Scottish Court of Session Decisions

On 27th June 1895, the pursuer, who was the wife of a bricklayer in Glasgow, called at the shop of which the defender, a grocer in Glasgow, was tenant, and made certain purchases. When she was leaving the counter of the shop, and when she was distant about two or three feet from it, the floor of the shop gave way and she was precipitated into the cellar underneath, and sustained certain injuries.

The shop was in an old building, and the woodwork of the floor was old and worn. There was nothing, however, in the appearance of the floor as viewed from above to show that it was in any way insecure. Boxes and barrels had been left standing on the place which gave way, but no accident had ever occurred before. No complaints as to the condition of the floor had ever been made to the defender by his employees or customers. The accident was due to the collapse of a patch in the floor which was defective and unsafe. The defect in the patch was that the boards composing it were supported not by the joists but by fillets nailed to them. The immediate cause of the accident was that the fillets and the nails attaching them to the joists gave way under the pursuer's weight, and left the boards without support. This defect in the flooring was visible to anyone inspecting it from the cellar below the shop. This cellar was in the occupation of the defender but he did not use it, and had not entered it during his tenancy, so that he never saw or had an opportunity of seeing the nature of the patch. By the terms of the lease the landlord was bound to keep the premises in repair.

The pursuer brought an action of damages for the injuries sustained through her fall, in the Sheriff Court at Glasgow.

She averred—“(Cond. 4) The said fall and pursuer's injuries were due to the fault of the defender. The said shop is in an old building, and the woodwork of the floor is old and worn. It is defective in respect that the floor, where the accident occurred, is patched in an imperfect manner—the flooring was not nailed on to the joists, but on to a strip of wood which was nailed on to the joist at the place of the accident. The pursuer received no warning of the dangerous state of the floor, which, as above stated, was defective, and not maintained in good and serviceable order and repair.”

She pleaded—“(1) The pursuer having sustained loss, injury, and damage through the fault of the defender, is entitled to compensation with expenses; (2) the defender being tenant and occupant of said shop, warrants to the public that the same is safe.”

The defender averred (Stat. 5)—“The floor of the shop in question was an old floor, but quite sufficient for the purpose required, and never showed any signs of giving way, or the floor would have been put right.”

He pleaded, inter alia—“(3) The floor in question having shown no previous sign of weakness, the defender is not responsible for an unexplained accident.”

The Sheriff-Substitute ( Balfour), by interlocutor dated 18th December, assoilzied the defender. He added the following note—“If the defender had known of the patched condition of the floor, and how long it had been in that condition, I expect he would have been liable to the pursuer, because it was a dangerous thing to have boards about two feet square laid upon fillets nailed to the joists, and not laid upon the joists themselves, but the defender knew nothing about the patch, and neither did anyone connected with the premises. The floor must have been patched more than thirteen years ago, and the defender has only been in the premises three years. He was bound, as in a question with his

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customers, to see that his premises were in a reasonably safe condition, but there was no obligation upon him to have the shop absolutely secure. The pursuer must in this, as in similar cases, prove fault on the part of the defender, and I cannot see where the fault lies. The evidence shows that the patch was not a thing which the defender could find out. There was nothing in the appearance of the floor, by depression or otherwise, to indicate the existence of the patch, and the defender could not be expected to go into the cellar, which he never used, to look for defects which he never fancied to exist.

“For authorities, see Ross v. Fedden, 7 L.R., Q.B. 661; M'Ewen v. Lowden, 19 S.L.R. 22; and Glegg on Reparation, 249.”

The pursuer appealed to the Second Division of the Court of Session, and argued—(1) The tenant of a shop who invites the public to enter it, by implication undertakes that it is reasonably safe and fit for its purpose, and if it is not he is liable for the result— Francis v. Cockrell, June 21, 1870, L.R., 5 Q.B. 501; Grote v. Chester and Holyhead Railway Company, 2 Ex. 251. (2) Here there was definite fault on the part of the defender. He was bound to make an inspection of the floor from below, and he had failed to do so. The defect was not latent. It might have been discovered if he had made a proper inspection. Moreover, negligence might be inferred from circumstances. (3) Landlords had frequently been held liable for injury to their neighbours or the public caused by allowing their premises to become defective, and though these decisions had proceeded on the ground of culpa, it had been held that culpa could be inferred from circumstances— Moffat v. Park, October 16, 1877, 5 R. 13; Campbell v. Kennedy, November 25, 1864, 3 Macph. 121; Cleghorn v. Taylor, February 27, 1856, 18 D. 664; Coupland v. Hardingham, June 5, 1813, 3 Camp. 398. The only authority to the contrary was Weston v. Tailors of Potterrow, July 10, 1839, 1 D. 1218. So also tenants had been similarly held liable, and the case against a tenant was a fortiori of that against a landlord— Robins v. Jones, November 16, 1863, 33 L. J., C.P. 1; Gwinnell v. Eames, June 22, 1875, L.R., 10 C.P. 658; Caledonian Railway Company v. Greenock Sacking Company, May 13, 1875, 2 R. 671. The same had been held as against a creditor in possession under decree of maills and duties— Baillie v. Shearer's Judicial Factor, February 1, 1894, 21 R. 498; and also as against an appriser— Hay v. Littlejohn, February 16, 1666, M. 13,974. Ross v. Fedden, quoted by the Sheriff-Substitute, was an appeal from the County Court Judge, who was final as to fact, and who had held as matter of fact that there was no negligence. M'Ewen v. Lowden, also quoted by the Sheriff-Substitute, was decided on a motion for a new trial, and the decision was based on the fact that no exception had been taken to the Judge's ruling. Miller v. Hancock, June 13, 1893, 2 Q.B. 177, was distinguished from the present case by the fact that the stair in which the defect was, was not let to the tenant, but remained in the occupation of the landlord.

Argued for the defender—Fault must be proved— Campbell v. Kennedy, cit.; M'Ewen v. Lowden, cit.; M'Martin v. Hannay, January 24, 1872, 10 Macph. 411. That was the rule in actions of damages on the ground of defective drainage— M'Nee v. Brownlie's Trustees, June 24,1889, 26 S.L.R. 590; Henderson v. Munn, July 7, 1888, 15 R. 859. Here no fault had been proved. The defect was latent, and the tenant would not have seen it even if he had made an inspection. The pursuer's action, if maintainable at all, should have been against the landlord— Miller v. Hancock, cit.

At advising—