Scottish Court of Session Decisions

This was an action of damages concluding for payment of £300 raised by Mary Shields against David F. Dalziel.

The pursuer averred that her husband had been since November 1895 tenant of a shop and room in Glasgow belonging to the defender, conform to missive of lease, and that it was the defender's duty to keep the premises in proper habitable repair during the pursuer's tenancy.

The pursuer proceeded to aver—“(Cond. 2) In February 1896 the pursuer complained to the defender's factors that the ceiling of the said room was in an apparently insecure condition, and requested that it should at once be put right. The factor at first stated that there was little wrong with the ceiling, but ultimately undertook and promised to put it right. He further admitted that the ceiling required repair. The pursuer relied on the assurance of the said factor that the ceiling would be attended to at the earliest opportunity. Nothing, however, was done by the said factor, and again in the month of April his attention was directed to the apparently insecure condition of the ceiling, and an urgent request was made to him by the pursuer to have the matter attended to. The said factor again promised to have the ceiling put right and in a condition of safety, but again nothing was done. The pursuer, relying on the assurances of the said factor, was thereby induced to continue the tenancy of the said shop and room belonging to the defender.”

The pursuer further averred that on 14th November 1896 a portion of the ceiling fell suddenly and without warning on her, inflicting serious injuries, which were detailed.

The pursuer pleaded that decree should be granted, she having sustained loss, injury, and damage through the fault or negligence of the defender.

The defender pleaded that the pursuer's averments were irrelevant.

The pursuer proposed an issue in common form.

On 2nd February 1897 the Lord Ordinary ( Kincairney) found that the averments of the pursuer were irrelevant to support the issue; therefore disallowed said issue and assoilzied the defender.

Note.—“I am not able to distinguish this case from Webster v. Brown, January 12, 1892, 19 R. 765, and I consider myself therefore bound to hold the averments irrelevant. But for that judgment I should have been disposed to approve of the issue submitted.”

The pursuer reclaimed, and argued—The Lord Ordinary was wrong. The present case was distinguishable from Bussell v. Macknight, November 7, 1896, 24 R. 118, and from Webster, ut sup., on which the Lord Ordinary based his decision. In these cases the pursuer deliberately took the house in spite of a patent and glaring defect. Here a possible source of danger was not detected by the pursuer for some months after occupation began. The tenant had complained to the landlord, and it was only on the strength of his undertaking to put matters right that the tenancy was continued. The case was really analogous to M'Martin v. Hannay, January 24, 1872, 10 Macph. 411, and Fulton v. Anderson, November 18, 1884, 22 S.L.R. 100. Since the case of Smith v. Baker & Sons, L.R. [1891], A.G. 325, followed in Wallace v. Culler Paper Mills Company, Limited, June 23, 1892, 19 R. 915, knowledge of a defect on the part of a pursuer was not necessarily a bar to recovering damages.

Argued for the defender—The Lord Ordinary was right. The present case was identical with Websters. There too there was the element of complaint made to the landlord's factor; while here also the tenancy had been continued for months after the promise to repair—for there was no undertaking—had been made. The tenancy was monthly, and inasmuch it was renewed each month after April, the tenant must be held to have accepted the house for each new monthly term with the ceiling in an “apparently insecure condition.” The continuance of the tenant in occupation in the face of this known risk removed liability from the landlord— Henderson v. Munn, July 7, 1888, 15 B. 859.