Scottish Court of Session Decisions

Mrs Elizabeth Marshall or Driscoll, wife of Thomas Driscoll, labourer, Glasgow, with consent of her husband as her curator and administrator-in-law, raised an action for £250 damages against the Commissioners of the Burgh of Partick under the Burgh Police (Scotland) Act 1892.

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The pursuer averred—“(Cond. 1) The pursuer and her husband have resided for several years on the fourth flat of a common tenement situated at 14 Bell Street, Whiteinch, Glasgow, for which flat they pay a rent of £8 per annum. The defenders, the Burgh Commissioners of Partick, have undertaken full responsibility for and have entire charge of the lighting of common stairs in tenements within the burgh. They recover the sums expended by them on said lighting from the proprietor or proprietors of the said tenements, who in turn recover the sums so paid by them from their tenant or tenants as part of the rent. Reference is made to section 105 of the Burgh Police (Scotland) Act 1892. (Cond. 2) About 9·15 p.m. on the evening of Monday, 19th December 1898, the pursuer left the house aforesaid with the object of going downstairs. She found that the common stair was entirely unlit. The pursuer, when descending the third flight of the common stair, missed her footing owing to the darkness which prevailed, and fell. Her right leg was thereby broken at the ankle and the bone was fractured. (Cond. 4) For the pursuer's injuries and the loss following thereupon the defenders are responsible. The said injuries were occasioned by the unlighted condition of the common stair on the date aforesaid. Had the stairs been lit the accident would not have occurred. It was the duty of the defenders or of their stair-lighter, for whom they are responsible, to have had the stairs properly lighted. They were paid by the pursuer in accordance with the system aforesaid for so doing. There were two gas burners in the said common stair, both of which should have been lit by the defenders or their said servant on the date and at the time of the pursuer's accident. The defenders, however, negligently failed to light either of them at any time on the said 19th day of December, though they had taken upon themselves, to the exclusion of others, the duty of lighting the said common stair. The failure of the defenders to light the said common stair on the day in question was the direct cause of the pursuer's accident. Moreover, the defenders were in fault in employing as stair-lighter a boy of fourteen years of age, who was to their knowledge negligent in the performance of his duties. Complaints had been made to the defenders regarding his inefficiency and neglect on various occasions to light the gases in common stairs, but in knowledge of this the defenders continued to employ him until after the accident to the pursuer, when he was dismissed. It was the duty of the defenders to provide a person of mature years for the said post, or in any event a person who should carefully perform the duties entrusted to him.”

The pursuer pleaded—“(1) The pursuer having been injured by the fault of the defenders, is entitled to compensation therefor with expenses.”

The defenders pleaded—“(1) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed. (3) The pursuer not having been injured through the fault of the defenders, or of anyone for whom they are responsible, the defenders are entitled to absolvitor. (4) The pursuer having by her own negligence caused, or at all events materially contributed to the accident, the defenders should be assoilzied.”

On 27th June 1899 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Repels the first plea-in-law for the defenders: Finds that the cause should be tried by a jury: Approves of the issue submitted by the pursuer, and appoints the same to be the issue for the trial of the cause.”

Opinion.—“This case was treated in argument as of general importance, and some of the questions involved certainly are so, and on one question—not of such general importance—I think the case very narrow and difficult. It is an action of damages against the Commissioners of the Burgh of Partick by the tenant of a tenement at the head of a common stair in the burgh, who fell down the stair and fractured her ankle. She says that the stair was unlighted, and that in descending it she missed her footing owing to the darkness, and she says that it was the duty of the defenders to light the stair. No more is said about the cause of the accident, and I suppose there was no more to say. It is not said that the stair was too steep, or that it wanted a handrail, or that the steps were worn, or that it was in any other way defective. The only complaint is of want of light. The pursuer has submitted an issue, to the terms of which no objection has been taken. But the defenders have asked a judgment on the relevancy. The first question is, Was it the duty of the defenders to light this common stair? That depends, in the first place, on 104th and 105th sections of the Burgh Police Act of 1892 (55 and 56 Vict. c. 55), By section 104 the obligation of furnishing the means of lighting common stairs or passages or private courts is imposed on the owners of such common stairs or passages or private courts, and the owners of premises thereby accessible, and the obligation of lighting and extinguishing the lights is imposed on occupiers, and in either case a penalty is inflicted in the event of failure to fulfil these obligations. If the section applicable had been the 104th, the pursuer would have had no action, because the duty of lighting would have been on herself.

But the action is not rested on section 104, but on section 105, by which the commissioners are empowered ‘from time to time, as they may think fit, to fit up, maintain, and renew in such common courts’ (apparently a misprint for stairs), passages, or private courts, as they may consider to be insufficiently lighted, proper means of lighting, and by their inspector of lighting' … ‘to clean any lamps and brackets, and light and extinguish the same’—that is to say, the commissioners of the burgh are empowered to undertake and perform, if they think proper, all the duties as to lighting

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imposed by section 104 on owners and occupiers, and they are empowered to recover their expenses from the owners, who in their turn are to be reimbursed by the occupiers. There is, of course, no penalty for failure.

