Scottish Court of Session Decisions

On 3rd February 1908 Duncan Stevenson, 17 Rolland Street, Glasgow, brought an action against the Corporation of the City of Glasgow, in which he claimed £250 as damages for the death of his infant son, who, while playing in the Botanic Gardens, Glasgow, fell into the river Kelvin “near the iron footbridge which crosses the river Kelvin below Kirklee Railway Station,” and was drowned. The defenders were proprietors of the Gardens, which adjoined the river Kelvin, and were used as a public park.

The pursuer averred—“(Cond. 3) The said accident was due to the fault and negligence of the defenders in failing to have the bank of the river Kelvin fenced at the spot in question, where the bank has been worn away by the action of the water. The river Kelvin in normal conditions is about a foot and a half in depth at the place in question. Said river, however, particularly during the winter season, is subject to sudden and violent floods, during which the depth of water at said place is between 3 and 4 feet. The said river, particularly when in flood, is swift and violent, and was so on the occasion of the accident to and drowning of pursuer's said son, and in these conditions the place where the accident happened is one of extreme danger to members of the public, and particularly to children resorting there. There is an iron railing which

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extends from Kirklee Bridge in a southerly direction along the banks of the river for about 257 yards or thereby, but from the end of said fence there is a distance of about 75 yards which is wholly unprotected. It was the duty of the defenders to have continued the said iron railing along the banks of said river as far as the iron bridge mentioned in article 2. Had they done so the accident to pursuer's child would have been avoided.”

The defenders pleaded, inter alia, that the pursuer's averments were irrelevant.

On 21st May 1908 the Lord Ordinary ( Johnston) repelled the defenders' plea of irrelevancy, and allowed an issue.

Opinion.—“In this action Duncan Stevenson, iron turner, Glasgow, sues the Corporation of the City for damages for the death of his infant son, who fell into the river Kelvin while playing in the Botanic Gardens, Glasgow, through which that river runs, and which are admittedly the property of the Corporation and are used as a public park.

The pursuer alleges that his child was playing at the time of the accident with a number of other young children in the Botanic Gardens, and fell into the river at a place where it is unfenced, and he adds that ‘it was well known to the defenders that large numbers of children resorted to the said place for the purpose of recreation.’

The ground of liability alleged is the failure of the Corporation to have the bank of the river Kelvin fenced at the spot in question. The river is said to be, in normal condition, about one and a half feet in depth there, but to be subject to sudden and violent floods, during which its depth increases to between three and four feet. When in flood the river is said to be swift and violent, and to have been so on the occasion of the accident to and drowning of the pursuer's son. In these conditions the place where the accident happened is said to be one of danger to members of the public, and particularly to children resorting there. I discard the reference to the existence of a railing along an adjoining part of the river's bank but not continued along the part of the bank where the accident happened, as that fact is adequately explained by the Corporation, and has nothing to do with the protection of the public. But the allegation remains that it was the duty of the defenders to have protected the bank of the river by a railing at the place where the accident happened.

To this action the defenders plead, first, to the relevancy; second, contributory negligence on the part of the deceased child; and third, that the accident was caused through the fault and negligence of the pursuer himself in respect that he allowed his child ‘to go unattended by some person taking care of him, to the said park,’ his residence being at a considerable distance from the scene of the accident.

On these pleas I have heard argument, with an exhaustive citation of authorities, and in respect of one or other of them the Corporation maintain that the action should be disposed of on the record as it stands, without sending the case to a jury.

As was pointed out by Lord Trayner in the case of Gibson v. Glasgow Police Commissioners, 20 R. 466, it is not easy to reconcile, in the application, the authorities on the subject of liability for accidents to children. There are three questions involved—(1) the duty of the person alleged to be liable, (2) the contributory negligence of the child, and (3) the responsibility of the parents. And it is hardly possible to keep these questions distinct. Perhaps they may be otherwise stated thus—Does the alleged wrongdoer owe a different duty, at least in degree, to the child, from that which he owes to the adult? or is the child, unattended, to be regarded as conventionally an adult? and is the want of care on the part of the parent attributable as contributory negligence to the child?

