Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Aberdeen by Thomas Walker Hampton, carver and gilder, Aberdeen, against John Galloway and John Verden Sykes, the individual partners of the firm of Galloway & Sykes, cabinetmakers and upholsterers, Aberdeen, in which the pursuer, as tenant of certain business premises let to him by the defenders, craved decree for the sum of £50 as damages for loss caused to him by the defenders' failure to keep these premises wind and water tight.

By Iease dated 2nd June 1896 the defenders let to the pursuer a certain shop for a period of ten years from Whitsunday 1896 at a rent of £110. It was stipulated that the subjects let should be kept and maintained by the defenders wind and water tight during the lease.

The roof of the back portion of the pursuer's shop, which was at a lower level than the surrounding buildings, was flat and formed of lead, with an oblong cupola in the centre. The rain water from a considerable number of roofs above discharged upon this roof, being led on to it by four 2 1 2 inch pipes, and thence into a gutter round the roof, at the end of which was an outlet, discharge, or down-pipe measuring 3 inches in diameter. On 24th and 26th July 1897, during a very heavy rainfall, this down discharge-pipe got choked, with the result that the water flooded the flat roof and came through it into the pursuer's premises below, damaging his stock-in-trade, and causing him loss and inconvenience. The discharge-pipe got choked in consequence of a certain small block of wood getting into it, and through it into the drain wnich led from it, and getting jammed there with sand and sediment. The drain ran at right angles to the pipe. It was not ascertained how or when this block of wood got into the pipe. It appeared that in December 1896, in consequence of a quantity of shavings getting into the top of the discharge-pipe, a flooding took place into the pursuer's shop, and damage was done of the same nature and in the same place as in the present case. The defenders ultimately paid a sum by way of compensation for the damage done by this first flooding, but they alleged that this was only done ex gratia. After this first flooding took place the discharge-pipe was tested by pouring water down it. The skilled men who did this deponed that the water ran away all right. It appeared that this is the usual way of testing a dischargepipe. The only other thing that could have been done was to open up the pipe and drain. Up to the time of the first flooding there had been no guard or rose on the top of the discharge-pipe, but one was put on immediately after, and so far as appeared it had never been removed since. If there had been a rose on the pipe the piece of wood could not have got into it.

There was no access to the flat roof from the pursuer's own premises, and he could only get on to it by going through a window in the defenders' saloon.

The pursuer originally based his case upon an averment that the outlet-pipe was of insufficient capacity during a heavy rainfall to carry away the water from the four down-pipes in addition to the rain which fell on the roof. This averment was not established, and in the end the pursuer did not maintain that it was. The existence of the piece of wood which caused the present flooding was revealed in the course of the defenders' evidence at the proof.

It appeared that it was usual in the case of such roofs as the one in question here to have an overflow-pipe, but in this case, owing to the situation of the roof, it was not possible to have one.

The pursuer pleaded—“(1) The defenders being bound under the said lease to keep and maintain the said shop wind and water tight, and in good repair outside, and having failed to do so, the pursuer is entitled to compensation for the loss and injury he has thereby sustained. (2) The pursuer having suffered damage by the failure of

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the defenders to make and keep the premises let by them to the pursuer wind and water tight, the defenders are bound to compensate him for the loss and injury he has thereby sustained.”

The defenders pleaded—“(2) The flooding of the pursuer's premises having been a damnum fatale, or at least having resulted from a latent cause, the defenders are not liable. (3) The damage alleged by the pursuer not having arisen from any cause for which the defenders are liable, decree of absolvitor should be pronounced.”

A proof before answer having been allowed and led, the nature of which sufficiently appears from the foregoing narrative, the Sheriff-Substitute ( Robertson) on 5th May 1898 issued the following interlocutor:—“Finds (1) that pursuer is tenant under defenders of premises in Union Street, Aberdeen; (2) that the roof of the back portion of pursuer's shop, which is at a lower level than the surrounding buildings, is flat and formed of lead, with an oblong cupola in the centre; (3) that the rainwater from a considerable number of roofs above discharges upon this roof, being led on to it by four 2 1 2 inch pipes, thence into a gutter round the roof, at the end of which is an outlet discharge or down-pipe measuring 3 inches in diameter; (4) that on 24th and 26th July 1897, during a very heavy rainfall, the said down discharge-pipe got choked, with the result that the water flooded the said flat roof and came through it into pursuer's premises below, damaging his stock-in-trade, and causing him loss and inconvenience; (5) that said discharge-pipe got so choked in consequence of the block of wood getting into it, and getting jammed in it with sand and sediment; (6) under reference to annexed note, that said block of wood got into the pipe through the fault of defenders or of those for whom they are responsible: And finds in law that defenders are liable to make good said damage, loss, and inconvenience to pursuer: Assesses same at £35 sterling, for which decerns: Finds pursuer entitled to expenses,” &c.

