Stevenson v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 02 July 1908 |
| Date | 02 July 1908 |
| Docket Number | No. 154. |
| Court | Court of Session |
Ld. Johnston, Lord M'Laren, Lord Kinnear, Lord Mackenzie.
ReparationNegligenceBurghRiver adjoining Public ParkDuty to fenceChild.
A father brought an action against the Corporation of Glasgow for damages for the death of his infant son, who had been drowned in the River Kelvin while playing in one of the public parks adjoining the river. The pursuer averred that at the place the bank of the river, which was unfenced, was worn away; that the river was liable to sudden floods, during which its flow became swift and violent, and its depth increased from 11/2 to 4 feet; that the accident occurred during one of these floods; that the river was thus a danger to the public, and especially to children; that it was the duty of the defenders to have had it fenced; and that the accident was due to their negligence in failing to perform this duty.
Held (rev. judgment of Lord Johnston) that there was no relevant averment of fault on the part of the defenders, and action dismissed.
Duncan Stevenson, iron-turner, Glasgow, brought this action against the Corporation of the City of Glasgow for damages for the death of his infant son.
The pursuer averred:(Cond. 2) On or about 10th October 1907 Duncan Stevenson junior, the infant son of the pursuer, while playing in the Botanic Gardens, Glasgow, fell into the River Kelvin near the iron footbridge which crosses the River Kelvin under Kirklee Railway Station. The defenders are proprietors of the said gardens, which adjoin the River Kelvin, and are used as a public park. At the time when the said accident happened the pursuer's said child was playing there with a number of other children of about the same age. It was well known to the defenders that large numbers of children resorted to the said place for the purpose of recreation. (Cond. 3) The said accident was due to the fault and negligence of the defenders in failing to have the bank of the River Kelvin fenced at the spot in question, where the bank has been worn away by the action of the water. The River Kelvin in normal conditions is about a foot and a half in depth at the place in question. Said river, however, particularly during the winter season, is subject to sudden and violent floods, during which the depth of water at said place is between 3 and 4 feet. The said river, particularly when in flood, is swift and violent, and was so on the occasion of the accident to and drowning of pursuer's said son, and in these conditions the place where the accident happened is one of extreme danger to members of the public, and particularly to children resorting there. There is an iron railing which extends from Kirklee Bridge in a southerly direction along the banks of the river for about 257 yards or thereby, but from the end of said fence there is a distance of about 75 yards which is wholly unprotected. It was the duty of the defenders to have continued the said iron railing along the banks of said river as far as the iron bridge mentioned in article 2. Had they done so the accident to the pursuer's child would have been avoided.
The defenders pleaded, inter alia, that the pursuer's averments were irrelevant.
On 21st May 1908 the Lord Ordinary (Johnston) repelled this plea, and allowed an issue.*
The defenders reclaimed.
The case was argued on 24th June 1908.
Argued for the defenders;There was no duty on the defenders to fence the bank of the river.1 The river was a danger which the defenders had not created, and one which was patent to everyone who came to the park. In such circumstances the defenders had no higher duty towards a child than towards an adult. The cases relied on by the Lord Ordinary were not in point, for they dealt either with the danger arising from the proximity of railway lines to public places,2 or with dangers created by the owners.3 The case of Gibson v. Glasgow Police CommissionersSC4 was distinguishable, for it dealt with a danger in a public street, where no danger was to be expected, and where those using the street had a right to be protected against any latent danger.
Argued for the pursuer;The case could not be decided without
inquiry. A public park was in the same position as a public street, in so far as the responsibility of the defenders was concerned, and if there was a hidden danger they were liable if they had failed to take precautions to obviate it.1 The special circumstances with regard to the river which placed on the defenders the duty of fencing it were, its liability to flood, the rapidity of its flow when flooded, and the fact of its bank being worn away.
At advising on 2d July 1908,
Lord M'Laren.The Lord Ordinary has given a very careful and full exposition of the authorities bearing on this question, and other cognate questions of liability in cases where there is a duty to the public to give protection against possible accidental injury.
I am unwilling to differ from the Lord Ordinary on a question of relevancy, where the effect of his decision is only to send the case to trial. On the
other hand, it must be remembered that in our practice the presiding Judge at a trial has not the same powers as are exercised by Judges in the English Courts, in relation to withdrawing a case from the jury where the evidence of the plaintiff does not amount to a prima facie case of liability.
It is, however, within our province to examine the relevancy of the pursuer's averments, and to consider whether, if these were proved, liability would attach to the defender. In both countries the control of the Court is maintained on the general question of liability, though the forms of process are different.
In this case the Corporation of Glasgow are proprietors of the Botanic Garden, which is a place of recreation open to the public, and I do not doubt that the Corporation, as proprietors, are bound to give reasonable protection to members of the public against unusual or unseen sources of
danger, should such exist. But in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law. If it could be shewn that there was any special danger at the place where the child fell into the water, the case would be different, but I am unable to find in the averments anything more definite than this, that the garden is bounded by a running stream which it was the duty of the Corporation to fence. If there is no such duty in general, then the action must fail. I think this case is ruled by the case of Hastie v. Magistrates of Edinburgh,1 recently decided by this Division of the Court in regard to the obligation to fence a piece of ornamental water. The suggested distinction between the case of standing water and that of running water is not one that commends itself to my mind.
Lord Kinnear.In this action the question is stated quite clearly in
the first sentence of the Lord Ordinary's opinion, where he says,Duncan Stevenson, iron-turner, Glasgow, sues the Corporation of the City of Glasgow for damages for the death of his infant son, who fell into the River Kelvin, while playing in the Botanic Gardens, Glasgow, through which that river runs, and which are admittedly the property of the Corporation, and are used as a public park. The pursuer alleges that his child was playing at the time of the accident with a number of other young children in the Botanic Gardens, and fell into the river at a place where it is unfenced, and he adds that it was well known to the defenders that large numbers of children resorted to the said place for the purpose of recreation. The ground of liability alleged is the failure of the Corporation to have the bank of the River Kelvin fenced at the spot in question. That is the fault attributed to the Corporation. The Lord Ordinary has held that that is a relevant ground of action, and has accordingly allowed an issue.
I am sorry to say that I am unable to agree with his Lordship. I cannot see any ground in law for casting upon the Corporation the duty which they are said to have neglected. It was said that this is a question of negligence, and that this is always a question for a jury, which is the only proper tribunal by which it can be tried. I cannot assent to that view. Whether the defender has or has not been negligent in point of fact in a particular case is a question for a jury, but there is, first of all, upon the relevancy of the record a question whether the negligence alleged constitutes a ground of legal liability, and that is a question for the Court. The distinction is stated by Lord Cairns in the case of Metropolitan Railway Company v. JacksonELR1 in the House of Lords. His Lordship says there with reference to a case of negligence,The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence, from which negligence may be reasonably inferred; the jurors have to say whether from these facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance, in the administration of justice, that these...
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