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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Melville v. Renfrewshire County Council [1919] ScotLR 68 (15 November 1919) URL: http://www.bailii.org/scot/cases/ScotCS/1919/57SLR0068.html Cite as: [1919] SLR 68, [1919] ScotLR 68 |
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Page: 68↓
[Sheriff Court at Paisley.
A member of the public, in proceeding along a public road on, a dark night, strayed on to a private road which, leading without a gate from the highroad, ran alongside it, was unfenced, and rose gradually to a higher level. At a point fifty feet from the entrance he fell over the slope, sustaining injuries from which he died. In an action by the deceased's representative against the owners of the private road, held that as the pursuer's averments showed that the place where the accident happened was not in immediate proximity to the highway the action was irrelevant.
Mrs Sarah Hume or Melville, pursuer, brought an action in the Sheriff Court at Paisley against the County Council of Renfrewshire, defenders, in which she claimed £750 as solatium for the death of her husband.
The pursuer averred, inter alia—“(Cond. 2) The defenders are proprietors of certain ground and property at the corner of Glasgow Road and Nitshill Road, Hurlet. (Cond,
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3) The said Nitshill Road leads off Glasgow Road towards Nitshill village and station. The entrance to the defenders' said property is gained by a short road leading from said Glasgow Road running alongside the said Nitshill Road. The strip of ground between the said entrance and the Nitshill Road is very narrow and there was no light at the junction of the said entrance and Nitshill Road on the date after mentioned to prevent pedestrians leaving the said Glasgow Road and proceeding along the said entrance. The defenders make no use of the said ground at night necessitating the said entrance road to be unfenced. (Cond. 4) The said entrance and the said Nitshill Road are under the control and custody of the defenders. Although the entrance starts from the same level as the said Nitshill Road and runs alongside it, the said entrance road rises to a higher level than the Nitshill Road. Dividing the two roads was a retaining wall, which formerly was erected to a height of some feet above the level of the said entrance road. At the date after mentioned the said wall was, and had been for some time to the knowledge of the defenders and of their surveyor, broken down to a level with and in different parts under the level of the said entrance road. It therefore provided no safeguard to any one falling over from the said entrance road to the said Nitshill Road. (Cond. 5) On the night of 26th October 1918 the said deceased John Melville was on his way from Glasgow Road to Nitshill. The night was very dark when he came to the junction of the said entrance road and Nitshill Road. He went along the said entrance road instead of the Nitshill Road in error. There was nothing to indicate in the darkness that he had taken the wrong road. Admitted that the width of said entrance road is about 9 feet and that there is at one side a stone pillar and a wall on the other. There is also a blaes heap, but these are not visible on a dark night. (Cond. 6) The said John Melville had gone along the said entrance road a distance of about 50 feet when he fell from the said entrance road on to the lower Nitshill Road and severely injured his limbs and body and sustained internal injuries. (Cond. 7) The said accident to the pursuer's husband was due to the fault and negligence of the defenders. The said entrance road runs off one public road and alongside and within a few feet of another public road and was unfenced either at the entrance or on the side adjacent to the second public road. There was no light shown on the date in question at the junction of the said roads. The place was dangerous to members of the public using the highway and ought to have been protected. A very slight deviation from the public highway in the dark led pedestrians into danger. In consequence of the defenders' failure to perform their duty by properly fencing the said entrance road and placing a gate or closing the existing gate at the said junction of the roads, or supplying an adequate light there to warn the public of the danger, the accident to the pursuer's husband happened. Had the defenders as they were bound to do, and as they have now done, fenced the said entrance road and put a gate on the entrance, or had they erected a light there, the accident would not have occurred. (Cond. 8) The defenders knew, or ought to have known, that their property was a danger to the public, and they ought to have taken reasonable care as above condescended on not to cause injury to any member thereof using the said public highway.” The defenders pleaded, inter alia—“1. The action is irrelevant.”
On 21st July 1919 the Sheriff-Substitute ( Blair) repelled the defenders' first plea-in law and allowed a proof; and on 24th July 1919 the pursuers required the cause to be remitted to the Second Division of the Court of Session for jury trial, where they subsequently lodged an issue.
The defenders took objection to the relevancy, and argued—The pursuer's averments were irrelevant. There was in the present case no sufficient specification of the distance at which the danger to the deceased emerged. If the place where he fell was to be taken as the point of danger, then the distance was too great to render the defenders liable. The principle on which such cases as the present were to be decided was to be found developed for the first time in three English cases, viz.— Hardcastle v. South Yorkshire Railway Company, 1859, 28 L. J. Ex. 139; Hounsell v. Smyth, 1860, 29 L.J., C.P. 203; and Binks v. South Yorkshire and River Dun Company, 1862, 32 L. J., Q.B. 26. The principle was that the danger must be “substantially adjoining” the road to infer liability, and it had been followed and applied in a number of Scots cases— Prentice v. Assets Company, Limited, 1890, 17 R. 484, and per Lord President Inglis at p. 487, foot, and Lord Shand at p. 489, top, 27 S.L.R. 401; Paton v. United Alkali Company, Limited, 1894, 22 R. 13, 32 S.L.R. 19; Holland v. Lanarkshire Middle Ward District Committee, 1909 S.C. 1142, 46 S.L.R. 758; Ross v. Keith, 1888, 16 R. 86, per Lord Young at p. 90, 26 S.L.R. 55. When the danger on the private property was not “substantially adjoining” the public property there was no liability to fence. The case of M'Feat v. Rankine's Trustees, 1879, 6 R. 1043, 16 S.L.R. 614, was not an application of the principle, and the decision was doubted by Bevan, Law of Negligence, 3rd ed., vol i, p. 429.
