Scottish Court of Session Decisions

This was an action of damages brought at the instance of David Stephen, watchmaker and jeweller in Thurso, against James Brims and Charles Macdonald, as representing the Commissioners of Police of the burgh. The summons concluded for payment to the pursuer of the sum of £500.

The pursuer set forth that upon the evening of the 27th November 1874, while proceeding from his house to his shop, he was thrown violently down by a heap of rubbish and filth which was lying on the street, a few feet from the pavement; that the night was very dark, and there was no light near the spot. In consequence of this fall the pursuer averred that he was severely injured, and by being unable to attend to his business suffered pecuniary loss. This action was accordingly brought for the purpose of recovering damages.

The defenders, as representing the Police Commissioners, denied liability. They stated that they had contracted with Mr Andrew Swanson, carter, Thurso, for the removal by him of all dung, refuse, or other matter from the streets, lanes, pavements and footpaths in Thurso, and also, when required, from any premises there which the defender or their inspector might point out, and that this contract was binding upon Swanson for three years prior to Whitsunday last 1875. They maintained that in consequence of this contract, if there was any injury caused to the pursuer, it arose through the fault of Swanson, who had put the rubbish upon the street, and had failed to remove it.

A proof was taken before the Lord Ordinary.

It appeared that by the contract entered into between the Police Commissioners and Mr Swanson it was provided that the contractor or one of his servants “shall, when required by the inspector, be bound to clean and remove any nuisance, fulzie, or other matter on the streets, lanes, pavements, or footpaths, and shall also be bound to enter upon any premises when or where the Commissioners or their inspector may point out any nuisance, and remove it upon receiving written orders to that effect from the clerk or inspector; and it is hereby specially conditioned and agreed that the whole of the works and services specified shall be performed in the most sufficient and complete manner to the entire satisfaction of the said Commissioners of Police or any person they may appoint as surveyor or inspector; and that the contractor, except where otherwise provided for, shall be under the immediate order of the inspector, or in his absence of the clerk of the Commissioners.” Mr Swanson in the course of his evidence stated — “The inspector of nuisances in office when the contract was entered into was James Gunn. He gave me notice of anything requiring to be done. Gunn was succeeded by one William Mackay, who was in office for only about three weeks. Bruce succeeded him. (Q.) Was there any difference

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between Bruce and Gunn as'regards you?— (A.) Yes; Bruce attended to the work wholly. (Q.) He personally superintended the work?— (A.) Yes; my men taking his orders. I remember his coming to me after his appointment and saying that Mr Brims wanted to see me. I went with Bruce to see him; and Mr Brims told me to give the whole charge to Mr Bruce, and I would be relieved of all trouble except paying the people. He told me that Mr Bruce had been appointed inspector, and that he would look after the working altogether. I had to pay the men and the expenses of horses and carts. I was to have nothing more to do with the working-men; and I scarcely ever interfered after that. I took Bruce to the men and told them that they were to obey him now, and not me — to act under his orders; that I was not to interfere any more, and that I was glad to get clear of such a charge. This took place within a few days or a week of Bruce's appointment. I cannot tell the exact time. After that Bruce always took the personal charge of my men. He gave instructions to the men every day, and told them what to do. He superintended them in the doing of it; he followed them about mostly always.” Mr Bruce, who was inspector of nuisances at the time when the accident occurred, spoke to having seen the refuse lying on the street on the 27th November. He said— “I was displeased at it being put out at the latter end of the week — on a Friday. I was anxious to see the stuff removed as quickly as possible. I met the contractor opposite the Town-hall, a little further north. I met him between two and three o'clock in the afternoon. The contractor told me he had carts working elsewhere on the north side of the water, and that they would come and take away the stuff that night. I said the refuse was in a public place, and that it would require to be taken away. He spoke of the horses and carts being on their way back from the north side of the water.

It was my duty to see obstructions on the streets removed. (Q.) Supposing you had given an order for the removal of an obstruction, and found its removal could not be effected before morning, what would you do?(A.) Put a light upon it if I knew it to be there. I considered it my duty to put a light on an obstruction remaining on the street over night. On the occasion in question I took the contractor's word that he would have the refuse removed, and I did not know it had not been removed. I could not say it was the contractor's duty to put a light upon the refuse …. I did not make any further inquiry about the refuse after half-past three o'clock. (Q.) Supposing the contractor had been unable to get carts, what was it your duty to do?— (A.) I would have put a light upon it if I had known it was there. There was a difficulty about my getting other carts to do the contractor's work.”

