Scottish Court of Session Decisions

On 28th April 1906, Charles Hastie, labourer, 73a Cumberland Street, Edinburgh, raised an action against the Lord Provost, Magistrates, and Town Council of Edinburgh, in which he claimed £500 as damages for the death of his son William Lee Ross Hastie, who had, on 1st November 1905, being at that date four years and four months old, been drowned in an artificial pond in the public park at Inverleith.

The pursuer averred—“(Cond. 5) The pursuer's son met his death through the fault or negligence of the defenders. The said pond is badly constructed and dangerous in that the inner bank of the pond slopes into the water at an angle of 55 degrees, and it is impossible for a child having slipped down the bank to get to the top of it again. Also the inner bank is slippery, and it is difficult even for an adult to obtain a foothold on it. The said William Lee Ross Hastie, on the occasion in question, having slipped into the pond was unable to climb out of it or to get out of the water in the pond, and his drowning was due to the steepness of the said bank. Further, the depth of the water at the edge of the pond is unnecessarily great, being two to three feet deep at a distance of five feet from the top of the bank, and the bank of the pond is far too steep. Had the water been shallower at the edge and the fall of the bank more gradual, the pursuer's son would have been able to gain a footing and to keep himself above the water till rescued. This, however, he was unable to do, and his death was accordingly due to the faulty construction of the said pond in that the artificial bank is far too steep both above and below the water line. Further, the defenders have made no provision for preventing children of tender years from being on the banks of the said pond, which is a danger to them. This could be accomplished by railing in the pond or keeping an attendant near it, whose duty would be to prevent young children from being on its banks, which they failed to do, or otherwise the bank should have been constructed in a series of steps which would have prevented children slipping in. The only steps provided are single stones placed every 15 feet round the pond, each stone being about 10 inches long and projecting 3 inches above the bank, which is quite insufficient as a protection against the said danger. Only two attendants are employed to watch the park, and as it is very extensive, it is impossible for them to give the pond effectual supervision, particularly as during meal hours there is only one in attendance, and part of the park which he has to supervise is over three-quarters of a mile away from the pond. On the occasion in question neither of the park rangers came to the pond until a considerable time after the pursuer's son was drowned. Not known what workmen or park officers the defenders employ or what their duties are.…

On 30th June 1906 the Lord Ordinary ( Salvesen), holding the averments to be irrelevant, assoilzied the defenders.

Opinion.—“In this case the pursuer sues the defenders for damages for the death of his child, a boy of four years and four months old, who was drowned in a pond situated at Inverleith Park. The defenders plead that the action is irrelevant.

The pursuer's averments may be summarised as follows. The pond in question is an artificial structure, with a stone bank round it, the top of which is level with the adjoining footpath. The bank slopes at an angle of 55 degrees to the bottom of the pond, in which the water has a depth of two or three feet. The slope is a steep one, and composed of stone and cement, on which it is difficult to keep a foothold.

The deceased boy had gone to the public park along with some companions, and while playing on the edge of the pond, slipped into the water, which was beyond his depth, and was unable, owing to the steepness of the sides, to get out.

The negligence averred is that the pond was badly constructed, and dangerous because of its construction; that it was unnecessarily deep, and that it was not provided with a railing to prevent young children from falling into it. An alternative ground of fault is that the Magistrates should provide an attendant to see that no harm comes to children of tender years.

In my opinion these averments disclose no case of actionable wrong. It has been repeatedly pointed out that there is no obligation at common law to fence, or otherwise protect, natural ponds of water,

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although they may be resorted to, in the knowledge of the owners, by numbers of children. I can see no distinction between an artificial and a natural pond in this respect. In the case of Ross v Keith, 16 R. 86, Lord Young said that ‘the notion that anyone who has a picturesque loch or piece of water in his grounds is bound to put up a fence round it to protect any children who may stray into these grounds, is utterly extravagant. There is nothing that the public desires so much as free access to river banks, and they would resent bitterly any fence which kept them from the banks, although no doubt children sometimes get drowned when playing beside rivers;’ and further on he says—‘The danger of going near the water is obvious, and if the parents permit their children to go to such places, I am at a loss to see the ground on which it could be suggested that the proprietor is liable if the children are drowned.’