Argued for the pursuer and appellant—The pursuer's averments were relevant. The danger was “substantially adjoining” the highway. It might be said to have emerged the moment the deceased got on the higher level road, but in any event the place where the accident occurred, viz., fifty feet from the highway, was sufficiently near to come within the term “substantially adjoining” laid down in the English cases. In the case of Paton v. United Alkali Company, Limited, cit. sup., the distance was a quarter of a mile and that was not held too great. The danger in the present case was of the nature of a pitfall and therefore should have been fenced— Hurst v. Taylor, 1884 L.R., 14 Q.B.D. 918; Barnes v. Ward,
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1850, 9 C.B. 392; Monkland Railway Company v. Waddell, 1861, 23 D. 1167, per L. J.-C. Inglis at p. 1179; Gibson v. Glasgow Police Commissioners, 1893, 20 R. 466, per Lord Trayner at p. 469, 30 S.L.R. 469. The English doctrine of trespass had never been recognised in Scotland— Sinnerton v. Merry & Cuninghame, 1886, 13 R. 1012, per Lord Craighill at p. 1016, 23 S.L.R. 725. The Court had never laid down what amounted to proximity, and it was really for a jury to say whether the danger was “substantially adjoining” the highway or not— M'Feat v. Ranking's Trustees, 1879, 6 R. 1043, 16 S.L.R. 614; Carson v. Kirkcaldy Magistrates, 1901, 4 F. 18, 39 S.L.R. 13.
I think the record quite clearly states the pursuer's case, and states it in a way which enables us to arrive at a conclusion as to whether or not there is a relevant averment here. Mr Sandeman in his argument took, as I think rightly, the position that the danger here founded on by the pursuer is a danger existing at the place where the man is said to have fallen over. With regard to that feature, the description of the situation contained in condescendence 3, which is not of primary importance in so far as this point is now concerned, sets out, amongst other things, that the strip of ground between the entrance to the defenders' private road and the Nitshill Road is very narrow, and that there was no lamp. Then in condescendence 4 it is explained that the entrance—by which I understand is meant not merely the adit into the road but the whole road on the defenders' private ground—runs along the Nitshill Road and that the entrance road rises to a higher level than the Nitshill Road. The position of the retaining wall, which is said to have been broken down at a particular place, is next described. The pursuer's husband, it is stated, was going along the Glasgow Road to Nitshill on the night in question, and in the dark, there being no light at the place, took, instead of the Nitshill Road, the defenders' private road and proceeded along that, as is set out in condescendence 6, for “a distance of about 50 feet, when he fell from the said entrance road on to the lower Nitshill Road,” and sustained injuries from which he subsequently died.
That seems to me to raise, as Mr Sandeman quite distinctly put it, a plain question as to what is the duty or obligation which the law imposes in these circumstances upon defenders as the proprietors of the ground. Was the proximity of this entrance road running at a higher level than the Nitshill Road, and with no sufficient fence to prevent anyone from falling from the higher level on to the public road, such as in law to place upon the defenders the duty of fencing that particular part of their property for anyone who came by accident on to it from the public road, and if they failed to fence it, must they of necessity be found liable?
On the authorities I think the answer to the question must be in the negative. I think there is both in England and Scotland a sufficiency of decisions to enable us to determine that question on the averments here before us. There seems to me to be no difference between the law of England and the law of Scotland in that respect, because I notice that Lord Shand, in the case of Prentice ( 17 R. 484, 27 S.L.R. 401) referred to and quoted the three English cases to which our attention was called, namely, Hardcastle, 28 L. J. Ex. 139, Hounsell, 29 L. J.C.P. 203, and Binks, 32 L. J.Q B. 26; and I think he was quite right in accepting these as good Scots law as they seem to be good English law.
In the case of Binks I think the matter is quite clearly put by Mr Justice Wightman, quoting the judgment of Mr Justice Keating in the case of Hounsell thus—“To throw upon the owner the obligation of fencing a pit in his land adjoining a road, it ought to be shown that the pit is so near as to be dangerous to persons using the road in the line of the road.” And I think the position was quite properly put by Mr Sandeman when he said that it was the duty of the proprietor to provide against danger to the public using the public road in the ordinary way.
