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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tough v. North British Railway Co. [1914] ScotLR 225 (29 January 1914) URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0225.html Cite as: [1914] SLR 225, [1914] ScotLR 225 |
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Page: 225↓
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Held that a railway company was liable in damages for injury caused by the negligence of its servants to a passengers friend, who, by permission of the company's servants, had been permitted to come on the platform.
Mrs Mary Tough, residing at Calton Road, Edinburgh, as an individual, and as tutrix and administrator-at-law for her pupil son Alexander Edward Tough, pursuer, brought an action against the North British Railway Company, defenders, in which she claimed damages for the death of her husband.
The Lord Ordinary ( Ormidale) allowed an issue, and on 30th October 1913 the case was tried before his Lordship and a jury, when a verdict was returned for the pursuer.
At the trial evidence was led for the pursuer to the effect that on the evening of 22nd March 1913 the pursuer's husband went, along with two friends, to the Waverley Station in order to see them off by the 9·5 p.m. train to Dunfermline. The tickets of deceased's two friends were checked at the barrier, and deceased was allowed to accompany them inside to see them off at the train. The deceased's friends entered a compartment near the front of the second last coach, and the deceased stood at the carriage talking to them till the train started. As the train began to move out from the platform, which was crowded, deceased walked a few steps along the platform, and in endeavouring to avoid a woman in his path he moved to the side nearest the train and was struck on the back by a carriage door which was swinging open. Deceased was knocked over and fell on to the line, the wheels of the train passing over the upper part of his legs, and inflicting injuries from which he subsequently died.
In the course of the Lord Ordinary's charge to the jury counsel for the defenders asked his Lordship to direct them as follows, viz.—“That the deceased William Hall Tough was a licensee at the Waverley Station on the night in question, and the defenders are not responsible to him or his representatives for the consequences of the alleged negligence on the part of the defenders.” His Lordship having refused to give this direction, counsel for the defenders excepted, and his Lordship subsequently signed a bill of exceptions in the above terms.
The defenders having obtained a rule, the bill of exceptions was heard along with the hearing on the rule.
Argued for the pursuer—The exception was incompetent, in respect that it did not ask a direction in law, but only on a question of fact. In any event, although the pursuer's husband was a licensee on the occasion in question, the defenders were liable to the pursuer for the consequences of their servants' negligence. The only exception was that the licensee took the risk of patent dangers. If the defenders were aware that people in the position of the pursuer went on their premises, and did nothing to restrain them, they were liable— Thatcher v. Great Western Railway Company, 1894, 10 T.L.R. 13; Watkins v. Great Western Railway Company, 1877, 46 L.J. (Q.B.) 817; Tebbutt v. Bristol and Exeter Railway Company, 1870, L.R., 6 Q.B. 73; Messer v. Cranston & Company, October 15, 1897, 25 R. 7, 35 S.L.R. 42; Beven on Negligence (3rd ed.), pp. 443 and 952. Devlin v. Jeffray's Trustees, November 19, 1902, 5 F. 130, 40 S.L.R. 92; Cummings v. Darngavil Coal Company, Limited, February 24, 1903, 5 F. 513, 40 S.L.R. 389, were not in point, and were inconsistent with Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229. These cases were discussed in Mackenzie v. Fairfield Shipbuilding Company, Limited, 1913 S.C. 213, 50 S.L.R. 79. The present case was ruled by that of Thatcher v. Great Western Railway Company ( cit. sup.), from which it was indistinguishable. It was later in date than the case of Batchelor v. Fortescue, 1883, 11 QBD 474, founded on by the defenders, and the dicta of the Master of the Rolls (p. 479) and Smith, J. (p. 476), in that case were obiter and inconsistent with the later case.
