Fraser v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 10 March 1972 |
| Docket Number | No. 21. |
| Date | 10 March 1972 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Robertson.
BurghStreetPower of local authority to remove potential dangerExtent of powerAbandoned motor carRemoval of Vehicles (Scotland) Regulations, 1961 (S.I. 1961, No. 1473), reg. 6.
NegligenceBurghStreetDuty of local authority to keep street safeExtent of dutyChild injured while playing around abandoned motor car.
NegligenceMotor car abandoned in streetChild injured by dropping lighted paper into petrol tankForeseeability of accident.
Reg. 6 of the Removal of Vehicles (Scotland) Regulations, 1961, provides that, where a vehicle "(a) having broken down on a road in the area of a local authority, appears to have been abandoned, or (b) has been permitted to remain at rest on a road in the area of a local authority in such a position or in such condition or in such circumstances as to appear to have been abandoned," the authority may remove it or arrange for its removal.
For two months a motor car was left parked in a public street in a city. During that time it was damaged by vandals so extensively as to be incapable of being driven, and it became a playground for children. On 3rd June 1968 a town councillor, acting on information from a constituent, reported to the director of cleansing that there was an abandoned car in the street in question, but she did not suggest that it was in a dangerous condition. The director immediately instructed his chief inspector to take the matter up with the police with a view to having the car removed, but it was still in the street on 9th June, when a boy aged eight, while playing around it, dropped a lighted piece of paper into the petrol tank. There was an explosion, and he was injured. In an action of damages brought on his behalf against the local authority his mother averred that, in fulfilment of their common law duty to take reasonable care to ensure that the street was kept clear of objects which might prove dangerous to persons using it, the defenders ought, as soon as they became aware of the presence and condition of the car, to have taken reasonable steps to remove it. She further averred that the car was a dangerous allurement to children, giving rise to a foreseeable risk of injury to them when they played on or about it. She failed, however, in a proof before answer, to establish that the defenders knew of the condition of the car prior to the accident.
Held that, there being no evidence that the defenders knew, or ought to have known, of the condition of the car prior to the accident, the pursuer had failed to prove fault on their part; and the defendersassoilzied.
Further held by the Lord Justice-Clerk that, even if the defenders had known of the condition of the car and that it was an allurement to children, the accident which happened was not one that was reasonably foreseeable.
Observations on a local authority's duty in relation to the safety of the streets under their administration and on reg. 6 of the 1961 Regulations.
Mrs Eithne Brigid Gallagher Or Fraser, as tutrix and administratrix-at-law of her pupil son Gerald Fraser, born on 19th April 1960, brought an action of damages against the Corporation of the City of Glasgow in respect of injuries sustained by him in an accident on 9th June 1968.
The pursuer averred, inter alia:(Cond. 2) "For a period of between eight and ten weeks before 9th June 1968 a motor vehicle, registration number VGD 689, had been parked on the roadway close to 111 Henderson Street aforesaid. Said street was a public street. The said car is believed to be the property of a Mr Joseph Beszedis, formerly of 42 Gariochmill Road, Glasgow, but whose present whereabouts are unknown to the pursuer. During the said period the condition of the said car had deteriorated, so that by 9th June 1968 it presented the appearance of having been abandoned. There were no back wheels or windscreen on it, and the front tyres had gone flat. The car was obviously derelict, and was a tempting and likely playground for young children. There was petrol in the petrol tank, the filler funnel of which had a non-lockable cap on it; the cap was accessible from outside the vehicle. On said date at about 1.45 p.m. the said Gerald Fraser was one of several young children playing round the said car, when one of them dropped a match into the petrol tank of the said car. An explosion occurred immediately, and the said Gerald Fraser sustained the injuries hereinafter condescended upon. The defenders' averments in answer in so far as not coinciding herewith are denied." (Cond. 3) "The said accident was caused by the fault and negligence of the defenders. It was their duty as the local authority responsible for the said street to take reasonable care to ensure that the said street was kept clear of objects which might prove a danger to persons using the said street, such as the said child. It was their duty to take reasonable care to remove such objects, or in any event to remove therefrom objects which might constitute a danger to children in the vicinity of the said objects. In particular it was their duty to take reasonable steps to remove the said abandoned vehicle as soon as they became aware of its presence and condition, by either removing it themselves or communicating with the owner. It is believed and averred that the presence and condition of the said vehicle on the said street had been reported to the defenders by the Maryhill Police Office by at least 6th June 1968. At that time the owner of the vehicle was in Gartnavel Hospital, Glasgow, and was due for release the following day. The defenders are called upon to state when the presence of the car was reported to them, by whom, and what steps, if any, they took to have it removed. Their failure to do so will be founded upon. It is further believed and averred that the defenders had arranged to uplift the said vehicle on 10th June 1968. The said vehicle in its dilapidated condition, as the defenders knew, or ought to have known, was an allurement to children in the vicinity, who were attracted to it and played on it. It was further a danger to such children in that it had a petrol tank, in which, it is believed, there was petrol at the time of the said explosion. The defenders ought reasonably to have foreseen that such children playing on or about the said car might apply a lighted match to the said car, and in particular the area of the said petrol tank, and thereby cause an explosion sufficient to endanger other children, such as the pursuer's. In the foregoing circumstances it was the defenders' duty to take immediate steps to have the said vehicle removed, and to take reasonable steps, until arrangements for its removal were made, to ensure that the said petrol tank did not contain any potentially explosive material such as petrol, so that the danger to the said children would be minimised until the vehicle was removed. In the exercise of each and all of these duties the defenders failed, and by their failure caused the said accident. They failed to take reasonable care for the safety of the said child. They failed to remove the said abandoned vehicle from the said street prior to the said accident. They failed to ensure that the said petrol tank was empty. They negligently and culpably allowed the said motor vehicle to remain in the said street, where it constituted an obvious allurement and danger to children in the vicinity, such as the said Gerald Fraser. Had the defenders performed their said duties, the said accident would not have occurred. With reference to the defenders' averments in answer, it is not known and not admitted whether the owner was contacted. Not known and not admitted that he gave his consent, and that the vehicle was uplifted on 20th June 1969. Admitted that certain duties of care were incumbent upon the said Gerald Fraser. Quoad ultra denied, in so far as not coinciding herewith. Explained and averred that the said Gerald Fraser duly performed all duties incumbent upon him in the circumstances."
The pursuer pleaded, inter...
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Smith v Littlewoods Organisation Ltd; Maloco v Littlewoods Organisation Ltd
...which followed is explicable on the same ground. Counsel for Littlewoods founded on the decision in Fraser v. Glasgow Corporation, 1972 S.C. 162, particularly a dictum of the Lord Justice-Clerk (Grant), at p. 173, but the circumstances in which he declined to hold a injury foreseeable were ......
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