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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grant v. M'Clafferty [1906] ScotLR 44_179 (08 December 1906)
URL: http://www.bailii.org/scot/cases/ScotCS/1906/44SLR0179.html
Cite as: [1906] SLR 44_179, [1906] ScotLR 44_179
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SCOTTISH_SLR_Court_of_Session
Page: 179↓
Court of Session Inner House First Division.
[Sheriff Court at Glasgow.
v.
Facts:
A sustained injury by falling down the common stair leading to the house of which her husband had been tenant for about four years under a yearly tenancy. In an action of damages against the owner of the house, she averred that the accident, which occurred on 5th July, was due to the defective and dangerous condition of the stair, which had deteriorated since the commencement of the tenancy, and was badly lit and very dark; that in the end of May her husband had complained to the defender's factor of the dangerous state of the stair; that the factor had then promised to repair it; and that relying on the factor's promise to do so they had stayed on.
Held that the pursuer's averments were relevant, and an issue allowed.
Elizabeth Grant, wife of and residing with Robert Grant, 248 Paisley Road, Glasgow, raised an action of damages for personal injury against John M'Clafferty, the proprietor of the house in which she and her husband resided, and of which her husband was tenant under a yearly tenancy.
The pursuer averred—(The words printed in italics were added by way of amendment in the Inner House)—“(Cond. 1) Pursuer resides with her husband at 248 Paisley Road, Glasgow, in a house of which defender is the proprietor. The pursuer's husband has been tenant of the said house for about four years. The tenancy is a yearly one, and under it the rent is payable quarterly. It is on the second storey, and is approached by a close and a common stone stair. (Cond. 2) On 5th July 1905 while pursuer was descending said stair she fell and sustained a fracture of her leg. Said accident was brought about by the defective condition of the stair, one of the steps of which was broken and greatly worn away at the point where pursuer fell, and in a dangerous condition, the stair being badly lit and very dark. Since the date of pursuer's entry to said house (about four years ago) said stair has much deteriorated. (Cond. 3) Pursuer's husband had previously complained to the defender's factor at or about the end of May 1905, in the said house, of the defective and dangerous condition of the said stair, and he had then promised to repair it. Relying upon this promise pursuer remained on in her house, but the defender failed to fulfil his promise and left the stair in its defective and dangerous condition until the accident occurred to pursuer. Defender's factor was negligent in failing to repair said
Page: 180↓
stair. The said accident was due to said negligence, and defender is liable in damages to the pursuer for the negligence of his servant in the course of his duties… The Sheriff-Substitute ( Boyd) having allowed a proof, the pursuer appealed for jury trial.
The respondent objected to the relevancy, and argued—The pursuer by staying on in knowledge of the dangerous condition of the stair had lost any remedy that she might have had. That was the result of the authorities (cited infra). It might be a question what length of time was sufficient to infer loss of remedy, but in any case there had been sufficient time here, where the danger was said to be both obvious and imminent. In Hall v. Hubner ( cit. infra) the danger was not imminent, and therefore inquiry was allowed. The pursuer therefore not only was “ sciens” but also “ volens,” and the action should accordingly be dismissed. The following cases were cited:— M'Martin v. Hannay, January 24, 1872, 10 Macph. 411, 9 S.L.R. 239; Webster v. Brown, May 12, 1892, 19 R. 765, 29 S.L.R. 631; Russell v. Macknight, November 7, 1896, 24 R. 118, 34 S.L.R. 73; Shields v. Dalziel, May 14, 1897, 24 R. 849, 34 S.L.R. 635; Hall v. Hubner, May 29, 1897, 24 R. 875, 34 S.L.R. 653; Smith v. School Board of Maryculter, October 20, 1898, 1 F. 5, 36 S.L.R. 8; M'Manus v. Armour, July 16, 1901, 3 F. 1078, 38 S.L.R. 791; Mechan v. Watson, November 3, 1906, 44 S.L.R. 28.
Argued for appellant—It was a question of fact whether a tenant who stayed on in knowledge of such a defect was volens. The fact that he was sciens was not enough to infer loss of remedy— Smith v. Baker, [1891] AC 325. That being so, the facts must be inquired into. The pursuer's averments were relevant. The question was whether the pursuer had taken the risk or not— Russell v. Macknight ( cit. supra). The pursuer had stayed on in reliance of the landlord's promise through his factor to repair the subjects, and could not therefore be held to have taken the risk of injury.
There may, however, be a good defence of volenti non fit injuria. The tenant may be volens, in the sense that he has taken, or continues to occupy, the premises in a dangerous condition. That would be a good defence. But when it is alleged, as it is in this case, that the tenant had pointed out the defect to the landlord, and that the landlord had promised to repair it, and that it was relying on this promise that the tenant continued to occupy the premises, it is impossible to say that the tenant was, on his own admission, volens. No doubt the tenant might stay on so long as to become volens, but that is a question depending on the facts as proved at the trial. The record here has the essential averments that the accident was due to the defective condition of the stair; that that was brought to the landlord's knowledge through his factor; that the factor promised to repair the defect, and that the promise was unfulfilled. I say no more, as the true meaning of the facts depends on the exact facts that are proved at the trial.
Mr Hamilton has undertaken to amend his record by putting on an averment as to the exact terms of the tenancy.
The Court allowed an issue.
Counsel for Pursuer and Appellant— Watt, K.C.— A. M. Hamilton. Agents— Gardiner & Macfie, S.S.C.
Counsel for Defender and Respondent— Constable. Agents— Simpson & Marwick, W.S.