Addie (Robert) and Sons (Collieries) Ltd v Dumbreck
| Jurisdiction | Scotland |
| Judgment Date | 08 March 1928 |
| Docket Number | No. 62. |
| Date | 08 March 1928 |
| Court | Court of Session |
Lord President, Lord Sands, Lord Blackburn.
NegligenceInjuries to childrenDangerous haulage machinery on private ground frequented by childrenIneffective attempts to exclude childrenChild killed by pulley wheel when system set in motionDuty of owners of ground to protect childrenWhether children trespassers.
NegligenceContributory negligenceInjuries to childrenUnattended child of four killed by machinery on private ground near his homeDanger latent but known to parentParent allowing child to play near machineWhether child or parent negligent.
A boy four years of age, the son of working-class parents, was killed by being crushed in the terminal wheel of a haulage system belonging to a colliery company. The system, which was used for depositing ashes on a bing situated in a field adjoining the colliery, consisted of an endless wire cable passing round the wheel and operated from the pithead, to which hutches were attached, and the cable was set in motion from time to time as occasion required. The terminal wheel was situated in the field at a spot about 100 yards from a public road, on the opposite side of which the boy lived. The system had been in operation before any dwelling-houses existed in the neighbourhood. There was an old hedge round the field, but there were many large gaps in it, and it was not sufficient to exclude the public. Efforts were made at times by the colliery officials to prevent children from frequenting the field, but these efforts were unsuccessful, and it was within the knowledge of these officials that children habitually used the field as a playground. The boy's father had warned his son not to go into the field or near the wheel. On the occasion of the accident the colliery servants set the cable in motion without making any effort to ascertain if anyone was in the neighbourhood.
In an action of damages at the instance of the father against the company, held (diss. Lord Blackburn) (1) that the defenders had been guilty of negligence, in respect that, as the pursuer's son was one of a class of persons who to their knowledge habitually went near to their haulage system, they owed him a duty, which they had failed to fulfil, of taking care to prevent his being injured when the machinery was set in motion; and (2) that neither the pursuer nor his son had been guilty of contributory negligence, in respect (a) that the danger was not obvious, (b) that the child was too young to be capable of negligence, and (c) that it was the recognised custom of working-class parents to allow young children to wander near their homes unattended.
On 17th August 1926 Andrew Garnet Dumbreck, foreman bricklayer, Uddingston, brought an action against Robert Addie & Sons (Collieries), Limited, Glasgow, in the Sheriff Court at Glasgow, concluding for payment of 300 in name of damages for the death of his son, Andrew Douglas Dumbreck, in the following circumstances:
The pursuer's son, who was then aged 41/2, was killed by accident on 21st April 1926 through being crushed in the terminal wheel of a haulage system belonging to the defenders at Viewpark Colliery, Uddingston, and used by them for removing ashes from their furnaces to a refuse bing. The system consisted of an endless wire cable to which hutches were attached, operated from time to time, as loads of ashes were accumulated, by a motor at the pithead. At the outer end there was a heavy horizontal wheel, 3 feet 6 inches in diameter and 3 inches thick, round which the cable passed. The front of the wheel nearest the colliery was not protected in any way, but there were four covering boards on the top. The cable had worn grooves some 8 inches deep in the ashes which had been piled up around the wheel. The wheel, which was moved about as required, was situated in a field, and was about 100 yards from a public road on the day of the accident. It was probably not visible to a child from the road. The covering boards were insufficient to prevent it from being dangerous to children.
The field in which the haulage system was situated bordered the road, and the pursuer's house, where his son lived, was on the opposite side of the road. The field was surrounded by an old hawthorn hedge, in which were numerous large gaps and two open gates. At one gate was a notice Trespassers will be prosecuted. The hedge was not sufficient to keep the public, and in particular children, out of the field, which was in fact, and to the knowledge of the defenders, habitually traversed by the public as a short cut, and frequented by youths of all ages. The defenders' employees at times warned children out of the field and reproved adults, but, as the defenders were well aware, the children disregarded the warnings, and the adults continued to frequent the field. The watch kept by the defenders was casual and ineffective, except in so far as it was directed to guarding wood piles and coal bings in the field, and the ground in question was, to the knowledge of the defenders, used as a playground by young children near the wheel and elsewhere. The existence of the wheel was well known to the pursuer, and he had warned his son not to go into the field or near the wheel.
