The Principle of Allurement: An Occupier's Duty of Care towards Children | Study Guides, Projects, Research Law

U.N.B. LAW JOURNAL 11

Allurement

An occupier o f la nd or prem ises w ho lias up on those premises

some thin g which can be regarded as an “a lluremen t” m ay ther eby be

imposing up on himself an ad dition al d uty of care. T hat additional

du ty of care arises becaus e of the tem ptation w hich is offered to child 

ren bv th at allureme nt. Although an ad ult is presum ed to b e able to

ap preciate those th ings whic h m ight in jure lin n, a c hild m ay be so

attra cted as to be co mplet ely oblivious to th e dang er to w hic h lie is

exposed.

The du ty of care owed to a ch ild, like t in t ow ed to an a dul t,

depends up,on whether the person 011 ano the r’s prem ises is a trespasser,

a licen see, or an in vitee. To the child tresp asser an occu picr owes no

greater du tv tha n he does to an adult in th e sam e category. I t is thus

sta ted b y Visco unt Dunedin in Ad die v. Dumb rcek : (1)

“T he t ru th is th at in ease s of tr espa ss the re can b e n o d if fer enc e in th e

case o f c hi ldr en and a du lts , bec ause t he re is no d ut y to take c are t ha t

can va ry a cco rd ing to w ho is the tres pas ser .”

The Suprem e C ou rt of C anada fo llow ing A ddie v. Dum brec k

(infra) has sim ilarly held in East Crest Oil Co. v. R. (2). Tt was there

stated by Estev J., Kerw in J. conc urrin g:

“I t is som etim es s ugge sted tha t a la nd ow ne r is u nd er a n o bli ga tio n to

tak e s pec ial pr eca ut ion s w ith r esp ect to c hil dre n, bu t so l ong as th e

ch ild re n re ma in tre spas sers t he law s eems to be se ttle d th at in p rin ci ple

th ere is no di ffre nc e be twe en a c hil d and a n ad ul t.”

The d octr ine of allur ement, therefore, h as no pla ce w here t he

injured child is a trespas ser 011 the property. W he re the child is a

licensee or invitee, ho weve r, a llurem en t m ay ha ve a very imp ortant

place. The general ph iloso phv beh ind the increased liab ility to c hild

ren is thus stated by L ord M acn aug hton in C ook e v. M idlan d G. W .

Rly. o f I reland (3 ):

“P ers ons m ay not thi nk it w or th th e ir w hil e to tak e o rdi na ry car e of

th ei r ow n pro pe rty , a nd ma y n ot be co m pe llab le to do s o; b u t. . . if th ey

al low t he ir pro p ert y t o b e op en to all co mer s, i nfa nts as we ll as c hil dre n

of m at ur er age , a nd p lace u po n it a m ac hin e at tra cti ve t o c hi ldr en a nd

da ng erou s as a pl ayt hin g, t hey m ay b e res pon sib le in d am age s to th ose

wh o r eso rt to it w it h th ei r ta cit per mi ssio n, an d w ho ar e u na ble , in

co nseq uen ce o f th ei r te nde r age , to ta ke c are o f th em selv es. ”

In th is case, which is gen erally regarded as the introductio n of the

do ctrine of a llur ement, the attra ctiv e and dangerou s o bjec t was a r ailw ay

turn table on the d efend ant’s land . It was proved th at tc th e k now ledge

of the defendant’s servants both children a nd adu lts fre quente d the land

and th at ch ildren were in the ha bit of play ing 011 the tur ntab les. Th e

held acco rdin gly.

( It (1929 ) A.C . 353 at 376

( 2 1 11945 > S.C .R. 1 91 at 200

( 3 1 (1909 1 A.C . 229 at 236

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Allurement

An occupier of land or prem ises who lias upon those premises

som ething w hich can be regarded as an “allu rem en t” m ay thereby be

im posing upon him self an additional d uty of care. T h at additional

duty of care arises because of the tem ptation which is offered to ch ild

ren bv that allurem ent. A lthough an ad u lt is presum ed to be able to

appreciate those things which m ight injure lin n , a child m ay be so

attracted as to be com pletely oblivious to the danger to w hich lie is

exposed.

T h e duty of care owed to a child, like tin t owed to an adult,

depends up,on w hether the person 011 another’s prem ises is a trespasser,

a licensee, or an invitee. To the child trespasser an occupicr owes no

greater dutv than he does to an ad ult in the same category. It is thus

stated by V iscount D unedin in Addie v. D um brcek: (1)

“T h e tru th is th a t in eases o f trespass th ere can be no d iffe re n c e in th e case o f c h ild re n and ad u lts, because th e re is no d u ty to take care th a t can v a ry accord in g to w h o is th e trespasser.”

