Plank v Stirling Magistrates
| Jurisdiction | Scotland |
| Judgment Date | 25 November 1955 |
| Docket Number | No. 11. |
| Date | 25 November 1955 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Strachan.
NegligenceHeritable PropertyPublic parkChild injured while using chute in playgroundWhether invitee or licenseeLiability of local authority.
A child, aged two and a half, was injured through falling from the platform of a chute erected by a local authority in a playground in a public park. The platform, which was 12 feet 6 inches above the ground, was fenced by wooden slats, but for at least four days prior to the accident three of these had been missing on one side, leaving a gap of 12 inches, through which the child fell.
Held that the local authority was liable in damages, (per the Lord Justice-Clerk, Lord Patrick and Lord Blades) on the ground that the child was an invitee and the danger was an unusual one of which the authority ought to have known, and (per Lord Mackintosh) on the ground that the child was there as of right and was therefore entitled to rely on the chute being in a reasonably safe condition.
Authorities on the law of invitee and licensee in relation to heritable subjects in the possession and control of a local authorityreviewed.
William Plank, as tutor and administrator in law of his pupil child, Anne Elizabeth Plank, brought an action of damages against the Provost, Magistrates and Councillors of the Burgh of Stirling in respect of injuries sustained by the child.
The following narrative of the facts is taken from the opinion of the Lord Ordinary (Strachan):"It is admitted that in their capacity as local authority the defenders are the proprietors of Waverley Crescent Playground. Among other apparatus for the amusement and recreation of children the defenders have installed in that playground a chute, and it is admitted that children regularly resort to the playground and use that chute. The chute is situated near the edge of the playground adjoining the roadway of Waverley Crescent. Access to it is obtained by means of a stair leading up to a platform, which surrounds the top of the chute and which is 12 feet 6 inches above ground level. As a safety measure to prevent children falling off the platform to the ground beneath, the platform is enclosed at the sides by a paling consisting of upright spars of wood each measuring 3 feet 3 inches by 2 inches by 1 inch, there being a gap of a little more than 1 inch between each spar. The spars are bolted to a piece of angle steel at the bottom and similarly bolted to a steel rail at the top.
"If the paling round the platform is not kept, in good repair, it cannot fulfil its function as a safety device. In the present case, as I shall later state in more detail, the child fell through a gap in the paling. It is therefore of considerable importance to note the facts which have been proved in regard to the condition of the paling at the time of the accident and for a period prior thereto. [These facts, briefly stated, were (1) that one spar of the paling was missing five weeks before the accident, (2) that for at least four days before the accident there were at least three adjacent spars missing from the side of the paling furthest away from the street and that a gap in the paling of 12 inches in width was thereby created, (3) that in that condition the chute was a very grave danger to children who might use it and particularly to young children, and (4) that the defenders led no evidence of any repair having ever been made to this paling and no evidence of any inspection having been made on their behalf.]
"The circumstances in which the accident happened may be briefly summarised as follows. On the evening of Friday, 15th May 1953, the pursuer went out for a walk with two of his sons and his daughter Anne, who was then 2 years old. Anne wanted to go to the playground, and, having met the pursuer's eldest son James, then a boy of 13 years of age, she and James went on ahead to the playground and the pursuer and the other two boys followed some distance behind them. James and Anne on arriving at the playground first played together on the swings for a short time and then went to the chute. They went down the chute once or twice without any untoward incident. What they did was that Anne went up the stair first with James behind her, and, when they got to the platform, James sat on the top of the chute and Anne then sat between his legs and they went down together. When they reached the platform the defective paling was on their right. Anne, owing to her age, could not be expected to appreciate its dangerous condition even if she had noticed it. In regard to James, I accept his evidence that he did not notice before the accident that any spars were missing. He explained that by saying that he could not see that spars were missing because of Anne being in the box,i.e., on the platform. In my opinion, that is a natural and quite a probable explanation. Apparently when Anne reached the platform she stood aside to the right to let James past her to get to the chute. In such a position she may well have obscured James's view of the gap in the paling.
