Scottish Court of Session Decisions

This was an action of damages for personal injury raised by Edward Fulton, labourer, against James Anderson, tea and coffee merchant, both in Glasgow. The facts which led to the action are given in the Sheriff-Substitute's findings in fact, as follows:—“Finds that the defender is, and for the last five or six years has been, proprietor of the tenement in which No. 90 Maxwell Street is situated: Finds that the said tenement was erected about twenty-eight years ago, and that the stair by which access is had to the business premises in the tenement, having gradually got worn away, and frequent complaints thereof being made, the defender, about three years ago, employed a slater to renew the surfaces of the steps by indenting or cutting out a portion of the worn stone and replacing it with fresh Caithness flagstone: Finds that the said stair is a hanging stair of unusual breadth, and consisting of three flights, and that the indenting by the defender was done to every step of these three flights: Finds that the stair, in consequence of the cutting to which it was subjected, was much weakened, and that on various occasions the indentations became loose, and that the stair was unfit to stand the strain to which, in the ordinary course of traffic, or accidentally, it might be exposed: Finds that on the 3d October the pursuer was engaged, along with another man, in carrying coals to the premises occupied by Allan & Orr on said stair: Finds that while pursuer was carrying up a bagful of said coals, weighing about one cwt., the stair suddenly gave way with him, and he was precipitated, along with two flights of the stair, to the bottom of the tenement, and was so seriously injured that he required to remain for a period of fourteen weeks in the infirmary, and

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had eventually to have his left leg amputated below the knee.”

The pursuer averred that the accident was caused by the defective condition of the stair, the steps not being of sufficient strength for the breadth of the stair, it being a hanging one; or from the failure of the defender to keep it in an efficient state of repair, or from improper workmanship in the alterations made on it, from the cutting of the stone to admit the facings of new stone, having so reduced the thickness of the steps as to make them insecure.

The defender averred (but failed to prove) contributory negligence on the part of the pursuer by resting or letting fall his sack of coals on the railing or stair. He stated further that he and his authors and predecessors were not aware of any defect whatever in the construction of said stair; that the said stair was occupied or used by several tenants, and that he received no intimation from any of them of any defect in its construction or condition which could cause the accident.

The pursuer pleaded fault of the defender in having his property in a defective condition.

The defender pleaded, inter alia, “The accident having happened from circumstances unknown to and beyond the control of the defender and his authors and predecessors, the defender should be assoilzied with expenses.”

Some evidence was given as to the danger of piecing hanging stairs in the way in which this one was done. Two witnesses, John White, assistant-master of works in Glasgow, and Alexander Matheson, inspector of buildings in the office of the master of works, gave opinions of the injudiciousness and consequent danger of repairing hanging stairs in this way. But it appeared that there were several other hanging stairs in Glasgow, and one in particular at the Stirling Library, which was as broad as the stair in question, and which had been pieced in this way, and in the case of which a greater length of the step had been cut out than in the stair in question.

It appeared from the evidence of Meikle, the slater who pieced defender's stair, that from a foot to eighteen inches of the step was left at each end of the piecing. After having finished the piecing of the stair he was back at it again on eight different occasions, putting in again pieces which had been knocked out or loosened. The witness White stated that he found in his inspection that most of the steps had broken at the part where the indentation had taken place.

Evidence was led as to the competency of slaters to do such work, and the practice of employing them to do so. There was a conflict of evidence as to the point, some witnesses considering that slaters were not, others that they were, competent for such work, and in the practice of doing it.

The defender's own account of his instructions to Meikle, the slater who did the work, as to repairing the stair was as follows “I employed William Meikle, plasterer and slater, to do the work. It was to be done in a certain specified style. I asked him to give me an estimate. I told him I wanted the stair put in thorough order, and in what way I wanted it put in order…. (A) I told him to do the whole steps, as it is very dangerous to leave one step with a little slope on it and have another one square. My instructions to him were that I wanted an estimate from him to do the whole steps from top to bottom. (Q) Did you tell him of what length and breadth the indents were to be?—(A) I told him to do it thoroughly and properly, and I ascertained beforehand that he was able to do it. I consulted no architect at that time. It is not an architect's job.”

The Sheriff-Substitute ( Lees) pronounced this interlocutor—( After the findings above quoted)—“Finds that the defender has failed to establish…. that the pursuer contributed to his injuries by his own rashness: Finds that the pursuer, having been injured through the fault of the defender, in neglecting to have his stair, when repaired, made of sufficient strength to stand the strains to which it might in ordinary use be exposed, is entitled to compensation from the defender for said injuries: Assesses the amount of such compensation at the sum of one hundred and fifty pounds: Repels the defences, and decerns against the defender for payment of said sum to the pursuer, with the legal interest thereon from the date hereof till payment: Finds the defender liable to the pursuer in his expenses, &c.