These observations were no doubt made in a case where a child had been drowned within grounds belonging to a private proprietor; but Lord Young went on to instance cases of lochs near Edinburgh as exactly on the same footing, and I fail to see that there is any valid distinction. It would be deplorable if it were the law that every ornamental sheet of water whether natural or artificial required to be surrounded by a child-proof fence, if the owner permitted or invited the public to use the ground in which it was situated for purposes of recreation. Such an erection would, of course, completely destroy the amenity and make the existence of a sheet of water, instead of a beautiful object, a positive eyesore.

In the case of public bodies like the Corporation of Edinburgh there may be a moral duty towards the inhabitants to make ornamental ponds, or ponds which are used for purposes of amusement, as little dangerous as possible; but to my mind the pursuer's averments disclose that the defenders have sufficiently discharged this obligation. The water in which the child was drowned was at the most from two to three feet deep, and therefore not dangerous to any person, old or young, who was capable of taking care of himself. It was suggested that the defenders ought to have made it more safe for very young children by making the slope a more gradual one, and such as would afford a more secure foothold. Even if they had done this, it is quite possible that in the case of very young children, unable to appreciate danger, an accident by drowning might still occur, as the children might be tempted to go further and further out until they reached a point beyond their depth. If the case be taken of a child of two, it is pretty plain that what the pursuer desiderates might not have prevented an accident to such a child.

The conclusive answer to all such grounds of complaint appears to be that if a child is so young as to be incapable of appreciating danger, it ought not to be allowed to be unattended. It is true that in the humbler ranks of society children of tender years are perhaps necessarily exposed to risks to which they would not be subject if they were in the company of adults, but the ordinary perils of the street seem to me to be much more serious than those to which any young children would be exposed in Inverleith Park, and such perils children are constantly encountering without, fortunately, meeting with accidents except on the rarest occasions.

The only case which seems to afford some small support to the pursuer's contention was a decision in the Sheriff Court of Aberdeen, which is referred to in language of approval by Lord Justice-Clerk Moncreiff in the case of Forbes, 15 R. 323. In that case the Harbour Commissioners were held liable for the death of a boy of seven who had been drowned in a piece of water about 6 feet deep to which the public had free access. The remarks of the Lord Justice-Clerk were, however, obiter, and I do not think that they have ever been given effect to in any subsequent case. All the other decisions indeed tend in an opposite direction. For my own part I should not have held that the Aberdeen Harbour Commissioners were liable for such an accident, but there is this distinction between that case and the present, that the pond in Aberdeen was one which was dangerous even to adults, whereas the pond in the present case could never be a source of danger to any person who was able to go about unattended. On these grounds I am clearly of opinion that no actionable negligence has been relevantly averred against the defenders, and that they fall to be assoilzied.”

The pursuer reclaimed, and argued—The pond in question ought to have been so constructed as not to be a danger to children, who had a right and were known to go there—indeed, for whom the park was intended. Having been so constructed, it was again the defenders' duty to have it watched or fenced— Greer v Stirlingshire Road Trustees, July 7, 1882, 9 R. 1069, 19 S.L.R. 887; Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 466, 30 S.L.R. 469. The defenders were bound to protect so young a child whatever might be their position as to one of maturer years— Forbes v. Aberdeen Harbour Commissioners, January 24, 1888, 15 R. 323, 25 S.L.R. 239. There could be no contributory negligence on the part of a child of that age— Gibson, cit. sup.; Forbes, cit. sup.—nor was there any on the part of the pursuer in allowing the child to be there without some-one to take care of him— Martin v. Wards, June 15, 1887, 14 R. 814, 24 S.L.R. 586; Greer, cit. sup.

Counsel for the respondents were not called on.