Scottish Court of Session Decisions

On 4th March 1912 John Mackenzie, blacksmith, Govan, pursuer, brought an action of damages for £300 for the death of his daughter against the Fairfield Shipbuilding and Engineering Company, Limited, Govan, defenders, in which he averred—“(Cond. 2) The defenders are owners and occupiers of a piece of ground situated immediately to the west of their shipbuilding yard on the south side of the river Clyde. The said piece of ground is bounded on the north by a hedge which separates it from a public path along the south bank of the Clyde. The said hedge was on 1st August 1911, and had been to the knowledge of the defenders for a considerable time prior thereto, in a defective condition, in respect that there were a number of gaps in it, some of these being 5 or 6 feet wide. The public were in the habit of going to the said piece of ground through the said gaps, and children were in the habit of playing constantly on said ground

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on which the sand-pit after mentioned was situated, and that with the knowledge of the defenders.… (Cond. 3) In the centre of the said piece of ground, about 80 yards from the said path, there is an unfenced sand-pit belonging to the defenders, from which they are in the habit of taking sand for use in their yard, leaving a large hole 15 feet deep. The sand-pit was a dangerous place, as the defenders were well aware. It is believed and averred that to their knowledge several accidents had occurred previous to the accident to the pursuer's daughter, as hereinafter described. In particular, in the autumn of 1909, a man named Robert Dunlop, care of M'Menemy, 31 Hamilton Street, Govan, was injured by a fall of sand which had been left by defenders' servants in a dangerous position. This the defenders were well aware of. Nevertheless the defenders and their servants have for a considerable time past allowed children to enter the said ground and use the sand-pit as a playground, and that when it was a source of great danger to those frequenting the place.… (Cond. 4) On 1st August 1911 the pursuer's daughter Maggie Paterson Mackenzie, aged seven years, along with other children, went to the said ground from the public path and proceeded to the sand-pit. Whilst they were playing there the wall of the sand-pit fell upon them and killed the pursuer's said child. The face of the sand was at the time 15 feet high, and at the place where the accident happened the top overhung the face about 5 feet, thus being most dangerous to anyone approaching it.… (Cond. 5) The said accident was due to the fault of the defenders, in respect that they and their servants, being aware that the said pit was dangerous to the public and particularly to children, knowingly allowed children to use the said pit as a playground while it was in a highly dangerous condition as aforesaid, without seeing that the sand was left at such an angle as to be safe for the public and children who frequented the place. In such sand-pits it is usual, and indeed necessary even for those employed at them, to have the top of the face taken down and the face at a safe slope. This the defenders culpably failed to do, with the foresaid result. The said place immediately adjoined a public path, and was, as aforesaid, a common resort of children for the purpose of recreation. Further, the defenders culpably failed to have the said sand-pit properly fenced or guarded. In the circumstances known to them it was the duty of the defenders to take reasonable precautions to exclude children from the said pit. This they failed to do, and on the contrary for a long period had allowed the foresaid hedge at the public path to be in such a dilapidated condition as practically to be an invitation to the youth of the district (which is a populous one) to use the said ground as they constantly did. The death of the pursuer's child was the natural and probable result of their failure to take such precautions.”

The defenders pleaded—“(1) The averments of the pursuer being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed, with expenses. (6) The pursuer's said daughter having been a trespasser on the said field, the pursuer is not entitled to found upon the fact that the said sand face situated therein was a source of danger, to the effect of insisting upon the present claim of damages.”

On 17th July 1912 the Lord Ordinary ( Ormidale) allowed an issue.

Opinion.—“I sustain the relevancy of this action, and I arrive at that result chiefly because of the case of Cooke, recently decided in the House of Lords, [1909] AC 229.