T h e Suprem e C ourt of C anada following A ddie v. D um breck

(infra) has sim ilarly held in East C rest O il Co. v. R. (2). Tt was there

stated by Estev J., Kerwin J. concurring:

“ It is som etim es suggested th at a la n d o w n er is u n d e r an o b lig a tio n to take special p re cau tio n s w ith respect to c h ild re n , b u t so lon g as the c h ild re n re m ain trespassers the law seems to be settled th a t in p rin c ip le th ere is no d iffre n c e betw een a ch ild and an a d u lt.”

T h e doctrine of allurem ent, therefore, has no place where the

injured child is a trespasser 011 the property. W h ere the child is a

licensee or invitee, however, allurem ent m ay have a very im portant

place. T h e general philosophv behind the increased liab ility to ch ild

ren is thus stated by Lord M acnaughton in Cooke v. M id lan d G. W.

R ly. of Ireland (3):

“ Persons m ay n ot th in k it w o rth th e ir w h ile to take o rd in a ry care o f th e ir ow n p ro p erty , an d m ay not be co m p ella b le to do so; b u t... if th ey a llo w th e ir p ro p e rty to be open to a ll com ers, in fan ts as w e ll as ch ild re n o f m a tu re r age, and place u p o n it a m ach in e a ttra c tiv e to c h ild re n an d d an gerou s as a p la y th in g , th ey m ay be resp on sib le in dam ages to those w h o re so rt to it w ith th e ir tacit perm ission, a n d w h o are u n a b le , in consequence o f th e ir ten d e r age, to take care o f them selves.”

In this case, which is generally regarded as the introduction of the

doctrine of allurem ent, the attractive and dangerous object was a railway

turntable on the defendant’s land. It was proved that tc the knowledge

of the defendant’s servants both children and adults frequented the land

and th at children were in the habit of p laying 011 the turntables. T h e

held accordingly.

( It (1929) A.C. 353 at 376 ( 2 1 1 1945 > S.C.R. 191 a t 200 ( 3 1 (19091 A.C. 229 at 236

jurv held that the railw ay com pany was negligent in not taking steps to

put a stop to the practice of children playing w ith the turntable alto

gether or in not taking steps to prevent such an accident as that which

occurred. T h e House of Lords supported the decision of the jury and

held accordingly.

The Cooke case established the place of "allurem ent" in our

scheme of law. Later cases leave no doubt b ut that one who brings an

allurem ent onto his property thereby brings upon him self an additional

d uty of care towards children who m ight be injured bv it. T h e difficult

question to be answered, however, is just w hat constitutes an allurem ent:

“ It does not cover all objects w ith w hich c h ild re n m ay h u rt them selves, and it is a qu estion o f fact w h eth er Ilie fascinatin g an d fa ta l o b ject is to be regarded as an a llu re m e n t.”

Per M iddleton, J. in Pedlar v. Toronto Power C o. (4).

T he famous case of Cooke v. M idland G. W. R ly. (5) was followed

by Glasgow Corporation v. T aylor (6) where the allurem ent was poison

ous berries in a public park, where the injured child was regarded as a

licensee on the property — perhaps even an invitee.

Several C anadian cases also provide exam ples of these fascinating

and fatal objects. A wheel w ith an unguarded shaft driven at the rate

of 200 revolutions a m inute and a stream of w ater flowing through the

prem ises were held by the N .S. C ourt of Appeal to be allurem ents to

children (7); so also an em pty gasoline drum left on the highw ay was

held to be an allurem ent (8) and a crate left leaning in a dangerous

position was held to be a lure to the boy who was injured w hen he

caused it to fall upon him (9). A pile of tim ber left on a public street

was held to be an allurem ent to children, even in 1900 (10) and the m u ni

cipality was held liable for injuries suffered by the child.

W c have observed earlier in this paper the general statem ent that

in the case of a child trespasser, no greater d uty is owed to th at child

than would be owed to an adult trespasser. T h at is so once the child

has been found a trespasser but in deciding the question of w hether he

is a trespasser or not, the allurem ent or dangerous and fascinating thing

is taken into consideration. And since an ad u lt is presum ed to know

w hether the fascination is dangerous or not, wc face the situation th at

in exactly sim ilar circum stances an ad ult m ight be a trespasser w hile

a child would not.

“A llurem ent” says Lord Goddard “only m eans a form of inv itation .”