Note.—… “Defenders' case, as stated by Mr Rust, their architect, in the witness-box, is that the flooding in question in this action was caused by the piece of wood produced sticking in the pipe, and that this was so there can, I think, be no reasonable doubt. Mr Rust's view is that the piece of wood got in at the same time as the shavings—that is, before the first flooding. Up to that time there had been no guard or rose on the top of the down-pipe, but one was put on immediately after, and as the roof was in sole charge of defenders it was their fault if the guard ever was removed, and in point of fact they say it was not. If this is true—and it is the defenders' case that it is true—the wood must have been in the pipe at the time of the first flooding.

If that is so, the question simply is whose fault it was that it got into the pipe? (possibly as a second question) being in, were defenders to blame for not finding out it was there and removing it?

Before considering this question, I think it probably is necessary to state the view I take of the large mass of evidence led with reference to the construction of this roof, so far as the carrying away of the water is concerned. There can be, I think, no doubt that the roof is not a usual one. The roof space of two large buildings, involving a surface of 300 square yards, is drained on to a low flat lead roof in the middle between the buildings by four 2 1 2-inch pipes leading from the various gutters, and into a discharge-pipe of 3 inches, which goes down into the drain, and has no overflow-pipe. The pursuer's case seemed to be, at least at one time, that the 3-inch pipe was not large enough to carry away the water which would flow into it, but this was clearly disproved. There is no doubt that the 3-inch pipe was amply large enough to carry off all the rain which could fall or did fall upon the roof space so long as everything went right. The figures are given in the evidence, and make this clear. But while this is so, there is equally little doubt that to have had an overflow-pipe in such a situation would have been most desirable, and when on account of the situation such a pipe could not be put in, it seems to me the defenders, in letting their house to a tenant, especially one who dealt in perishable goods, were probably bound to allow a margin of size and capacity of the pipe which would not have been necessary had an overflow-pipe been possible. I do not go the length of saying that the construction of the roof, &c., has been proved to be absolutely faulty, to the extent that the flooding was caused by it, and that defenders therefore are liable, but I think that, keeping the nature of the roof in view, probably more diligence might be required of the landlord who has charge of it to see that everything was done to keep the pipe absolutely clean and to prevent accidents. Mr Mackenzie, whose opinion is entitled to the greatest respect, thought in the circumstances a larger pipe should have been used to allow for possible partial choking as an alternative to taking away the water from the other side of the buildings. But, as I have said, I would not desire to decide the case upon the ground solely of improper construction, in the view I take it not being necessary to go that length.

To return to the question of the piece of wood found in the pipe, I do not think anything definite is proved as to where it came from. Pursuer suggests it is part of the cradling on the roof, and was left there by defenders' contractors. Defenders, on the other hand, suggest it is such wood as is used by pursuer in his business, and that it came from his workshop. I cannot accept either view as being proved, and I must take it that it is not explained how the wood got there. But accepting defenders' suggestion (by Mr Rust) that the wood got there at the same time as the shavings, it seems to me clear that if it did, it was defenders' fault for not having the top of the discharge-pipe protected by a rose. It was practically admitted that this was necessary in the circumstances, and it was at once put on after this flooding, and it unquestionably was defenders' duty to have it there from

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the first. If this is so, and the flooding was caused by the piece of wood which the presence of the rose on the pipe would have kept out, then it seems to me defenders are liable for the consequences of the flooding— a fortiori if the wood got into the pipe after the first flooding defenders are certainly to blame. If defenders therefore were in fault in respect of the wood getting into the pipe, can they escape liability because they did all that was usual and reasonable to discover whether there was anything in the pipe at the time of the first flooding? I must say in my opinion they cannot. The original fault was theirs, and that fault caused the damage; but further, they were or should have been put upon the most strict inquiry at the time of the first flooding, considering the nature of the roof, to make certain that the pipe was clear.

What Mr Rust's man, Ogilvie, did was to pour down water; apparently this is the usual thing to do, but that it was not a sufficient test in the present case at all events is manifest from the fact that it did not show the block of wood was in the pipe. In view of what had happened, and considering that the safety of the pursuer's premises was absolutely dependent upon the pipe being clear, there being no other safeguard, I think defenders, who had sole and entire charge of the roof, were bound to make sure or to take the consequences. I therefore think defenders are liable.” …

The defenders appealed to the Sheriff ( Crawford), who on 23rd July 1898 issued the following interlocutor:—“Alters the interlocutor appealed against by deleting the words under reference to annexed note:’ Quoad ultra, affirms the same, and decerns: Finds the pursuer entitled to additional expenses.”

Note.—“The pursuer's stock-in-trade was damaged by flooding from the flat roof of the premises which he occupied as tenant of the defender. The cause of the accident is ascertained to be that a piece of wood stuck in the fireclay drain leading to the trap from the bottom of the outflow-pipe from the roof to the cellar. When sand and soot gathered round this obstruction the drain was choked.

