Scottish Court of Session Decisions

William Cameron, brickburner and grocer, was tenant of the shop No. 58 Cavendish Street, Glasgow, the proprietor of which, as well as of the adjoining building, being the corner house of Cavendish Street and Eglinton Street, was William Fraser, spirit merchant. Warrant from the Dean of Guild to take down the corner house and erect a new tenement on its site, and to occupy a portion of the street for building materials, having been obtained by Fraser, operations were begun in June 1880. Fraser entered into a contract with Galbraith & Company, builders, for the removal of the old and the erection of the new buildings. A barricade was erected within the limits prescribed by the Dean of Guild for the purpose of laying down the building material required. In the course of the operations conducted by the contractors damage was caused to Cameron's goods exposed for sale by the dust caused by the destruction of the old building and by the slackening of lime for the new one. In the course of the operations, also, injury was caused to the chimney of Cameron's dwelling-house, which communicated with his shop, and a quantity of stones, soot, and rubbish in consequence fell into his house, breaking a grate, and doing other damage to his property. He raised this action against Fraser, concluding for £100 as damages for the injury done to his goods and his business, which, he averred, had greatly fallen off in consequence of the inconvenience and annoyance to which his customers had been put through the defender's operations. He also averred that by these operations he had been prevented from access to his coal-cellar, and that the plaster in his dwelling-house was broken and destroyed. The defender denied that any serious loss and inconvenience had been caused to the pursuer, but maintained that if any such had been caused he was not responsible therefor, in respect that he had contracted with an independent contractor to do the work.

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He pleaded—“(1) The defender having contracted with properly qualified contractors for the execution of the work connected with the buildings, and having retained no personal control over the tradesmen employed, is not responsible to the pursuer for any annoyance or damage caused by them in carrying on their operations.”

In consequence of this plea the pursuer raised a supplementary action against Alexander Galbraith & Company, the contractors. These actions were conjoined.

The Sheriff-Substitute ( Spens) before answer, and under reservation of the pleas of parties, allowed a proof, and thereafter pronounced the following interlocutor:—“Finds that the defender Fraser became proprietor of the premises in question about two years ago: Finds the premises are let by the year: Finds the defender Fraser has a spirit shop in proximity to the pursuer's premises: Finds that the defender Fraser resolved to make considerable alterations in connection with the spirit shop, his property and occupied by him, and other premises belonging to him, including premises above the pursuer's shop and immediately to the side thereof: Finds that in May or June 1880 these operations were begun by part of the building being taken down and a barricade being put round the corner of Eglinton Street and Cavendish Street: Finds that one side of said barricade was in close proximity to the pursuer's shop: Finds that during the summer months very great inconvenience was caused to the pursuer's business: Finds also that certain of the goods in the shop were made un-useable in consequence of the sand and dust, caused by the operations, getting mixed with said provisions: Finds this led to considerable loss of custom on the part of pursuer: Finds the shop had to be closed on several days: Finds also a certain amount of damage was caused by operations in connection with a chimney above a room occupied by the pursuer at the back of the shop: Finds no liability has been proved as against the other defenders, the contractors; therefore assoilzies them from the conclusions of the petition and decerns, but finds the landlord is liable to pursuer for the damage occasioned to the stock of the shop, and the loss of business in respect of breach of implied contract; assesses the damages at the sum of thirty pounds, and decerns against the defender Fraser in pursuer's favour for said sum of thirty pounds, with interest at the rate of five per centum per annum: Finds defender Fraser liable to the pursuer in expenses, and the pursuer liable to the defenders Galbraith & Company in expenses.”

He added this note—“The difficulty I have had in this case has been solely due to the case of Laurent v. Lord Advocate, 7 Macph. 607. It is to be pointed out, however, that the case in the Court of Session referred to did not bar an action by a tenant against a landlord for breach of implied contract. The defender in letting the shop in question knew it was for the purposes of a grocery business. In so letting it, it must, I think, be held to have been implied that no operations of his would either damage the goods in the shop or stop the business; that the business was seriously damaged, as well as that a considerable portion of the stock was made unsaleable, is, I think, perfectly clear from the proof, and that for that damage the landlord should pay. As regards loss of custom—which no doubt is the chief element of damage in the sum I have awarded—I think that that is damage to which the pursuer is legally entitled, because the shop was let as a grocery shop, or at least was let in the knowledge that that was the business that was being carried on in it, and if the landlord by his actings drives away custom, he, it seems to me, is liable for that loss of custom. I may say that I estimate the damage to goods and inconvenience at £10, and the loss of custom at £20.

“As regards the contractors, I can see no possible ground of liability against them; they were employed by the defender Fraser to do the work required, and there is nothing whatever to show that they did not do the work properly enough; at all events, pursuer has failed to prove any culpa inferring liability against them.”