Note.—The mere fact of the stair giving way does not in itself constitute a ground on which the pursuer can demand compensation. He must do more; he must prove that there was negligence on the part of the defender. But it appears to me that such negligence is pretty clearly proved. The stair was, at the time when it was repaired, twenty-five years old. It was exposed to many risks; and from the great number of working people that had to use it every day, it was essential that the stair should be kept up to a level of strength adequate to the strain it might be expected to have to bear. It was the access for business purposes to two or three establishments. Heavy goods had to be carried up it, and also coals. It appears to me that it was therefore incumbent on the defender to act with much care in the repair of this stair. A good deal of evidence was led to show that it was improper to employ, as he did, a slater at such a job. But about as much evidence was led to show that a slater is quite suited for such a purpose, and that it is matter of common practice to employ such a tradesman for indenting a stair. I do not think, therefore, that there is any negligence proved on this point. But it is very plain that the job required to be executed with much care, and was at the time the source of a good deal of anxiety to the workman who was doing the work. Now, the point for the pursuer here is that the defender, knowing the strain the stair required to bear, and knowing that the cutting away of the stone was certain to weaken it, was bound, for the safety of the lieges who used it, to see that it was made of proper strength. It is clearly proved that the indenting of even a few steps on a hanging stair is a ticklish job. But where every step of three flights had to be indented, the risk became the greater. From top to bottom there was thus not a single step which retained its original strength; and it is shown that this stair was of unusual breadth.

The question then is, did the defender take proper precautions in regard to his stair? Now, what he did was—he resolved to have every step indented, and he asked a slater how much he

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would charge for doing this. No further investigation was made; but the defender appears to have acted on his own judgment, that the course he intended to take could be taken with safety. He was thus on his guard as to the risk his stair might cause. If, therefore, it gave way with the weight of a man carrying a cwt. of coals—the res ipsa loquitur—a stair which gives way under such conditions is certainly not what it ought to be. I have already pointed out that this stair had often a number of workpeople on it at the same time, and this shows the danger they ran. But the defender seeks to show that the cause of the stair giving way was that the pursuer let his bag of coals fall. Well, even if that were proved, I am not sure that it could be said with propriety that a stair which had to carry the traffic this stair had to do was adequately fitted for the purpose if it could not stand the strain of a bag of coals sliding off a man's back on to it. But as matter of fact it is not only not proved that this occurred, but it is, I think, sufficiently proved that it did not occur. The three Allans, who were the only witnesses that favoured the defender's view, say they heard a long rumbling noise which they thought might be the pursuer's coals falling, and that then they heard the stair giving way. But as I have said, none of them saw this; and as it is proved that, as matter of fact, the first thing that gave way and went over was the railings of the stair, it is possible enough that it was this rattling of the railings that the Allans heard, and mistook for the fall of the coals. On the other hand, the pursuer says the coals did not fall off his back. The man, Clark, who was in front of him, says the same; and the two girls, Agnes Carmichael and Amelia Sinclair, who were on the stair at the time, and fell with it, are able to speak to the matter. The former says that the stair broke at her feet when the pursuer was just a few steps in front of her, and that none of his coals fell. Now, if they had fallen, I do not see how she could have failed to know. Then the girl Sinclair says she had just passed the pursuer, and thus could not see whether his coals fell, but she entertained no doubt that if they had fallen she must have heard them, and is positive that they did not fall.

Thus the slender reed on which the defender leans for his defence fails him, and nothing remains to meet the case that the pursuer has established, viz., that, without fault on his part, he has been injured through a stair giving way which the defender had had operated on in a way that, as the result shows, left it of insufficient strength for the purposes for which it was required.

As regards the amount of damages, it is somewhat difficult to decide what is proper in the circumstances. The pursuer had in a previous accident got his right hand injured. Now he has lost half of his left leg. He is thirty-two years of age; and it is unfortunately beyond doubt that he will have much difficulty in getting any means of livelihood. Under all the circumstances, if I have erred as to the amount of compensation he should get, I rather think the error is towards giving him too little.”

The defender appealed to the Sheriff, who, for the reasons stated by the Sheriff-Substitute, adhered to the latter's interlocutor.

The defender appealed to the Court of Session, and argued—There was no fault in having a hanging-stair, since such were common, nor in indenting the steps, since other instances were shown of such an operation, even in hanging-stairs, nor in having the work done by a slater, since such was shown to be a not unusual practice in Glasgow. The evidence failed to show that the stair gave way in consequence of the indentation. The cause of the fall was unexplained. Before the pursuer could recover he must bring home the accident to something improperly done or left undone by the defender, and in this he had failed.

The pursuer replied—The defender was bound to keep the stair in a safe condition; if he failed to do so he was responsible. He did fail in not employing, or at least in not consulting, a properly qualified person in the repairing of the stair. He thus took on himself the risk of accident, and could not escape liability by appealing to an unknown cause. Besides, there was evidence enough to show that the steps broke off at the indentations.

Authorities— M'Martin v. Hannay, January 24, 1872, 10 Macph. 411; Campbell v. Kennedy, November 25, 1864, 3 Macph. 121 (per Lord Neaves); Cleghorn v. Taylor, February 27, 1856, 18 D. 664.

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