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M'Harg v.

1924.

2ND DIV. is to be noted that, in the 1920 Act, section 10 is rubricked "compensation for disturbance," Spiers, and that, in the Act of 1923, the same heading is put at the beginning of a fasciculus of clauses January 22, 12 to 14 of the Act. Now, it appears to me that the object of these statutory provisions was just this-to endeavour to secure fixity of tenure. And the circumstances in which these provisions become operative are these that there is a landlord who is terminating the tenancy, and that there is a tenant who is willing to continue the tenancy. In those circumstances, the Act of Parliament provides that the tenant whose tenure has been disturbed by the landlord's action is entitled to compensation for that disturbance, and, in the absence of agreement, the compensation falls to be determined by arbitration according to the provisions of the Agricultural Holdings Act of 1908, with an appeal to the Sheriff on questions of law under section 11, and, if so advised, an appeal from him to this Court.

Two views were suggested in the course of the debate as to the meaning of section 10 of the Act of 1920. One view, advanced by the tenant's counsel, was to this effect, that section 10 enacts what I might call a statutory liquidation or computation of damages where not more than a year's rent has been claimed by the tenant, or damages to the extent of more than a year's rent has not been proved on the tenant's claim. And it was maintained for the tenant that

this right was indefeasible, and that it could not be contracted out of or lost by the tenant, whatever claim he might make to compensation.

The other view, viz. that advanced by the landlord's counsel, was that the right which is, in certain circumstances, conferred upon the tenant to have compensation to the extent of a year's rent awarded to him is lost if a claim has been unsuccessfully made for damages in excess of a year's rent. That is the case here. As I understand the argument advanced by the landlord's counsel, two reasons were suggested in favour of this construction. One was that, if the other construction were the true one, you would not expect to find in the subsection anxious provisions as to the items of damage with regard to which the arbiter might award compensation, such as loss in connection with removal of household goods, implements of husbandry, fixtures, farm produce, and so on. And it was argued that this part of the section would surely not have been there if the intention of the Legislature was that, in all circumstances, the tenant was to get not less than a year's rent by way of compensation. But I think the answer to that contention is to this effectthat all that specification of items, with reference to which damages might be assessed, is necessary if a claim in excess of a year's rent is made, and

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that it is in reference to that possible claim that instructions are inserted for the guidance of the arbiter as to the items of damage which he has to take into account in estimating his award. The second reason suggested by the landlord's counsel for the construction advocated by them and it was their main argument was that the section contained these words: for the avoidance of disputes." The argument was that, if the tenant chose to have a dispute when he could have avoided it, he was limited at the end of the day to the actual loss which the arbiter determined had been proved. I am unable to agree with this suggestion, and it seems to me that these words have just been inserted in the subsection by the Legislature by way of assigning a reason for the computation or liquidation of damages to the extent of a year's rent.

Accordingly, I agree with the contention advanced by the tenant's counsel on this part of the case, and I think that this compensation is due indefeasibly except in one case only, and that is where damages in excess of a year's rent are found to have been proved. In that case the tenant is not limited to a year's rent but gets the damages proved.

I therefore think that the first question of law should be answered as your Lordship suggested. [His Lordship then discussed the second question.]

Lord Morison.—I also agree. first question in the stated case, the whole As regards the argument for the appellant seemed to me to turn upon the construction of the words for section 10 (6) of the statute. the avoidance of disputes' contained in I think the argument submitted proceeded upon a misconception of the effect of these words. In my opinion, they afford no justification for the view that, in cases where the tenant proceeds to arbitration, his compensation shall be limited in amount to that which he can prove. It appears to me that these words are only fixed scale of compensation. explanatory of the reason for introducing a The right to tenant is an absolute right. Its amount is compensation conferred upon a disturbed computed at a sum equivalent to a year's rent, plus the amount of any additional loss or expense which he can prove; but in no event exceed the amount of two years' rent. [His shall the amount of compensation for disturbance Lordship then discussed the second question.]

Counsel for Landlord, Aitchison, K.C., Scott; Agents, Scott & Glover, W.S., for J. M. Taylor, Nelson, Walker & Co., Glasgow.-Counsel for Tenant, Morton, K.C., J. O. Taylor; Agents, W. G. Leechman & Co., for A. Alston Cameron, Johnstone. W. R. G.

SECOND DIVISION.

(The Lord Justice-Clerk, Lords Anderson and Morison.)

2nd February 1924.

