing less would do. Yet the pursuer's expert was content with two metres. That was some six inches less than the height contended for. The pursuer had therefore not established his case, and so his action failed. That, to say the least, is a remarkable submission, not least because it ignores the thrust of Mr Grant's evidence. In any case the higher the fence, the greater the deterrence, and, if I follow the evidence correctly, a two metre high fence would substantially reduce the risk of a boy trying to cross it. James said that he might have tried to cross the fence if it had been higher, even if it had been seven feet high, but he did not think that he would have succeeded. He would have looked for another way to get in. Thus, he would have been deterred.

Mr Weir further submitted that James well knew the risk of crossing this fence. James in his evidence agreed that the spikes themselves were obviously hazardous; that if he fell, he would be in some danger; that for good reason or bad he was prepared to take the risk and that it did not work out. In light of these answers, said Mr Weir, he willingly ran the risk of crossing the fence, but he slipped and so was the author of his own misfortune. So I should uphold the defenders' fourth plea-in-law. This approach contrasts with that advanced by Mr Grant who said in his evidence that he doubted if any child would think through the danger of being caught against the spikes by his bodyweight. He would expect his male children to attempt to cross it. They would not be boyish if they did not attempt to do so.

In fact, of course, the pursuer did appreciate that there was a risk of being injured in crossing the fence. He supposed that he knew he should not have gone over the fence. All that, in my opinion, does not amount to sole fault. (I note that Section 2(3) of the 1960 Act has not been invoked.) The defenders in my opinion were at fault in not maintaining the height of the fence so as to deter young footballers like James from crossing it. The fact that the height of the fence had dropped to a mere four feet, on the contrary, encouraged boys to cross it at that point in order to retrieve their footballs. A two metre fence would have increased the deterrence factor, as I believe would also a six foot fence all round. On the other hand, James, as he said himself frankly in evidence, appreciated the risk he ran in crossing the fence although he may not exactly have foreseen the injury which he sustained. He acknowledged, too, that he had previously been warned by his father, although his father was not aware of having given him any warning. I think that he was guilty of contributory negligence, but only to the extent of one third.

I will therefore sustain the first plea-in-law for the pursuer and the fifth plea-in-law for the defenders. I will repel the second, third and fourth pleas-in-law for the defenders. Parties have helpfully agreed damages in a joint minute of admissions. I expect to issue this judgment in the week beginning 2 November. So I will calculate the interest figure with that in mind. The total sum on a full liability basis, I calculate, is £8,115. One-third, however, must be deducted to reflect James' contributory negligence. I will therefore grant decree in favour of the pursuer for the sum of £5,410 with interest thereon at the rate of eight per cent per annum from the date of decree until payment.