Scottish Court of Session Decisions

John Edwards sued the Parochial Board of the Parish of Kinloss as the Local Authority under the Public Health (Scotland) Act 1867, and Archibald Keir Leitch, their clerk, for damages for the demolition of certain house property in the village of Findhorn.

In June 1886 Leitch received a letter from the agents of the adjoining property calling his attention to the ruinous state of the subjects in question which had been unoccupied for some years, and which were alleged to be dangerous to the public from the falling of loose slates. Leitch visited the premises, and after inspection he ordered the removal of the loose slates with a view to rendering the building safe.

In February 1890 Leitch, in consequence of further complaints made regarding the state of the house, and after a report from a mason in Forres, but without the consent of the pursuers or notice to them, or without the authority of his employers, removed the remaining slates, threw down the walls to a height of from four to five feet from the ground, took down and removed the roofing and fittings, and sold the timber so removed. The house was then in a filthy condition, and was used largely as a public convenience.

The pursuers pleaded, inter alia—“(1) The defenders having, through their officer acting in their behalf, wrongously and unwarrantably interfered with and partly demolished the property of the pursuers, are liable in damages therefor.”

The defenders pleaded, inter alia—“(2) The pursuers are barred by the 118th section of the. ‘Public Health (Scotland) Act 1867,’ from insisting in the present action, and the same ought to be dismissed with expenses.”

The local authority in the course of the action intimated that Leitch had acted on their behalf.

The Sheriff-Substitute ( Rampini) on 2nd August 1890 found, inter alia, that the proceedings by the defender Leitch, acting on behalf of the Parochial Board as Local Authority of Kinloss, did not fall within the scope of the Public Health (Scotland) Act and were unwarrantable in law, and he assessed the damages at £50.

“ Note.—… The proof shows that what the defender Leitch did do was to pull down this building, not to a bate a nuisance, but because he considered it to be dangerous to the public safety, and this neither he nor his board had any power under the Act to do. They were trenching on the duties of the procurator-fiscal. Had Leitch studied the Public Health Act as carefully as he was bound to have done he must have seen that to pull down a building even if it was ruinous and dangerous was an act beyond the power which the law conferred on the board whose servant he was. And he acted in a very high-handed manner. He does not seem to have consulted his board at all. As soon as he had received Messrs R. & R. Urquhart's letter complaining of the dangerous state of the building, he proceeded on his own authority to have it put into a condition of safety. He left the way in which this was to be done to others, and their idea was that the only way to make it safe was to take it down. Had the act been one which he was entitled to do, he might, the Sheriff-Substitute thinks, even in the face of irregularity like this, have claimed the protection of the 118th section of the statute. But there is a great difference between a legal act carried out in an irregular manner and an act radically and essentially illegal. Acts illegal because irregular may be overlooked when there is bona fides on the part of the officers doing them, but acts illegal because ultra vires are in a different position. The protection only applies to wrongs done by persons ‘acting under the Act,’ which it is impossible to maintain that the defender Leitch was. It will not save him to say that his object was not to ensure the safety of the lieges but to abate a nuisance; the proof clearly establishes the contrary. Nor have the defenders shown that a nuisance did exist, which they or their sanitary inspector had the power to abate under the Act.”

On appeal the Sheriff ( Ivory) on 23rd October 1890 recalled this interlocutor and assoilzied the defenders.

The pursuers appealed to the Court of Session, and argued—That the actings of Leitch were wholly illegal and outwith the statute. He had power to deal with a nuisance, but not to pull down house property. Here the board adopted the actings of their clerk and were therefore responsible. The amount fixed by the Sheriff-Substitute who took the proof was reasonable, and the Court would not without good cause, interfere with his estimate of the damage sustained by the pursuers— Mackay v. Chalmers, February 5, 1859, 21 D. 443; Knox v. MacArthur, June 7, 1865, 3 Macph. 890.

Argued for respondents—Whether the Board were aware of what Leitch was doing or not, they had, by the minute of admissions, virtually adopted his actions, and it was for the pursuers to show that these were outwith the provisions of the protecting clause of the statute. Its terms were unusually wide, and were framed to cover just such a case as the present. The facts of the case showed that some interference by the officer of the board was absolutely necessary; and if in such circumstances a wrong was done in proceeding under the Act, sec. 118 protected the officer and the board—cases under protecting clauses in statutes— Ferguson v. M'Ewen, February 7, 1852, 14 D. 457; M'Laren v. Steele, November 13, 1857, 20 D. 48; Murray v. Allan, November 29, 1872, 11 Macph. 147; Ferguson v. M'Nab, June 12, 1885, 12 R. 1083; Hastings v. Henderson, July 15, 1890, 17 R. 1130.

At advising—