Argued for the defenders—A person who went on private property as a mere licensee with the acquiescence of the owner took all risks to which he might be exposed, with the exception of concealed risks or risks due to allurement, or the malicious acts of the owner or his servants— Latham v. R. Johnson & Nephew, Limited, [1913] 1 KB 398. The negligence of servants was one of the risks taken by a licensee— Batchelor v. Fortescue ( cit. sup.), per Smith, J., at p. 476, and Brett, M.R., at p. 479; Bolch v. Smith, 1862, 7 H. & N. 736; Holmes v. North-Eastern Railway Company, 1869, L.R., 4 Ex. 254, affd. L.R., 6 Ex. 123. The case of Cooke v. Midland Great Western Railway Company ( cit. sup.) was one of allurement to a trap, and was in a different class from the present. There was here no concealed source of danger, and there was no absolute wrong done by the company. The law of Scotland recognised the distinction between invitees and mere licensees, which was clearly established in the law of England— Stevenson v. Corporation of Glasgow, 1908 S.C. 1034, per Lord Kinnear at p. 1042, 45 S.L.R. 860. The case of Thatcher v. Great Western Railway Company ( cit. sup.) was wrongly decided, and had never been followed or properly discussed. In that case the rights of railway companies in their stations as against licensees coming there had not been considered, and were not to be found clearly defined till the case of Perth General Station Committee v. Ross, July 27, 1897, 24 R. (H.L.) 44, 34 S.L.R. 871. The case of Watkins v. Great Western Railway Company ( cit. sup.), referred to in Thatcher v. Great Western Railway Company
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( cit. sup.), was not a case of licensees pure and simple. At advising—
There are many illustrations of this proposition. I need not refer to any of the special cases, because they are all examined in two very learned judgments by English judges in the case of Latham v. R. Johnson & Nephew, Limited ([1913] 1 KB 398), which was decided only last year. The doctrine laid down in that case seems to me to be exactly that which has been recognised in various Scottish cases, some of which were referred to by Lord Justice Hamilton in the elaborate opinion which he delivered. But the case of Latham was not a case which raised any question of negligence on the part of the servants of the owner of the premises. It was a case where a, child had been injured by playing amongst a heap of stones on a piece of waste ground which the owners permitted members of the general public to use for their own purposes. It id not therefore raise the question with which we are here concerned, that question being—Does the licensee take the risk of negligence, whether of omission or commission, by the servants of the owners of the premises on which he is permitted to go?
I pause here to say that there is no doubt that the pursuer's husband was a licensee in the sense in which that word is used in the English authorities. On this particular occasion there was a barrier erected at the entrance of the platform where the tickets of passengers were checked, and no one could go upon the platform at all without the consent of the clerk who was checking the tickets. The object of that checking was to avoid the necessity in a crowded train on a Saturday night of the third class passengers' tickets being checked inside the carriages. What happened was that when Tough went down with his two friends their tickets were checked, and he then asked the clerk if he might be allowed to pass on to the platform along with them to see them off; the clerk nodded, and he thereupon went on to the platform. That is a typical case of a man being expressly permitted to go on to premises from which he could have been excluded if the owner had desired so to exclude him; so that there is no doubt that the law in regard to licensees, whatever it may be, applies to the case of this man Tough, because in no sense can it be said that he was on the platform by invitation, nor had he any contract with the Railway Company which entitled him to special consideration at their hands. The point of real interest and importance in the case is then—Does such a licensee take the risk of the negligence of the servants of the owner of the premises? In my opinion he does not do so, and I think there is no authority in which the contrary proposition has been laid down. I take by way of illustration the case of a man who is permitted to go upon the avenue to a gentleman's country house. Undoubtedly he takes the risk of there being defects in the road—whether they are at the side of the road or in the condition of the roadway. What is good enough for the owner is good enough for the licensee, and if the owner is content to take those risks for himself, the licensee cannot exact any special care or protection on the part of the owner. I make these observations, of course, subject to what I have already said that there must be nothing of the nature of a trap or concealed risk known to the owner but unknown to the licensee, and of which it was the duty of the owner to warn the licensee. But then does the licensee take the risk, for instance, of the coachman of the owner of the avenue negligently driving him down? I think the state of the law would be very extraordinary if that were so. Take a case which is more analogous to the present. Suppose one of the porters in a railway station in driving his barrow of luggage along the platform negligently ran it against a person standing on the platform; it was admitted, as I understand, by Mr Cooper that if he were a person who was about to travel by train he would have a good action against the railway company for such negligence on the part of their servant; but his contention was that the licensee had no claim at all,
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I am quite unable so to hold. I do not think that there are any of the cases cited which really create any difficulty except perhaps the cases of Batchelor v. Fortescue (11 QBD 474) and Ivay v. Hedges (9 QBD 80), there referred to. In Ivay v. Hedges the plaintiff was permitted to use the roof of a house for drying linen. There was a defect in a rail on this roof, of which the owner of the roof was aware but the plaintiff was ignorant. The plaintiff slipped upon the roof when he was on the point of carrying linen to hang over the rail, and owing to the defect in the rail he slipped through it and fell to the ground and was severely injured. It was held that the owner of the roof was not liable to the plaintiff in damages. Now I quite understand that decision, and I think it was a perfectly sound decision if the defect in the rail was a patent defect. If, for instance, one of the posts of the rail was missing, then undoubtedly the licensee had the same knowledge as the owner and could not complain of his meeting with an accident which resulted from a patent defect, of which he took the risk when he went upon the roof to hang up the clothes. But if, on the other hand, it was a concealed risk, then I rather think that the other class of case might possibly apply, of which Indermaur v. Dames (1866, L.R. 1 C.P. 274, L.R. 2 C.P. 311) is a good example. But the case does not disclose, so far as I can see, whether the risk was open or concealed; if it were an open risk arising from a patent defect the decision is in accordance with the other authorities.