On 21st April 1926 the pursuer's son was found dead in the wheel in a terribly mangled condition. The wheel was at rest shortly before the accident, and was jammed by the child being caught in it just after it was suddenly started. The accident happened by the boy being caught and drawn into the machinery when it was put into motion by the defenders' servants. There was no proof of how the boy entered the field on the day of the accident, but it was a fair inference from the facts that he went through the hedge opposite his house, as other children of the same age were in the habit of doing.
On 18th March 1927 the Sheriff-substitute (W. J. Robertson) found the defenders liable in reparation to the pursuer, and granted decree for 100.
The defenders appealed to the Court of Session, and the case was heard before the First Division (without Lord Ashmore) on 26th and 27th January 1928.
Argued for the appellants (defenders);The pursuer's son was a trespasser when he met his death. He had gone into the field knowing that he had neither leave nor licence to do so. It was immaterial how this knowledge was imparted, but it was proved that the boy had been effectively warned against going into the field not only by the defenders' servants but also by the pursuer himself. The result was that the defenders owed no duty to the boy, except that they must not wilfully injure him.1 The case of Cooke v. Midland Great Western Railway of IrelandELR2 was distinguishable. In that case there was no attempt to exclude the children, and the judges agreed that the children were not trespassers.3 If, however, the Court were to adopt the view in this case that the children were not trespassers but were permitted by the defenders to be on their ground, it was well recognised that the permission might be limited both in respect of the persons to whom it applied4 and of the area to which it extended.5 There was no evidence that an unattended child of so tender an age as the pursuer's son came within the scope of the permission, nor was there any evidence that children were ever allowed to go so far into the field as the place where the bing or the wheel was situated. Moreover, any duty owed to a licensee was strictly limited. He must take the ground as he found it, and use reasonable care.6 There was no clear proof as to how the accident happened. Either the boy had attempted to crawl into the covered space where the wheel was through the small grooves worn by the cable, in which case his action was so dangerous that there was no duty on the defenders to guard against anyone taking such a risk7; or someone had removed the covering boards and the child had got in through the exposed space, but to meet that case it was established that the boards were regularly inspected by the defenders' servants and had been in position when last seen. The defenders were accordingly not negligent in the matter. But whether or not the defenders had been negligent, the boy had been guilty of contributory negligence. The presence or absence of contributory negligence was a question of fact in every case, but children of the same age as the pursuer's
son had been held capable of contributory negligence.1 The facts in this case showed that the boy had been negligent in approaching the wheel, which must have appeared dangerous to any intelligent child. Moreover, if it was held that the child was too young to appreciate danger, then the pursuer himself was negligent in allowing him to be in the field, or near the wheel which he knew to be dangerous, without someone to look after him.2 In these circumstances the defenders ought to have been assoilzied.3
Argued for the respondent (pursuer);In every case of this kind the questions had to be asked, In the special circumstances disclosed was there a duty on the defenders to take care for the safety of the injured party; and, if so, what was that duty and had it been carried out? In this case there was no effective deterrent to keep children out of the field. The defenders were well aware of this, and knew that children took advantage of it. They should have realised that the wheel, if suddenly set in motion, would be dangerous to children. They should have taken steps to protect them, and they did not do so. They were accordingly responsible for the accident.4 The case of CummingsSC5 relied on by the appellants was hard to distinguish from the present case, but it could no longer be regarded as authoritative, as it traversed the law as laid down in the later cases of CookeELR6 and LoweryELR.7 The other cases quoted were distinguishable on their facts. Further, there was no ground for imputing negligence to the pursuer or his son. The...
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