“As I read this record there is a distinct averment that the sand-pit was a place of resort to children, that they constantly went there and used the sand-pit as a playground, and that they did so with the full knowledge of the defenders. I do not go much upon the gap in the hedge being an invitation to the children to pass on to the ground in question, because I think the children would have gone there whether there had been a gap in the hedge or not. It is of importance that the ground in which the sand-pit is situated abuts upon the public footpath, which entitled the children at any rate to be in the neighbourhood.

The only difficulty I have had in the matter is whether I am entitled to consider, looking at the case from any point of view, that the sand-pit was a feature that was attractive or alluring. If it is, and the pursuer says that it is, then I think the case is exactly covered by the case of Cooke. Without some inquiry I cannot very well say that it was or was not. So far as the child was concerned, I can very well understand that it was a dangerous attraction. It was a dangerous attraction, and I do not think the danger of it could be realised by children.

Now, according to the House of Lords, the liability of the defenders in the matter of taking precautions may vary according to the qualities of the person injured. He may be an adult or a child, an insane or a blind person. Here the averment of the pursuer is that no precautions were taken by the defenders to safeguard children from the danger to which they were exposed when they played about the sand-pit. Mr Crawford maintained that the position was different here because the ground was not a waste piece of ground on which there was an old disused quarry or anything of that sort, but that the sand-pit was in the actual industrial occupation of the defenders. That is certainly a distinction, but I do not think there is any real difference in principle. I am entitled to infer that apparently the sand-pit was not in constant use, and that at the time we are dealing with there were no workpeople about. The defenders may have taken some precautions by warning the children off or in some other way, but the averment of the pursuer is that they took none.

These being the circumstances as stated by the pursuer, I think the case of Cooke

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covers this case, especially as in the case of Cooke the House of Lords appear to have made no distinction between mere licensees and persons who have been actually invited on to the ground. As I read the decisions in this Court, the decision in Cooke is not entirely in accord with the decisions upon which Mr Crawford very rightly founded. In the cases of Devlin, November 19, 1902, 5 Fraser 130, 40 S.L.R. 92, and Cummings, February 24, 1903, 5 Fraser 513, 40 S.L.R. 389, what was considered a vital distinction was taken by the judge between a person who was there merely with the permission of the defenders or the owners of the ground and a person who is actually invited on to the ground by the defenders.

With regard to the point advanced by Mr Crawford, that the case is more suited for proof than for jury trial, the case belongs to a class which is generally remitted to jury trial on an issue, and I do not think, although in one view of the case there may be delicate questions of law involved, there will be any difficulty in keeping the law of the matter quite clearly before the jury, and directing them accordingly. No exception has been taken to the form of the issue which is proposed, and I shall approve of it as the issue in the cause.”

The defenders reclaimed, and argued—The action was irrelevant because the pursuer's averments disclosed no fault on the part of the defenders. In any event the proximate cause of the accident was the fault of the child's father in allowing her to stray into the pit, and therefore the defenders were not liable. The pursuer's averments only amounted to a statement that children went to the pit, and, even if the defenders knew that children went there, that would not make them responsible. The case of Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, was different, because in that case the ground was derelict and children habitually went on to it. The mere fact that the pit was attractive to children was not enough to render the defenders liable unless the pit was a public place, or a place which the defenders had dedicated to the public and to which they had invited the children— Devlin v. Jaffray's Trustees, November 19, 1902, 5 F. 130, 40 S.L.R. 92; Cummings v. Darngavil Coal Company, Limited, February 24, 1903, 5 F. 513, 40 S.L.R. 389. The pit could not have been dedicated to the public since it was in industrial occupation. The defenders were not liable unless they themselves had made the pit a playground for children. They were not liable if it was the children themselves who had put it to that use— Ross v. Keith. November 9, 1888, 16 R. 86, 26 S.L.R. 55. Even if the action was relevant, it was more suitable for proof than for jury trial— Holland v. Lanarkshire Middle Ward District Committee, 1909 S.C. 1142, 46 S.L.R. 758.

Counsel for the respondent was not called upon.