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Oldcorn v. Purdon & Anor [2002] ScotCS 320 (17 December 2002)
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OUTER HOUSE, COURT OF SESSION
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A719/01
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OPINION OF LORD CARLOWAY
in the cause
DAVID OLDCORN (A.P.),
Pursuer
against
ANDREW PURDON and ANOTHER
Defenders
________________
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Act : Lloyd; Thompsons
Alt : Ellis QC; Bishops
17 December 2002
1. The Pleadings
The pursuer sues the defenders for damages in respect of an accident which happened on 9 June 1995, when he was ten years old. On that date, according to his pleadings, he was playing with two friends in a wood. The wood was part of Strathaven House Farm (perhaps Stravenhouse Farm), which, since 1990, had been owned and occupied by the defenders. It was accepted that the defenders farmed the land. The pursuer was severely burned when he jumped into what appeared to be an area of sandy soil but which turned out to be ash on top of burning ground. The burning, which covered an area of about three or four square metres, was caused by fire in old mine workings. Such fires often burn for years. The wood itself was bounded on the west by a road and on the north and east by fenced farmland. On the south and west it was unfenced or poorly fenced. The precise locus of the accident was about fifty metres east of the road by way of a path and then ten metres to the south of the path, that is to say off the path and through a section of wood. It was about half of a mile from the defenders' farmhouse. There were no signs or notices warning of the danger of burning land. The path was not fenced. The wood was a well-known and popular area for local children to play in and for local residents to walk their dogs. The first defender was aware of "these facts", which I was told referred to the children playing and dog walking. After the accident, fences were erected and notices posted by the defenders.
The pursuer avers that there had been a similar incident in the area in 1982 when another boy was badly burned in an area of the farm near the locus. Warning signs and fences were erected and the burning areas dug out by the then farmer. A proprietor of a neighbouring farm had lost sheep in the area in that year also. From then until 1989 the local council "had commenced compulsory purchase procedure" in respect of the farm due to sporadic fires breaking out. The land had the reputation locally as being the site of an underground burning bing. A Mr Reid, who had lived in the area since 1992, was aware of the local reputation of the area, to the effect that over some forty years various animals had been injured or lost in accidents. An examination of the vicinity after the accident revealed the presence of tip material and areas where previous burning had occurred. In what appears to be a response to an answer to a different Article of Condescendence, the pursuer then avers that:
"in the event that the defender (sic) walked along the footpath, through the wood, in the course of conducting an inspection, (which is not known and not admitted), he knew or ought to have known that his land was affected by underground burning. In the circumstances, a reasonably prudent farmer would have taken steps to fence off the wooden (sic) area from the footpath and to erect warning signs, as was done after the accident."
The reference to what the post accident examination revealed is later converted into an averment stating:
"At the locus of the pursuer's accident, there were areas of ground which showed the presence of tip material and other areas where previous burning was in evidence. A fence between the footpath and the wooden (sic) area, together with warning signs posted along its length would have been a reasonable precaution, which have (sic) been effective in warning and, would have deferred (sic) entry to the wood."
Putting the pursuer's case in context, the defenders' position upon record is that the locus was covered with sandy soil and did not appear hot. It was small and in the middle of woods some twenty metres from a little used path. There was no visible sign of danger "to a lay person". A detailed inspection of the wood, which extended to nine acres, might not have revealed the burning area. There was no indication that the area might be a popular and well-known playground (although the defenders do not say expressly whether they knew it to be such or not). The defenders:
"were unaware of this part of their farmland being regarded as dangerous. There was no obvious sign prior to the accident of there being any danger in the wood. Further although the defenders were aware of waste material from mining on certain bings on the farm lands they were not aware of it being hot and accordingly dangerous."
They point out that the burning area might have been present only for a short time. The first defender had inspected the working fields when the farm was bought and walked along the path but "noticed no danger of any 'hot spot'".
Under reference to section 2(1) the Occupiers' Liability (Scotland) Act 1960, the pursuer's case of fault is that:
"The defenders knew or ought to have known that their land was, or might be from time to time, affected by underground heating from the old mine workings. They knew or ought to have known that the wooded area of land was a popular area in which local children played. They knew or ought to have known that children, such as the pursuer, were thereby exposed to serious risk of injury. In these circumstances, it was their duty, in exercising reasonable care, to maintain or erect fencing around the wooded area and to maintain or erect signs and notices warning against the said danger, all of which was done following the pursuer's accident. In said duties of reasonable care the defenders failed and so caused the pursuer's accident. Had they fulfilled them the pursuer's accident would not have occurred."