Who is to bear the loss? Where goods are destroyed or injured the loss falls in the first place on the owner— res perit domino. The burden lies on the pursuer to show that his landlord is bound to compensate him. The present case requires attentive consideration. But after giving full weight to the careful argument submitted for the appellant, I think that the pursuer has proved his case. He founds both upon contract to keep the premises wind and water-tight, and upon negligence. On the first ground the defenders answer that these words do not import a standing warranty, but only amount to an undertaking duly to execute landlords' repairs. For that there is authority. But I am inclined to think that these words do guarantee sound structural arrangements to start with, and I have at least serious doubts whether on that assumption the defender could be acquitted. In the first place, where four pipes pour water on a flat roof, one would look for some complete system of carrying it off. Here there was no overflow-pipe. There were difficulties in having one, but I am not satisfied on the evidence that they were insuperable, or that even a larger overflow-pipe, or even drain, would not have been a material improvement. It seems certain that as the arrangement stood the pursuer's premises were liable to exceptional risk, of which he was ignorant. Secondly, the pursuer had suffered damage from flooding six or seven months before, for which compensation was paid. At that point under the contract the defenders were specially bound to see that the arrangements made the premises wind and water-tight, and I would go the length of saying to warrant them at that time to be so, yet according to their evidence they left the obstruction in the pipe or the drain at that time without discovering it.

That, however, raises the question of negligence, on which, I think rightly, the Sheriff-Substitute has rested his judgment. To pour a few buckets of water down the pipe was not in the circumstances a sufficient test. The defenders had been made aware by experience of the dangerous state of the roof. They were bound to make sure. If a piece of wood was sticking in the pipe or drain which was the same size as the pipe, a few buckets of water would come through—it would be difficult to tell whether quite freely or not—but the addition of a little sand would choke the pipe, as it did. I do not care whether pouring water down is the usual test—the witnesses say, guardedly, a usual test. Much would depend on the quantity of water, and the exactness with which its outflow was observed. But this was an exceptional case of a dangerous flat roof with no overflow-pipe. At all events, as the Sheriff-Substitute observes, if the piece of wood was there at that time it was there through the negligence of the defenders not having up to that time put in a cage or rose, and if it was not there at that time, they are to blame for ever allowing it to get there, because they had the sole charge of the roof, to which the pursuer had no access. If it had been proved, as it was suggested, that the piece of wood came from the pursuer's workshop, that would have raised a different question. But that is not proved. I think the probability is against it. It is, I think, impossible to hold the accident of the piece of wood getting into the pipe a damnum fatale, although in Carstairs v. Taylor—a case which requires to be studied but which is distinguishable from the present—one English judge described a rat as vis major. This was a regrettable accident, for which no moral blame attaches to anybody. But, for the reasons I have stated, I am of opinion that the defenders were legally guilty of negligence. It is a case in which culpa levis involves liability.”

The defenders appealed, and argued—The landlord was only liable for fault— Campbell v. Kennedy, November 25, 1864, 3 Macph. 121; Webster v. Brown, May 12,

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1892, 19 R. 765; Baikie v. Wordie's Trustees, July 14, 1897, 24 R. 1098. Here the only fault alleged against the landlords upon record was not proved, and had been found by the Sheriffs to be not proved. As regards the piece of wood nothing was proved as to when or how it got into the pipe, and nothing inferring fault with regard to it had been proved against the landlord. Indeed, the Sheriffs had not made any findings in fact to support their finding that the piece of wood got into the pipe through the fault of the defenders.

Argued for the pursuer—Where the landlord bound himself to keep the subjects let wind and water-tight, and failed to do so, he was liable for the consequences to the tenant unless he showed that the failure was due to damnum fatale or the acting of someone for whom he was not responsible— Allan v. Roberton's Trustees, June 13, 1891, 18 R. 932, per Lord Trayner at p. 933. It might be that the landlord did not warrant that the premises should remain wind and water-tight, but he was liable for something more than merely personal fault. He was bound to supply and keep the premises reasonably fit for the purposes for which they were intended, and provided with such appliances as would ensure a reasonable amount of security against wind and water. He was therefore liable unless the damage was due to something which he could not reasonably anticipate. The principles applicable were illustrated in Francis v. Cockrell (1870), L.R., 5 Q.B. 501. Here the pursuer had no access to the roof, and the defenders consequently undertook to keep it wind and water-tight. They had failed to do so, and if they were to escape liability they were bound to show that the flooding arose from something which they could not have prevented. The explanation which they put forward as to the block of wood was inadequate, and as they were bound to give an explanation, and had failed to do so, they were liable. In this case a special duty was incumbent on the landlords, both because the tenants had no access to the roof and because the roof was in such a position that it was impossible to have an overflow-pipe.

At advising—