Scottish Court of Session Decisions

An action was raised by Dr David Christie, M.B., Glasgow, against, first, the Corporation of the City of Glasgow, and second, the trustees of the Wellington United Presbyterian Church, Glasgow, concluding for payment of the sum of £500, being damages in respect of an accident sustained by the pursuer.

The pursuer averred that on the evening of 11th October 1896 he was walking down Piccadilly Street, and in passing the premises No. 21, which were the property of the second defenders, he put his foot into a hole in the foot-pavement, whereby he was thrown and severely injured his right leg, and that the said hole was neither fenced nor lighted.

He further averred—“(Cond. 5) The said accident was caused by the negligence of the defenders, or one or other of them, or of their servants, or others for whom they are responsible, in allowing the said pavement, for the maintenance of which they are responsible, to fall into a dangerous state, and in failing duly to repair the same. It was the duty of the said managers and trustees, as owners of the said pavement,

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or at least of the adjoining lands and buildings, to keep the same in a safe condition for the public who had occasion to use same, and on its falling into disrepair to have it immediately repaired and rendered safe. Said duty they failed to perform. In point of fact both defenders were well aware of the condition of the said pavement, the Master of Works of the city of Glasgow having on 6th October, five days before the date of the accident, caused a notice to be served upon William Lee, the representative of the defenders, the said managers and trustees, at the said premises, calling upon him to pave said portion of the footpath with Caithness pavement to a uniform level, and intimating that the matter required immediate attention. Notwithstanding said intimation the defenders allowed the pavement to remain in a dangerous state of disrepair until the day after the accident happened, when the necessary repairs were made. In so doing the defenders were guilty of gross negligence—the defenders, the said managers and trustees, who are proprietors of the pavement, or at least of the adjoining lands and building, for not keeping said pavement in a safe condition, and for not promptly attending to said intimation, as it was their duty to do, and the defenders, the Corporation of the City of Glasgow, for not seeing that the pavement in said street was kept in a proper and safe condition for public use, and for not seeing that said repairs were immediately executed, and for not taking steps in the interests of the public to protect them from injury by lighting and fencing, or otherwise securing said dangerous hole, all which it was their duty to have done.”

The defenders the Corporation of Glasgow pleaded that they had not failed in any duty towards the pursuer. After the record had been closed they were allowed to add the following averment and plea—“The alleged injuries were sustained by the pursuer on 11th October 1896, and the present action was not raised at least till 15th December 1897. The present action is excluded by the provisions of the Act 56 and 57 Victoria, cap. 61.”

The defenders the trustees of the United Presbyterian Church denied that they were proprietors of the pavement in question; they averred that they had carried out the terms of the notice by carrying out the repairs on the pavement within the ten days prescribed by it. They subsequently added the same plea as the Corporation, founded on the Act of 1893 (56 and 57 Vict. cap. 61).

That Act provides—“1. Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect—( a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or in the case of a continuance of injury or damage, within six months next after the ceasing thereof. ( b) Wherever in any such action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client.”

By section 279 of the Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii.) it is provided—“It shall be the duty of the Master of Works to enforce the provisions of this Act with respect to the formation, improvement, and maintenance of streets, courts, foot-pavements.” …

Section 310 provides—“Subject to the obligations hereinafter imposed on the proprietors of land and heritages [the Magistrates and Council] shall make provision for maintaining and, so far as thought expedient, for causewaying the public streets in a suitable manner, and for altering, repairing, and renewing the said causeway.”

Section 317 provides—“The Master of Works may, by notice given in manner hereinafter provided, require the trustees of any bridge or of any turnpike road on which there is a bridge, or any proprietor of a land or heritage adjoining any other turnpike road within the city, or any public street, so far as not already done, to form in a suitable manner, with openings at convenient distances for fire-plugs, and from time to time to alter, repair, or renew, to his entire satisfaction, foot-pavements on such bridge, as respects such trustees, or in such road or street opposite to such land or heritage, as respects such proprietor, except where the foot-pavements have been taken over by the [Magistrates and Council].”

Section 320 provides that the Master of Works shall in every notice given in pursuance of the above provisions describe the work to be executed, “and shall specify the period allowed for the execution of such work.”

Section 322 empowers the proprietor to lodge objections within six days of receiving the notice.