55. M'Kenna v. Burgh of Coatbridge.

M'Kenna v. Burgh

1924.

COND. 7. The said Anthony M'Kenna received 2ND DIV.
his said injuries in consequence of the fault and
negligence of the defenders, or of their servants, for
whom they are responsible, in failing to provide of Coat-
protection and safeguard to the members of the bridge.
public. In particular, the defenders were at fault
in placing around the said enclosure a spiked iron February 2,
railing which was of an insufficient height, and the
spikes so placed, as to constitute a serious danger
to the public, and particularly to the children,
making use of the said park. The defenders were
aware that children were entitled to use, and did so
use, the said park and enclosures therein for purposes
of playing therein, and, indeed, children were per-

Reparation-Negligence-Relevancy-Action of damages
in respect of injuries to pupil child-Liability of
Corporation as proprietors and custodians of public
park—Child injured when proceeding over an iron
verge railing in a public park in order to recover a
handball-One of the railings impaling child-Aver-mitted by the defenders to do so.
ments of knowledge of the defenders that the recovery
of handballs was an allurement to children, to
whom the danger of crossing the spiked railing was
not obvious, the spiked railing being thus a trap and
danger to them-Held that the averments were irrele-
vant to infer liability against the defenders.
Appeal from the Sheriff Court of Lanarkshire
at Airdrie.

John M'Kenna, as tutor and administratorin-law of his pupil son, Anthony M'Kenna, brought an action against the Burgh of Coatbridge for damages in respect of injuries to his son.

The pursuer averred, inter alia : COND. 4. At the . West End Park the defenders have a number of partially enclosed spaces. The spaces are partially surrounded by spiked iron railings, 20 inches or thereby in height. In particular, there is a space lying between one of the principal roadways in said park and the wall bounding the public highway at Langloan, Coatbridge. This is separated from the roadway in said park by a spiked iron railing, which it is believed and averred is so situated, so constructed, and of such low height as to be an allurement, trap, and a danger to the children who play in the park in the immediate neighbourhood thereof. Defenders' averments, so far as inconsistent with or in addition to pursuer's averments, denied.

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COND. 5. . . . . Anthony M'Kenna on or about the 14th August 1922 was playing along with certain other children at said West End Park with a handball, as he was entitled to do, when the said handball was thrown by one of the children into the said space lying between the before-mentioned public roadway in said park and the said public highway, which space was separated from said public roadway in said park by the low spiked iron railing of the description hereinbefore referred to. The said Anthony McKenna proceeded to go over the said iron railing to recover the said ball, and in the act of so doing he slipped and fell on said spiked iron railing, and received serious injuries by one of the spikes of the said railing. The said spike pierced his body on the right-hand side of the abdomen. Said accident occurred in said park at an enclosure on the west side, immediately on entering a gateway to said. park, said gateway being at a point in Bank Street, Langloan, nearly opposite to that roadway leading to Iron Row aforesaid.

The defenders

ought to have anticipated that children would cross
the said railing, and that a railing of the height and
construction before condescended upon would be
dangerous to children crossing over it, playing near
it, or about it. If the defenders chose to neglect
taking the necessary precautions against accidents,
it was their duty to prohibit and to take action to
stop and prevent the access of children to said park
and enclosure, and, in particular, to prohibit and
prevent the use of the ground in the immediate
vicinity of the said gateway as a playground by said
children. Instead of doing this, the defenders
actively encouraged and induced the children to
play at said park and enclosures. Further, the
defenders were aware that in the course of playing
at handball or other games the handballs would go
over into said enclosure, and that the recovery of
such balls would be an allurement or attraction to
children, and that the danger of crossing the said
spiked iron railing was not obvious to children, so
that the said spiked iron railing in its uncovered and
insecured condition was in the nature of a concealed
trap. In particular, it is averred that the railing
ought to have been very much higher than it actually
was; that the railing ought not to have been spiked
at all, and that the spikes ought to have been pro-
tected, as they are now, by an iron band covering
the points thereof. The defenders failed in their
duties by leaving the spikes uncovered and unpro-
tected, with the result that one of them entered the
body of the said Anthony M'Kenna when he fell upon
them as condescended on. The defenders should,
prior to the occasion of the accident to the said
Anthony M'Kenna, have taken the steps which
they have taken since said accident, and this failure
to take such steps resulted in the injuries con-
descended upon to the said Anthony McKenna.

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2ND DIV. M'Kenna

v.

1994.