I doubt whether any general rule can be deduced from the authorities, and whether circumstances can be eliminated from consideration. But I was much pressed by counsel for the Corporation with the two cases of Grant v. Caledonian Railway Company, 9 Macph. 258, and Hastie v. Magistrates of Edinburgh, 1907 S.C. 1192, and it was maintained that these decisions establish clearly that if parents send out their children of tender years unattended they must accept the consequences of their being regarded as impliedly able to take care of themselves, or in pari casu with adults. There is no doubt that in Grant's case, Lord Ardmillan's statement that the child was either so young as not to be able to take care of herself, in which case she ought not to have been permitted to be at the place in question, a dangerous level railway crossing, or she was capable of taking care of herself and so on an equal footing with other passengers crossing the line, and therefore that in either view the company were not liable, was generally accepted by the Court. And the expressions used in the decision of Hastie's case, though more general, are if anything even stronger in favour of the duty of parents to attend their children or to keep them at home. Yet I cannot think that either of these cases can be founded on as determining as a general proposition independent of circumstances that the child of tender years must go attended under the sanction of being treated as an adult if it is not so attended. A large number of cases have occurred which cannot possibly be explained consistently with such a general proposition, and it must, I think, be admitted that circumstances modify the answer to be given to the above question in every case, and prevent the adoption of any rule.

I would refer particularly to the case of Morran v. Waddell, 11 R. 44, where the Lord President (Inglis), who had taken part in the decision in Grant's case, supra, with reference to ‘doubts which appear to exist in certain quarters as to the sort of liability which attaches to children and adults in different sets of circumstances in regard to cases of this kind,’ thus explains

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the decision in Grant's case—‘In Grant v. The Caledonian Railway we held that there was no distinction between the case of a child and of an adult in the circumstances then occurring, because at the level-crossing where the child was killed the railway company were, in the exercise of their undoubted right, in use to run trains at a very high rate of speed, and the business of the railway company could not have been conducted if they had not been entitled so to run them. The result was that it was impossible to take precautions for children of a different kind from those taken for adults, and therefore when an accident arose from the passing of a train at a high rate of speed it was impossible to make a distinction between the two cases. But that law is not of universal application, and if I had been directing a jury in the present case I should not have given them the law of the case of Grant. In this case it was, in the first place, not necessary for the train to travel at a high rate of speed, and it was not the practice so to travel—in fact four miles an hour seems to have been the ordinary rate; and in the second place, it is evident that a great many children are in the habit of playing about near the line, and therefore combining these two facts there was a duty on the part of the defenders to keep a look-out and to avoid the chance of accident.’ But then upon the evidence his Lordship found that there was no negligence or want of due care on the part of the owner of a private railway, while on the other hand there was carelessness on the part of parents in allowing a child of tender years to wander about in a dangerous place unattended.

The cases where the accident could not have occurred but for trespass, even though the trespass was that of children, may I think be disregarded— Galloway v. King, 10 Macph. 788, and Ross, 16 R. 86.

The case of Grant, supra, where it was the business of the railway company to run its trains at high speed, and its statutory right to have a level-crossing over an occupation road, may be contrasted with Morran, supra, Haughton, 20 R. 113, and Innes, 3 F. 335, where the proximity of dwellings to railway sidings, and the known habit of children to frequent these sidings, were held to impose a certain degree of responsibility on the railway company in conducting shunting operations for the safety of such children, though there is considerable diversity of opinion expressed by members of the Bench on this branch of the subject.

Then there is the series of cases regarding dangerous machinery left unfenced, a consideration of which must I think result in the conclusion that it is one of the duties of the owner of such machinery to regard the probability of children tampering with it, and also the fact that children can neither be always in leading strings nor be credited with the sense of the adult. I refer to Campbell v. Ord & Maddison, 1 R. 149; M'Gregor, 10 R. 725; Clarke v. Chambers, L.R. 3 Q.B.D., per Cockburn, L.C.J., at 339; Sharp v. Pathhead Spinning Co., 12 R. 574; and Findlay v. Angus, 14 R. 312. The latter case is I think particularly deserving of consideration with reference to the present. On a waste piece of ground where a fish-curer was allowed to put up a shed without objection, and where the public were tolerated and children allowed to play, and where consequently there was the possibility of children tampering with the shed, its owner was held bound to take this into consideration in providing for its secure closing—while had trespass been necessary to enable the children to get at the shed, it was indicated that the result of the case might have been different.