Upon 24th November 1875 the Lord Ordinary issued the following interlocutor:—

“The Lord Ordinary having heard parties’ procurators on the closed record, productions, and proof, and having considered the debate and whole process, in the first place, Finds as matter of fact (1) That by the agreement No. 8 of process, ‘the cleansing and cleaning of the whole streets and lanes of the burgh of Barony of Thurso, and its extended limits under the management and control of the ’ defenders, was committed by the defenders to, and was undertaken by, Andrew Swanson, carter in Thurso; (2) That during the currency of this contract its provisions were so far varied as to ‘leave ’ the scavengers employed and paid by the contractor wholly in the ‘power’ of William Bruce, inspector of nuisances, one of the officers of the police establishment of Thurso;

(3) That this new arrangement was acted upon and was in force on 27th November 1874, when there occurred the accident for the alleged consequences of which the present action was raised;

(4) That on said 27th November 1874 there was laid down by Hugh Gunn, one of the scavengers, upon Rotterdam Street, in the burgh of Thurso, nearly opposite to the shop or place of business of the pursuer, a large quantity of rubbish or ashes taken from the ashpit of one of the houses in the neighbourhood, and this heap, in place of being immediately removed, was left on the street till next day, without lights during the night to warn the lieges of the obstruction;

(5) That on the evening of the said day the pursuer, while passing in the dark from his house to his shop, fell over the said rubbish upon the street, and was severely injured in his person by the fall; (6) That in consequence of this injury the pursuer not only suffered for a time severe pain, but was incapacitated for more than two months from pursuing his vocation of a working watchmaker and jeweller, and also from taking full supervision of the business of his shop, the result being considerable pecuniary loss; and (7) That £50 would be reasonable, and not more than reasonable, reparation to the pursuer. In the second place, finds, as matter of law, that the facts being as above set forth, the defenders are liable for the consequences of the accident by which the pursuer was injured as aforesaid: Therefore repels the defences, and decerns against the defenders for the said sum of £50, with interest thereon at the rate of 5 per cent from the 2d day of July 1875, being the date of citation in the present action, till payment, in terms of the conclusions of the summons: Finds the pursuer entitled to expenses, of which allows an account to be given in, and remits that account when lodged to the Auditor for his taxation, and report.

Note. — There can be no dispute either as to the cause or the consequences of the accident which happened to the pursuer. The cause was the obstruction on the street, and the consequences were bodily suffering, and inability for a time to do the work and carry on the business of his shop as efficiently as before. Of course the damage claimed is maintained by the defenders to be too much, and to this view effect has been given in fixing the sum for which decree has been pronounced.

“The real controversy is this— there having been fault, are the defenders liable for the consequences? They are the Commissioners of Police. The cleaning and clearing of the streets was within their functions, and indeed was one of the most obvious duties they were called upon to discharge. But it does not follow from this that the fault in question can be imputed to them. They were entitled to contract for the performance of the work; and if a contractor undertook to do all that was required, to him, and not to the defenders, liability will attach. In fact, there was a contract for the cleaning of the streets, as well as for other work, current

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at the time of the accident; but, unfortunately for the defenders, the terms of that contract, for some reason not easily understood, were altered, and the effect of the alteration was, as the Lord Ordinary reads the evidence, to constitute the defenders the masters of the scavengers in so far as regards the giving of orders and the supervision of the work in hand. The contractor, in other words, was so far displaced. What he had previously done was committed to a servant of the Commissioners, the inspector of nuisances, and the neglect from which the pursuer suffered is consequently not the neglect of the contractor, but that of the defenders, inasmuch as it was the neglect of their servant specially appointed by them to do what had previously been done by the contractor.”

The Police Commissioners reclaimed.

Argued for them — The effect of the contract between the Commissioners and Swanson was to impose upon him the sole duty and responsibility of removing rubbish from the streets. That was a contract which the Commissioners were entitled to enter into. The terms of it could not be altered by the verbal communication of Messrs Bruce and Brims with the contractor. The 139th section of the Police and Improvement Act imposed upon the person leaving any obstacle in the street over night the duty of lighting the place, so as to prevent accidents. This therefore should have been done by Swanson. He was not the mere servant of the Commissioners.

Argued for the pursuer — The Commissioners did not free themselves of their liability, for they retained the superintendence of Swanson's work. At all events, the contract was altered so as to leave them responsible. It was not legal for the Commissioners to devolve their statutory duties and liabilities upon others in this way. Had the spot where the rubbish lay been properly lighted, the accident could not have occurred, and the duty of lighting the street was, at all events, one which the trustees were bound to perform.

Authorities cited— Richmond v. Russel, Macnee, § Co., March 13, 1849, 11 D. 1035; Murray v. Currie, Nov. 16, 1870, 6 L. R. C. P. 24; Taylor v. Greenhalgh, July 6, 1874, 9 L. R. Q. B. 487; Nisbet v. Dixon, July 8, 1852, 14 D. 973; Macintosh v. Macintosh, July 15, 1864, 2 Macph. 1357; Burgess v. Gray, May 5, 1845, 1 C; B. R. 578; Serandal v. Saisse, Feb 15, 1866, 1 L. R. P. C. Ap. 152; Randleson v. Murray, April 21, 1858, 8 Ad. and El. 109; Ellis v. Sheffield Gas Consumers Company, Nov. 8, 1853, 23 L. J. Q. B. 4; Hole v. Settingbourne and Sheerness Railway Co., Jan. 14,1861, 30 L. J. Exc. 81; Gray v. Pullen § Hubble, Nov. 29, 1864, 34 L. J. Q. B. 265; Addison on Torts, 174-5; Smith on Master and Servant; Police and Improvement (Scotland) Act.

At advising—