Scottish Court of Session Decisions

Hugh Liebow, hairdresser, Perth, brought an action in the Sheriff Court at Perth against Robert Keay and others, the testamentary trustees of the late George

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Howat, merchant, Perth, in which he concluded for £250 as damages.

The pursuer averred that he was tenant of certain premises, consisting of shop and first floor dwelling-house, forming part of block of houses situated at the corner of Princes Street and South Street, Perth, of which the late George Howat was proprietor. The pursuer's tenancy was from Whitsunday to Whitsunday, and was renewed yearly by tacit relocation. The said George Howat died in September 1899, and the subjects let to the pursuer were on 26th October sold by Mr Howat's trustees to Mr A. D. Clyne, who entered into possession at Martinmas 1899.

The pursuer also averred that from 1897 he and his wife and family had suffered intermittently in their general health, and had to call in medical aid; that in consequence of questions put to him by his medical adviser about the drainage from the water-closet and kitchen sink the pursuer spoke to Mr Howat, who assured him that the drainage was in good order, but promised that he would get a practical man to look over it.

The pursuer further averred—“(Cond. 6) In or about April 1899 pursuer again spoke to Mr Howat about the drainage, and complained of smells from the water-closet and kitchen sink which might be injurious to health. He explained to Mr Howat that although his family had not been seriously ill there had been illness amongst them pretty frequently necessitating the attendance of a doctor. Mr Howat again assured him the drainage was all right; that he had himself lived in the house and had never had cause to complain, but he would see to it and satisfy himself. On another occasion, when pursuer's rent was raised, pursuer, in the presence of the defender Mr R. Keay, who acted as Mr Howat's factor, complained of the condition of the house from smells and from dampness in the lobby. On several other occasions pursuer spoke to Mr Howat regarding the unsatisfactory state of the house, but was always met with promises of repairs, &c. Both Mr Keay and Mr Howat on one occasion called on pursuer at his shop and asked if they could see the house. Pursuer took them to his house after they had been at the flat above. Pursuer directed their attention to the whole house, which was getting out of order, and particularly to the lobby and the water-closet, as the water had been percolating through the ceiling from above. Mr Howat then said he would put everything right, but failed to do so. Pursuer thus reassured remained in the house, but at no time did he know or believe that the condition of the house was dangerous to life. Pursuer thus reassured continued to occupy said house in the full belief that there was no danger from the drains, nor risk from any cause connected with the sanitation of the house. One of the walls of the lobby was at times very damp, and pursuer attributed any smell to this source, to which he also attributed any illness, if such illness were to be attributed to anything connected with said house. (Cond. 7) About the end of January 1900 three of pursuer's children, viz., Mary Adelhaide Liebow, John Charles Keicher Liebow, and William Hugo Liebow, fell seriously ill” of diphtheria. “The said Mary Adelhaide Liebow, aged five years, died from said disease on 26th January 1900. The said John Charles Keicher Liebow, aged three years, died on 30th January 1900, also from said disease. The said William Hugo Liebow, aged seven years, was discharged convalescent from” Perth “infirmary on or about 25th February 1900. In consequence of said deaths and illness pursuer and his wife and the surviving children suffered in their health and feelings, and suffered loss and damage to the extent of the sum stated in the prayer hereof.” The pursuer further averred that the drains in question were subsequently examined by the Burgh Surveyor, and found to be in an extremely bad condition. “(Cond. 9) The water-closets were of an old type and very dirty. None of the drains or soil-pipes were trapped, and the property was generally insanitary, and the sewer gas freely entered pursuer's house, and caused the deaths and illness in pursuer's family condescended on. Said drains were allowed to get into the condition above described through the culpable neglect of the said George Howat. (Cond. 10) The said late George Howat, by his assurance that the drainage was all right when spoken to and his promises to have the same looked into, allayed pursuer's fears, and induced him to remain as his tenant. By neglecting to take any steps upon the complaints made to him by the pursuer to ascertain the true condition of the drainage he failed in his duty as pursuer's landlord, and in consequence of his culpable neglect to have said house put in a good sanitary state pursuer's children died from the disease stated, and his family suffered in health as condescended on.”

The pursuer pleaded—“(2) The said George Howat having had his attention directed by pursuer and others to the drainage of said house as a probable and likely cause of the frequent illnesses in pursuer's family, was thereby put on his guard, and having culpably and wrongously neglected to have said drainage overhauled and tested, and any defects remedied, he and his estate is liable in reparation to pursuer for the loss, injury, and damage he has sustained.”

The defenders pleaded—“(1) The action is irrelevant.”

The Sheriff-Substitute ( Sym) on 8th June 1900 found that the pursuer's averments were not sufficiently relevant and specific to infer the liability of the defenders for the deaths of the pursuer's children, or the alleged injury to the health and feelings of the pursuer and his wife and children, and dismissed the action.

The pursuer appealed to the Sheriff ( Jameson), who on 28th July 1900 adhered to the interlocutor of the Sheriff-Substitute.

Note.—“I am of opinion that the pursuer has not set forth a relevant case. There is not, it is true, a want of specification of the same description as existed in the record

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in Henderson v. Munn, 15 R. 859, because in the present record both the nature of the complaints made and the defects in the drain are set forth. But the pursuer's case is irrelevant in other respects. In the first place there is no liability here ex contractu arising from the obligation on a landlord to keep his property in a sanitary state, the pursuer's landlord, in the end of January 1900, when the pursuer's children contracted the disease of which they died, not being the defenders' author, but Mr Clyne, who bought the house in question with entry at Martinmas 1899.

“But the pursuer apparently also lays his case on delict or quasi delict. The first ground of fault alleged is that on which plea 2 is founded, viz., the failure of the defenders' author to put the drains in order during his life. This is too remote in every sense of the word. Non constat that if the late George Howat had lived till now, and remained proprietor of the house, he would not have put the drains in order. Another ground of fault is that the late George Howat lulled the pursuer into false security by his assurances, and thus led him to remain in the house, which otherwise, it is suggested, he would not have done. I cannot treat this as a good ground of action. In certain cases, though not I think in the present, it might form a good answer to a plea on the part of the landlord that the tenant should have left the house ( Shields v. Dalziel, 24 R. 849), but in the present case, where the tenant had a far better knowledge of the insanitary condition of the house than the landlord, I think the observations of Lord Young in Henderson v. Munn, and the principle on which the decision in Smith v. School Board of Mary cutter, 1 F. p. 5, proceeded, are applicable. I accordingly am of opinion that, after the pursuer's experiences prior to January 1900, as described in the condescendence, he should have left the house, and that he took the risk of staying there longer upon himself. On these latter grounds alone I should have been prepared to dismiss the action.”

The pursuer appealed to the Court of Session, and argued—The pursuer had set forth a relevant ground of action, viz., fault on the part of Howat. His averment was that if Howat had performed his duty as landlord, and put the drains in order, the pursuer's children would not have been infected with the disease of which they died. For that failure of duty his trustees were liable. The case was distinguished from those cited by the Sheriff, and also from Hall v. Hubner, May 29, 1897, 24 R. 875, in respect that the pursuer did not remain in the house in knowledge of the defects, or at least in knowledge that they were the cause of his children's illness.

Counsel for the respondents was not called upon.