"After James and Anne had gone down the chute once or twice in the manner which I have described, they prepared to go down a further time and for that purpose had again reached the platform. Anne then stepped backwards towards the defective paling to let James past her but on this occasion, unfortunately, in stepping back she fell through the gap in the paling to the tar macadam surface beneath and was seriously injured. After she had fallen off the platform, James saw that there were two or three spars missing. The pursuer arrived at the chute just as she fell. There is a suggestion in the evidence of James that the pursuer before the accident had been playing football in the playground with the other two boys, but, even if that be so, it does not appear to me to be material, for it is not suggested that the pursuer was in any way to blame for the accident."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant and insufficient in law to support the conclusion of the action et separatim being lacking in specification, the action should be dismissed."
On 4th April 1955, after a proof before answer, the Lord Ordinary (Strachan) granted decree in favour of the pursuer.
At advising on 25th November 1955,
LORD JUSTICE-CLERK (Thomson).The facts in this case are simplicity itself. The defenders as the local authority provide a public park. Among the amenities is a children's playground, which contains a chute. The children go up some steps to a platform some twelve feet from the ground and there get on to the chute. The platform is some three feet by three feet, and, except for the gaps necessary to admit the steps and the chute, it is fenced by a paling consisting of vertical slats. On the occasion in question three slats were missing. The pursuer's daughter, aged two, when under the charge of her brother, aged twelve, was making use of the chute when she fell through the opening in the paling and was injured.
The chief point for consideration is whether the children were invitees. If they were, it is conceded that the defenders failed in the duty which invitors owe to invitees to use reasonable care to prevent damage from unusual dangers which they know or ought to know.
Since the decision in Dumbreck1 the Courts in Scotland, in cases where a pursuer claims to have been injured when on a defender's premises, have had no option but to approach the problem on the footing that the pursuer must be either an invitee, a licensee or a trespasser and that the defender's responsibility falls to be measured accordingly. This has been emphasised in recent years and with equal regret in both Divisions (see M'PhailSC2 andMooneySC3). It may be that we are within reach of the demise of the doctrine. If this is a funeral oration, its theme must be burial rather than praise. Although the doctrine was admitted as part of the law of Scotland with the approval of Lord Dunedin, its admission has never entirely commended itself to Scots lawyers and, as time has gone on, its inconveniences have become increasingly apparent. That even greater inconveniences have arisen in the country of the doctrine's birth has not unnaturally been observed in Scotland with a certain smugness combined with a measure of admiration for the heroic but hitherto unavailing efforts of English lawyers to extricate themselves from what one of them has described as a morass. The real difficulty seems to be that the category of invitee is limited and hard for claimants to get into, and there has been a feeling that the relegation of many claimants to the status of licensee has tended to operate hardly.
Until the recent case of PearsonELR4 there has been no thorough examination in England of the criteria by which a claimant falls to be considered an invitee rather than a licensee. The classical definition in Indermaur v. DamesELR5lays down that the claimant must go on the
premises "upon business which concerns the occupier, and upon his invitation, express or implied." That definition has been expanded rather than explained in subsequent cases by adding such words as "material interest" or "joint interest" or "common interest." A licensee on the other hand goes on the lands for his own purposes with the permission of the occupier, who grants the permission out of grace rather than interest. Lord Dunedin puts the distinction thus in Dumbreck1 (at p. 59): "He [the invitee] must be on the land for some purpose in which he and the proprietor have a joint interest. A licensee is a person whom the proprietor has not in any way invitedhe has no interest in his being therebut he has either expressly permitted him to use his lands or, knowledge of his presence, more or less habitual, having been brought home to him, he has then either accorded permission or shown no practical anxiety to stop his further frequenting the lands."I should have thought that...
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