Scottish Court of Session Decisions

William Walker Robertson, engineer, Aberdeen, raised an action in the Sheriff Court at Aberdeen against the trustees of the deceased George Reid, proprietors of the

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Waverley Hotel, Guild Street and Exchange Street, Aberdeen, and James Smith, lessee of the said hotel, in which he prayed the Court “to ordain the defenders jointly and severally to pay to the pursuer the sum of £75 sterling” in name of damages.

The pursuer averred—“(Cond. 2) About three o'clock in the afternoon of 26th August 1899, the pursuer, in company with a man named George Charleton, was standing on the pavement of Exchange Street, which passes alongside of the said hotel, when a large piece of glass fell from one of the windows of the said hotel. Said piece of glass struck the pursuer on the head, cutting and wounding the pursuer very severely. (Cond. 3) The pursuer believes and avers that at the time above mentioned one of the servants of the defender Smith, whose name is not known to him, was engaged in cleaning a window in the commercial room of said hotel, and that while so doing the said servant carelessly and negligently allowed one of the sashes of the window to come with such violence against the sole of the window that the glass in the window broke, and a large piece fell on the pursuer as before mentioned. The falling of the sash and breaking of the glass, and the injuries sustained by the pursuer, were also caused or materially contributed to by the defective condition of said window, and particularly of the cords thereof, which defective condition was known to or could easily have been discovered by the defenders. Said cords had not been renewed or inspected for some years. Prior to the day when the pursuer sustained injuries as aforesaid, either one or both of the cords were broken, which fact was or ought to have been known to both of the defenders, who notwithstanding such knowledge allowed the use of said window to be continued, with the result that pursuer sustained injuries as aforesaid. For such defective condition the defenders are jointly and severally liable to the pursuer. The defender Smith is responsible to the pursuer for the negligence of his said servant.”

The pursuer pleaded—“(1) The pursuer having suffered loss and damage through the fault and negligence of the defenders, or either of them, they are jointly and severally liable to make reparation to him.”

George Reid's trustees and James Smith lodged separate defences.

Both defenders pleaded (1) that the action was irrelevant.

On 22nd December 1899 the Sheriff-Substitute ( Robertson) found the action irrelevant as laid, sustained the first plea-in-law for both defenders, and dismissed the action.

Note.—“I do not think this action is relevant as stated. The first alleged fault is that of the servant in carelessly and negligently allowing the sash of the window to come violently down. It seems to me this must be read along with the second alleged fault, viz., that the cord or cords were broken.

If the cords were broken the servant need not have been negligent in letting the sash come down, unless he or she knew that the cords were broken, and that the upper sash would or might fall down if the snib was taken off. It is not averred that the servant knew this, and my opinion is that without such an averment there is no relevant statement of fault in this respect. A window does not come down with violence in the manner alleged unless there is something wrong with it, and unless the servant knew there was something wrong the fault was not with him or her but with the person responsible for the window.

Then with reference to the second alleged fault, the condition of the window. It seems to me that the two defenders cannot be jointly liable for this. One or other of them is to blame, but there is no contribution in this wrong-doing. There is just the one fault for which one of them is responsible, and that being so the action is wrongly laid against them conjunctly and severally.

In these circumstances I do not see that I have any alternative but to dismiss the action.”

The pursuer appealed, and argued—The action was relevant, and a proof ought to be allowed. The pursuer averred that both of the defenders knew or ought to have known of the condition of the window. There was a relevant case against the owners, as they were bound to look to the condition of their property and take care that it did not fall into such a dilapidated condition as to endanger the safety of the lieges— Campbell v. Kennedy, November 25, 1864, 3 Macph. 121; Baillie v. Shearer's Factor, February 1, 1894, 21 R. 498, opinion of Lord Young, 507. There was also a relevant case against the tenant, as he ought to have inspected the cords and seen to it that they did not get into a defective condition, and he was also responsible for the negligence of his servant— Dolan v. Bwrnet, March 4, 1896, 23 R. 550; Paterson v. Kidd's Trustees, November 5, 1896, 24 R. 99. Even if the action were held irrelevant as against one of the defenders, it could proceed as against the other, the conclusion being against the two defenders jointly and severally— Braidwoods v. Bonnington Sugar Refining Company, Limited, June 23, 1866, 2 S.L.R. 152. Such a conclusion did not require a case of joint liability to be made out— Caughie v. Robertson & Company, October 15, 1897, 25 R. 1. The case of Mackersy quoted was not an authority on the point, as the remark by Lord M'Laren founded upon was obiter.

Argued for the defenders Reid's Trustees—The pursuer had stated no good claim against the owners. It was absurd to say that a landlord who lets out his premises for a period of eight years is to be responsible to the public for the state of the window cords during these years, After letting the house he had no right to enter for the purpose of examining the window cords. If the pursuer had any case at all it was against the tenant for his own or his servant's negligence, which was the primary cause of the accident.

Argued for the defender Smith—What occurred here was an accidental misfortune

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which could not have been anticipated, and for which no one could be held responsible. If the case was irrelevant against the owners, it also fell as against the tenant, the conclusion of the summons being against the defenders “jointly and severally” — Mackersy v. Davis & Sons, Limited, February 16, 1895, 22 R. 368, opinion of Lord M'Laren, 370.

At advising—