Addie (Robert) and Sons (Collieries) Ltd v Dumbreck
|England & Wales
|The Lord Chancellor,Viscount Dunedin,Lord Shaw,Lord Buckmaster,.
|25 February 1929
|Judgment citation (vLex)
| UKHL J0225-2
|House of Lords
|25 February 1929
 UKHL J0225-2
House of Lords
After hearing Counsel, as well on Friday the 16th, as on Monday, the 19th, days of November last, upon the Petition and Appeal of Robert Addie and Sons (Collieries), Limited, having their registered office and carrying on business at 127, St. Vincent Street, Glasgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 8th of March 1928, so far as regards the words "Refuse the Appeal, Recal the Findings in fact contained in the Interlocutor of the Sheriff-Substitute dated 18th March 1927," and also the words "(18) that the said wheel was neither an obvious nor a natural danger, and neither the pursuer's son nor his parents were guilty of contributory negligence; (19) that the accident was due to the fault of the defenders in setting the haulage system in operation in the circumstances explained in the foregoing findings without taking any precaution to avoid accident to persons frequenting the said field in the near neighbourhood of the haulage system: Find in law in terms of the finding in law contained in the said Interlocutor and quoad ultra affirm the said Interlocutor of the Sheriff-Substitute and Decern: Find the defenders liable to the pursuer in additional expenses from the date of said Interlocutor, and remit the account of said expenses and the expenses found due in the Sheriff Court to the Auditor to tax and to report," be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet: as also upon the printed Case of Andrew Garnet Dumbreck, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled. That the said Interlocutor of the 8th day of March 1928, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, remitted back to the Court of Session in Scotland, with a Direction to sustain the second plea in Law for the Defenders and to assoilzie the Defenders, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs of the Action before the Sheriff Substitute and in the Inner House of the Court of Session and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
This is an appeal from an interlocutor of the First Division of the Court of Session, pronounced on appeal from a decision of the Sheriff-Substitute of Lanarkshire, whereby the appellants were ordered to pay to the respondent £100 damages in respect of the death of the infant son of the respondent, who received fatal injuries at the wheel pit of the haulage apparatus on the appellants' premises at View Park Colliery, Uddington, on the 21st April, 1926.
The facts as found by the Court of Session are as follows: The accident happened in a field at a spot about a hundred yards from a public road; the field forms part of View Park Colliery and is used as a dump for the deposit of ashes from the pithead; it is separated from the public road by a hedge in which there were at the time of the accident numerous large gaps, including a gap of 10 ft. opposite the point at which the accident happened; there are two gates to the field, at one of which there is a notice-board bearing the words "Trespassers will be Prosecuted"; the haulage system consists of an endless wire cable operated from time to time, as may be necessary, for the purpose of removing ashes from the pithead by an 8-horse power electric motor situated at the pithead, while at the other end of the system (which is not visible from the pithead) there is a heavy horizontal iron wheel round which the cable passes and returns at a speed of from 2 to 2 1/2 miles per hour; the wheel at the front, where the cable entered and left, was in no way enclosed or protected, while on the top it was covered by four covering boards. In front of the wheel the cable had worn grooves or depressions in the adjacent surface of the ash-dump so that there was a space 8 or 9 inches deep in the centre from ashes to covering board, and rather more at the sides. The respondent had warned his son not to enter the colliery premises or to go near the wheel; the hedge was quite inadequate to keep the public, and in particular, children, out of the ground, which was in fact, to the knowledge of the appellants, habitually traversed by members of the public as a short-cut and frequented by youths and children of all ages. The appellants' employees at times warned children out of the field and reproved adults, but, as the appellants knew, the children disregarded warnings and the adults continued to frequent the field; the watch kept by the appellants' servants was casual and ineffective, except in so far as it was directed to guarding the wood piles and coal bings, and the ground in question was to the appellants' knowledge used as a playground by young children near the wheel and elsewhere; the wheel was dangerous and attractive to children and insufficiently protected at the time of the accident; the child who was killed was a little over four years of age, and the accident occurred owing to the child, when sitting on the cover of the wheel or in a position in front of and in close proximity to the pulley and rope, being caught and drawn into the mechanism when it was set in motion by the appellants' servants. Having regard to these facts, the Court of Session has held that the accident was due to the fault of the appellants in setting the haulage system in operation in the circumstances stated above without taking any precaution to avoid accident to persons frequenting the field in the near neighbourhood of the haulage system, and accordingly they awarded damages to the respondent.
The first and in my opinion the only question which arises for determination is the capacity in which the deceased child was in the field and at the wheel on the occasion of the accident. There are three categories in which persons visiting premises belonging to another person may fall; they may go
1. By the invitation, express or implied, of the occupier;
2. With the leave and license of the occupier; and
3. As trespassers.
It was suggested in argument that there was a fourth category of persons who were not on the premises with the leave or license of the occupier, but who were not pure trespassers. I cannot find any foundation for this suggestion either in English or Scotch law, and I do not think that the category exists.
The duty which rests upon the occupier of premises towards the persons who come on such premises differs according to the category into which the visitor falls. The highest duty exists towards those persons who fall into the first category, and who are present by the invitation of the occupier. Towards such persons the occupier has the duty of taking reasonable care that the premises are safe.
In the case of persons who are not there by invitation, but who are there by leave and license, express or implied, the duty is much less stringent—the occupier has no duty to ensure that the premises are sale, but he is bound not to create a trap nor to allow a concealed danger to exist upon the said premises, which is not apparent to the visitor, but which is known—or ought to be known—to the occupier.
Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser.
It was suggested in argument for the respondent that the cases of , . and of , , showed that even towards trespassers the duty was higher than that which I have stated. In my opinion these two cases afford no ground for such a contention. In the case of ... the railway company kept a dangerous turntable on their land close to a public road; the company knew that children were in the habit of playing on the turntable, to which they obtained easy access through a well-worn gap in a fence which the respondents were bound by statute to maintain; a child between 4 and 5 years of age having been seriously injured on the turntable, it was held that there was evidence for a jury of actionable negligence on the part of the railway company.
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