The same idea was further elaborated by Lord Dunedin in the passage to which we were referred in the case of Holland ( 1909 S.C. 1142, at p. 1149, 46 S.L.R. 758), where his Lordship states with his usual clearness what I regard as the law applicable to the set of facts here averred. The result is that, in my judgment, there is no averment of a danger in such substantial proximity or close proximity to the public road in question as to impose upon the defenders any obligation to have the place in question fenced. I do not suggest that there was any fault in the poor man who strayed along the private road, but, on the other hand, I think it is impossible, looking to the authorities, to say that there was any fault on the part of the defenders in leaving a part of this higher ground unfenced from the public road, at a distance of about 50 feet from the public road, or that the failure to do so imported any negligence upon their part.
I am therefore of opinion, having regard to the cases both in England and in Scotland—and I refer particularly to the cases of Hardcastle, Hounsell, and Binks in England, and the cases of Prentice and Holland in Scotland—that the pursuer has failed to aver such a case as entitles her to get any inquiry. I am accordingly for recalling the Sheriff-Substitute's judgment and dismissing the action.
Page: 71↓
The County Council sued here as defenders are not sued in any public capacity, but simply in respect of their private ownership of adjoining land. Now I cannot see any principle of law or rule of justice which should impose upon them as owners a duty, a breach of which would infer liability in damages, either to maintain a closed gate at the entrance to their private road, or to fence the side of that road next the public road and running along the gradually rising slope between the public and the private roads.
It seems to me that this case is well within the doctrine of the cases in the books. I may refer specially to Prentice ( 17 R. 484, 27 S.L.R. 401), where the verdict of a jury was overturned, to Paton ( 22 R. 13, 32 S.L.R. 19), where the action was thrown out on the relevancy, and to the observations by Lord Dunedin in the recent case of Holland ( 1909 S.C. 1142, 46 S.L.R. 758).
[ His Lordship then dealt with matters with which this report is not concerned.]
The case is raised by the representative of a person who is said to have met his death through an accident in respect that he fell over a retaining wall on to a public road. The action is laid against the defenders as owners of the property over which he had inadvertently strayed.
I agree with Lord Dunedin in the case of Holland ( 1909 S.C. 1142, at p. 1149, 46 S.L.R. 758) that there is, generally speaking, no duty to fence dangerous places on private property. Such a duty may arise where the public are invited on to the private ground, or possibly where the public have a licence to use it. But here there was no special duty laid upon the proprietors in relation to the person who met his death. He was simply a member of the general public to whom the owners of the ground stood in no special relation. Accordingly the case must be brought under the well-established doctrine which is thus defined by Lord Dunedin—that if you create a danger in immediate proximity to a public road (which is the instance he gives), or some place which is subject to a public right, there may be a duty on you to fence it.
I find nothing in the averments which brings the case within this, I think the only, limitation of the absolute proposition that a man need not fence, as in a question with a member of the general public who has no business to be there, a dangerous place upon his own private property. The limitation is a perfectly proper one, because if you make an excavation or create a danger in the immediate proximity of a public road or place, and a member of the public, who has no other intention than to use the public road or place, inadvertently strays upon it and meets with an accident, the person who creates that danger may be liable for the consequences. But then that doctrine has only been applied in cases where the danger was truly in immediate proximity to the public place. Typical illustrations of it are Black v. Cadell (1804, M. 13, 905), where a man, riding on a dark night and trying to keep the road, diverged slightly from it and fell down a shaft; and the case of an excavation just at the side of a public road where the least divergence from the road in the dark or by mistake might lead to a serious accident. I do not think that this case comes within that category at all. Here the statement is that there was a private road abutting upon a public road, along which a man strayed 50 feet before he met with the accident out of which the action arises. The private road itself was not a danger in so far as it abutted on the public road. Nor would there have been any danger if the unfortunate man had kept to the road. It was because he strayed off a public road on to private grounds that he came upon a dangerous place. There is no obligation to fence or protect unguarded members of the public from dangers on private roads such as there may be to guard them from dangers on roads which they are entitled to use. The mere fact that such an accident may take place does not place upon the proprietor a duty to protect unwary members of the general public by erecting a fence along his private road or by keeping his private entrance habitually blocked.
Accordingly I agree that this case must be dismissed.
Mr Sandeman admitted that the place to be considered so far as danger to the deceased was concerned was the place where he left the private road and fell over. That admission implies that if the retaining wall, as it is called in the record, or the fence, as Mr Sandeman prefers to call it, had been retained in repair for 49 feet from the entrance, or had an opening either intentional or accidental at 50 feet, and the deceased had gone through that opening and suffered injury, the pursuer would have been entitled to recover. If so, the question is whether on the authorities we can hold such a place—the place where the deceased fell over—to have been a danger in the immediate proximity of a public road. I agree with your Lordships that we cannot so hold.
The Court recalled the interlocutor of the Sheriff-Substitute and dismissed the action.
Counsel for the Pursuer and Appellant— Sandeman, K.C.— Macgregor Mitchell. Agent— C. F. M. Maclachlan, W.S.
Page: 72↓
Counsel for the Defenders and Respondents— Watt, K.C.— Graham Robertson. Agents— Martin, Milligan, & Macdonald, W.S.
