Scottish Court of Session Decisions

On 17th May 1886 James Roberton, Lawhope, Holytown, let a house or houses at Parkneuk near Holytown to Mrs Hannah Allan for a term of five years at an annual rent of £9. The proprietor agreed to keep the roof of the houses water-tight, but the interior was to be kept in repair by the tenant.

In January 1888 the houses were badly rent through subsidence of the ground, and in the September following Mrs Allan left them as being uninhabitable.

In October 1888 she brought an action in the Sheriff Court at Airdrie against her landlord for £50 for loss and damage sustained through having to remove, in which she pleaded—“(2). The pursuer having suffered damage by the failure of the defender to make and keep the house let by him to the pursuer wind and water tight though informed of its condition, the defender is bound to compensate her for the loss and injury thereby sustained.”

The defender pleaded—“The damage to said house not being caused by the fault of the defender or his tenants, the defender is not responsible for any loss or damage to pursuer that may have arisen therefrom.”

Mr Roberton having died, his trustees sisted themselves as defenders in the action. After a proof, the import of which appears fully from the opinion of the Sheriff affirmed by the Court of Session, the Sheriff-Substitute ( Mair) on 27th May 1890 found that the houses had become untenantable from causes for which the defenders were responsible, and awarded the pursuer £25 of damages.

The defenders appealed to the Sheriff ( Berry), who upon 21st November 1890 pronounced the following interlocutor:—Finds that in January 1888 the walls of the said house became seriously cracked and the house otherwise injured through a subsidence arising from mineral workings in the immediate neighbourhood; that the mineral workings which caused the said subsidence were those of persons for whom the original defender was not responsible: … Finds in law and under reference to note that the defenders are not liable in damages for the loss sustained by the pursuer through the injuries caused to the house, or through her having removed therefrom, or through failure on the part of the original defender to restore the house to a tenantable condition; Therefore recalls the interlocutor appealed against: Assoilzies the defender from the conclusions of the action.

“ Note.—… The houses were in good condition at the pursuer's entry, and they continued to be so until the occasion, early in January 1888, referred to in the case, when serious damage was caused to the buildings by a subsidence arising from mineral workings. That mineral workings underneath or in the immediate neighbourhood of the house were the cause of the damage is placed beyond question by the proof. The damage occurred suddenly in the course of a single night, and was of a very serious nature. The pursuer was awakened in the night by a sound, and in the morning she found the house in the dilapidated condition which she describes. The walls were rent, there being (to take the description given by Mr Scotland, an architect, called as a witness for the pursuer) a crack in the front wall of the east-most apartment 3 inches wide and 5 feet 6 inches in length, measuring from the top of the wall, and a corresponding crack in the back wall from 3 to 3 1 2 inches wide, extending the full height of the wall. The cracks went right through the walls. The windows were out of place, and had fallen

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inwards. There were also cracks in the back wall of the adjoining room of from 2 inches to 1 inch in width, extending from the wall head to the ground, and there were rents elsewhere of a minor character. In the evidence of other witnesses, including that of the pursuer herself, her son James Allan, and Mr M'Neill, the sanitary inspector of the parish, further details of the damage are given. The roof of the building, we are told, was rent; snow fell through; and at the end of the building the roof was severed from the gable. The pursuer's landlord, Mr Roberton, was proprietor of the minerals immediately underneath the house, and there had been some years previously mineral workings by himself or his tenants in the neighbourhood, the nearest of them to the pursuer's house being some 60 or 70 feet from it. These workings, however, were not towards the side of the house on which the damage occurred, but on its other side, and they had ceased some five or six years previously. Without going into details, it is enough to say that the workings of the proprietor or his tenants could not have been the cause of the damage, and indeed it has not been maintained before me on the part of the pursuer that they were. On the other hand, it appears from the evidence that the Legbrannock Collieries Company, the tenants of a neighbouring coalfield not the property of Mr Roberton, had encroached on his minerals, and had about the time of the accident been working these up to a point within about 30 feet from the east end of the house where the damage was done. The conclusion to which the evidence points is, that the workings in the course of this encroachment were the cause of the damage to the pursuer's house. It seems to me impossible to attribute it to mere ordinary deterioration. …

In the end of August or beginning of September the landlord caused some repairs to be done to the house, but these consisted only of inside plastering, and were not sufficient to make the house tenantable. To make it so it would have been necessary, as Mr Thomson, one of the architects called for the pursuer, says, to take out the stones and rebuild the walls where they were rent. The property, he said, could be repaired, but there would be a good deal of work. The pursuer being dissatisfied with the repairs that were done, and understanding from the landlord that nothing of a more substantial nature could be expected, left the premises on 14th September 1888, and she now sues the landlord for damages through injury to furniture, inconvenience and discomfort, for the value of certain pig-houses which she had erected, for loss of the remainder of her lease, outlays in removal, &c., claiming in all a sum of £50. The ground of action is variously set forth in the pleas, but the second plea fairly states the gist of it in these terms—[see supra]. The case is not one in which the question of abatement or remission of rent is raised. It is purely one of a claim for damages.

In determining whether the pursuer has a legal claim against the defender for the damage which she undoubtedly sustained, it is necessary to consider the extent of his obligation as landlord in reference to the maintenance of the house. The missive of lease provided that he should keep the roof water-tight, but it cannot be inferred from this express provision as to the roof that he had no obligation in regard to the walls. The case must, I think, be treated on the footing that he was bound to maintain the walls in good condition, and to repair them in so far as they might suffer from ordinary decay or deterioration. He was not, however, in my opinion bound to restore them in the event of extraordinary injury and dilapidation arising from some violent external cause which could not reasonably be anticipated, and for the occurrence of which he was not responsible. If the walls of the house had been rent and destroyed through damnum fatale—as by an earthquake—I do not think he could have been called on to rebuild, and where, as I take it to be the case here, the damage arose from the wrongful act of a third party causing the walls to be injured and cracked to the extent disclosed in the proof, he must be equally free from an obligation to restore. If the damage caused had been of a slight nature it might have been reasonable to hold the landlord liable to repair it. But the proof shows that the damage was very serious, and that without rebuilding the walls the house could not have been restored to a tenantable condition. I am of opinion that the landlord was not bound in law to incur the extraordinary expense which that implied, and that the tenant's claim, equally with that of the landlord, for the loss which he has suffered must be directed against the party by whose act the damage was caused.

Taking this view, it is unnecessary for me to enter into an examination of the different heads of damage on which the pursuer founds her claim, or of the various other points which have been raised in the course of the case.

As regards expenses, I am unable to see my way to depart from the usual rule that these must be given against the unsuccessful party.”

The pursuer appealed to the Second Division of the Court of Session.

At advising—