Lastly, there are the cases where the duty of local authorities in fencing dangerous places, as, for instance, dangers along the sides of roads, has been in question— Greer v. Stirlingshire Road Trustees, 9 R. 1069; Forbes, 15 R. 323; and Gibson v. Glasgow Police Commissioners, sup., which cannot be read without reaching the conclusion that the question what is a sufficient fence is not a general question, but a question dependent entirely on surrounding circumstances, and that these same circumstances may require special precautions for the safety of children to be taken, on the assumption that it is impossible to expect that children of tender years are never to be allowed to go at large unattended. In this connection I may also refer to Martin, 14 R. 814, where children were driven over on the public road, and it was held to be the duty of a driver to anticipate that children do frequent the public roads and streets unattended.

I come then to the present case. The Corporation's Botanic Gardens are admittedly a public park where children are in use to play—I think I may say, are intended and impliedly invited to play. If so, I think that the Corporation are bound to take all necessary precautions that they shall be able so to play in safety. Though there may be cases, e.g., Grant's swp., where the parent may have the duty of tending the child if it is sent to the place of danger, I do not think that the Corporation can expect children to be always tended when playing in a public park, or that any blame attaches to parents for sending them there unattended. It may be that in the Edinburgh case ( Hastie, sup.), the circumstances did not on the face of them call for any special protection, and that there was therefore no relevant case to send to trial. But in the present case the circumstances bear just such a different complexion that I think there is issuable matter. A running stream liable to flooding is a different thing from an artificial sheet of stagnant water. And therefore here it is a fair question for a jury whether the circumstances called for special measures for protection of children who it must have been known would be unattended, being taken, and whether such precautions were in fact taken. The case is in pari casu with that of the Magistrates of Clydebank, 15 S.L.T. 886, to my judgment in which, to avoid repetition, I refer.

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As to the possibility of contributory negligence on the part of a child, that is a question of fact which cannot be decided on the relevancy. I think it is as much a question of fact for the jury in the case of a child as in that of an adult, and depends, inter alia, on the capacity of the child— Campbell v. Ord & Maddison, sup., per L.J.C. Moncreiff and Lord Fraser, 10 R. 264.

“I shall therefore repel the defenders' plea to the relevancy and allow an issue.”

The defenders reclaimed, and argued—The pursuer's averments were irrelevant, for there was no duty on a local authority to fence dangerous places in public parks— Hastie v. Magistrates of Edinburgh, 1907, S.C. 1102, 44 S.L.R. 829. It would be absurd to hold that natural features in public parks, which might be an ornament to the park, must be fenced, e.g. the Salisbury Crags in the King's Park, Edinburgh. The cases referred to by the Lord Ordinary did not support the contrary proposition. They were in a totally different category, and applied mainly to two classes of dangers, viz. (1) dangers arising from railway lines in proximity to public places, e.g., Grant v. Caledonian Railway Company, December 10, 1870, 9 Macph. 258, 8 S.L.R. 192; Morran v. Waddell, October 24, 1883, 11 R. 44, 21 S.L.R. 28; Haughton v. North British Railway Company, November 29, 1892, 20 R. 113, 30 S.L.R. 111; Innes v. Fife Coal Company, Ltd., January 10, 1901, 3 F. 335, 38 S.L.R. 239; and (2) dangers arising from dangerous things left unguarded in public places—e.g. Campbell v. Ord & Maddison, November 5, 1873, 1 R. 149, 11 S.L.R. 54; M'Gregor v. Ross & Marshall, March 2, 1883, 10 R. 725, 20 S.L.R. 462; Sharp v. Pathhead Spinning Company, Ltd., January 30, 1885, 12 R. 574, 22 S.L.R. 368; Findlay v. Angus, January 14, 1887, 14 R. 312, 24 S.L.R. 237. The case of Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 466, 30 S.L.R. 469, on which the respondents relied, was easily “distinguishable, for the stream in that case ran alongside of a public street and constituted a danger which ought to have been fenced, especially as it was liable to sudden floods. The present case was governed by those of Ross v. Keith, November 9, 1888, 16 R. 86, 26 S.L.R. 55; and Hastie v. Magistrates of Edinburgh ( cit. supra). The accident was due to the fault of the pursuer in allowing his son to be in the park unattended.

Argued for respondent—The case was ruled by that of Gibson ( cit. supra), not by that of Hastie ( cit. supra). The present case was clearly one for inquiry, for it was a question of degree whether natural features in public parks constituted a danger. If such features were unduly dangerous, then they ought to have been fenced. The river in question was unduly dangerous, for the pursuer averred that it was subject to sudden and violent floods, and that when in flood it was swift and violent, and extremely dangerous to the public, and especially to children. The reclaimers had invited the deceased to a dangerous place, and were therefore liable for his death.

At advising—