Scottish Court of Session Decisions

Mrs Roche, who was tenant of a shop at No. 475 Gallowgate Street, Glasgow, sued her landlord, Patrick M'Intyre, in the Sheriff Court of Lanarkshire at Glasgow, for the sum of £30 as damages occasioned by an overflow of water which occurred on 29th May 1882, and by which her shop was flooded and the goods therein injured. She obtained decree in her favour, and M'Intyre was found liable in £20 of damages and £16, 5s. 1d. of expenses. Thereupon M'Intyre, having paid these sums, raised this action in the same Court against John Gallacher, a plumber whom he had employed in April and May 1878 to put in new supply pipes throughout the said property, and to do all necessary repairs for making the plumber work of the tenement secure. The ground of action was that the defender had at that time cut a pipe leading from the main pipe supplying the water-closet cistern to the kitchen jawbox, and that he had culpably failed to solder it securely, and that in consequence it burst and caused the overflow for which the pursuer had been found liable to his tenant.

The pursuer pleaded—“The pursuer having sustained loss and damage to the extent sued through the fault and negligence of the defender, is entitled to decree as craved, with expenses.”

The defender pleaded—“(1) In respect the alleged claim against defender has not been made tempestive, but after a period of nearly five years from the date when said work was said to be executed, the pursuer is chargeable with mora, and the action is inept and falls to be dismissed with costs. (2) In respect the alleged work

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which is said to have proven defective is in any case the result of ordinary tear and wear, or of an accident or circumstances over which defender had no control, no action is competent against defender.”

The facts disclosed by the proof sufficiently appear from the following interlocutor of the Sheriff-Substitute ( Guthrie), who found “that on the 28th of May 1882 a water-pipe in the pursuer's property in Gallowgate burst, and the water overflowed into the shop below, causing serious loss and damage to the goods therein: that the pursuer being convened in an action of damages in this Court at the instance of the tenant of the shop, was found liable in damages, and has paid under the decree the sum of £20 of damages and £16, 5s. 1d. of expenses: that the leak in the said pipe took place at or near the joint of a disused pipe leading from the main pipe supplying the water-closet cistern to the kitchen jawbox: that the said disused pipe was cut in 1878 by the defender or his workmen when he was employed by the pursuer to alter the mode of supply to the kitchen, and that he or his workmen then failed properly and securely to stop and solder it, in consequence whereof it burst and caused the said overflow: that the defender is therefore liable to make good the loss which the pursuer so sustains: And assesses the damages at thirty-six pounds five shillings and one penny sterling, for which decerns.

“ Note.—This is a narrow jury question; and the difficulty arises, in my opinion, not from any doubt suggested by the defender's contention that he did not stop up the stumps where the leak occurred, but from the age and general condition of the pipes, which, according to some of the evidence, made a burst not unlikely. It is further remarkable, and favourable to the defender, that there seem to have been overflows into the same shop on previous occasions, though in this case there is little evidence on that point. I should not have therefore been inclined to hold the defender responsible but for the distinct evidence of Cunningham, Wallace, Brown (defender's witness), and Shields (also a witness friendly to the defender), that it is untradesmanlike to close a pipe permanently by merely putting it together without using solder, and the preponderating evidence that this pipe was not soldered, but only hammered together.

It is apparently hard that the defender should be made liable for a flaw which was attended by no bad effects for more than four years; but if it be proved that it was a flaw, and that it caused this damage, the lapse of time is no defence. In many cases it may be impossible to convict plumbers of defective workmanship—to prove that overflows arise from negligence or want of skill and not from accident or ordinary tear and wear; but when the evidence is sufficient, there is no hardship, but plain justice and expediency, in making a tradesman who stands to his employer, as a plumber generally does, in a peculiarly confidential relation, pay for the loss which his negligence has caused. I think that the balance of evidence is distinctly in favour of the pursuer.”

The above findings in fact sufficiently show the import of the proof.

The defender appealed, and argued—In order to succeed here it was necessary that the pursuer must establish connection between the flooding in 1882 and the alleged previous defective plumber work by the very clearest evidence. It was just as likely that the leakage had been the result of four years’ wear and tear as of defective work. In point of fact, the evidence showed that the defender had done all he possibly could to execute his work in a tradesmanlike manner.

Argued for pursuer—No doubt it was difficult to establish the connection between the flooding of Mrs Roche's shop and the defender's defective plumber work of four years previous; but by the proof that had been done, and in point of law the ground of action for the amount of damage suffered by the pursuer through the insufficiency of that work was perfectly sound.