On appeal the Sheriff ( Clark) pronounced this interlocutor—“Finds that the defender Fraser, as proprietor of the premises in question, caused the operations complained of to be carried out, and in consequence thereof the pursuer, as occupant of a shop in proximity, was subjected to certain inconvenience and loss of custom: Finds that the said operations were in themselves legal and entirely within the power of the defender: Finds that they were carried out in the ordinary way and with a greater amount of inconvenience or injury to the interests of the pursuer's shop than in such circumstances must be expected: Therefore finds that no case has been made out for reparation against the defender: Finds that the other defenders, Alexander Galbraith & Company, were contractors under the foresaid defender for the carrying out of the said operations, and that in their case it has not been established that they were guilty of unskilfulness or dereliction of duty; therefore recalls the judgment appealed against, and assoilzies the whole defenders from the conclusions of the conjoined actions: Finds the pursuer liable to the defenders in expenses,” &c.

He added the following note:—“This is a case not unattended with difficulty. The law involved appears to be laid down in the opinions of the Judges in the case of Laurent v. The Lord Advocate, March 6, 1869. The ground principle is the well-known maxim sic utere tuo ut alienum non Iœdas. In applying this principle to the case of neighbouring proprietors within burgh, the question becomes complicated by the consideration that operations lawful in themselves cannot always be carried out without damage of a serious kind to the interests of the proprietor or occupant of an adjacent tenement. In such a case the law seems to be that there is no claim for reparation unless one of two things is made out—either that the operations were in themselves illegal, or that they were not carried out with that degree of care and attention to the interest of the neighbouring tenement which in the circumstances was proper. It seems plain that the fact of the defender in such an action being the pursuer's landlord makes no difference, unless it can be shown that there was some contract or undertaking between them that damage so accruing was to be the subject of compensation. It may also be proper to state that different rules may apply where the operations complained of

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are not made on neighbouring tenements, but on or within the subjects actually let.

In the present action the pursuer was tenant under the defender of a shop in proximity to other property of which the defender was also proprietor, and the defender resolved to make certain alterations on this latter part of his property. The result was that in carrying out these alterations the pursuer was put to inconvenience and suffered damage to a certain extent from the dust, &c., created, and also from the barricade raised. His custom was affected. I do not think this can be disputed on the proof, though I must say that the inconvenience and actual loss seems to be very much exaggerated. The real question however is, Can it be said that the defender is responsible for what has taken place? Now I think it is plainly made out that the operations were in themselves perfectly legal. They were what a proprietor is entitled to do on his own property. The next matter for inquiry is, whether they were carried out with that care, skill, and attention which would reduce the pursuer's loss and inconvenience as far as possible? Now, on this also it seems to me, on a fair construction of the evidence, that no case has been made out against the landlord. He employed contractors accustomed to such work and capable of its performance. The work was done in the ordinary way in which such operations are carried out in Glasgow. It may be that the lime and materials might have been laid down at a greater distance from the pursuer's shop, and the barricade might have been of a different construction and to a certain extent have occupied a different site. Yet I must say on the evidence that I am by no means sure that any chnnges of this kind would have benefited the pursuer, and it is obvious to remark that they would probably have injured others whose interests were equally worthy of attention. So far, therefore, as the landlord is concerned, I do not see that any case has been made out against him.

“The action is also laid against the contractors, and certainly if it could be shown that they had acted in a reckless or unskilful manner, whereby the evils inseparable from the operations on which they were engaged were unnecessarily intensified, they might have rendered themselves liable in the circumstances. I do not see, however, on the evidence that this has been made out. They seem to have acted in the usual and approved way, having regard not only to the interest of the pursuer but also to the interests of the whole neighbourhood, and also of the thoroughfare. It must not be forgotten that operations of the kind in question can never be carried on within burgh without a certain degree of inconvenience and even damage to neighbouring occupants. The public are well aware of this, and when they take subjects within burgh, either as dwelling-houses or shops, must be held to have had it in view. It forms a species of implied contract among all neighbours so situated. It is only therefore when the inconvenience or damage is in excess of what may reasonably be expected that any claim for reparation would seem to arise.”

The pursuer appealed, and argued—It must be conceded on the other side that one who conducted such operations as had been conducted by Fraser, was bound to do so in such a manner as to cause as little damage as possible to his neighbour. The proof showed that in this case the lime had been slackened in such a manner as to do, not as little, but as much harm as possible, and, in like manner, the old building had been demolished with so little attention to the usual precautions for keeping down dust that much unnecessary damage had been done. It was no answer for the defender Fraser to say that he had employed an independent contractor. The pursuer had no concern with any arrangements there might be between him and his contractor; he was bound to have the operations properly done, just as if he had done them himself— Bower v. Peate, Feb. 25, 1876, 1 L.R. Q.B. Div. 321. There was here liability founded on the law of neighbourhood as well as on the relation of landlord and tenant— Laurent v. Lord Advocate, 7 Macph. 607 (Lord Deas at p. 612). That was a case decided on the special terms of an issue, the general law being stated by Lord Deas with the concurrence of Lord Ardmillan.

Argued for Fraser — For structural damage done by the operations there was no doubt a liability, and that was all the benefit the appellant could take from Laurent's case. But a claim for injury to the appellant's business and goods must proceed on the ground of fault, and on the evidence fault was not proved.

At advising—