Scottish Court of Session Decisions

This was an action at the instance of William Baikie, bird dealer and grocer, Leith, against the trustees of the late William Wordie of Millersneuk, Lenzie. The pursuer sought damages for the loss and injury caused to him through the insanitary condition of a house and shop let to him by the defenders at a rent of £16, 10s. per annnm, for the period from Whitsunday 1886 to Whitsunday 1897.

The pursuer averred—“(Cond. 2) … For many years prior to the pursuer's occupation the premises had been occupied by different tenants as a house and shop. Complaints have been made to the defenders by previous tenants regarding the insanitary condition of the premises. (Cond 3) The pursuer took possession of the said premises on 28th May 1896, and placed in the shop his stock-in-trade, consisting of, inter alia, a number of fancy birds which were of considerable value. No sooner were the birds placed in the said premises than they began to droop and pine away. In a few days all the birds had died. The pursuer informed the defenders of what had occurred, and they sent a plumber who examined and made some repairs on the gas pipes in the premises. (Cond. 4) When the plumber had finished his work the pursuer got another lot of birds, but they also drooped and died in the same way, and in about the same length of time as the first lot. This happened about the end of June 1896, and the pursuer again informed the

Page: 819↓

defenders of what had occurred. They again sent a plumber to examine and repair the gas pipes. (Cond. 5) The pursuer got a third lot of birds about September 1896, but once again the birds drooped and died. (Cond. 6) In addition to the birds, the pursuer, shortly after he entered the premises, placed in stock 100 fancy fishes. Within two days the fishes were all dead. After the second repair of the gas pipes, the pursuer placed in stock a second lot of 100 fishes, but they also died on the premises within two days of their being placed there.… (Cond. 7) The pursuer in September 1896 informed an employee of the defenders, named White, and also Mr Lorimer their manager, of the loss of the third lot of birds and of the fishes. (Cond. 8) About the middle of October 1896 the pursuer, finding that his own health and that of his family were being affected, and having ascertained that the defenders would do nothing further to the premises, asked Mr Rendall, builder, Trinity, to examine the premises and advise what to do. Mr Rendall accordingly examined the premises and pronounced the drainage unhealthy and dangerous. He advised the pursuer to apply to the Burgh Engineer, which the pursuer accordingly did. (Cond. 9) On 21st October Mr Sinclair Allan, an official from the Burgh Engineer's office, tested the drains at the pursuer's premises and reported that they were very bad and required immediate attention. A copy of his report is produced and referred to. The drains were badly jointed and old fashioned, and were in such a state of disrepair that they allowed sewer gas to pervade the whole of the premises occupied by the pursuer. (Cond. 10) When the defenders were made aware of the Burgh Engineer's report on the state of the drains, they instructed a bricklayer named Shaw to put the drains into repair. Some work was done by Mr Shaw upon the drains, but he failed to check the escape of sewer gas or the prevalence of bad smells. The pursuer finding the situation unbearable removed his family to another house in November 1896. He could not get a shop till December, when he secured one at 12 Coburg Street, Leith. Admitted that the rent has not been paid. Explained that no demand for the rent was ever made by the defenders. (Cond. 11) The defenders were in fault in failing to put the premises into a tenantable and healthy condition at the commencement of the pursuer's tenancy as they were bound to do. The condition of the premises was such that the defenders ought to have known that the repair of the drains was necessary before the premises could be occupied with safety. The buildings are old, and the drains had not been examined for seven years. At that time the drains were not renewed, but merely patched up in a rough and ready way. These facts were known to the defenders, and ought to have put them on their guard to see that at the commencement of a new lease or tenancy the premises were made fit for human habitation. The death of the birds and fishes ought to have been a sufficient warning to the defenders that the drains were bad, but until the Burgh Engineer had reported they did nothing to the drains but merely sent a man to repair the gas pipes. (Cond. 12) By the negligence on the part of the defenders the pursuer has suffered loss and damage. The birds and fishes were destroyed by the noxious gases emanating from the defective drains, and the pursuer estimates his loss in this respect at not less than £100. He was so impoverished by the destruction of his stock that he was unable to purchase fresh stock, and his business, from which he made about £160 a-year, has been almost entirely ruined. His own health, and that of his wife and five children, suffered from the effect of the bad drains. They all suffered severely from the usual effects of sewer gas poisoning—severe headaches. pallor, and general langour and depression. They had, further, while in this state of health, to flit in the middle of winter.”

The pursuer pleaded, inter alia—“(1) The pursuer having suffered damage through the fault and negligence of the defenders is entitled to reparation therefor.”