The following cases were referred to at the discussion Lynch v. Nurdin, 1 Q.B. 29; V. Burgh M'Kinlay v. Darngavil Coal Co., 1923 S.C. of Coat- (H.L.) 34; Taylor v. Corporation of Glasgow, bridge. 1922 S.C. (H.L.) 1; Findlay v. Angus, 1887, February 2, 14 R. 312; Mackenzie v. Fairfield Shipbuilding and Engineering Co., 1913 S.Č. 213; Stevenson v. Glasgow Corporation, 1908 S.C. 1034; Hastie v. Magistrates of Edinburgh, 1907 S.C. 1102; Reilly v. Greenfield Coal and Brick Co., 1909 S.C. 1328 at p. 1336; Latham v. R. Johnson & Nephew Ltd., [1913] 1 K.B. 398 at pp. 410, 415; Cormack v. Wick School Board, 1889, 16 R. 812; M'Murray v. Glasgow School Board, 1916 S.C. 9; Williams v. Eady, 1893, 10 T.L.R. 41.

On 2nd February 1924 the Court affirmed the judgment appealed against.

Lord Anderson.—The pursuer in this action is the father of a boy, aged ten, who sustained somewhat serious injuries in the West End Park, Coatbridge, on 14th August 1922. To obtain reparation for these injuries, the pursuer has brought the present action of damages against the respondents, as owners or lessees in the public interest of said park. The SheriffSubstitute dismissed the action as irrelevant, and the appeal has been taken against that judgment.

At the various gateways by which the West End Park may be entered, the respondents have placed short lengths of low iron railing between the roadway of the park and the grass verges in order to keep the public to the roadway. At the gateway in Bank Street, Langloan, there was an iron railing, leading into the park, between the roadway of the park and a grass expanse adjacent thereto. This iron railing was 36 feet long and (according to the pursuer's averments) only 20 inches high. It consisted of four panels each 9 feet long. In each panel there were two horizontal bars, one on the ground and the other parallel thereto at the top, some 15 inches above the lower bar. On the top bar, at intervals of 18 inches, were upright projections 5 inches in height and §ths of an inch in diameter. The points or tops of these projections were blunt. The respondents refer to these projections as "ballusters"; the pursuer describes them as "spikes." Between each pair of ballusters or spikes there are two lower projections or uprights. These are of the same diameter as the ballusters, but are only 3 inches in height. This railing, as I have pointed out, terminates 36 feet from the gateway. The grass expanse bounded by the railing may thus be reached without crossing the railing, by going round the end thereof. The foresaid projections were probably placed on the top rail for æsthetic reasons; or they

may have been intended to keep mischievous children from standing or walking on the top rail.

The pursuer avers that on the foresaid date his son was playing with certain other children in the park with a handball, which was thrown by one of the children into the grass space bounded by said railing. The pursuer states that his son "proceeded to go over the said iron railing to recover the said ball, and in the act of so doing he slipped and fell on said spiked iron railing, and received serious injuries by one of the spikes of the said railing. He further avers that the unfortunate occurrence was due to the negligence of the defenders. Whether or not the respondents were negligent depends on two considerations (1) whether they owed a duty towards the injured boy; and (2) whether, if they did, they were in breach of that duty.

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There is no doubt that the respondents, as having control of the park, owed a certain duty towards those frequenting it. The pursuer avers that this duty was to " provide protection and safeguard to the members of the public." In discharging this duty the respondents were, in my opinion, bound to have in view that children were, according to the pursuer's averments, entitled to use, and that they did use, the park and enclosures therein for purposes of play. They were also bound to assume that children, in the course of their play, might step across or jump over the said iron railing instead of going round the end thereof. No objection can be taken to the relevancy of this general averment of duty. The pursuer's difficulties arise in connection with his averments alleging breach of the foresaid general duty of protection. The pursuer, as I understand his averments, suggests three grounds on which it is maintained that the respondents were in breach of their foresaid duty. (1) It is averred in Condescendence 4 and Condescendence 7 that the railing, owing to its low height, was an allurement and a trap containing a danger not obvious to children. This ground of fault is an attempt to assimilate the circumstances of this case to those of Cooke ([1909] A.C. 229), Taylor (1922 S.C. (H.L.) 1), and M'Kinlay (1923, S.C. (H.L.) 34), in which the judgments proceeded on allegations of allurement, trap, and hidden danger. The present case is plainly different from these cases. pursuer himself avers (Condescendences 5 and 7) that the allurement was not in the railing but in the handball. If there was danger in the railing it was certainly not hidden. (2) The second alleged ground of fault is that, owing to the low height of the railing, it should not have been spiked at all. The answer to this charge seems to be the opinion of Lord

