Scottish Court of Session Decisions

This was an action of damages raised in the Sheriff Court at Glasgow by William Paton against the United Alkali Company, Limited. The pursuer claimed reparation for injuries sustained by him in consequence of his having fallen into a pond near the defenders' chemical works, used by them as a settling-pond.

Page: 20↓

The following narrative of the case stated by the pursuer on record is taken from the Sheriff-Substitute's note—“This is an action of damages for certain injuries sustained by the pursuer on the night of 17th March 1893. He was going along the Fountainwell Road, which is about half-a-mile in length, and runs in a north-westerly direction from Springburn Road to Keppochhill Road. For a distance of 76 yards along the south side of Fountainwell Road, measuring from Springburn Road, there is a macadamised roadway and concrete footpath. Then for a distance of 69 yards there is a footpath of earth, and at the end of the 69 yards the road divides. The public road goes to the right, being the continuation of Fountainwell Road, and to the left there is a road which is not said by the pursuer to be a public thoroughfare, but which is said to belong to the defenders. This road to the left is causewayed and has a footpath for 140 yards, and it then opens on to a flat and well-made road 125 yards in length, which terminates in an incline 50 feet wide leading to a pond. This pond therefore is at least 265 yards from the public road. The pursuer fell into that pond on the night in question. He says he had been once before on the Fountainwell Road, and when he came to the division of the roads he found his recollection at fault and hesitated which road he was to follow.

“At the adjustment of the record the pursuer added certain statements to the 7th article of his condescendence, founding upon the private road appearing to be the natural continuation of the public road to a person unacquainted with the locality, and upon the alleged fact of the defenders' having been warned of the danger.”

The pursuer pleaded — “The pursuer having been injured through the fault or negligence of the defenders, or those for whom they are responsible, in failing to have the said pond fenced or enclosed, or otherwise in failing to fence off the road leading to said pond, so as to prevent members of the public being deceived into following its course, the defenders are liable in damages.”

Upon 23rd January 1894 the Sheriff-Substitute ( Balfour) dismissed the case as irrelevant.

“ Note.—[ After narrating the facts averred by the pursuer]—The question therefore is, whether assuming the road to the left to be a private road (which the pursuer admits), the defenders are bound to fence a pond 265 yards along that private road and distant to that extent from the public road.

“The most recent case on the subject is Prentice v. Assets Company, Limited, 17 R. 484. In that case a person on a dark night left the public road, and was found in the morning at the bottom of a disused quarry 18 feet deep. The quarry was more than 150 yards from the nearest point of the public road. A private road, which eight years before had served as an access to the quarry, left the public road about 200 yards from the quarry and continued towards the quarry, but it was overgrown with long grass. A path which had been occasionally used against the remonstrances of the proprietor and his tenant passed within 6 yards of the quarry face. The Court held, after a jury trial, that the evidence disclosed no fault on the part of the defenders. The Lord President stated that he could not understand upon what ground it could be maintained that the disused quarry, not near a public road, must of necessity be fenced to prevent people who lose their way and wander about falling into it, and he said that there was no such duty imposed on the landowner. Lord Shand reviewed the English cases on the subject. According to English law the true test of liability is whether the excavation be substantially adjoining the public way, so that the use of the way is made dangerous, but, when the excavation exists at some distance from the way and the person falling into it would be a trespasser upon the defender's land before he reached it, the case is different.

“Lord Shand adopts that view as applicable to Scotland, and he says further that, even where an owner of property has given the public a right of access over his private property for a short cut or for the enjoyment of walking, if they take advantage of the privilege, and a certain danger attaches to it, they must take the peril along with the advantage, so that, even if the pursuer in this case had had permission to walk along the private road to the left, he must take the advantage along with the risk which he ran of walking into the pond. Lord Adam agreed with these views, and the result of the decision is that the obligation to fence only arises where the excavation complained of is in immediate proximity to the public road. It may be that our law does not coincide with the English law in regard to the question of trespass—that is to say, in holding that a person wandering off the public road is a trespasser, but the decision of the present case does not depend upon that element.

“The same law was laid down by the Lord President in Watson v. Baird & Company, 5 R. 87. The Lord President stated the law in the following terms at p. 94—‘It is very true that a dangerous piece of property in the immediate neighbourhood of a highway which is not fenced, and against the danger arising from which the public are not in some way protected, has been made in various cases the ground of subjecting the owner of that dangerous piece of property in damages, but it is an essential condition of that common law liability that the danger shall be so near the highway as to create a great risk of persons or of cattle by wandering a little from the highway encountering the danger.’

“I may observe that the defenders deny that they are proprietors of the road to the left. The northern boundary of their property is distant 100 yards from the Fountainwell Road, so that there is a stripe of ground 100 yards broad lying between that road and their boundary. This has been made quite clear by the production of their title.

“This action is founded not only on an

Page: 21↓

alleged obligation to fence the pond, but upon an alleged obligation to fence off the road leading to the pond. But as the road leading to the pond for a distance of 100 yards after it leaves the public road does not belong to the defenders, there can be no obligation on them to fence it at its junction with the public road.

“The following cases were referred to by the pursuer:— Brady v. Parker, 14 R. 783; Smillies v. Boyd, 14 R. 150; Gavin v. Arrol, 16 R. 509; and Hurst v. Taylor, L.R., 14 Q.B.D. 918; but these cases appear to me to have very little bearing on the present case. They either relate to the liabilities of persons inviting customers into their premises, or to the obligations of contractors who form new roads or new works and allow the public to use old footpaths close to cuttings without taking proper measures to warn them from the cuttings. The pursuer in this case founded his claim upon an implied invitation on the part of the defenders to him to use the private road to the left. But (apart from the fact of the whole road not belonging to the defenders) the circumstance of the pursuer wandering along the road in question does not, according to Prentice's case, entitle him to complain of a pond at the end of it, and situated 265 yards from the public road.

“The accident to the pursuer has arisen from the misadventure caused by his mistake in choosing to take the road to the left on a dark night, and the defenders cannot be held to blame for it.

“At the adjustment of the record the pursuer added certain statements to the seventh article of his condescendence, founding upon the private road appearing to be the natural continuation of the public road to a person unacquainted with the locality, and upon the alleged fact of the defenders' having been warned of the danger. These statements do not affect the question of the defenders' liability in the circumstances narrated.”

The pursuer appealed, and argued—The Sheriff-Substitute gave a fair statement of the case, and it was admitted that this case must be differentiated from that of Prentice cited supra, if the pursuer was to succeed, but there were two differences between the cases. In the case of Prentice it was proved that the pursuer had been walking on grass, so that he must have been aware he was not on a high road, whereas here the pursuer was admittedly on a road which led to the pond; and secondly, the case of Prentice had been decided after inquiry.

Counsel for the defenders were not called on.

At advising—