The pursuer avers that the defenders ‘have undertaken full responsibility for and have entire charge of common stairs of tenements within the burgh,’ and that they recover the sums expended by them from the owners, who in their turn recover them from the tenants. The defenders have admitted that they exercise the powers conferred on them by section 105. The state of the case therefore is that the defenders have undertaken to light the common stair, and have thereby relieved both owners and occupants of their obligations under section 104. The question is, Had the defenders in these circumstances a duty to light this common stair? I am of opinion that they had. The defenders called attention to the difference between section 99, relating to the lighting of streets, and section 105 relating to the lighting of common stairs, passages, and courts, the words in relation to lighting the streets being imperative, and the words relating to common stairs, passages, and courts being permissive; and it was suggested that the reason for that difference was that the streets are open to the whole public, whereas the common stairs, passages, and courts are private property, in which no one is entitled to be except the inhabitants or others on their invitation. The Commissioners it was said were bound to furnish the citizens with safe streets, but not with safe houses. No doubt section 105 is expressed in language which is permissive, and the Commissioners are under no obligation to undertake the fulfilment of it. They may do so or not as they please. But when they exercise that discretion in that matter by undertaking the charge of the lighting of common stairs, as is admitted they have done in this case, then I apprehend they undertake a duty and come under obligation to fulfil their undertaking. They supersede the owners and occupiers, and relieve them of the duties which are imposed on them by the 104th section, in language which is not permissive but imperative. I think they come in place of the owners and occupiers, and that the duties which were imperative on the owners and occupiers become imperative on them. The Commissioners have no doubt large discretion as to the manner in which they shall exercise their powers and discharge their duties, but not in my opinion an absolute discretion. They are only bound to provide for the lighting, and to light ‘such common courts’ ( sic), ‘passages, and private courts as they may consider to be insufficiently lighted,’ and to do so ‘from time to time as they think fit.’ And if they had averred that they considered the common stair now in question to be sufficiently lighted, I do not see how that expression of their opinion could have been got over. But they do not say so. It appears that they have provided for the lighting of this common stair, and in truth they say that it was lighted. I am therefore on the whole of opinion that the defenders undertook the duty of lighting this common stair, and have come under an obligation to do so.

The next question is—To whom is that duty owing? It was, I take it, owing to somebody if it was a duty. I rather think it was a duty owing to all the public, or at least to all the public who had legitimate occasion and right to use the stair, and owing to the persons who occupied the tenements on the stair at least as much as to any other members of the public, and therefore that it was a duty owing to this pursuer.

It is averred that they failed to fulfil that duty. That averment is denied, but the pursuer has made it, and is entitled to prove it if her case is otherwise relevant. If the pursuer suffered injury which was directly caused by the defenders' failure in duty, then I think that the defenders must be liable in damages. That proposition appears to be warranted by the case of Strachan v. District Committee of Aberdeen County Council, 19th June 1894, 21 R. 915.

The last question, and I think the most difficult, is whether there is a relevant averment that the injury suffered by the pursuer was caused by the failure of the defenders to light this common stair. Now, upon this point the pursuer's averment is the baldest and barest imaginable. She only says that in descending the stair she missed her footing owing to the darkness. ‘That she missed her footing’ was no doubt a familiar colloquial expression, but it is not quite easy to have a definite idea as to its exact meaning. Nor is it easy to see how the pursuer could miss her footing if she exercised the care which the circumstances required. A person could not miss her footing when descending a stair in daylight without carelessness; and the only difference which the darkness, if there were no more than that, seems to make would be to necessitate greater caution. But there is certainly considerable danger in going down a stair in the dark; even considerable care may not prevent accident; and it seems going too far to affirm that a person doing so could not possibly fall without such contributory negligence as would be a sufficient answer to an action of damages. On the whole, I have come to the conclusion, although I admit with great hesitation, that the safer course is to leave that question for a jury.

But I was moved by the defenders to adopt the course of allowing a proof rather than of sending the case to a jury, on the ground that the action involved narrow questions of law depending on the sound construction of section 105 of the Burgh Police Act, and reference was made to the case of Fleming v. Eadie and Son, 29th January 1898, 25 R. 500, in which it was said that a jury trial in a somewhat similar case had miscarried.

“But I do not think so. The pursuer insisted on a jury trial, and referred to Mackintosh v. Commissioners of Lochgelly,

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3rd November 1897, 25 R. 32. The case is one appropriated for jury trial, and of a kind which, according to our settled practice, is almost always sent to a jury. The questions of law are such as properly arise at this stage rather than at the trial. If the defenders be right in their argument on the Act, the pursuer must fail on a point of law whatever the facts may be, and there should be no inquiry. But if they are wrong, then nothing remains but a question of fact, which is eminently fitted for jury trial if the averments be relevant at all.”

The defenders reclaimed, and argued—There was no relevant averment to go to proof. All that the pursuer said was that she missed her footing, and this was averred by reason of there being no light. This was quite irrelevant; there was no warrant to connect the statement that she fell down stairs with the absence of light. Besides, the pursuer was guilty of contributory negligence, if, finding the stair in darkness, she proceeded to descend without lighting the gas or striking a match— Fleming v. Eadie & Son, January 29, 1898, 25 R. 500. In any view the Burgh Commissioners were not the proper defenders. The power to light common stairs was only given to the Commissioners for police purposes; it was not given for the purpose of relieving the landlord of his duties, or of putting the houses of the occupants in a safer condition. Nothing was more foreign to the purpose of the Act than interference in the mutual rights and obligations of landlord and tenant.

Argued for pursuer—The case was relevant. The pursuer had said all that was possible to say in the circumstances. She set forth that it was the duty of the defenders to light the stair, and averred that she missed her footing on account of the absence of the light. The case should therefore go to a jury. It was also a jury question whether the circumstances were such that the pursuer had been guilty of contributory negligence in failing to light a match and proceeding down stairs in the dark. The Burgh Commissioners were properly cited as defenders. They, in terms of section 105, had taken over the duty of lighting the stairs, and had relieved both owner and occupants of any duty in the matter.