Glasgow Corporation v Taylor
| Jurisdiction | Scotland |
| Judgment Date | 18 December 1920 |
| Date | 18 December 1920 |
| Docket Number | No. 24. |
| Court | Court of Session |
Lord Hunter, Lord Justice-Clerk (Scott Dickson), Lord Dundas, Lord Salvesen, Lord Ormidale.
Reparation—Negligence—Safety of public—Injuries to children—Trap—Poisonous shrub in public park—Child killed through eating poisonous berries.
A father brought an action against the Corporation of Glasgow for damages for the death of his son, a child aged seven, who died from eating the poisonous berries of a shrub growing in the Botanic Gardens, one of the Glasgow public parks. He averred that, immediately adjoining a part of the gardens to which young children resorted for play, and accessible therefrom by a wicket-gate easily opened by children, was an enclosed plot of ground on which was growing, among specimen plants and shrubs of various kinds, a belladonna shrub bearing poisonous berries resembling small grapes, and presenting an alluring and tempting appearance to children; that, being attracted by the shrub, his son had entered the enclosed plot and eaten some of these berries, in consequence of which he died; that the dangerous character of these berries was well known to the defenders; that it was their duty to warn children against the danger, or to prevent them from reaching the shrub; and that the accident was due to their negligence in failing to perform that duty.
Held (rev. judgment of Lord Hunter, diss. Lord Salvesen) that the pursuer had relevantly averred fault on the part of the defenders; and an issue for the trial of the cause approved.
Authorities discussed.
On 30th January 1920 Peter Taylor, 75 Burnhouse Street, Maryhill, Glasgow, brought an action against the Corporation of the City of Glasgow for payment of the sum of £500 as damages for the death of his son, a boy aged seven, who had died from eating berries of the Deadly Nightshade (atropa belladonna), which he had plucked from a plant growing in a part of the Glasgow Botanic Gardens known as the ‘Herb Garden.’
The pursuer averred that the Botanic Gardens were open to the public and were used as a public park, and that, on 20th August 1919, his son had gone with several companions to the playground surrounding the bandstand, a part of the gardens which, as the defenders knew, was much frequented by young children. (Cond. 3) ‘On said date, and for some time prior thereto, the defenders had growing on a small piece of ground in said gardens immediately adjoining said playground, specimen plants and shrubs of various kinds. Inter alia, there were specimens of wheat, barley, oats, &c., and also a shrub, atropa belladonna, bearing berries rather similar in appearance to small grapes, and presenting a very alluring and tempting appearance to children. The said plot of ground, which was enclosed by a wooden fence, was open to the public, access being obtained by a gate in said fence, and, as the defenders knew, was frequented by members of the public of all ages. With reference to the statements in answer, admitted that said ground was frequented by students. Admitted that there is a wire loop on said fence which may be passed over the end of the gate. …Explained that the said gate and fence are only 3 feet in height, and that the gate is a light rustic gate, which, even when held in position by said wire loop, can easily be opened by a child of tender years.’ (Cond. 4) ‘On said date, being attracted while passing the place by the beautiful and tempting appearance of said shrub, which was covered with said berries, and which extended to about 5 feet in circumference and overhung the adjoining path to the extent of about 2 feet, the pursuer's son and some of his companions picked a few of the berries and ate them. Shortly afterwards they became seriously unwell, and although he received medical attention the pursuer's son died the following morning. …Admitted that the pursuer's son obtained access by said gate. Explained that said shrub is only a yard or two inside the fence and is quite visible from said playground, and that pursuer's son and his companions first noticed it while they were on said playground, …’ (Cond. 5) ‘The death of pursuer's son was solely due to the fault of the defenders and of their servants in charge of said gardens, for whom they are responsible. The attractive and striking appearance of said berries is accurately described in a well-known book on botany as follows:—“The attractive character of the berries, looking as they do to the uncritical eyes of young children like cherries or big black currants, has led to many serious accidents.” The poisonous character and the inviting and deceptive appearance of said berries were well known to the defenders and their said servants. They knew or ought to have known, if they had exercised reasonable supervision, that said shrub was growing in a conspicuous position in said gardens in a part open to and much frequented by children, and that