Miller v South of Scotland Electricity Board
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Cohen,Lord Keith of Avonholm,Lord Somervell of Harrow,Lord Denning |
| Judgment Date | 03 July 1958 |
| Judgment citation (vLex) | [1958] UKHL J0703-1 |
| Docket Number | No. 2. |
| Court | House of Lords |
| Date | 03 July 1958 |
[1958] UKHL J0703-1
House of Lords
Viscount Simonds
Lord Cohen
Lord Keith of Avonholm
Lord Somervell of Harrow
Lord Denning
After hearing Counsel, as well on Tuesday the 3d, on Wednesday the 4th, days of June last, upon the Petition and Appeal of William Miller, as tutor and administrator-in-law of his pupil child William Miller Junior, both residing at 150 South Street, Lochgelly, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Blades) of the 1st of March 1957 and also an Interlocutor of the Lords of Session there of the First Division of the 21st of June 1957, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of South of Scotland Electricity Board, 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 Her Majesty the Queen assembled, That the said Interlocutors of the 1st day of March 1957 and of the 21st day of June 1957, complained of in the said Appeal, be and the same are hereby, Reversed: And it is further Ordered, that the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a direction to allow the parties a proof before answer of their respective averments on Record: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs of the hearing before the Lord Ordinary and in the First Division of the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, such last mentioned Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis, and the amount thereof 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 party 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,
As I have come to the conclusion in agreement with all your Lordships that this appeal should be allowed and the Appellant given the opportunity of proving his averments, I must confine my observations within very narrow limits, for I would say nothing that could prejudice the hearing of the case when the facts have been fully ascertained, and to those facts the relevant principles of law have to be applied.
The Appellant, who is father and tutor of a boy now thirteen years old, raised the present action against the Respondents, the South of Scotland Electricity Board, for damages in respect of injuries sustained by the boy through his coming into contact with a live electric cable lying on the floor of a partially demolished house at Lochgelly. He claimed that the accident was caused by the negligence of the Respondents. The question raised in this appeal is whether the Appellant has averred a relevant case of fault. In the Court of Session the Lord Ordinary sustained the submission of the Respondents that no relevant case had been made against them. The Appellant reclaimed, but the First Division unanimously refused the reclaiming note and adhered to the Lord Ordinary's interlocutor. Upon such a question I am naturally reluctant to differ from their Lordships, but it appears to me that in this branch of the law, where, perhaps unfortunately, the result must often turn on fine distinctions, it is undesirable, except in a very clear case, to dismiss an action on the ground that the pursuer's averments are irrelevant and insufficient in law.
In the present case, having read and reread the condescendence and answers, I do not find it possible to support the view that no relevant case has been averred.
It is possible to feel some sympathy with the argument advanced by learned counsel for the Defenders that it is not their fault if the Pursuer's averments are not as clear as they might be. But I must, with great respect, doubt whether that is a sufficient reason for bringing the case to an abrupt conclusion. It is at least clearly averred that the child did suffer a serious accident through grasping a live wire which had been left in situ by the Respondents in an empty house which was shortly to be demolished. Whether the happening of such an event could reasonably have been foreseen by the Respondents (which I take to be the test of their liability) appears to me to depend upon a number of circumstances which will no doubt be elucidated as the case proceeds. I will give but one example. In the view of the Lord Ordinary, which was affirmed on this point by Lord Sorn, it was beyond the range of reasonable foreseeability for the Respondents to have anticipated that demolition would proceed without further intimation and that the series of events leading up to the injury would have occurred. But at least one important factor here is whether the Respondents informed the local authority precisely what they had done in answer to the latter's request "to disconnect their services", and upon this there is silence. I do not give further examples because, having written so much, I have had the opportunity of reading the Opinion of my noble and learned friend, Lord Keith, and find myself in full agreement with him. The appeal should be allowed and the Respondents pay the costs here and below.
As parties have asked the House, if the appeal should be allowed, to direct the mode of enquiry, their Lordships, being of opinion that this is clearly a case in which "special cause" is shown within the meaning of the Court of Session Act, 1850, direct that the parties be allowed a proof before answer of their respective averments.
My Lords,
I have had an opportunity of reading the Opinion which has been delivered by my noble and learned friend on the Woolsack, and that which will be delivered by my noble and learned friend Lord Keith of Avonholm. I am in complete agreement with both of them and have nothing to add.
My Lords,
This action arises out of an accident which the Pursuer in Article 2 of his Condescendence succinctly avers took place as follows:—
"On 7th April 1955 the said child" [the pursuer's child] "was playing with another child in a partially demolished house belonging to Lochgelly Town Council at 6 Lumphinnans Road, Lochgelly. To get to the house said child had entered from Cartmore Road, where there is no paling, crossed over an open green and entered by the back entry from which the door had been removed. In a room facing Lumphinnans Road the said child picked up an armoured cable which was lying on the floor and which had four inches or thereby bare wire which the boy gripped with his right hand. The wire had not been neutralised, and as a result, the boy sustained serious shock and the injuries aftermentioned."
To explain the Defenders' connection with the accident I extract from the further averments of the Pursuer and the admissions or explanations of the Defenders, without setting them out verbatim, the following. The Defenders are the authority responsible for the public service of electricity in Lochgelly. The tenants of a block of houses which included the house in question had been rehoused by the Town Council of Lochgelly by 13th September, 1954, who then requested the Defenders to remove their services. The Town Council intended to demolish the houses, and the Defenders knew that the houses were to be demolished. At some date before demolition began and while the houses were still lockfast the Defenders informed the Town Council that the services had been removed. It is not clear whether, in the mind of the Defenders, there was some subtle distinction between removal of services and complete removal of services, for the Defenders in their pleadings explain "that where services are to be removed altogether it is usual for the service cable to be disconnected at the point where it joins the mains supply cable and it is admitted that this course was not followed in this particular case". What they did was to remove the meters, withdraw the fuses and seal off the cut-outs in the houses. What this involved and how far the electric wiring remained visible or readily accessible after these operations does not appear and in any event, if material, could only be ascertained by technical and other evidence. But it apparently explains how the wiring remained "live". The reason given by the Defenders for the condition of the wire handled by the child is that some person or persons unknown had wrenched the cable from the sealing chamber in which it had been embedded and smashed the cut-outs and sealing chamber. The Pursuer not expressly, but I think by implication, accepts this explanation, though the facts, of course, might turn out otherwise at a proof.
I now set out the averments of fault made by the Pursuer against the Defenders:
"The defenders knew (as was the fact) that the said houses were to be demolished and would shortly cease to be lockfast, and any unauthorised persons would therefore be in a position to enter the said houses. They knew or ought to have known that any cut-outs and sealing chambers would be likely to be damaged or destroyed either by such persons or in the course of the...
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