Innes v. Fife Coal Co., Ltd

Factual and Procedural Background

The Plaintiff, employed as an engine-driver by the Defendant, a colliery company, was performing duties involving backing trucks into an unfenced, open siding owned by the Defendant. The siding was adjacent to houses let by the Defendant to their workmen, including the Plaintiff, and provided the only access to a bleaching green used by the occupants. On the day in question, while the Plaintiff was shunting waggons without the assistance of a guard or shunter, his two-year-old child was playing on the siding and was caught between a rail and the wheel of a waggon, resulting in fatal injuries.

The Plaintiff brought an action for solatium for the death of his child, claiming negligence on the part of the Defendant for failing to fence the siding and for not providing adequate supervision during shunting operations.

The Defendant pleaded irrelevance, contributory negligence by the Plaintiff, and that the Plaintiff had voluntarily accepted the risks by residing in proximity to the siding.

The Sheriff-Substitute allowed a proof, and on appeal, the Sheriff adhered to this decision. The Plaintiff then appealed to the Court of Session seeking a jury trial. The Defendant argued that the Plaintiff's averments were irrelevant and that the maxim volenti non fit injuria applied due to the Plaintiff's own role in the accident. Counsel for the Defendant were not called upon at this stage.

Legal Issues Presented

1. Whether the Plaintiff's averments were relevant and sufficient to proceed to a jury trial.
2. Whether the Defendant owed a duty to fence the siding or take other precautions to protect children of tenants from danger.
3. Whether the Plaintiff's status as the father of the deceased child barred him from claiming solatium.
4. Whether the maxim volenti non fit injuria applied, barring recovery due to the Plaintiff's own conduct.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant was negligent in failing to provide a suitable fence around the siding despite knowing children played there.
• The Defendant failed to appoint a guard or shunter to supervise the shunting operations and ensure the line was clear.
• The proximity of the houses let to workmen, including the Plaintiff, to the dangerous siding imposed a duty on the Defendant to take precautions for the safety of tenant children.
• The Plaintiff should not be barred from claiming solatium despite being the father of the deceased child.

Defendant's Arguments

• The Plaintiff's averments were irrelevant and did not establish a cause of action.
• The accident was caused by the Plaintiff's own negligence in driving the waggons.
• The Plaintiff voluntarily accepted the risks inherent in residing near the siding, invoking the maxim volenti non fit injuria.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's primary task was to determine whether the Plaintiff's case was relevant and should be allowed to proceed to a jury trial, not to decide the merits of the claim at this stage. The court accepted the Plaintiff's material averments as sufficient to establish a relevant case, emphasizing that the siding was unfenced and adjacent to houses let to workmen, including the Plaintiff. The court reasoned that the Defendant, by letting houses so close to a dangerous, unfenced siding, must have been aware of the risks to children living there and thus owed a duty to take precautions, such as fencing or supervision.

The court rejected the notion that the children were trespassers given the proximity of the houses and the use of the bleaching green accessible only by crossing the siding. It also noted that the parents of the children, including the Plaintiff, were not negligent in allowing the children to play near the siding due to the social circumstances of working-class families.

Regarding the Plaintiff's status as the father of the deceased child, the court held that this fact should not bar him from claiming solatium. Allegations by the Defendant that the Plaintiff drove the waggons with excessive force or had a shunter were considered matters for trial and did not affect the relevancy of the Plaintiff's case.

Consequently, the court concluded that the case should be sent to a jury for determination.

Holding and Implications

The court held that the Plaintiff's case was relevant and should proceed to a jury trial.

This decision allows the Plaintiff to pursue his claim for solatium despite the tragic circumstances involving his own child and establishes that proximity of tenancy to a dangerous unfenced siding may impose a duty on the owner to take safety precautions. No new legal precedent was set beyond affirming the relevance of the Plaintiff's averments and the appropriateness of jury consideration in such cases.