Hastie v Magistrates of Edinburgh
| Jurisdiction | Scotland |
| Judgment Date | 02 July 1907 |
| Docket Number | No. 164. |
| Date | 02 July 1907 |
| Court | Court of Session |
Lord President, Lord Kinnear, Lord Pearson.
Reparation—Negligence—Burgh—Artificial Pond in Public Park.—
A father brought an action against the Magistrates of Edinburgh for damages for the death of his child, aged four years and four months, who had been drowned in an artificial pond constructed by the defenders in one of the public parks of the city. The pursuer averred that the pond, which was unfenced, was dangerous, the top of the bank being level with the adjoining footpath, and the bank itself, formed of stone and cement, having a smooth surface, and sloping at an angle of 55 degrees to the bottom of the pond, where the water was from two to three feet deep; that the child while playing on the edge of the pond, slipped off the top of the bank into the water, and, being unable to get out owing to the steepness of the sides, was drowned; that the child's death was due to the fault of the defenders in respect (1) that the pond was badly constructed and dangerous owing to its steep and smooth sides, its depth, and the absence of fencing; and (2) that the defenders did not provide an attendant to prevent children of tender years from coming to harm at the pond.
Held (aff. judgment of Lord Salvesen) that the pursuer's averments were irrelevant, and defenders assoilzied.
Charles Hastie, labourer, Cumberland Street, Edinburgh, brought this action against the Lord Provost, Magistrates, and Town-Council of the City of Edinburgh for £500 as damages for the death of his child, a boy aged four years and four months, who was drowned in an artificial pond in Inverleith Public Park, one of the public parks of the city of Edinburgh, under the management and control of the defenders.
The pursuer averred that several years ago the defenders constructed an artificial pond in Inverleith Park. (Cond. 2) ‘The said pond is in close proximity to a populous part of the city, and is much resorted to by children, and that in the knowledge of the defenders. The said pond is without a railing, and is open to all members of the public who frequent the park. It is constructed with a stone bank round it, the top of said bank being level with the adjoining footpath. The said bank slopes at a very steep angle (about 55 degrees) to the bottom of the pond, in which the water has a depth of two to three feet. The stone surface of the said bank is smooth, and the slope of it towards the water is composed of stones and cement, and is very smooth. On account of its steepness and smoothness it is very difficult to keep a foothold on said slope.’
The pursuer further averred that, on 1st November 1905, the child, while playing on the edge of the pond with some other boys of about his own age, slipped off the top of the bank into the water, which was beyond his depth; that he made ineffectual efforts to regain the bank, but the sides were so steep that he was unable to save himself, and was drowned. (Cond. 5) ‘The pursuer's son met his death through the fault or negligence of the defenders. The said pond is badly constructed and dangerous in that the inner bank of the pond slopes into the water at an angle of 55...
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