Scottish Court of Session Decisions

John M'Murray, 36 Burnhouse Street, Maryhill, Glasgow, pursuer, raised in the Sheriff Court at Glasgow an action of damages against the School Board of Glasgow, defenders, for injuries sustained by his pupil son Peter M'Murray.

The pursuer averred—“(Cond. 2) The defenders, the School Board of Glasgow, are the authority constituted under and for the purposes of the Education (Scotland) Act 1872, and subsequent Acts, in and over a certain district of the City and Royal Burgh of Glasgow. They are bound to supply school accommodation within said district, and for this purpose they own, use, and control a large number of schools therein. (Cond. 3) One of said schools is situated in and bounded by Gairbraid Avenue, Burnhouse Street, and Balfour Street, Maryhill, Glasgow. Said school is known as Gairbraid Avenue Public School, and it and the playgrounds attached thereto are owned, used, and controlled by defenders. Said school and said playgrounds are surrounded by walls, surmounted by an iron railing, in which there are several gates, one of them being in Burnhouse Street. (Cond. 4) On Monday, 19th October 1914, pursuer's said pupil child Peter M'Murray was walking along the pavement in Burnhouse Street aforesaid, adjacent to said school, when, as he was passing said gate, which, as after mentioned is in two halves, one of said halves (the north or right-hand one) fell upon him and injured him severely as after mentioned. The cause of said half of said gate falling was that at the time some boys were swinging or playing upon it, and in consequence of its defective condition, as after condescended on, the bolt used in its fastenings gave way, and said half was wrenched therefrom. (Cond. 5) Said gate is of iron, of ornamental design, and made of two halves, each half weighing about one-and-a-half hundredweights. Said gate was on said date fastened and supported and hung by the upright main standard of each half being caught at a height of 5 feet 3 inches or thereby from the ground by iron bands which encircled said standards, and were then bolted through, to, or on to iron dooks let into stone pillars at the sides of said gate, and by the said standards being socketed into a metal receptacle countersunk at the sides of said gate into the step. The hole in the dook let into the northmost or right-hand one of said pillars, into which hole the bolt was intended to grip, was oblong in shape, and measured 1 2inch long by 3 4 of an inch deep, while said bolt was 3 8of an inch in diameter. The bolt and the part of the gate fastened to it had thus 1 8 of an inch free play, instead of being, as it ought to have been, tight and firm, and were not therefore properly fitted, and were defective. The other half of said gate had one-half of free play at its bolt, instead of being tight and firm, and was thus defective. This half of said gate could be moved to and from its pillar to the extent of 1 2-incli or thereby. The fastenings of both halves of said gate, including said bolts, were old and much corroded and worn. At some time previous to the said accident to pursuer's said child there had been a cast-iron stand or block let into said step to catch the gate and so prevent it being pushed outwards beyond its proper line. This stand or block had for some considerable time prior to said accident been broken off to within a short distance of the step. As a result it did not catch the gate, and was thus insufficient and unfit for the purpose intended. Through the want of a sufficient and fit stop both parts of said gate could be swung both inwards and outwards. (Cond. 6) Said accident to and consequent injuring of pursuer's said pupil child were due to the fault of the defenders or of those for whom they are responsible. It was and is the duty of the defenders to have and keep their property, including said gate and its fastenings, in a safe and sufficient and proper state of repair. This they failed to do. Said gate was defective and dangerous, as before condescended on, in respect that the bolts were not properly fitted and were old, corroded, and worn, and the want of a proper and efficient stop. The defective and dangerous condition of said gate, and others, was known to defenders, or to those entrusted by them with the duty of seeing that the property of the defenders, and particularly said gate fastenings and stop, were kept in a proper and safe condition, or at least the condition of said gate fastenings and stop could easily have been discoverable by defenders or said persons had they exercised reasonable inspection. In allowing

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said gate fastenings and stop to be and to remain in the foresaid dangerous and defective condition, defenders were at fault, and such fault was the cause of the accident to pursuer's said pupil child.”

The defenders pleaded, inter alia—“(1) The action is irrelevant.”

On 1st June 1915 the Sheriff-Substitute ( Fyfe) repelled the defenders' first plea and allowed a proof.

The cause having, on the motion of the pursuer, been remitted to the Court of Session for jury trial, and an issue having been lodged, the defenders moved that the action be dismissed as irrelevant.

The defenders argued—The pursuer's averments were irrelevant, as they disclosed that the gate was defective not as a gate but as a swing. The defenders had no duty towards the pursuer to ensure that the gate was safe when misused as a swing— Johnstone v. James Stewart&Sons, 1897, 25 R. 103, 35 S.L.R. 75. Cormack v. School Board of Wick and Pulteneytoun, 1889, 16 R. 812, 26 S.L.R. 599, was distinguishable, as there the injured boy attended the defenders' school, and was injured by swinging on the gate during school hours, and the practice of swinging on the gate was known to the defenders.

The pursuer argued—The present case was ruled by Cormack v. School Board of Wick and Pulteneytown ( cit.). Further, the pursuer had relevantly averred that the gate was defective as a gate, and that (cond. 5) it was liable to fall at any time. The defenders also must be held to have known the ways of school children, and it was their duty to keep their premises safe under the usage to which children would subject them— Findlay v. Angus, 1887, 14 R. 312, 24 S.L.R. 237; Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, 46 S.L.R. 1027.