Hughes v. Lord Advocate A.C.

837 (H.l.) (1963)

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Nature of the Case

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Facts

Post Office employees were working on an underground cable when they took a tea break. They left the manhole open but covered by a tent and surrounded by kerosene lanterns. The manhole was some nine feet deep and provided with a ladder. There was a weather tent covering the area of roadway in which the manholes were placed. This tent was provided with a tarpaulin to improve the shelter afforded, and as positioned at the material time it left at one end a gap between its edge and the ground of some two feet six inches. It was dark after 5 p.m. on Nov. 8, 1958, and about 3.30 p.m. red warning lamps were put in position on the site. The workmen had a tea break just after 5 p.m. and went for their tea to a neighboring telephone exchange. They were absent for about a quarter of an hour. Before going, they had taken the ladder out of the manhole and laid it on the ground outside the tent. While the workmen were away two boys (8, the boy injured, Hughes (P), and a10 years old, the boy’s uncle) found the unguarded site. They immediately set to task in meddling with the gear on the site. They also brought a piece of rope which was not the Post Office equipment, tied the rope to the lamp and, with the lamp, lowered themselves into the manhole. They amused themselves by swinging it from the end of a rope. After they left the manhole, P stumbled over the lamp and knocked it into the hole, when a violent explosion took place. P fell into it, sustaining terrible injuries from burns. A passer-by named Bruce who was one hundred yards or so along the street at the time described the explosion as having made a roar of sound like a 'woof,' and said that a flame shot up some thirty feet. The court found that the cause of the explosion was the lamp and experts held that such an accident was a low order of probability. It was also held that the presence of the children was reasonably foreseeable and the work site with lighted lamps was an allurement of children passing along the street (attractive nuisance doctrine). D at first opposed this view but it was a public street on a Saturday, and because of the attractive nuisance, D had the burden to show that it was not reasonably foreseeable for children to pass by, which D failed in that burden. The court then went on to say that it was reasonable to anticipate danger to children in playing with the lamps near the manhole. It was foreseeable that a boy might fall into the manhole and sustain burns from the lamps. In dismissing the appellant's claim the Lord Ordinary and the majority of the judges of the First Division reached the conclusion that the accident which happened was not reasonably foreseeable. P appealed.