Scottish Court of Session Decisions

On 21st January 1910 the Lord Ordinary ( Skerrington), after a proof before answer, the import of which sufficiently appears from his Lordship's opinion infra, sustained the second plea-in-law for the defenders, and also the third in so far as it was pleaded that the accident was caused or contributed to by the negligence of the pursuer's son.

Opinion.—“The pursuer Robert Plantza, at the date of the accident complained of, was nearly five years old. He was an intelligent boy and was in the habit of going to and from school by himself. On the afternoon of 14th April 1909 he and a girl of seven were playing at ‘jumping’ upon the foot-pavement at the corner of Adelphi Street and St Ninian Street, about 60 yards from where he lived. Within a few feet from where they were playing there was a hydrant, sunk under the pavement between two and three feet from the curb. The lid of the hydrant had been removed by one of the defenders' workmen, who was repairing the street about 30 yards away and who required water for that purpose. The removal of the lid left a hole in the pavement about 1 foot square, and in this hole there stood erect a bent pipe, called a swan-neck, and also a water-key, each projecting about 2 feet above the level of the pavement. The water-key was shaped like a capital letter “T”. The arms (each about 1 foot long), which formed the handles of the key, pointed up and down Adelphi Street parallel to the curb; the leg was shaped at its lower end as a box spanner and grasped a piece of metal attached to the water valve. As the children were playing they noticed that a mischievous boy of nine, whom they knew by name, was trying unsuccessfully to turn the water-key. Suddenly he called out ‘The man's coming,’ meaning that a workman was coming to the hydrant for water, and he then ran away. The said pursuer and his companion also ran away, and in some unexplained manner the pursuer brought his eye into contact with the end of one of the arms of the key. In order to do so he must either have held his head very low or he must have tripped and fallen. In any case there was ample room on the pavement for him to avoid the key. Fortunately the pursuer's sight was not injured but he tore the upper lid of his right eye. His health has suffered and he has not been so alert mentally since the accident. While there is reason to hope that his health will recover, there remains a permanent injury, viz., a notch cut out of the bottom of the eye lid. His medical witnesses say that the pursuer will always be exposed to conjunctivitis from foreign matters getting into the eye owing to the lid not shutting closely, and owing to its not closing so rapidly as it should. The defenders' medical witnesses, while admitting that the notch is permanent, deny that the purser will suffer any permanent inconvenience.

As regards the defenders' liability for the accident, it is plain that one of their workmen had erected an obstruction on a public pavement and that this obstruction might be dangerous either to a child or to a grown-up person who was not aware of its existence. On the other hand the obstruction was not in itself unlawful, as it was made by a servant of the road authority and for a proper purpose. Further, it is not proved that the hydrant was left open longer than was reasonably necessary. The only question, therefore, is whether the defenders through their workmen failed to perform some duty which they owed to the pursuer and so caused the accident.

I do not need to consider how matters would have stood if the pursuer had not been aware of the existence of the obstruction, viz., the hole in the pavement with the upright pipe and the key. It is very creditable to the alertness of the people of Glasgow and of their children that although the hydrants all over the city are sunk under the foot-pavements, and are constantly being opened and left open while men are at work, no one until the accident to the pursuer seems ever to have been hurt by putting his foot into the hole in the pavement or by striking his leg or (if a child) his face against one or other of the vertical projections. The road authority may be justified by a long experience in assuming that the swan-neck and the water-key act as flags or warnings to foot-passengers and are sufficient for that purpose. However that may be, I am clearly of opinion that the road authority was not bound to anticipate that any person, even a young child, whose attention had been called to the obstruction would be likely to run against it and so suffer injury. As soon as such obstruction has been seen, even by a young child, any danger from running against it is similar in character, though not perhaps in degree, to the danger of running against a lamp-post or perambulator on a pavement, or a piece of furniture in a house. Both the danger itself and the means of avoiding it are obvious even to the youngest child that can be trusted to take care of itself in a public street. It is very different where the peril is one which a young child is not familiar with and cannot appreciate, such as the risk of catching a limb in a cogged wheel or a turntable, or to come nearer the circumstances of the present case, the risk of being knocked down by a powerful jet of water from a main pipe. I am of

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