Scottish Court of Session Decisions

This was an action raised in the Sheriff Court at Glasgow by William F. Caldwell, clothier, against Robert M'Callum, house factor, Glasgow, in which the pursuer concluded for £25 in name of damages.

The pursuer averred that he had been tenant and occupant of a house in Glasgow, (No. 10 Corunna Street), for which the defender was factor, since February 1899, and that the defender had agreed to accept full responsibility on behalf of the proprietor.

The pursuer averred further—“(Cond. 2) The pursuer re-took the house 10 Corunna Street in February 1900 for the ensuing year from Whitsunday 1900 to Whitsunday 1901. When doing so pursuer stipulated that some repairs and painting and papering should be done. The defender sent one of his assistants to pursuer's house to confer as to what was to be done, who met two of pursuer's daughters. One of the things pointed out to the defender's assistant by them was the apparently insecure condition of one of the beams in the drawingroom. The plaster was cracked, and there was a wide space between the edges of the crack, and pursuer was afraid it might fall. The defender's assistant said that it was all right, and pursuer accepted this assurance that there was no danger. In March the defender painted and papered the room, and painted the said cracked beam without repairing it. (Cond. 3) On 10th August 1900 the plaster-work of the said beam came down without any warning, and the furniture in the room was all more or less damaged by dust or falling pieces of plaster. The fall of said plaster-work, and the consequent damage, was due to the failure of the defender, or those for whom he is

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responsible, in not repairing the plaster—work when its dangerous condition was pointed out by pursuer.”

The pursuer pleaded—“(1) The pursuer having suffered loss and damage to the amount sued for, in consequence of the fault or failure of the defender, or those for whom he is responsible, decree should be granted, as craved, with expenses.”

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

By interlocutor, dated 21st May 1901, the Sheriff-Substitute ( Boyd) sustained the first plea-in-law for the defender and dismissed the action.

Note.—“The pursuer claims damages for injury to furniture arising from the fall of plaster from a cracked beam in the ceiling of the drawing-room of the house which he took from the defender. He avers that he pointed out to the defender's clerk, in taking the house, that the plaster was cracked and might fall, but that the clerk replied it was all right. The pursuer did not insist on the crack being repaired. I think he took the risk of the plaster falling, and that the case of Webster v. Brown, 19 R. 765, applies to this case.”

The pursuer appealed to the Sheriff ( Berry), who on 16th October 1901 adhered to the interlocutor of the Sheriff-Substitute.

Note.—“I think with the Sheriff-Substitute that this case falls to be dismissed. When the house, after one year's occupation by the pursuer, was retaken by him in February 1900, it was stipulated that certain ordinary repairs and papering and painting should be done. It is said that the crack in the beam from which plaster subsequently fell was pointed out to the defender's assistant at that time, but while, as stipulated, the room was otherwise painted and repaired, and the cracked beam itself painted, it is said that the beam was not repaired. It is not, however, averred that the defender undertook to repair the beam, and in that respect the case differs from Shields v. Dalziel, 24 R. 849, where the factor had undertaken to repair the ceiling which was admittedly in an insecure condition. Here I think it must be held that the pursuer undertook the risk, and that he cannot succeed in his claim of damages.”

The pursuer appealed to the Court of Session, and argued—The Sheriffs had erred in holding that the case of Webster v. Brown was applicable to the present case. The judgment in Webster proceeded on the ground that the pursuer had continued to occupy the house in face of a known danger, and was therefore barred from claiming damages on the principle of volenti non fit injuria. Here it was not obvious to an unskilled person that the defect in the ceiling was a source of danger; and further, the pursuer was entitled to rely on the assurance given him by the factor, who was skilled in such matters, that there was no danger. The circumstances here were indistinguishable from those in Hall v. Hubner, May 29, 1897, 24 R. 875, 34 S.L.R. 653, where an issue was allowed; see also Shields v. Dalziel, May 14, 1897, 24 R. 849, 34 S.L.R. 635; Ersk. Inst. ii. 6, 43.

Argued for the defender and respondent—The Sheriffs were right in holding that the case fell within the principle of Webster v. Brown. The pursuer's averment was that he remained in the house in knowledge of the insecure state of the ceiling. The legal consequence was that he remained at his own risk— Russell v. Macknight, November 7, 1896, 24 R. 118, 34 S.L.R. 73; M'Manus v. Armour, July 10, 1901, 38 S.L.R. 791.