The defenders pleaded, inter alia—“(1) No title to sue. (2) The pursuer's statements are irrelevant and insufficient in law to support the conclusions of the summons.”

On 29th June 1897 the Lord Ordinary ( Kincairney), having heard counsel in the Procedure Roll, pronounced the following interlocutor—“Repels the first plea-in-law for the defender as a plea to exclude the action, reserving it quoad ultra, and before further answer allows the parties a proof of their respective averments,” &c.

Opinion.—“The pursuer may have extreme difficulty in proving this case, and if he fails to prove it there may possibly be hardship on the defenders. But I have been unable to see that the risk of such hardship can be avoided, or that the case can be thrown out without inquiry. The notion of birds and fish being killed through drainage gas is a novelty, and at first sight seems an absurdity. But the pursuer has averred that that happened, and whether it did or not is a question of fact which I am not entitled to decide without proof, merely from a strong impression that it is extremely improbable. The averments are far from satisfactory, still they seem to be relevant. Both parties, as I understand, preferred a proof to a trial by jury. As I think there should be inquiry, it is better that I should say very little on the law of the case, but, I refer to Erskine, ii. 6, 43; to Goskirk v. The Edinburgh Railway Stations Access Company, December 19, 1863, 2 Macph. 383; M'Neev. Brown & Company, June 24, 1889, 26 S.L.R. 459; and to Lord Kyllachy's judgment in Maitland v. Allan, October 28, 1896, 34 S.L.R. 148, as indicating the grounds on which I have sustained the relevancy of the averments.

The defenders have stated a plea to title. I understand that that plea is pointed at the pursuer's statement that his wife and children have suffered in their health. The defenders submitted that the pursuer

Page: 820↓

had no title to sue for damages done to them, which could only be recovered in an action of damages by themselves. That plea, however, relates rather to the amount of damages than to title.

In allowing a proof in general terms, I mean to leave all questions of relevancy and competency open, and not to decide whether the pursuer is entitled to prove injury to his wife and children, or that he can affect by parole evidence the contract constituted by written offer and acceptance.”

The defenders reclaimed, and argued—Although a tenant might be entitled to remove from an insanitary house, and to refuse to pay the rent, he was not entitled to damages for loss and injury from the state of the house, unless he specifically averred and proved fault on the part of his landlord. There was no right to damages against the landlord ex dominio— Ersk. Inst. ii. 6, 43; Hamilton, 1667, M. 10,121; Henderson v. Munn, July 7, 1888, 15 R. 859. Here there was no sufficient averment of fault on the part of the landlords. It was not averred that they knew the drains to be in bad condition. All that was said was that they ought to have known, and that was not enough. On the other hand, it appeared that as soon as they were informed of the Burgh Engineer's report they sent a man to repair the drains. The landlord's duty was discharged if, on hearing that the drains were defective, he sent a competent tradesman to repair them. If the pursuer's averments were a sufficient allegation that the defenders knew of the defective condition of the drains, then on his own showing he had at least as much knowledge as the defenders had—and notwithstanding he remained in the premises. In that view he had no right to damages— Webster v. Brown, May 12, 1892, 19 R. 765.

Argued for the pursuer—Fault on the part of the landlords was relevantly averred here, in respect either (1) that in spite of complaints from previous tenants, and in face of the knowledge that the buildings and drains were old, and that the drains had not been examined for seven years, and had not even then been renewed, but merely roughly patched, they had failed to see that the premises were put in a sanitary condition before letting them to the pursuer; or (2) that in face of the knowledge which they must be held to have had in view of the complaints, and the condition and history of the buildings and the drains, they failed, at anyrate after hearing of the death of the first lot of birds, to have the drains examined and repaired; or at least (3) that they failed to repair properly after being made aware of the Burgh Engineer's report. Their liability was not discharged by the execution of inadequate and ineffective repairs— Maitland v. Allan, October 28, 1896, 34 S.L.R. 148. The case of Henderson v. Munn, cit., was decided on the ground that it was not there stated in what respect the drains were defective, or how the children's death was due to the condition of the drains. These objections to the relevancy of the pursuer's averments in that case could not be taken here. As to the effect of a tenant's remaining in the premises after becoming aware of their defective condition, see Shields v. Dalziel, May 14, 1897, 34 S.L.R. 635; and Hall v. Hubner, May 29, 1897, 34 S.L.R. 653. This was a case for inquiry.

In the course of the discussion counsel for the pursuer were asked whether they were prepared to make the averment as to complaints by previous tenants in article 2 of their condescendence more specific, but it was stated that they did not desire an opportunity for amendment, and proposed to take a judgment on the record as it stood.