Scottish Court of Session Decisions

This was an action in the Sheriff-court of Roxburgh and Selkirk by William Ferguson against Thomas Laidlaw, manufacturer, Hawick, concluding for the sum of £150 sterling, “being reparation for the loss of services sustained by the pursuer, and as a solatium for wounded feelings, in consequence of a daughter of the pursuer's, aged ten years, on or about the 5th day of February 1870 years, being so scalded and burned by a discharge of steam from an unprotected flue or pipe from Teviot Crescent Mills, Hawick, the property of the defender, or in his occupation, that she died of said injuries so received on or about the 22d day of February 1870 years.”

The Sheriff ( Pattison), substantially affirming the decision of the Sheriff-Substitute ( Russel), pronounced an interlocutor in these terms:—“Finds, as matter of fact, that the defender is proprietor and in the occupation of the mill in Hawick, marked on the Ordnance map produced as the ‘Teviot Crescent Mill,’ and is also in the occupation as tenant of a stripe of ground on the banks of the river Teviot adjoining the said mill, which piece of ground is leased to him by the trustees of the late Mr Turnbull of Fenwick, for the purpose of being used as the site of an embankment to be constructed thereon by the defender on the edge of the river Teviot—the alveus of the river ex adverso of the said stripe of ground being the property of the said trustees: That on said stripe of ground the defender has constructed an embankment and wall facing the river, which wall is about 7 1 2 feet high from the bed of the river: That a pipe of considerable size leading from the part of the defender's works is carried through tile said embankment and face wall, from which it projects at the point of issue to the distance of about 1 foot, at a place half-way up the wall, for the purpose of discharging into the river the waste steam from the defender's drying-house: That the steam at times issues from said pipe with considerable force, and that at other times, before the pipes have become heated, hot water is discharged therefrom: That on the 5th day of February last a daughter of the pursuer, of the name of Martha Ferguson, went along with some other young girls carrying pitchers to the alveus of the river, to which they got access by means of a heap of cinders and ashes which had been shot over the wall from the defender's works; and going down the alveus of the river to the said pipe, which is situate near to the said heap of cinders, the pursuer's said daughter Martha held up a pitcher to the mouth of the pipe for the purpose of collecting hot water therefrom into said pitcher: That while she was thus occupied there issued forcibly from said pipe steam and hot water, scalding her severely: That the said Martha Ferguson died on the 22d day of the said month of February in consequence of the injuries thus received: That the said Martha Ferguson was not in the service of the defender, and she had no lawful occasion or right to be at or near to the place at which the steam and hot water were discharged from the said pipe: That the place was not one of public resort, or to which there was any public right of access, but was a part of the bed of the river belonging to Mr Turnbull's trustees: Finds, as matter of law, that the injuries to the deceased Martha Ferguson were not caused by the fault or negligence of the defender, and that the defender is not liable for the consequences of the accident which occurred to the girl, and is not liable in damages or solatium and compensation to the pursuer: Therefore assoilzies the defender from the conclusions of the libel, and decerns; but in the circumstances, finds no expenses due.

Note.—The action is based upon the averment that the injuries received by the pursuer's child ‘were caused by the fault and negligence of the defender in leaving the said flue or pipe unprotected.’

Without fault and negligence on the part of the defender, there could be no claim against him for damages.

It is not said in the record that there was any fault or negligence in the defender in having placed the flue or pipe where it was. The only fault alleged against him is, that he left it unprotected.

It was argued by the pursuer that the defender had no right to project the pipe beyond the face wall; but this is not the ground stated either in the summons or the record. But it was maintained

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that the defender ought to have so placed the pipe or flue as to protect Her Majesty's lieges from any danger, because, as was maintained at the hearing, the place where the steam issued from the pipe is open to the public; that is to say, is not fenced in from the public. It is true that it is not fenced in, but it is not therefore open to the public. It was part of the alveus or bed of the river, which in that part belonged to Turnbull's trustees, to which the public had no right of access, and in regard to which, therefore, the defender was under no obligation to provide for their security. It is not proved that it was ever a place of public resort. On the contrary, the evidence shows that it was not. There being thus no foundation for the allegation of fault or negligence upon which the action is founded, the conclusions of the action cannot be maintained.

This consideration is enough for the decision of the case, but the Sheriff has no hesitation in adding that there is no ground in the circumstances for inferring any liability against the defender for the accident which happened to the pursuer's daughter. The girl had no right to be there, or to be engaged in doing what she was doing when she met with the injuries. She went out of her way to seek the danger, and it would be contrary to all principles of law and justice to make the defender responsible for the consequences.”

The pursuer appealed.

Rhind, for him, admitted that the child had no right to be in the place where she met with the accident, but it was the defender's duty to keep out children. It was a fault on the part of the defender putting up a dangerous construction, and also accumulating ashes, which formed a mound over which the children were enabled to reach the danger. In the case of Hislop, the party injured had no right to be in the place where he met with the injury. A child of ten could not contribute to injury. It was the duty of defender to take means to prevent children meeting with such accidents.

Rankine, for respondent.

The following cases were quoted in the argument,— Lumsden v. Russel, 1st February 1856, 18 D. 468; Black v. Caddell, 1804, M. 13,905; Hislop v. Durham, 14th March 1842, 4 D. 1168.

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