(11) R iddell, J., in the O ntario C ourt of Appeal p ut it this way:

“ ‘A llu re m e n ts ’, ‘a tte n tio n s’, ‘im p lied in v ita tio n s’, ‘im p lied licenses’, etc., h ave been re lied u p o n in som e cases to fasten lia b ility u p o n a la n d o w n er in respect o f an in fa n t com ing u p on the lan d : an d th e cases shew th a t, if th e la n d o w n e r place o r leave u p o n his lan d a n y th in g th a t

< 4) (1913) 15 D.L.R. 634 a t 688 ( 5) il9 0 9 l A C. 229 i 6) (19221 1 A C. 144 i 7) B u rbridg e v. S ta rr M fg. Co. 1 1921 1 56 D.L.R. 658 i 8) F ergus v. T oronto (1932) 2 D.L.R. 807 ( 9i C lem ent v. Nor. N avig ation Co. (1 9 1 8 1 43 O.L.R. 127

1. R icketts v. M ark d ale (1900 ) 31 O.R. 610. i l l ) E dw ard v. R a ilw a y E xecu tive, (1952 1 2 A.E.R. at 437

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Allurement

An occupier of land or prem ises who lias upon those premises

som ething w hich can be regarded as an “allu rem en t” m ay thereby be

im posing upon him self an additional d uty of care. T h at additional

duty of care arises because of the tem ptation which is offered to ch ild

ren bv that allurem ent. A lthough an ad u lt is presum ed to be able to

appreciate those things which m ight injure lin n , a child m ay be so

attracted as to be com pletely oblivious to the danger to w hich lie is

exposed.

T h e duty of care owed to a child, like tin t owed to an adult,

depends up,on w hether the person 011 another’s prem ises is a trespasser,

a licensee, or an invitee. To the child trespasser an occupicr owes no

greater dutv than he does to an ad ult in the same category. It is thus

stated by V iscount D unedin in Addie v. D um brcek: (1)

T h e Suprem e C ourt of C anada following A ddie v. D um breck

(infra) has sim ilarly held in East C rest O il Co. v. R. (2). Tt was there

stated by Estev J., Kerwin J. concurring:

T h e doctrine of allurem ent, therefore, has no place where the

injured child is a trespasser 011 the property. W h ere the child is a

licensee or invitee, however, allurem ent m ay have a very im portant

place. T h e general philosophv behind the increased liab ility to ch ild

ren is thus stated by Lord M acnaughton in Cooke v. M id lan d G. W.

R ly. of Ireland (3):

In this case, which is generally regarded as the introduction of the

doctrine of allurem ent, the attractive and dangerous object was a railway

turntable on the defendant’s land. It was proved that tc the knowledge

of the defendant’s servants both children and adults frequented the land

and th at children were in the habit of p laying 011 the turntables. T h e

held accordingly.

jurv held that the railw ay com pany was negligent in not taking steps to

put a stop to the practice of children playing w ith the turntable alto

gether or in not taking steps to prevent such an accident as that which

occurred. T h e House of Lords supported the decision of the jury and

held accordingly.

The Cooke case established the place of "allurem ent" in our

scheme of law. Later cases leave no doubt b ut that one who brings an

allurem ent onto his property thereby brings upon him self an additional

d uty of care towards children who m ight be injured bv it. T h e difficult

question to be answered, however, is just w hat constitutes an allurem ent:

Per M iddleton, J. in Pedlar v. Toronto Power C o. (4).

T he famous case of Cooke v. M idland G. W. R ly. (5) was followed

by Glasgow Corporation v. T aylor (6) where the allurem ent was poison

ous berries in a public park, where the injured child was regarded as a

licensee on the property — perhaps even an invitee.

Several C anadian cases also provide exam ples of these fascinating

and fatal objects. A wheel w ith an unguarded shaft driven at the rate

of 200 revolutions a m inute and a stream of w ater flowing through the

prem ises were held by the N .S. C ourt of Appeal to be allurem ents to

children (7); so also an em pty gasoline drum left on the highw ay was

held to be an allurem ent (8) and a crate left leaning in a dangerous

position was held to be a lure to the boy who was injured w hen he

caused it to fall upon him (9). A pile of tim ber left on a public street

was held to be an allurem ent to children, even in 1900 (10) and the m u ni

cipality was held liable for injuries suffered by the child.

W c have observed earlier in this paper the general statem ent that

in the case of a child trespasser, no greater d uty is owed to th at child

than would be owed to an adult trespasser. T h at is so once the child

has been found a trespasser but in deciding the question of w hether he

is a trespasser or not, the allurem ent or dangerous and fascinating thing

is taken into consideration. And since an ad u lt is presum ed to know

w hether the fascination is dangerous or not, wc face the situation th at

in exactly sim ilar circum stances an ad ult m ight be a trespasser w hile

a child would not.

“A llurem ent” says Lord Goddard “only m eans a form of inv itation .”

(11) R iddell, J., in the O ntario C ourt of Appeal p ut it this way: