Scottish Court of Session Decisions

George M'Kinlay, miner, Larkhall, pursuer, brought an action against the Darngavil Coal Company, Limited, defenders, in which he claimed £500 as damages for the death of his son, aged nine, who had been killed while playing about a gate at an entrance to the Cornsilloch Colliery, Larkhall, of which the defenders were owners.

The pursuer's averments were as follows, the words in italics being added by amendment:—“(Cond. 2) In the vicinity of the colliery there are two large blocks or tenements of houses known as Cornsilloch, which are occupied by the miners and other employees working at the defenders' colliery. The said tenements are situated at the entrance to the colliery. At one time said tenements were separated from the colliery ground by means of a wooden fence, but latterly the said fence fell into disrepair, and for a considerable time prior to the accident after mentioned it had ceased to be any barrier to free access from the tenements to the colliery ground. The distance from the back of the tenements to what is known as the colliery entrance is only some 30 to 40 yards. At said colliery entrance there are two gates, one a large wooden gate for vehicles and the other a small gate. The large gate closes a path which is used as a cart entrance to the colliery, and at one time when not in use was invariably kept shut and fastened. For a long time past this has not been done.… (Cond 3) The larger gate, known as the traffic gate, is of large dimensions. It is some 12 feet long and is 9 feet in height. It is doubly built and heavily constructed. It is fixed to the gatepost by means of large iron hinges some 12 inches each in length, and in the gate there is a hook which is intended to fit into an iron eye which is affixed to an upright post, with an arrangement for padlocking said hook, so as to secure the gate when open and prevent it being, as it would be owing to its weight, a source of danger. The gate has sagged owing to its weight, and for some considerable time prior to and at the time of the accident after mentioned, the hook could not be brought into line with the eye so as to secure it. The defenders were aware that the gate was defective in this respect, as it was their custom to secure the gate when it required to be open for traffic, by placing in front of it bricks and stones so as to hold it in position.… (Cond, 4) The ground at the back of the tenements above referred to and in the vicinity of said gate, both within and without the grounds of the colliery, is and was at the time of the accident in question used

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as a playground by the children of the miners residing therein. This was well known to the defenders and their servants, and children were permitted by them to play in the neighbourhood of said gate without objection or complaint. In particular, children were in the habit of playing on or with the said gate by swinging it backwards and forwards. They also were in the habit of using the posts of the gate as goalposts when playing football. These things were known to the defenders and their servants, and no objections was taken by them thereto. (Cond. 5) On 26th July 1921, about 9 p.m., the pursuers's son, the said Daniel M'Kinlay, was playing with other children about said gate. When open there is a space of a foot between the back end of the gate and the gatepost, which is sufficient to admit a small child to pass through. When the gate is closed the distance between the back end of the gate and the gatepost is only one inch. The pursuer's son was playing near the hinges of said gate, it being open at the time, when the gate, either of its own weight or through being moved by some of the other children with whom he had been playing, swung to and closed, with the result that the pursuer's son was caught by the head between the back end of the gate and the gatepost and was instantly killed. (Cond. 6) The death of the pursuer's son was due to the fault of the defenders or of their servants, for whom they are responsible. The said gate when open and unsecured constituted, owing to its size, construction, and weight, a danger on account of its liability to swing and close. It was therefore necessary that said gate, if open, should be properly secured. The defenders were aware of this and had provided a hook and eye for the purpose, but the gate had been allowed to fall into disrepair, with the result that the hook and eye could not be used to secure it. The defenders were further aware, as already narrated, that children were in the habit of playing in the neighbourhood of said gate and upon said gate by swinging it backwards and forwards, and indeed were permitted by the defenders to do so. The defenders, moreover, ought to have anticipated that a gate of the size, construction, and weight described would be dangerous to children playing near or about it, in the event of their moving the gate or of its moving of its own accord. It was the duty of the defenders to see that the said gate was kept securely closed when not in use by or for them, or if they allowed it to remain open it was their duty to see that it was safely secured by means of a padlock or other device so as to prevent it being a source of danger. If they chose to neglect these precautions it was their duty to prohibit and to take active steps to prevent the access of children to the ground, and in particular to prohibit and prevent the use of the ground in the immediate vicinity of the gate as a playground by said children. The defenders or their servants, for whom they are responsible, failed to do so, with the result that the pursuer's son met his death as above described. Further, the defenders were aware that a large gate which swung upon its hinges was likely to be an allurement or attraction to children, and that the danger in the event of its closing was not obvious to children, so that the gate in its unsecured condition was of the nature of a concealed trap. They should, accordingly, have taken the steps above referred to to prevent it being a source of danger. Their failure to do so resulted in the death of the said Daniel M'Kinlay.”

The defenders pleaded, inter alia—“1. The averments of the pursuer being irrelevant and insufficient to support the conclusions of the summons the action should be dismissed with expenses.”

On 17th January 1922 the Lord Ordinary ( Hunter) sustained the first plea-in-law for the defenders and dismissed the action

Opinion—“In this action the pursuer, who is a miner residing at 28 Cornsilloch, Larkhall, sues the Darngavil Coal Company, Limited, for damages in consequence of the death of his son.