The other case which I think raises some difficulty is the case of Batchelor, to which Mr Cooper attached great importance. I am free to confess that some of the observations of the learned judges who decided that case seem to me to go beyond anything that had been previously laid down, and to run counter to subsequent decisions, and I notice that Mr Beven in his book on “Negligence” takes the same view and comments adversely upon certain observations of the judges in that case. I am bound to say here again that one does not get sufficiently detailed facts to know whether the decision itself was not precisely in accordance with the law as it has been laid down in other cases, although some of the observations in the opinions undoubtedly went beyond anything that had been previously laid down. If the watchman who was injured in that case by what the Court of Appeal thought might be negligence of the defenders' servants, was unseen by them in the position from which he was watching their operations, then the case is quite in accordance with precedents. But if, on the other hand, he was observed by them and they negligently caused him injury in the course of their operations, then I should respectfully doubt whether that decision is in accordance with the law which has been administered in this Court and also I think in England.
But we are relieved entirely from considering the observations in Batchelor's case because of the case of Thatcher v. Great Western Railway Company (10 T.L.R. 13), in the decision of which Lord Justice Lopes, who was the judge who directed the jury in Batchelor's case, took part. That case was precisely on all-fours with the present, because not merely was the cause of the accident the same, but the man who was injured was a licensee of the same character as the pursuer's husband in this case. He was a person who had accompanied some friends down to the station, was not intending to travel by the train, had no express invitation, but had gone on to the platform just to see his friends off, and was injured in precisely the same way as that in which the pursuer's husband met his death. In those circumstances I think the case of Thatcher is conclusive. It has never been commented upon, far less overruled. I notice it was not even cited in the case of Toal v. North British Railway Company (1908 S.C. (H.L.) 29), and one may conjecture that if Thatcher's case had been cited to the First Division their judgment might not have been the same; they might have been disposed to have allowed inquiry, as the House of Lords eventually did. For my own part I think Thatcher's case was well decided. It is of course not binding upon us, but I think it is in accordance with law and the common sense of the matter. We do not recognise that a licensee takes every risk to which he may be exposed on the premises through overt acts of negligence or through negligent omissions which may result in injury to him, such negligence being the negligence of persons for whom the owner of the premises assumes responsibility.
I have therefore no difficulty in coming to the conclusion that we must refuse the bill of exceptions, and that on the other part of the case we must discharge the rule.
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On the whole matter I think the verdict must stand.
In Latham's case ( [1913] 1 KB 398) Batchelor is cited along with other cases as establishing this proposition that the rule as to licensees is that they must take the premises as they find them apart from concealed sources of danger—where dangers are obvious they run the risk of them. Lord Justice Farwell in the same case defines concealed trap, which is one of the exceptions to freedom from liability in the case of a licensee, as follows—“something added to the condition of the ground as it was when the licence was given in a way likely to be dangerous and without giving notice to the licensee”; and he quotes with approval the following dictum of Mr Justice Willes in Corby v. Hill (27 L.J. (C.P.) 18)—“A person coming on lands by licence has a right to suppose that the person who gives the licence will not do anything which will cause him an injury.”
Now it seems to me that the present case and Thatcher's case fall within the principle underlying the exceptions to the freedom from liability to which the dicta I have quoted refer. The pursuer met with his injuries, not from any seen or existing danger or risk existing on the premises which he was bound to take as he found them, but because of something which the defenders did of an extraordinary or abnormal nature. Mr Cooper would not admit that the starting of a passenger train with an open door was a normal occurrence at the Waverley Station, and there is no proof that it is. Assuming, therefore, that the pursuer on getting permission to enter the section of the defenders' premises from which the 9.5 train to Stirling was to start, was bound to take the risk of all obvious dangers, that he had to face all the accustomed perils of seeing friends off by a train, that he had to take care of himself, and that he had no right to look to the defenders for protection from the risks attendant on the normal execution of such an operation,
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The
The Court disallowed the exceptions.
Counsel for the Pursuer— George Watt, K.C.— Macquisten. Agent— J. D. Rutherford, W.S.
Counsel for the Defenders— Cooper, K.C.— E. O. Inglis. Agent— James Watson, S.S.C.