Stewart v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 25 October 1957 |
| Docket Number | No. 4. |
| Date | 25 October 1957 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Wheatley.
EvidenceSufficiencyCorroborationEffect of opponent's failure to cross-examineEffect of opponent's averments when neither admitted nor provedNegligenceHeritable PropertyDuty to licensee.
A widow, whose child had been killed by the breaking of a clothes pole in the back court of the property in which they resided, brought an action of damages for negligence against the owners of the property. She alleged that the defenders had exposed the child to a danger, of which the child was unaware, arising from corrosion of the pole which was known to the defenders. The pursuer adduced an expert witness who had examined the pole after the accident and who testified that for at least six months prior to the accident it must have been badly corroded and in a manifestly dangerous state. Another expert, who had not seen the pole and gave his evidence on the basis that its condition after the accident was as described by the first expert, expressed a similar opinion. The first expert was not cross-examined in regard to the condition of the pole after the accident. In these circumstances it was contended for the pursuer, (1) that in the absence of cross-examination it was not necessary to lead corroborative evidence as to the condition of the pole after the accident, (2) that it had accordingly been proved that the pole had been in a manifestly dangerous condition for at least six months prior to the accident, and (3) that the defenders must have been aware of its dangerous condition, since they had averred in their defences that they had inspected and painted it five months before the accident.
Held (1) (disagreeing with Lord Wheatley) that failure to cross-examine a witness on an essential point did not supersede the necessity for corroboration of his evidence on that point; (2) (applying Lee v. National Goal Board, 1955 S. C. 151)that an averment on record which was not admitted and was not proved in evidence could not be founded upon as an admission; and (3) that accordingly the pursuer had failed to prove her case.
Opinions per Lord Wheatley, Lord Carmont and Lord Russell that, in a question with a licensee, an occupier of property cannot be held to have had knowledge of a hidden danger unless it is established at least that he had actual knowledge of the facts giving rise to the danger.
Mrs Margaret Robertson Or Stewart brought an action of damages for negligence against Glasgow Corporation.
The following narrative of the circumstances is taken from the opinion of the Lord Ordinary (Wheatley):"The pursuer is a widow who on 14th October 1953 was a tenant of a flat in property at 70 Stoneyhurst Street, Glasgow, owned and controlled by the defenders. She lived there with the members of her family, including the now deceased Thomas Jamieson Stewart, who sustained fatal injuries in the circumstances hereinafter described. At the rear of said property there was a back court, in which was situated a number of clothes poles to enable washing to be hung on ropes suspended from them, and this was a feature of the adjacent back courts, which were in no way fenced off from the one at number 70, thereby presenting a continuous line of back courts in which children were in the habit of playing. The particular clothes pole with which the case is concerned was in the back court of the property at number 70, was some seven feet high, embedded in concrete, and made of rolled steel or malleable iron. All of these clothes poles, and the back courts in which they were situated, were likewise the property and under the control of the defenders, and the poles had been in position for a number of years prior to the accident. On the afternoon of 14th October 1953 the deceased and four companions were playing in the back court. They were all very young, being only about six or seven years of age, the deceased himself being only 6 years of age. A rope had been suspended between the pole in question (hereinafter referred to as the pole) and another pole, and at least three of the other boys were swinging on the rope while the deceased climbed the pole. After swinging on the rope with their hands for some time, the other boys proceeded to pull the rope further down, and began to swing on it by lying over it on their stomachs; at this point the pole snapped some four inches from the ground and fell with, and on to, the deceased, causing him to sustain an injury to his liver from which he died that night."
The parties averred, inter alia:(Cond. 3) " With reference to the defenders averments in answer, not known and not admitted that said pole had been inspected and painted in or about May 1953 " (Ans. 3) "Admitted that the defenders were aware that the said poles, which were exposed to the elements, were liable to rust. Quoad ultra denied. It is explained and averred that the defenders fulfilled any duties incumbent upon them. Further, it is explained and averred that the said poles were regularly inspected and painted by the defenders. In particular the said pole had been inspected and painted in or about May 1953. At that time the said pole appeared to be in a condition to withstand all strains to which the defenders might reasonably anticipate it would be subjected. After the said pole had broken, the defenders discovered that there had been some rusting at or about the site of the fracture. The rusting on the outside of the said pole had taken place under the paint on the said pole and was not visible to inspection prior to the accident "
On 8th February 1957, after a proof, the Lord Ordinary (Wheatley) assoilzied the defenders.
At advising on 25th October 1957,
LORD PRESIDENT (Clyde).This is an action of damages for negligence, brought by a widow in respect of the death of her child, following upon an accident which the child sustained while playing in a back court in Glasgow which was owned by, and under the control of, the defenders. After a proof before answer, the Lord Ordinary assoilzied the defenders, and against his interlocutor so doing the pursuer has reclaimed.
On the day of the accident the deceased and four other children, all aged about 6 or 7, were playing in the back court. There were clothes poles in that court, and a rope had been suspended between two of them. When the accident happened, at least three of these children were lying over this rope, swinging on it, and the pursuer's child was clambering up one of the two poles which were being subjected to the strain of this improvised swing. During this operation the pole snapped a short distance above the ground, and fell with, and on to, the pursuer's child, causing the injuries from which he died. When subsequently examined, the pole was found to be corroded at the point of the fracture.
The child was admittedly not an invitee in the back court, but was merely there with the leave and licence of the defenders, and their duties towards him were consequently of a limited character. The principal duty which the pursuer contended had been breached was alleged to be that the defenders had exposed the child to a danger from the badly corroded pole, of which the child was unaware but of which they had knowledge. It is clear on the authorities that, if breach of this duty had been established on the evidence as the cause of the accident, liability would have rested on the defenders. The main issue in this action is whether knowledge on the part of the defenders of the danger from the corroded pole was or was not established.
There is no direct evidence of such knowledge at all. Indeed the evidence in the case is singularly meagre, and practically the whole argument before us centred round the question whether the pursuer could by a series of expedients reinforce what little evidence she has, so as to entitle her to succeed on this issue.
Her argument was that knowledge had been brought home to the defenders because of two factors on which she founded. First of all she contended that on the evidence it was established that, for at least six months prior to the accident in October 1953, the pole was badly corroded and in a manifestly dangerous state. In the second place she founded upon the averment of the defenders in their defences that they had inspected the pole in May 1953. From these two premisses the pursuer argued that it followed that they must have been aware of the danger and yet took no steps to remedy the situation.
To determine the soundness of the conclusion that knowledge was thus brought home to the defenders, each of the two factors above referred to requires to be separately considered. Separate issues were raised in argument before us on each.
In regard to the first matternamely, whether the evidence established that for six months prior to the accident the pole had been badly corroded and was manifestly dangerousthe evidence rests upon the testimony of one witness. This witness was a Mr Arnott, an expert who gave evidence for the pursuer. He examined the upper part of the pole in January 1954. He spoke to the depth of corrosion he then saw, and it can be spelt...
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