The Lord Ordinary ( Low) on 20th July 1898 pronounced the following interlocutor:—“Sustains the additional plea-in-law added to the record by the defenders the Corporation of the City of Glasgow: Therefore, as regards the said defenders, dismisses the action and decerns: Finds that in so far as the action is directed against the defenders, the managers and trustees of the Wellington United Presbyterian Church, Glasgow, as proprietors of land or heritage adjoining the pavement in Piccadilly Street, Glasgow, it is excluded by the provisions of the Act 56 and 57 Vict. cap. 61; but in so far as the action is directed against the said managers and trustees as proprietors of the solum of the pavement of said street at the place where the accident to the pursuer mentioned in the record occurred, it is not excluded by the said Act: Quoad ultra finds the defenders the Corporation of the City of Glasgow entitled to expenses,

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and reserves all further questions of expenses as regards the said managers and trustees: Allows an account of said expenses to be given in, and remits the same when lodged to the Auditor to tax as between agent and client, in terms of the said Act 56 and 57 Vict. cap. 61, and to report, and appoints the cause to be enrolled for further procedure.”

Opinion.—“The question which was argued before me was whether this action is excluded by the Public Authorities Protection Act 1893, not having been commenced within six months of the alleged default complained of.

The pursuer is a medical practitioner in Glasgow, and on the 11th October 1896 he put his foot into a hole in the pavement in Piccadilly Street, Glasgow, and broke his leg. He now brings this action for damages against (1) the Corporation of the City of Glasgow as the local authority in whom the streets are vested under the Glasgow Police Acts; and (2) the trustees of the Wellington United Presbyterian Church, the proprietors of the building adjoining the pavement at the place where the accident occurred. The summons was brought in December 1897, which was greatly more than six months after the date of the accident.

The Act provides—[ His Lordship here quoted the section of the Act given above.]

The pursuer avers in article 4 of his condescendence as amended that ‘the interruption of the pursuers practice affected his profit thereafter, and still continues to do so, and to cause the pursuer loss and damage.’

The pursuer argued that that was a relevant averment of continuing damage, and that accordingly under the second branch of sub-section ( a) of section 1 the action was timeously brought.

I am of opinion that the pursuer's averment does not disclose a case of continuing damage within the meaning of the Act. A familiar example of continuing damage arises in the case of mineral workings, where the withdrawal of the support to the surface is frequently followed by successive and distinct subsidences which may extend over a period of years. I read the provision of the section as applying to continuing damage in that sense, and not to the case of one injury, the effects of which are felt for an indefinite time afterwards. The pursuer's argument really amounts to this, that so long as the effects of an injury continue, the Act does not apply, and that the injured person need not bring his action until six months after the effects have finally disappeared. Thus, in the case of the loss of a limb or an eye, the person injured might, so far as the Act is concerned, bring his action at any period of his subsequent life. Such a construction of the Act appears to me to be inadmissible.

In the next place, the pursuer argued that the Corporation in maintaining the streets are not acting in the execution of a public duty within the meaning of the Act. The pursuer's contention was, that the word ‘public’ referred to matters in which the general public were interested—such as the maintenance of law and order—and did not apply to the private municipal concern of a particular burgh.

There may be cases to which such a distinction might be applicable, but I do not think that this is one of them. It seems to me that the word ‘public’ is used in the section in the ordinary sense, and as distinguished from what relates to the property or interests of the individual. It seems to me that road trustees, whether the county council in the county or the magistrates in a burgh, act in a public capacity, within the meaning of the Act, as regards the roads or streets under their charge.

I am therefore of opinion that, as regards the Corporation of Glasgow, the action is excluded by the Act of 1893.

The other defenders, the Church Trustees, are in a different position. The pursuer avers that they ‘are proprietors of the pavement, or at least of the adjoining land and building.’

Now, if these defenders are proprietors of the solum of the pavement, I do not understand that it is disputed that they are liable to a foot-passenger who has been injured by their neglect to maintain the pavement in a safe condition, as the pavement has not been taken over by the Corporation. That was the question which was decided in Baillie v. Shearer's Factor, 21 R. 498.

The trustees, however, say that they are not proprietors of the pavement, and they quote the description in their titles which prima facie supports their averment. They contend that not being proprietors of the pavement, but only adjoining proprietors, they also are entitled to found upon the Act of 1893.

