M'Lelland v. Johnstone [1902] ScotLR 39_326 (23 January 1902)

M'Lelland v. Johnstone [1902] ScotLR 39_326 (23 January 1902)

The pursuer failed to prove negligence on the part of the defender. The brazier was in common use, not fenced or watched as a matter of custom, and the danger was obvious. The defender took all precautions usual in such circumstances, and there was no legal duty to take additional measures. The accident resulted from the child's own actions, not from any fault of the defender.

Citation
[1902] ScotLR 39_326
Parties
Pursuer/appellant: William M'Lelland (as tutor and administrator-at-law of Catherine M'Lelland, his pupil daughter); Defender/respondent: James Johnstone
Jurisdiction
Scotland
Judgment Date
23 January 1902
Procedural Posture
Civil Appeal (reparation/negligence) / Appeal From Sheriff Court to Court of Session, Inner House, Second Division
Outcome
appeal dismissed; defender assoilzied (absolved)
Legal Topics
Negligence, Duty of Care, Liability for Dangerous Things, Public Road Safety, Contributory Negligence
Tort Delict Personal Injury Negligence Duty of Care Liability for Dangerous Things Public Road Safety Contributory Negligence

Case Brief

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Parties

William M'Lelland (as tutor and administrator-at-law of Catherine M'Lelland, his pupil daughter)

Pursuer/appellant

James Johnstone

Defender/respondent

Procedural Posture

Civil Appeal (reparation/negligence) / Appeal From Sheriff Court to Court of Session, Inner House, Second Division

Legal Issues

  1. 1 Whether the defender was negligent in placing an unfenced, unwatched brazier on a public footpath, resulting in injury to a child
  2. 2 Whether the defender owed a higher duty of care to protect children from obvious dangers on public roads
  3. 3 Whether customary practice absolved the defender from liability

Ratio Decidendi

The pursuer failed to prove negligence on the part of the defender. The brazier was in common use, not fenced or watched as a matter of custom, and the danger was obvious. The defender took all precautions usual in such circumstances, and there was no legal duty to take additional measures. The accident resulted from the child's own actions, not from any fault of the defender.

Court Disposition

appeal dismissed; defender assoilzied (absolved)

Orders

  • Appeal dismissed
  • Defender assoilzied from conclusions of the action