Scottish Court of Session Decisions

John M'Fadyen, plater's helper, Glasgow, pursuer, brought an action in the Sheriff Court at Glasgow against Mrs Margaret Smith Miller or White, licencee of the public-house situated at 284 Nuneaton Street and 294 Baltic Street, Glasgow, defender, for £500 damages for personal injuries.

The pursuer averred—“(Cond.3) On the evening of 13th December 1919, about 7·55 p.m., the pursuer entered the said public-house for the purpose of obtaining refreshment, and just after he had done so he was struck a severe blow in the left eye with a tumbler thrown by someone from among the customers who were present in the said public-house at the time. The pursuer's left eye was very seriously injured as the result of the said blow, and the sight thereof has been all but entirely destroyed. The pursuer had no reason to anticipate that he was exposing himself to danger by entering the defender's public-house on the said date, and in any event he was entitled to assume that so long as the defender kept the said public-house open it was reasonably safe for him to enter, unless the defender or her servants warned intending customers that it was dangerous for them to enter. (Cond. 4) The injuries sustained by the pursuer were the natural and probable result of the failure in duty, as hereinafter set forth, on the part of the defender's servants, who were in charge of the said public-house and for whom the defender is responsible, and were thus due to the fault of the defender. The defender's public-house was on the said occasion well filled with customers, and some time before the pursuer entered the premises several of these customers had become intoxicated and had become violent and quarrelsome. Fighting ensued, in which several customers took part, and in which several were more or less injured. This riotous conduct had lasted for some considerable time before the pursuer entered the said public-house. The defender's servants, who were in charge of the premises, took no steps to deal with the situation either in the way of quietening the combatants or of having them expelled, or in the way of safeguarding customers who were on the premises or intending customers who were about to enter. The defender's servants were well aware of the danger to any person entering the premises during the continuance of the tumult, and knew or ought to have known that there was very great danger of customers or intending customers sustaining injuries. It was the duty of the defender or of her said servants to have taken the following precautions for the safety of her customers:—( a) To have pacified the combatants and so ended the danger which had arisen; ( b) failing to succeed in that effort, to have called in the police for that purpose, or for the purpose of having those guilty of the breach of the peace removed; ( c) while the tumult and fighting were going on, and whether or not the police had been summoned, either to have closed the doors of the premises and so have prevented the entry of intending customers, or to have issued a warning to intending customers about to enter the premises that it was unsafe to do so, and that any persons entering would do so at their own peril. Neither the defender nor her said servants did any of these things, with the result that the pursuer, quite unaware of the danger, entered the premises and was struck as aforementioned. If the defender or her said servants had taken any of the said precautions, and so had either rendered the premises safe or had prevented the entry of the pursuer therein, the pursuer would not have sustained the said injuries, and for her or their failure to take these precautions or any of them the defender is responsible. The defender was all the more negligent in her said failure in respect that a similarly dangerous situation arose in her premises on 6th December 1919, on this occasion causing alarm to customers therein through the threatening attitude of certain men who had been allowed while on the premises to get into a state of intoxication. On each of the said occasions the defender conducted

Page: 330↓

the premises in breach of the certificate granted to her in terms of the Licensing (Scotland) Acts 1903 to 1913.”

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

On 25th January 1921 the Sheriff-Substitute ( Lyell) allowed the parties a proof before answer.

