Scottish Court of Session Decisions

Mrs Mary M'Call or Webster, trained nurse, 77 Hill Street, Garnethill, Glasgow, raised an action in the Sheriff Court of Lanarkshire at Glasgow against Alexander Brown, plumber and gasfitter, 5 and 7 Bath Street, Glasgow, for £1000 as damages for injuries alleged by her to have been received on 9th March 1891 through the fault of the defender.

The pursuer averred—“(Cond. 2) The pursuer is tenant of the house in which she resides at 77 Hill Street foresaid, and the defender is the proprietor. The pursuer was also tenant of the same house for the preceding year ending Whitsunday 1891, at a rent of £50 sterling, and the defender was the proprietor thereof. (Cond. 3) The said house is two stairs up, and is one of four houses which comprise the tenement No. 77 Hill Street foresaid, and the tenants of all the houses in the tenement enter from the street by the same outside door. (Cond. 4) After Whitsunday 1890, when the pursuer entered into possession of the said house, she found that the steps, five in number, from the level of the street up to the said outside door were much worn, and in a dangerous condition for her use as a tenant. Complaints were made among the pursuer and the other tenants as to the condition of the steps, and conveyed to the defender, with the result that in the autumn of the same year the defender visited the property, and expressed his intention of putting in new steps, which intention he carried out shortly after the date of the accident after mentioned by putting in new steps, or at least by putting new covers on the old steps, and prior to the said accident the pursuer frequently complained to the derender's factor, J. Campbell Brown, who is a son of the defender and resides with him, as to the dangerous condition of the said steps, requesting him to have them put right. (Cond. 5) The steps were originally very steep and narrow from front to back, with a bottelling on the front corner of each step about two inches deep, and protruding about two inches to increase their width. The steps were of soft sandstone, and being exposed to the weather, were by the passenger traffic worn on the fronts of their upper surfaces for a width of two or three feet up the centre of the entrance to such an extent that the bottelling had disappeared, and the steps presented the appearance of a sloping declivity. It was thus very difficult, especially in going down, to avoid falling. (Cond. 6) On the morning of 9th March 1891, about ten o'clock, the pursuer left her house… . When she had gone down stairs and entered

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on the said steps, her foot resting on the first step down from the top lost hold of the sloping surface, and both feet escaping from under her, she fell on her back on the centre of the steps and descended to the level of the street, the back of her legs, body, and head being dragged over the rugged surface of the steps, and she was thereby injured externally and internally and suffered shock, and this through the fault or negligence of the defender in not putting and maintaining the said steps in a good and safe condition for the use of the pursuer as a tenant.”

The pursuer pleaded—“(1) The pursuer having been injured as aforesaid through the fault or negligence of the defender, decree should be granted as craved, with expenses. (2) The defender, being proprietor of the house of which the pursuer was the tenant, was bound to put and keep the house in good tenantable condition and repair, including a good and safe mode of access thereto, and he having failed to keep the steps, which were the only mode of access thereto, in a good and safe condition for her use as a tenant, is liable for the loss and injuries the pursuer has thereby suffered, and decree should be granted as craved, with expenses. (3) The pursuer having sustained permanent injuries by the failure of the defender to provide and maintain the said steps in a good and safe condition for her use as a tenant, though informed and well aware of their condition, the defender is bound to compensate her for the loss and injuries she has thereby sustained, and decree should be granted as craved, with expenses.”

The defender pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the action.”

On 11th February 1892 the Sheriff-Substitute ( Guthrie) allowed a proof before answer.

The pursuer appealed for jury trial to the Court of Session.

Argued for the defender—The action should be dismissed as irrelevant. The only averments of the pursuer were that the stairs were worn badly, that she knew that this was the case when she entered into possession of the house, and that she continued to occupy the house notwithstanding her knowledge of the dangerous state of the stairs. If the landlord refused or delayed to remedy the defect the tenant should have left the house — Scottish Heritable Securities Company, Limited v. Grainger, January 28, 1881, 8 R. 459. The landlord was no doubt bound to provide a suitable stair, but if a tenant takes a house with a sloping declivity instead of a stair, and continues to occupy the house, although well aware that the stair is in such a bad condition, he takes the risk, and has no recourse against the landlord. The case of Fulton v. Anderson, November 18, 1884, 22 S.L.R. 100, had no bearing on the present, since in that case the person injured was a third party, and the defect in the staircase was not apparent to a person using the stair.

Argued for the pursuer—The case was relevant. It might have been assumed that if this accident had occurred to a member of the public the landlord would have been held to be at fault. There was no reason why the same liability should not rest upon the landlord in a question with a tenant. The ordinary obligation of a landlord was to put the tenant in possession of a house which was habitable and safe, and the landlord must be responsible if he did not fulfil that obligation. Where a house became uninhabitable the tenant was entitled to leave it, but where the defects, as in the present case, could easily be removed, the tenant fulfilled her duty when she brought the matter under the notice of the landlord.

At advising—