Glasgow Corpn v Muir

The standard of care in negligence is objective and depends on the circumstances and degree of risk. A person must guard against injury which an ordinarily reasonable person in that position would foresee as a reasonable and probable consequence. The law does not make a defender an insurer against every possible accident.

An occupier who permits a third party to use premises may be liable where the permitted use creates an unusual danger which ought reasonably to have been foreseen. Liability requires proof that the risk which materialised was within reasonable contemplation and that breach of the resulting duty caused the injury. Hindsight and the mere fact that a precaution would have prevented the accident do not establish negligence or causation.

Six children were scalded in premises managed by Glasgow Corporation when one of two men carrying an urn of hot tea unexpectedly released his handle. The Corporation's manageress had permitted a church picnic party to bring the urn through a passage where children were buying sweets and ices. The evidence did not establish why the carrier lost his grip.

The Lord Ordinary, Lord Robertson, assoilzied the Corporation after proof before answer. The First Division recalled that interlocutor by a majority, the Lord President dissenting. Damages were then agreed, subject to the Corporation's appeal on liability.

The central issues before the House were whether a reasonable manageress should have foreseen that permitting the urn's carriage exposed the children to danger, and whether the unexplained accident was proved to have resulted from a breach of duty.

1. Disposition. The House unanimously allowed the appeal in Glasgow Corpn v Muir [1943] AC 448. It recalled the interlocutors of the First Division and restored the Lord Ordinary's interlocutor assoilzieing the Corporation. The Corporation received its costs of the appeal and expenses in the Inner House.
2. Standard of care. Per Lord Thankerton and Lord Macmillan, applying Bourhill v Young [1943] AC 92, the duty was to take reasonable care against injury which an ordinarily reasonable person would anticipate as a reasonable and probable consequence. The degree of care varies with the circumstances and the risk. Lord Macmillan stressed that the reasonable person is neither excessively apprehensive nor over-confident. Lords Wright, Romer and Clauson applied the same objective criterion of reasonable foreseeability.
3. Application to the permitted operation. Lords Thankerton, Macmillan, Wright and Clauson concluded that an ordinary, lidded urn carried by two responsible persons exercising ordinary care was not inherently dangerous. The manageress could reasonably assume that the carriers would take ordinary care and have regard to the children. The possibility of an unexplained slip, physical failure or negligent loss of grip was not a reasonable probability requiring removal of every child from the passage. Imposing that precaution would have treated the Corporation as an insurer.
4. Proof and causation. Lord Thankerton held, as a further and independently sufficient ground, that the claim failed because the respondents had not proved what event caused the carrier to release the handle. Lord Romer similarly reasoned that liability required proof that the risk which actually materialised was one which ought to have been within the Corporation's reasonable contemplation. Proof that removing the children would have prevented the injury established only a necessary condition, not that a breach of duty caused the accident. Lords Macmillan and Wright also relied on the absence of evidence explaining the loss of grip.
5. Permitted third-party use. Lord Wright additionally explained that the invitee rules were a particular application of general negligence principles. An occupier may be liable for permitting an independent third party to use premises where the permitted use creates a reasonably foreseeable unusual danger. The occupier is not directly liable for the licensee's conduct and does not warrant that the licensee will never act negligently.

• House of Lords: In Glasgow Corpn v Muir [1943] AC 448, the House unanimously allowed the Corporation's appeal, recalled the First Division's interlocutors and restored the Lord Ordinary's interlocutor.
• First Division of the Court of Session: On 7 November 1941, a majority recalled the Lord Ordinary's interlocutor; the Lord President dissented. After damages were agreed, decree for those amounts was pronounced on 2 December 1941, subject to the Corporation's reserved right of appeal.
• Lord Ordinary: Following proof before answer, Lord Robertson assoilzied the Corporation on 6 June 1941.