Note.—“I think that the pursuer has set forth a case on record which entitles him to have an inquiry into the facts. He says that on the evening libelled he entered the public-house of the defender as a customer and immediately afterwards was severely injured by a tumbler thrown by someone amongst a crowd of quarrelsome, intoxicated, and violent customers already in the shop. Now the pursuer says, quite reasonably, that he was entitled to assume that so long as the public-house was kept open it was safe for him to enter. ‘Everyone has a right to suppose that a crime will not be committed and to act on that belief.’— Baxendale v. Bennet, 3 Q.B.D., per Bramwell, L. J., at p. 530. But then the defender was equally entitled to rely on the same assumption. The mere fact that the pursuer was injured by a drunken man in the defender's public-house will not render her liable in damages, but if the defender was guilty of some unlawful or negligent act which caused or permitted the third party to do the thing that injured the pursuer—in other words, if the injury to the pursuer was the natural and probable result of the defender's wrongdoing—then the defender will be liable. On this subject the pursuer makes pointed averments. In the first place he says that on the occasion in question the defender knowingly permitted breach of the peace, drunkenness, and riotous and disorderly conduct within the premises in breach of her certificate (Licensing (Scotland) Act 1903, 6th schedule). He says that for some time before his entrance fighting had been going on in which several customers had been injured, and that those in charge of the public-house had taken no steps to deal with the situation either by way of ‘pacifying’ the combatants, expelling them, or calling the police. No warning was given to intending customers to keep out while the danger lasted. Further, the pursuer says that the defender should have been on the alert as similar conduct had occurred in the public-house on the previous week. All this, he says, amounts to ‘knowingly permitting’ drunkenness, breach of the peace, and rioting within the meaning of the statute, and he avers that the throwing of the tumbler in the melee and his consequent injury was the natural and probable result of the defender's knowingly permitting the breach of her certificate. In these circumstances I think it hardly to the point for the defender to argue that the pursuer might have been injured by someone throwing a tumbler at him even had there been no breach of the certificate as alleged. That is quite true, and in such circumstances the defender would not have been liable. What the pursuer here alleges amounts to this—(1) that it was the duty of the defender to refrain from permitting rioting and drunkenness in the public-house; (2) that she was in breach of that duty in respect that although warned by a previous experience she was not prepared to do anything, and as a matter of fact did nothing, to prevent or put an end to the riotous conduct; (3) that his injury was occasioned by the conduct of one of the disorderly rioters; and (4) that it was the natural and probable consequence of the defender's breach of duty—a consequence the probability of which she ought to have foreseen and guarded against. I have read the cases quoted to me. It appears to me that the law on the subject is correctly and usefully epitomised in Bevan on Negligence, 3rd ed., p. 77—‘Again, one person may be negligent, and by the negligent or wilful act of another the negligent act of the first may cause injury to a third. Then a distinction is to be taken. If the first negligent act is not in its nature such that the second might be looked for as a natural and probable sequence, then the first negligent person is not responsible. If the subsequent negligence is likely to follow from the antecedent negligence, then the first negligent person is liable, and the question must be left to the jury whether the first wrongdoer's act was the proximate cause of the plaintiff's injury.’ Here the pursuer alleges that the defender was negligent in permitting a riot in the public-house, that it was probable that in such a riot one or other of the rowdy customers would throw tumblers about, and he therefore claims that the subsequent throwing of the tumbler by one of these persons, being the natural sequence of the defender's negligence in allowing the riot, infers liability against the defender, the original wrongdoer. In these circumstances I shall allow a proof before answer.”

The pursuer appealed to the Court of Session for jury trial and lodged an issue in the following terms—“Whether on or about 13th December 1919, and in or about the defender's public-house having entrances at 284 Nuneaton Street and 294 Baltic Street, both in Bridgeton, Glasgow, the pursuer was injured in his person through the fault of the defender or of her servants for whom she is responsible, to his loss, injury, and damage.”

The defender objected to the relevancy, and argued—(1) There was no relevant averment of any breach of duty on the part of the keeper of the public-house. A public-house had none of the characteristics which could attach to it the special duties of an innkeeper. The law of innkeeper accordingly did not apply. The keeper of a public-house had no higher duty than the ordinary duty of a shopkeeper to invitees. On the law of invitation the shopkeeper was bound to have his premises reasonably safe, i.e., to see that they contained no hidden danger or trap. But his duty did not extend to protecting his customers against the wilful act or negligence of another customer— Pounder v. North Eastern Railway Company, [1892] 1 Q B 385, and per A. L. Smith, J., at p. 388, and Mathew, J., at p. 390; Cannon v. Midland Great Western Railway (Ireland) Company, 1880, 6 Ir. R. 199; Cox v. Coulson,

Page: 331↓

[1916] 2 K.B. 177; M'Gregor v. Ross & Marshall, 1883, 10 R. 725, per Lord Young at p. 729, 20 S.L.R. 462. It was not averred that the defender was responsible for the tumult, and the danger was just as obvious to the customer as to the shopkeeper. The duty of the defender under the licensing laws was quite a different question from the present one and was not a relevant ground of fault in a civil action. (2) The injury was not a reasonable and probable consequence of the disturbance, and accordingly the defender was not liable— Hadley v. Baxendale, 1878, 3 QBD 525. That, no doubt, was a case of contract, and the law there laid down extended to such acts as the present. If the defender were liable here he would also be liable if an intoxicated customer went out into the street and injured someone there.

Argued for the pursuer—The duty of a person who kept a public-house or an inn amounted to a warranty to customers not only as regards structural defects but as regards an assault by one customer on another—Bevan on Negligence, p. 857; Maclenan v. Segar, [1917] 2 K.B. 325. The only qualification to this rule was that there must be knowledge in the case of assault that a danger was threatening the guest— Brannigan v. Harrington, 1921, 37 T.L.R. 349. In the cases of Pounder v. North Eastern Railway Company, cit. sup., and Cannon v. Midland Great Western Railway Company, cit. sup., no reasonable precautions could have been taken. [The Lord Justice-Clerk referred to Scott v. Shepherd, 1773, 1 Smith's Leading Cases, 2 W.B. 892]. In the present case riotous conduct had been going on for some time before the pursuer entered. It was, therefore, the duty of the defender to take some precaution to prevent people entering, or at any rate to call in the police. A member of the public was entitled to assume that business would be conducted in terms of the certificate—Bevan on Negligence, p. 858. In the present case the liability of the defender arose under common law.