The

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in a particular case is a question for a jury, 2nd Div.
but there is, first of all, upon the relevancy of M'Kenna
the record a question whether the negligence v. Burgh
alleged constitutes a ground of legal liability, of Coat-
and that is a question for the Court." The bridge.
test of relevancy seems to me to be this-that February 2,
the Court will not hold a record to be relevant
if it is satisfied that, on the pursuer's averments
being proved, no reasonable jury could possibly
return a verdict in his favour. Applying that
test to this case, I am of opinion that the pur-
suer's averments are irrelevant.

I therefore suggest to your Lordships that
the appeal should be refused and the Sheriff-
Substitute's judgment affirmed.

Lord Morison.-In this case the ground of action is the alleged fault of the defenders in the carrying out of their duties as the owners of the West End Park at Coatbridge.

Shaw of Dunfermline in Taylor, to which the
Sheriff-Substitute refers in his note. If a
danger is familiar and obvious there is no
liability. Spiked railings, of all heights, and
with spikes both pointed and blunt, are a
familiar feature of almost every public park
in Scotland. If it were the presence of spikes
that was complained of, the manifest rejoinder is
that spikes are invariably found on railings
in public places, and that these railings are of
all heights. If the point of dittay against the
defenders is the combination of low height and
spikes, an attack seems to be made against a
structure which is manifestly innocuous apart
from gross misuser or unforeseeable mischance.
If there was danger in the 5-inch protuber-
ances on the top of this railing, the danger
undoubtedly was obvious. The converse of
the terms used by Lord Shaw are unusual
and "hidden." In Stevenson (1908 S.C. 1034)
Lord M'Laren observes that unusual or
unseen sources of danger would involve
liability. Even if the danger were obvious, if
it were also unusual, this would, in a case like
the present, be sufficient. To use the illus-
tration suggested during the debate, if the
respondents had put up a fence of bayonets at
this place they would undoubtedly, despite the
obviousness of the danger, have been liable for
injury to a playing child. But the structure
complained of did not involve such unusual or
extraordinary risk. (3) The last ground of
fault suggested is that the defenders ought to
have anticipated that children would cross the
railing, and that the railing would be dangerous
to children crossing it. I am quite unable to
hold that the respondents ought to have an-
ticipated any danger to a child crossing the
railing. If a boy of ten were really trying to
cross this low fence it is difficult to understand
how he failed to do so safely. If he was
injured in the way alleged, it is manifest that
the proximate cause of the injury was not any
defect in the structure of the railing, but the
carelessness or recklessness of the boy himself.
I attach no importance to the fact that the
respondents have, since the accident, covered
the spikes with an iron band. Although the
occurrence could not, in my judgment, have In the present case the purpose of the fence
been anticipated, and a similar accident might in question was to fence off a piece of ground
never have occurred, the respondents acted in the park from one of its principal roadways
with propriety in taking steps to obviate even | (Condescendence 4). I am unable to accept the
so unlikely a contingency.

It was urged that it was for the jury and not for the Court to determine whether or not there had been a breach of duty by the respondents. But the Court has a duty, at this stage, to determine whether or not a relevant case has been averred. As Lord Kinnear puts it in Stevenson (at p. 1040): Whether the defender has or has not been negligent in point of fact

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I think it has always been the practice in this Court to consider with care the relevancy of an action laid against a public body which is charged with a breach of the duty which it owes to the public. There is usually room for difference of opinion on such a subject as to the best or most suitable method of the fencingoff of a piece of ground in a public park from a roadway in it. The decision of such a question. is primarily a matter of park administration which is by statute and also by the common law committed to the public authority, and, in my opinion, no question raising only an issue of such administration can be submitted to the decision of a jury. A jury is the statutory tribunal which decides a question of negligence, and negligence in a case of this character, if the action is relevant, always raises a question of breach of duty. The defenders' obligation in this class of case is well settled. It is to give to members of the public lawfully using the park reasonable protection against all unusual or unseen sources of danger. The protection necessarily depends, I think, upon the character of the danger involved, and to some extent upon the invitation given to the public and the nature of the use made by the public of the park.

argument of the learned counsel for the pursuer,
that the defenders were bound to contemplate
that children would climb on or over the fence
and might thus injure themselves. It is clearly
impossible for the defenders to prevent children
playing in a public park, or climbing on its
fences, from meeting with accidents, and,
in my opinion, there is no obligation imposed
by law which requires the defenders, in erecting

1994.