The pursuer explains that there are two large blocks of tenements, partly occupied by employees of the defenders, in the vicinity of their Cornsilloch Colliery. At the entrance to this colliery there are two gates, one a large wooden gate for vehicles and the other a small gate. The large gate closes a path which is used as a cart entrance to the colliery. The pursuer alleges that the ground at the back of the tenements, both within and without the grounds of the colliery, was at the time of the accident to his son used as a playground by the children of the miners residing therein. ‘This,’ he says, ‘was well known to the defenders and their servants, and children were permitted by them to play in the neighbourhood of said gate without objection or complaint. In particular, children were in the habit of playing on or with the said gate by swinging it backwards and forwards.’ On 26th July 1921, about 9 p.m., the pursuer's son, who was aged about nine, was playing with other children about the gate. At this time the gate is said to have been in disrepair, inasmuch as a hook and eye which had been used to keep the gate fixed either when shut or open could not be used. When the gate is open there is said to be a space of a foot between the back end of the gate and the gatepost, which is sufficient to admit a small child to pass through. When the gate is closed the distance between the back end of the gate and the gatepost is only one inch. ‘The pursuer's son was playing near the hinges of said gate, it being open at the time, when the gate, either of its own weight or through being moved by some of the other children with whom he had been playing, swung to and closed, with the result that the pursuer's son was caught by the head between the back end of the gate and the gatepost, and was instantly killed.’ For the purpose of testing the relevancy of the pursuer's averments it must be assumed that the gate was swung back owing to its being actively interfered with by the companions of the pursuer's son.

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The pursuer's case of fault against the defenders is stated thus—‘It was the duty of the defenders to see that the said gate was kept securely closed when not in use by or for them; or if they allowed it to remain open, it was their duty to see that it was safely secured by means of a padlock or other device, so as to prevent it being a source of danger. If they chose to neglect these precautions, it was their duty to prohibit and to take active steps to prevent the access of children to the ground, and in particular, to prohibit and prevent the use of the ground in the immediate vicinity of the gate as a playground by said children. The defenders or their servants, for whom they are responsible, failed to do so, with the result that the pursuer's son met his death as above described. Further, the defenders were aware that a large gate which swung upon its hinges was likely to be an allurement or attraction to children, and that the danger in the event of its closing was not obvious to children, so that the gate in its unsecure condition was in the natnre of a concealed trap.’ The pursuer relies upon the two cases of Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, and Taylor v. Corporation of Glasgow, 1922 SC (HL) 1, 59 S.L.R. 14, as showing that his averments constitute a relevant case against the defenders. In the former of these cases a jury awarded damages to a child who was injured while playing at a turntable, which was situated in ground belonging to the defenders. There was access to this turntable from the public road through a gap in the hedge, and it was proved that within the knowledge of the defenders' servants children came in and played at this turntable. The award by the jury was sustained by the Court. In the latter case it was held that the father of a boy who had died from eating belladonna berries in the Botanical Gardens in Glasgow, had stated a relevant case against the Corporation of that city. There were averments that the berries had an alluring appearance for children, who would eat them without knowing there was any danger. In both those cases the source of danger was concealed so far as children were concerned, and therefore constituted a trap. In Latham v. R. Johnston and Nephew, Limited, [1913] 1 KB 398, Lord Sumner, then L. J. Hamilton, said—‘A trap is a figure of speech, not a formula. It involves the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger. Owners and occupiers alike expose licencees and visitors to traps on their premises at their peril; but a trap is a relative term. In the case of an infant there are moral as well as physical traps. There may accordingly be a duty towards infants not merely not to dig pitfalls for them, but not to lead them into temptation.’

I cannot see that in any reasonable sense of the term there is a trap or allurement in a gate into private property which is not so secured, both when it is open and when it is closed, that it cannot be moved by children who interfere with it. The accident which occurred is not one which an owner of property could be expected to anticipate and provide against. I therefore hold the pursuer's averments irrelevant and dismiss the action.”

The pursuer reclaimed, and argued—On the principle of Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, 46 S.L.R. 1027, affirmed in Taylor v. Corporation of Glasgow, 1922 SC (HL) 1, 59 S.L.R. 14, the pursuer's averments were relevant. The gate was a trap. It was in a place which was used by children as a playground with the defenders' permission. It formed an allurement to children, while its dangerous condition was not apparent to them. The defenders knew of its dangerous condition but had taken no precautions to prevent children from being injured and had allowed the only means provided as a precaution to become useless. The Lord Ordinary's interpretation of Latham v. R. Johnson & Nephew, Limited, [1913] 1 KB 398, was not justified by views of that case in Taylor v. Corporation of Glasgow ( cit.) per Lord Buckmaster at p. 5 and Lord Shaw at p. 10.

Argued for the defenders—The case fell within the principle of Latham v. R. Johnson & Nephew, Limited ( cit.). There was no danger here such as would bring the case within the principle of Cooke v. Midland Great Western Railway of Ireland ( cit.); Latham v. R. Johnson & Nephew, Limited ( cit.) per Hamilton, L.J., at p. 419. The gate was an ordinary one, the danger of which was obvious even to a child of nine years. There was nothing special about it creating a duty on the defenders and there was no averment of any previous accident. The mere anticipation that an accident might take place did not create a duty. The sagging of the gate and the fact that the hook and eye were not in use were irrelevant. The gate might have been closed when the children began to play on it. There was no neglect of any precaution which others adopted, as in Cooke v. Midland Great Western Railway of Ireland. The arrangement for padlocking the gate was not a safety precaution, but was merely for the convenience of the owners. The decision in Taylor v. Corporation of Glasgow. depended on absence of warning. There was no such case here. The pursuer's case meant that a proprietor was bound to guarantee children playing on his ground against danger. There was no foundation for such a case— Hastie v. Magistrates of Edinburgh, 1907 S.C. 1102, 44 S.L.R. 829; Stevenson v. Corporation of Glasgow, 1908 S.C. 1034, 45 S.L.R. 860.