Scottish Court of Session Decisions

This was an action of damages brought by the widow and children of the late Rev. Alexander Gibb Birrell, schoolmaster of the parish of Pettinain, for reparation of the injury caused to them by his death, which the pursuers allege to have been occasioned by the defenders, who are the heritors of the parish, not providing him with a suitable house, which they were bound to do by the Acts 43 Geo. III., c. 54, and 24 and 25 Vict., c. 107. On account of the damp and cold of the house acting on his constitution, Mr Birrell's health gave way. In 1857 he was attacked by violent rheumatism, which afterwards set in in his right ankle with such severe effects that his foot had to be amputated. He died in 1864. The pursuers further aver that all the proper steps were taken by Mr Birrell to have his house put into proper condition, but that his request was set aside by the heritors on pretence of its being expressed in such terms as to preclude its being acted upon.

The Lord Ordinary sustained an objection stated by the defenders to the relevancy of the action. In his note his Lordship observed—“The Lord Ordinary dismisses the action on the ground that it is founded on an illegal breach of obligation, when the steps were not taken by the deceased schoolmaster necessary to raise the obligation; and the obligation therefore never arose. Another objection was pleaded against the relevancy of the action—viz., that the damage stated is not direct but consequential damage, which the law does not recognise. The Lord Ordinary is disposed to think that this objection is also well-founded. If a house which a particular individual is bound to keep in repair falls down and injures the inhabitant for want of the repairs stipulated, this may be considered direct damage raising a claim of reparation. But it is a different thing to say that the insufficiency of the house brought on a fit of rheumatism; still more that this rheumatism led to a supervening malady, and that this malady issued in death. And rheumatism, however painful, is in its nature by no means a mortal disease. It would be difficult to trace the death of the schoolmaster to this cause with the certainty which the law requires in every case of reparation.”