The defenders deny liability, point to the futility of anything other than a very substantial and expensive fence and include a case of contributory negligence against the pursuer.
2. Submissions
Under reference to their second plea-in-law, the defenders maintained that the cause was unsuitable for jury trial. Sub-section 9(b) of the Court of Session Act 1988 (c 36) required there to be special cause shown before the Court would allow a proof in an action of damages for personal injury. However, this case was not suitable as it was of doubtful relevancy. A jury trial was only appropriate if a pursuer's pleadings were clearly relevant and specific on all material points (O'Malley v Multiflex (UK) Inc 1997 SLT 362, Lord Gill at 363). All questions of relevancy must have been disposed of (Moore v Stephen & Sons 1954 SC 331, Lord Justice-Clerk (Thomson) at 334). In addition, the case was not suitable as it would involve fine judgments on questions of mixed fact and law, notably in connection with the defenders' knowledge and the duties which might flow from that knowledge (see Bygate v Edinburgh Corporation 1967 SLT (notes) 65, Lord Leechman at 66). The basic problem with the pursuer's case was the lack of a specific averment about the knowledge of the danger on the part of the defenders and whether such knowledge as is averred is capable of founding the particular duty of care averred.
Although the mechanism of the accident was straightforward, the defenders had only come into occupation of the farm in 1990 and there were no averments of how the defenders might have become aware of the existence of the small burning area which caused the accident. It was doubtful whether the averments were sufficient to impute actual or constructive knowledge to the defenders. Such knowledge was not averred as a matter of fact. In order to prove actual knowledge there ought to be, but were no, averments that there were signs which might alert the ordinary person to the danger in the wood. The duty to take the precautions founded upon depended upon the defenders' knowledge (Keane v Walker Contracts (Scotland), Lord Osborne, 12th February 1999, unreported; McDyer v The Celtic Football & Athletic Co 1999 SLT 2). Although there were averments that the defenders knew that the woods were used by children, there was no notice given of any facts from which it could be proved that they were aware of the danger. There were several elements mentioned. The first was that such fires burn for many years, but it is not said that this one had been. Secondly, there was the 1982 accident, but that was before the defenders' occupation. Thirdly, Mr Frame had lost sheep, but that was also before the defenders' arrival. Fourthly, there was Mr Reid's knowledge, but that could not affect the defenders. Fifthly, there was the reference to tipped material and signs of burning, but these were not linked to the danger area. Sixthly, it was said that "in these circumstances" the defender (singular) knew or ought to have known about the underground burning, but only if he had walked along the path. It was not said that the particular danger would have been noticeable or that there was any duty upon the defenders to walk along the path and, if there had been, at what intervals. There was mention of the post 1982 accident measures and the compulsory purchase procedures, but, again, these were again all prior to the defenders' ownership. The existence of a reputation in the area did not impute knowledge to the defenders. In short, although the averments might be sufficient to merit a proof before answer, they were insufficiently relevant and specific to justify a jury trial. First, there were not enough averments in fact to support actual or constructive knowledge of the danger. Secondly, after inquiry, there may be fine judgments required to decide what duties of care arose. It would be difficult to direct the jury on the range of circumstances and the consequences. A proof before answer was the appropriate course.
The pursuer submitted that the defenders' first and second pleas-in-law should be repelled and issues allowed. The case was a simple one of occupiers' liability. First, the defenders were the occupiers. Secondly, children played in the wooded area. Thirdly, the area was well known as a children's play area and the defenders knew that. Fourthly, the wooded area was affected by fire from underground mines and the ground was burning. Fifthly, the pursuer jumped into the burning area and was badly injured. Sixthly, there were no warning signs or fences to act as a deterrent. Seventhly, after the accident, such signs and fences were erected. Against that averred factual background, the pursuer could establish that the defenders knew or ought to have known of the hazard and acted upon it. The question was whether the defenders had exercised reasonable care to see that the pursuer was not injured by reason of a danger on their land and this was one fit for jury trial. The averments were sufficient to allow a jury to infer that the defenders knew or ought to have known that the area was or might be effected by underground heating. There were several elements to that. First, there was the existence of the reputation locally. Secondly, there were the averments of past incidents, which established the existence of a longstanding problem. Thirdly, the defenders' farmhouse was only one half of a mile away. Fourthly, there had been sporadic outbreaks. Fifthly, there was the loss of sheep in the woods. Sixthly, there was Mr Reid's knowledge, and he had been in the area for a period shorter than the defenders. This went to demonstrate what was noticeable to persons living in the area. Seventhly, there were the observable areas of previous burning. The defenders were farmers of the land and had been in occupation since 1990.
According to the pursuer, the areas of dispute were clear. Was it the case that the defenders knew or ought to have been aware of the problem or, as the defenders contend, that they were not so aware and could not have been? A jury was as well placed as a judge, perhaps better placed, to determine this. If the defenders had known or ought to have known of the danger, did they take reasonable care to prevent the accident by adopting the steps specified? The pursuer had a statutory right to a jury trial unless special cause were shown to exist to prevent this (Graham v Paterson & Son 1938 SC 119, Lord Justice-Clerk (Aitchison) at 126-7). No such cause had been shown.
3. Decision
A person, who has suffered injury, has a right conferred upon him by Parliament to have his case determined by a jury unless special cause is shown as to why that right should not be exercised. It is only where the circumstances are not ordinary but special that a discretion arises permitting the Court to allow a proof before a judge instead (Graham v Paterson & Son (supra), Lord Justice-Clerk (Aitchison) at 124). However, it has long been established that a case cannot be sent for jury trial unless all questions of relevancy have been resolved. The trial proceeds on the basis of the record being conclusive of relevancy and, for that reason, the averments upon record must be sufficiently clearly stated so as to focus for the jury the points in controversy (Moore v Stephen & Sons (supra) Lord Justice Clerk (Thomson) at 334-5; O'Malley v Multiflex (UK) Inc (supra) Lord Gill at 363). The pursuer's pleadings must be relevant and specific on all material points (Keane v Walker Contracts (Scotland) (supra) Lord Osborne quoting the Lord Justice-Clerk (Thomson) in Boyle v Glasgow Corporation 1949 SC 254 at 261). Although a few of the pursuer's averments upon record are unusually phrased and some perhaps even unnecessarily specific, the case contains no extraordinary, that is to say "special", element. The pursuer's case is stated relevantly on all material points and is also sufficiently clearly averred so as to focus the issues adequately for jury trial.
It is accepted that the facts of the accident, as stated by the pursuer, are plain enough. The pursuer was injured by a danger existing upon land owned and occupied by the defenders. The standard of care owed by an occupier of land to a person entering upon it, including a child such as the pursuer who does so uninvited, is set out in section 2 of the Occupiers' Liability (Scotland) Act 1960 (c 30). It is such care as in all the circumstances is reasonable to see that such a person will not suffer injury by reason of any danger due to the state of the land. What is reasonable in all the circumstances is a matter eminently suitable for determination by a jury. As the Lord Justice Clerk (Aitchison) said in Graham v Paterson & Son (supra), albeit in a rather different context:
"The question whether danger should reasonably have been anticipated is a jury question...it will be open to the jury to say that there was no failure of due care on the part of the defenders, or that any injury suffered by the pursuer was not causally related to anything that occurred, or, at any rate, to any negligence on the part of the defenders. These are simple jury questions. Issues of negligence are every day put to juries, who have to ask themselves - Should a reasonably careful person (employer, or contractor, or other person) have anticipated that, if he did something, or omitted to do something, injury and damage might result to some other person ? That is the most familiar of all the questions a jury has to answer."
Although, in recent times, juries have not been asked such questions every day, the principle remains applicable. If a pursuer has relevantly and clearly set out a claim based upon the standard of care set out in section 2 of the 1960 Act, then he will usually be entitled to a jury trial on the issue of whether his accident was caused by the defender's failure to meet that standard.