The position of matters is this. By the 317th section of the Glasgow Police Act 1866 it is provided:—‘The Master of Works may, by notice given in manner hereinafter provided, require … any proprietor of a land or heritage adjoining any … public street … to repair to his entire satisfaction foot-pavements … in such street opposite to such land or heritage.’

The 322nd section details the procedure to be adopted by any person who considers himself aggrieved by such notice; section 324th gives to a proprietor who has complied with a notice right ‘to recover from all the proprietors liable their proportion of the cost of the said works as damages;’ and section 325th provides that if a notice is not complied with, the public authorities may themselves execute the work and obtain decree for the cost against the person to whom the notice was given.

Now, it appears that upon the 5th October, it having been reported to the authorities that one of the flagstones in the pavement adjoining the property of the trustees was broken, the Master of Works sent a notice to them under the 317th section of the Act, requiring them to repair the pavement within ten days. The trustees did repair the pavement within

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the ten days allowed, but after the accident to the pursuer. In a footnote to the notice it was said that the matter required immediate attention, and the pursuer argued that the trustees were in default in not having the repair executed at once.

The trustees, upon the other hand, contend that they are protected by the Act of 1893, and I am of opinion that (assuming that they were not proprietors of the solum of the pavement) the contention is sound.

The trustees as adjoining proprietors have no obligation to repair the pavement except that which was imposed upon them by the provisions of the Police Act which I have quoted. If there was default, therefore it was default in the execution of an Act of Parliament, and that is a case to which the Act of 1893 applies.

I am therefore of opinion that in so far as the action against the Church trustees is based on alleged neglect to carry out timeously the requisition contained in the notice of the Master of Works, it is excluded by the Act of 1893.

The pursuer, however, avers that the Church trustees are proprietors of the solum of the pavement. Perhaps an examination of the title of the trustees may satisfy the pursuer that the averment is not well founded, but if he desires to prove the averment, I think that he must have an opportunity of doing so.”

The pursuer reclaimed, but withdrew the reclaiming-note against the Lord Ordinary's decision affecting the Corporation except in so far as regarded the allowance to them of expenses as between agent and client.

Argued for reclaimer—(1) The trustees were liable under the Police Acts. There was a pre-existing obligation binding on them even although they were not proprietors of the solum—which, however, it was still maintained that they were— Baillie v. Shearer's Factor, February 1, 1891, 21 R. 198. The notice sent to them did not create or add to this obligation but merely constituted a means of enforcing it. The Act of 1893 did not apply to private individuals not charged with administrative duties by any statute, and accordingly the trustees were not protected by it. That appeared plain from the title of the Act, which should be read as part of it— Fielding v. Morley Corporation (1899), L.R., 1 Ch. 1; M‘ Ternan v. Bennett, December 21, 1898, 1 F. 333. (2) As regards the Corporation, the Lord Ordinary should not have allowed expenses as between agent and client. The Court had a discretion in the matter, and would not unduly penalise a litigant— Harrop v. Ossett Corporation (1898), L. R., 1 Ch. 525, at 528. Here the Corporation had for a long time considered they had no case except upon the facts, and before they amended their record and added the new plea, might have incurred expense in that view which should not fairly be saddled upon the pursuer.

Argued for trustees—(1) It was only if there was a relevant averment against them as owners of the adjoining property that they need appeal to the protection of the 1893 Act. But in point of fact there was no relevant averment of the breach of any statutory duty. The Glasgow Police Act did not indicate that there was any liability until the notice had been issued, it being the first thing to bring an adjoining proprietor into relation with the street. But the trustees had done all that the notice required them to do by carrying out the necessary repairs within ten days. (2) If, however, there were a relevant allegation of the neglect of a statutory duty the case fell under the protection afforded by the 1893 Act. (3) They were not owners of the solum of the pavement, and the owners alone—apart from the statutory duty above referred to—were responsible for the defective state of the pavement— Baillie v. Shearer's Factor, supra.

Argued for Corporation—The new plea had been allowed on payment of expenses, the record being opened up for the purpose. That payment put them in the same position as if they had had the plea from the first. Under the 1893 Act they were clearly entitled to expenses as allowed by the Lord Ordinary.