M'Kenna

1924.

2ND DIV. a fence on a roadway in a public park, to protect children from such risks as are the incidents of v. Burgh childish propensities. In a case of this kind it of Goat- is the duty of the defenders to see that the bridge. fence which they do erect is reasonably safe February 2, for persons of ordinary intelligence who are lawfully using the park. I am unable to read the pursuer's averments, taken in conjunction with the admissions made at the bar, as making a relevant case of a breach of this obligation. The pursuer's record gives the most meagre and general description of the fence. The learned Sheriff-Substitute in his note records a statement of the facts upon which the legal argument before him was based. If it had been alleged that the fence erected was not of a kind in general use, or that the spikes at the end of it were sharp at the point and were in themselves a source of danger to the public using the park in ordinary course, I should have been disposed to allow an issue. But it is admitted that the spikes on the fence had blunt tops. I am quite unable to assent to the suggestion that blunt-topped spikes on a fence 20 inches high and 36 feet long are a concealed danger or form an allurement or attraction to children which the defenders were under a duty to anticipate and provide against.

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I think the interlocutor of the SheriffSubstitute ought to be affirmed.

The Lord Justice-Clerk (Alness).—This action of damages is brought against the Provost, Magistrates, and Town Councillors of the Burgh of Coatbridge. The pursuer avers that his pupil son, aged ten, was injured while playing in a public park in Coatbridge which the defenders control and direct, by falling on a spiked railing in that park. It appears from the pursuer's averments that in the park in question certain spaces are surrounded by spiked iron railings 20 inches high; that the pursuer's son and certain other children were playing with a handball in the vicinity of one of these railings; and that the ball was thrown by one of the children over the railing. What then happened, I quote from the record: The said Anthony M'Kenna "-the pursuer's son-" proceeded to go over the said iron railing to recover the said ball, and in the act of so doing he slipped and fell on said spiked iron railing, and received serious injuries by one of the spikes of the said railing." The spike was, so it is further averred, 5 inches in length, and penetrated the boy's body. Then follow a series of averments, of a type with which the Court has become very familiar, to the effect that the railing was an allurement, a trap, and a danger, and that the defenders were in fault in permitting such a

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railing at a place where they knew that children were in the habit of playing.

It is impossible to withhold sympathy from the pursuer and his son because of the painful accident which occurred. But the only question which we have to determine is whether the record reveals legal liability on the part of the defenders for that accident. At first blush the pursuer's case seems to postulate that the use by public authorities of spiked iron railings in places frequented by the public generally, and by children in particular, is dangerous, and that, if an accident happens, these authorities should be penalised by a jury. I confess that the suggestion startles and alarms me. It is common knowledge that the Meadows and Bruntsfield Links-to take but one familiar example-are surrounded by stretches of spiked iron railings, over which children not infrequently clamber. But I have never heard it suggested before that a danger for which the public authorities are responsible is thereby created, and that such railings, in the interests of the safety of the public, and in particular of children, must be swept away. Some of these railings are, moreover, adjacent to a public school, which is attended by hundreds of young children. It is true that the railings to which I have just referred are higher than the railing with which we are concerned in this case. But that consideration cuts both ways. It is much less likely that a child will be injured in stepping over a spiked railing 20 inches high than in climbing over a spiked railing which is twice that height. The relevancy of the pursuer's averments therefore falls to be scrutinised with care.

Let me shear off the embroideries of the pursuer's case and get, if I can, to its essence. It is obvious to my mind that this railing was neither a trap nor an allurement. A trap connotes a hidden peril. Here there was no danger which can reasonably be said to have been concealed from a boy of ten. Moreover, the railing was not an allurement. The ball, not the railing, was the allurement. Further, the case does not seem to me to hinge either on childhood or on play. The child slipped, and fell on the railing. An old man might just as likely have done the same, and might have sustained injury thereby. The case is not, be it observed, one where, in clambering over a railing, an accident happened. The railing was a mere incident in the occurrence. As regards play, it is true that the mission of the boy, when he was injured, was to fetch his ball, but equally he might have gone to pick a daisy or to retrieve his hat. Neither the age nor the occupation of the boy, therefore, appears to me to be indispensably connected with the accident which he sustained. The pursuer's

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