McPhail v Lanarkshire County Council
| Jurisdiction | Scotland |
| Judgment Date | 09 January 1951 |
| Date | 09 January 1951 |
| Docket Number | No. 30. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Sorn.
NegligenceMunicipal election held in County Council schoolVoter injured by fall in playgroundAction of damages against County Council and Town CouncilRelevancy.
ProcessAmendment of recordLimitation of ActionsPublic authorities protectionAmendments submitted outwith six months' limitPublic Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1 (a).
ExpensesTaxationScale of taxationAgent and client or party and partyPublic authorities protectionUnsuccessful action of reparation against public authoritiesPublic Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1 (b).
While leaving a school belonging to a County Council, which was being used as a polling station in a municipal election, a voter sustained injuries through a fall in the playground. She brought an action of damages on the ground of negligence against (1) the County Council and (2) the Town Council of the burgh, whose Town Clerk had made the arrangements for the use of the school as a polling station, averring that the playground was dangerous and that the defenders were both responsible for the accident she had sustained. The school was the statutory polling place, and the Town Clerk was acting under statutory authority.
The Lord Ordinary having allowed a proof before answer, and the defenders having reclaimed, the pursuer craved leave to make extensive amendments to her record, their main effect being to differentiate the cases made against the County Council and against the Town Council. Objection was taken by the defenders to their admission on the ground that the action was an action against two public authorities; that the amendments made a new case and were submitted outwith the time limit prescribed by the Public Authorities Protection Act, 1893, sec. 1 (a); and that they were therefore incompetent. The Courtallowed the amendments,holding that they did not constitute a change in the ground of action but merely a different formulation of the same ground.
As against the County Council the pursuer's averments, as amended, were to the effect that the County Council were parties to the arrangements for the use of the school as a polling place; that the pursuer was allowed by the County Council to take the route of egress over the playground; that the slope on which she slipped and fell was dangerous; that the County Council was in occupation of the playground and access on the day of the poll; and that the pursuer was present on the premises as a matter of right. As against the Town Council it was averred that the election was a municipal election; that the Town Council knew that voters would visit the polling station; and that their Town Clerk had made certain preliminary arrangements for the voting.
Held (1) that no relevant case had been stated against the Town Council in respect that they had no control over the premises or the conduct of the election and that in making the arrangements the Town Clerk had been acting as a public functionary and as a principal and not as the Town Council's agent; and (2) that, as regarded the County Council, the pursuer, while present as of right in the playground, was not an invitee but, at best for her, a licensee, and that accordingly the only obligation upon the County Council was to refrain from exposing her to concealed dangers; and action dismissed as irrelevant.
The Court refused a motion by the defenders that the expenses due to them should be taxed as between agent and client under sec. 1 (b) of the Public Authorities Protection Act, 1893,holding, as regarded the County Council, that the action was, not for neglect or default in the execution of any Act of Parliament or of any public duty or authority within the meaning of the section, but for a breach by them of a common law duty, and, as regarded the Town Council, that the Town Council had no concern with, or responsibility for, the proceedings out of which the accident had arisen.
Donoghue v. Stevenson, 1932 S. C. (H. L.) 31, [1932] A. C. 562, discussed and distinguished.
On 1st September 1949 Mrs Mary Jackson or M'Phail, an elector in the Burgh of Lanark, brought an action of damages against the County Council of the County of Lanark and against the Town Council of Lanark for injuries sustained by her on 3rd May 1949, when she fell in the playground of a school used as a polling station after she had recorded her vote in a municipal election. The action was defended by both defenders.
The pursuer's averments which were substantially amended in the course of the hearing in the Inner House, were (as amended) in the following terms:(Cond. 1)
"The pursuer, who is forty-four years of age, is a married woman and resides at Broom-park, 15 Cleghorn Road, Lanark. She was a person entitled and qualified to vote in the municipal election held at Lanark on 3rd May 1949, and her appropriate polling station was situated in a room within one of the buildings of the Lanark Grammar School, Lanark. The first-named defenders own, occupy and administer the said school, including the playground and the approaches from the public highway. On the date of the said municipal election there were six polling stations within the said building, to which municipal electors, including the pursuer, were entitled to proceed in order to record their votes. The first-named defenders were well aware prior to the date of the said election that electors, such as the pursuer, would be entitled to proceed to the said polling stations, and that, when approaching and leaving their station, electors would require to use the approaches and accesses from the public highway, including the access over the part of the playground after mentioned. The arrangements for the use of the said building to provide six polling stations for the said election were made between the Town Clerk of the second-named defenders and the Director of Education and Depute County Clerk of the first-named defenders between 29th March and 22nd April 1949. Moreover, the first-named defenders were under a statutory duty in terms of the Local Government (Scotland) Act, 1947, in particular section 25 and paragraph 4 of Part III of the Second Schedule thereof, to allow a room or rooms in the said school, which was a grant-aided school, to be used for the purpose of taking the poll at the said election. With reference to the defenders' averments in answer the defenders are called upon to state the specific arrangements which were made between them with regard to the use of the said school building for the purpose of providing polling stations on the said date which are not known and not admitted. Their failure to do so will be founded on. The Local Government (Scotland) Act, 1947, including the Second Schedule thereof and the correspondence produced by the first-named defenders are referred to for their terms. Believed to be true that the Returning Officer for the said election was the said acting senior magistrate of the second-named defenders. Quoad ultra the defenders' averments in answer so far as not coinciding herewith are denied." (Cond. 2) "On the evening of 3rd May 1949 the pursuer visited her appropriate polling station within the said school building in order to record her vote. At or about 8 p. m. on the said evening the pursuer, having recorded her vote, was returning from the school building to the public highway. In order to reach the gate leading to the public highway she had to descend a very steep slope with a gradient of approximatedly 1 in 3, which led from the edge of the playground to the gate. The said playground, including the said slope, had been surfaced with tarmacadam which had become worn, broken and uneven and consequently presented a loose and dangerous surface to be traversed by foot passengers seeking the gate to enable them to pass from the polling station to the public highway. No steps were provided to enable passengers to descend the said steep slope in safety, and moreover its surface was very uneven, rough, loose, broken into holes and thus dangerous to persons traversing it and exercising ordinary and reasonable care for their own safety. As a result of the steepness and dangerous condition of the said slope the pursuer, while making the descent, lost her footing and fell, sustaining serious injuries as hereinafter averred. With reference to the defenders' averments in answer, not known and not admitted that signs were exhibited as averred by the first-named defenders. Explained that the pursuer saw no such signs. The said access was being used by the great majority of voters both when entering and leaving the school, and was so used by the pursuer without objection from the defenders or either of them.Quoad ultra the defenders' averments in answer, so far as not coinciding herewith, are denied." (Cond. 3) "The said accident was caused through the fault and negligence of the defenders or one or other of them. It was the duty of the first-named defenders to take reasonable care for the safety of persons, including the pursuer, who, as they were well aware, were entitled to visit the said school building for the purpose of recording their votes in virtue of their constitutional and statutory rights. They owned, occupied and controlled the said school, and in particular the playground and the said access, which remained within their occupation and control on the date of the said accident. They were well aware, as hereinbefore condescended on, that voters would necessarily be proceeding to and from the said polling stations as of right on the said date and that in exercise of that right would require to pass across the playground of the said school and would require reasonable safe access to the said polling station. It was, in these circumstances, their duty to take reasonable care to provide, or to see that it was provided, that the said means of access to and from the said...
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