The facts of the accident having been averred, the pursuer then avers that the first defender was aware that children played in the wood and persons walked their dogs there. Quite apart from that specific averment, if it were proved (as is also stated) that the wood was a place where children regularly played, then that fact combined with the proximity of the defenders' farmhouse and the existence of the wood as part of the defenders' farm, would be a sufficient basis upon which to conclude that the defenders knew it to be a regular playground. No doubt that conclusion need not necessarily be drawn and the defenders point to factors which might negative such a conclusion. Nevertheless, knowledge of the wood as a place where children played is relevantly averred. If proved then the defenders will have a duty to the children playing there in terms of section 2.
The pursuer proceeds to make averments designed to bring home knowledge, constructive or actual, of the danger. If the defenders were not and could not reasonably have known of the danger, the pursuer's case would have to fail. In an occupier's liability case, a pursuer normally does have to aver sufficient facts to permit the inference of such knowledge to a defender. However, it is not reasonable, in many cases, to expect a pursuer to be in a position to aver actual knowledge of the danger as a fact. On the other hand, if a danger (such as a hidden 'hot spot') is proved to have existed on a person's land, then in some cases a pursuer may have to establish little else to prove knowledge, actual or constructive, than that fact plus the defender's occupation. This is because, in many situations, it will be legitimate to infer knowledge from the existence of the danger on the land plus the defender's presence on that land as occupier. An occupier must often be taken to know what is on his own land, albeit that this will not always be the case (cf McDyer v Celtic Football & Athletic Club (supra)). Here, the fact that it is accepted that the defenders were farmers of the land coupled with the averment that the danger was on their farm is a solid starting point for the pursuer in averring a relevant case of knowledge. But the case does not stop there. The pursuer goes on to aver a number of factors over and above mere occupation by which he seeks to prove knowledge. These include the history of the general and specific area as a place where similar incidents had occurred, the obvious signs of burning present upon visiting the site and the general reputation of danger prevalent prior to the accident. All these averments are relevant as factors which might permit the conclusion that, as the pursuer avers, the defenders knew or ought to have known of the dangers existing on their land, including in the wood. Of course, they are not bound to lead to that conclusion. On the contrary, the defenders make the potentially valid criticisms that much of what the pursuer avers relates to events occurring before their occupation or to the knowledge of other people in the locality or to burning not necessarily noticeable to occupiers. The fact that such comments can be make does not render the averments irrelevant or even of doubtful relevancy. The facts averred will be relevant to the question of knowledge albeit that, in due course, consideration will have to be given to what, if any, weight should be attached to them if proved in evidence. In summary, there are sufficient relevant and clear averments of knowledge. That distinguishes this case from the decision reached by the Lord Ordinary in Keane v Walker Contracts (Scotland) (supra).
If knowledge is demonstrated, the defenders will have been proved to have been aware of children in their wood in proximity to a known danger. The case then becomes a question of whether the defenders' failure to erect fences or warning signs amounted to a failure to take reasonable care and whether that failure caused the accident.
So, there are a number of questions. First, did the defenders know that people, notably children, used the woods for recreation? Secondly, did the defenders know, or ought they to have been aware of, the dangers in the woods to these children? Thirdly, in that knowledge, actual or constructive, did the defenders' duty to take reasonable care extend to the erection of fences or warnings? Fourthly, did the failure to take these precautions cause the pursuer's accident? The pursuer has sufficiently clear averments on all of these aspects. All are matters which are eminently suited to determination by jury as is that of any contributory negligence. I do not consider that there will be difficult or delicate questions of mixed fact and law arising such as those of the type which were thought to occur between an occupier and a self employed slaughterman in respect of the state of a slaughterhouse in Bygate v Edinburgh Corporation (supra). The answers to the questions posed may require careful consideration by a jury and may not be easy to resolve as matters of fact but, properly directed on what these questions are and the potential consequences of the answers, a jury will be just as well placed to decide the issue as a judge, and quite possibly better placed to do so.
In all the circumstances, I will repel the defenders' first and second pleas-in-law and allow issues. I should add that, in the course of the Procedure Roll, the pursuer sought to clarify certain matters by amendment. I do not consider that the proposed Minute of Amendment has any material effect on the relevancy of the pursuer's case. I will accordingly simply allow the Minute of Amendment to be received and allow the defenders to lodge answers thereto within twenty eight days.
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