it was probable, and indeed practically certain, that children would be tempted and deceived by the appearance of said shrub, and would eat the berries, which have a sweet taste. The defenders and their said servants knew, or ought to have known, that said berries were a deadly poison, and that, if one or two of them were eaten by a child, it was certain to cause dangerous illness and likely to result in death. The defenders were in fault in having the said shrub growing in a part of said gardens open to children and frequented by them without taking any precautions, as they ought to have done but failed to do, to warn children against the danger or to prevent children from reaching said shrub and picking the berries. …’ (Cond. 6) ‘There was no notice of any kind in said gardens warning the public of the presence of poisonous or dangerous specimens growing therein. It was the duty of the defenders and their said servants to have a notice in the vicinity of said shrub which would warn the public, both adults and children, of the poisonous and dangerous character of said berries, or to have the said shrub fenced off for the protection of children. They failed to perform this duty, and took no steps of any kind to warn children or protect them from said danger, and the death of the pursuer's son was the natural and probable result of their negligence. Until after the death of the pursuer's son they failed to take even the usual necessary and obvious precaution of placing near said plant a label bearing the word “Poisonous.” Belladonna is one of the scheduled poisons which, under the Pharmacy Act, 1868, are required to be distinctly labelled with the word “Poison.” With reference to the statements in answer, it is believed that there was a small label bearing in very small lettering the words [“Deadly Nightshade—Atropa Belladonna L.”] on the ground near said shrub. Explained that the label was very small and the inscription in minute characters, and that said label was placed in the ground under the shrub solely for the information of persons interested in botany. At the time when the pursuer's son picked the berries said label and inscription were covered by the shrub, and were practically invisible. … Explained that the defenders' bye-laws contain no reference to the presence of poisonous or botanical specimens in said gardens, and no warning to the public in connexion therewith, and that any bye-laws published by the defenders were solely for the protection of their plants and shrubs, and not for the protection of the public.’
The defenders pleaded, inter alia;—(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.
On 2nd June 1920 the Lord Ordinary (Hunter) sustained the first plea in law for the defenders, and dismissed the action.
Lord Hunter's opinion.—The pursuer in this action seeks to recover damages from the Corporation of the City of Glasgow for the death of his son John Mackay Taylor, who died on 21st August 1919. It appears that, on 20th August of that year, the pursuer's son, aged seven, proceeded with some other children to the Botanic Gardens, Glasgow. The defenders are the proprietors and custodians of these gardens, which are open to the public as a public park. On the date in question, the children are said to have been playing on ground surrounding the bandstand. In the vicinity of this place there is an enclosed plot of ground in which specimen plants and shrubs of various kinds are grown. A wooden fence surrounds this plot of ground, access being obtained by a gate in the fence. According to the pursuer's case the defenders knew that this plot of ground was frequented by members of the public of all ages. Among the plants growing in the plot of ground was a shrub, atropa belladonna, bearing berries, rather similar in appearance to small grapes, and presenting a very alluring and tempting appearance to children. The pursuer says that his son and some of his companions were attracted by the beautiful and tempting appearance of the shrub; that they picked some of the berries and ate them; that shortly afterwards they became seriously ill; and that, although he received medical attention, the pursuer's son died the following morning.
The berries of the atropa belladonna shrub are poisonous, and the. pursuer maintains that the death of his son was solely due to the fault of the defenders and of their servants in charge of the gardens, for whom they are responsible. He says that the poisonous character and the inviting and deceptive appearance of the berries were well known to them. ‘They knew, or ought to have known, if they had exercised reasonable supervision, that said shrub was growing in a conspicuous position in said gardens, in a part open to and much frequented by children, and that it was probable, and indeed practically certain, that children would be tempted and deceived by the appearance of said shrub, and would eat the berries, which have a sweet taste. The...
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