Glasgow Corporation v Muir
| Jurisdiction | UK Non-devolved |
| Judge | Lord Thankerton,Lord Macmillan,Lord Wright,Lord Romer,Lord Clauson |
| Judgment Date | 16 April 1943 |
| Judgment citation (vLex) | [1943] UKHL J0416-1 |
| Date | 16 April 1943 |
| Court | House of Lords |
[1943] UKHL J0416-1
Lord Thankerton
Lord Macmillan
Lord Wright
Lord Romer
Lord Clauson
House of Lords
After hearing Counsel, as well on Thursday the 28th, as on Friday the 29th, days of January last, upon the Petition and Appeal of the Corporation of the City of Glasgow, of City Chambers, Glasgow, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, two Interlocutors of the Lords of Session in Scotland, of the First Division, of the 7th of November 1941 and the 2d of December 1941, respectively, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutors 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 William Muir, Agnes Muir, James Chalmers, George Yardley, Charlotte Toner and Theresa Haughey, 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 Interlocutors, complained of in the said Appeal, be, and the same are hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Robertson) of the 6th day of June 1941, be, and the same is hereby, Restored: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs of the Action 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 Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
This action arises out of an unfortunate accident to six young children on 15th June, 1940, in the old mansion house in the King's Park, Glasgow, which belongs to the Appellants. At that time the mansion house was being used inter alia for the service of teas to visitors to the park and also as a shop for the sale of sweets and ices. The mansion house is now in military occupation. The witness, Mrs. Emily Alexander, was manageress of the tea rooms and shop on behalf of the Appellants, and the action is based on the alleged negligence of Mrs. Alexander in breach of a duty to take reasonable care of the children.
After a proof before answer, the Lord Ordinary, Lord Robertson, on 6th June, 1941, assoilzied the Appellants, but his interlocutor was recalled by the First Division of the Court of Session, the Lord President dissenting, by interlocutor dated 7th November, 1941, and, the amount of damages having been agreed, subject to reservation of the defenders' right to bring the present appeal, decree was given for the agreed amounts by interlocutor dated 2nd December, 1941. At the hearing of the Appeal the question of liability was alone argued.
About 200 yards from the mansion house, at the top of a hill, there is a shelter, for the convenience of picnic parties and the general public, at the back of which there is a boilerhouse, at which picnic parties can obtain, for a moderate charge, boiling water to make their tea. Weather permitting, the usual practice is for the picnic parties to eat their tea in the field which lies between the shelter and the mansion house.
On the day of the accident, it had come on very wet in the afternoon, and there were at least two picnic parties who desired shelter. One of these, which came from Rutherglen, was a large one, comprising 650 children and 250 adults; the other party, which came from Milton Street Free Church, consisted of 30 or 40 persons, including George McDonald, the Church Officer. The larger party having absorbed the accommodation in the shelter, two members of the Church party went down to the mansion house, and got permission from Mrs. Alexander to use the tea room in the mansion house for eating their own tea, at a charge of 12s. 6d. Thereafter the Church party brought their tea urn and their eatables to the mansion house.
It is necessary to give some idea of the space available for the carrying of the tea urn from the front door to the tea room, which is shewn on the ground plan made and proved by the witness Thomas Lucas. A short flight of steps leads up to the double doors by which entry is obtained to what may be called the entrance hall or passage. On passing through the doors, the passage runs towards the tea rooms on the left hand, while immediately opposite, on the other side of the passage, is the counter at which the sweets and ices are sold, and, to the left, in continuation of the line of the counter, there is a showcase. The counter is about 5 feet long and the showcase is over 3 feet long. Between the doorway—ignoring the space necessary for the inward opening of the doors—and the counter the space is nearly 5 feet wide, but, as you turn left-handed to proceed to the tea room, the space narrows on the left side until, opposite the inmost end of the showcase, there is only 3 feet 3 inches of passageway, at which width the passage continues so far as is material to the present case.
The tea urn of the Church party was carried so far down the hill by George McDonald and a boy Murray abreast, the cakes being carried by James Taylor; before they reached the mansion house, Taylor took Murray's place, McDonald having one handle, and Taylor the other one. At the entrance door, they found it necessary to proceed in single file, Taylor having the front handle and McDonald the back handle. At the time of their entry there were about a dozen children from the other party, who were buying sweets or ices at the counter. There can be no doubt that, just after Taylor and McDonald had turned left-handed, McDonald let go the handle by which he was carrying the urn, that some scalding hot tea escaped from the urn, and injured the six children already referred to, Eleanor Muir, in particular, having sustained serious injuries.
It is a remarkable fact that no witness is produced who saw the accident happen. Taylor, although he felt McDonald let go his handle and was able to get the urn on to its base on the floor before it completely overturned, could give no competent evidence as to why McDonald let go. The evidence of the witness Jeffrey as to the cause of the accident was equally incompetent. Mrs. Alexander, who was serving the children at the counter, had her back turned when it happened, as she was taking ice cream from the freezer. None of the children saw it happen. Neither McDonald nor Murray was produced as a witness, and no explanation was given of their absence.
My Lords, it is worth noting the averments of the pursuers in condescendence 3, where they state, "the urn, which was at least 2 feet in height, when filled with hot tea was a heavy load, and difficult to carry not only because of its weight but owing to the risk of some of the hot liquid coming in contact with the hand of a person carrying it and so causing him to drop his side of the urn. It is believed and averred that this occurred on the occasion of the accident. The carrying of the said urn with its contents through said shop created a serious danger particularly when being carried as it was through a narrow passage near a crowd of persons including many children… . The said accident was the natural and probable result of the defenders' permitting the said urn to be brought on to their premises in the circumstances condescended on, and of their failure to protect the said children therefrom." The pursuers averred that, for a long time, the defenders had allowed and encouraged picnic parties to bring their urns and food into the tea rooms. It is not now disputed that the present occasion was the first one on which that had occurred. It is also proved, by their own evidence, that the urn in question is about 16 inches high, with an external over-all width of about 18 inches, that its capacity is over 9 gallons, that it is of an ordinary type, and that, if carried carefully, it involves no danger. On the evidence, it appears that, at the time of the accident, the urn was, at the most, not more than two-thirds full.
My Lords, on a careful consideration of the opinions in the Courts below, it appears to me to be accepted by the parties and by all the learned Judges that there rested on Mrs. Alexander, as representing the Appellants, a duty to take reasonable care for the safety of the children who had come on to the premises to purchase sweets and ices. But there was a serious difference between the three learned Judges who formed the majority in the First Division on the one hand and the Lord President and the Lord Ordinary on the other hand, as to the standard of care which the circumstances imposed on Mrs. Alexander, and I shall state the test by which, in my opinion, the standard of care is to be judged, and this I will do by two quotations from the recent decision of this House in the Scottish case of Bourhill v. Young (1943), A.C. 92. I take from my own opinion, on page 98, that the duty is to take "such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by...
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