Scottish Court of Session Decisions

On 6th June 1906 Thomas Garrow Soutar, commercial traveller, 282 Bonnington Road, Leith, brought an action against John Mulhern, whose tenant he had been in a house, 37 Meadowbank Crescent, Edinburgh, suing for £250. He, inter alia, pleaded—“(1) The pursuer having suffered loss, injury, and damage through the fault of the defender is entitled to reparation therefor.”

The pursuer averred—“( Cond. 3) In or about the month of December 1904 the drains leading from the pursuer's house became choked. Waste water and sewage from the house occupied by the pursuer and from the houses above came up the drains into the pursuer's house, and also oozed out of the drains at the back of his house. The pursuer reported the matter to the defender's factor, who promised to have the drains put right and the nuisance removed. Shortly thereafter, on the instructions of the said factor, a plumber inspected the drains and cleared away the stagnant sewage, and the pursuer was assured by the defender's factor that the drains were all right. It is believed and averred, however, that the plumber reported

Page: 564↓

to the defender and his factor that the said drains would never work properly and that new drains were required. ( Cond.4) In March 1905 the drains again became choked, and the defender complained to defender, who promised to have the matter attended to without delay. Shortly thereafter a plumber, on the instructions of the defender, cleared out the drains, and it is believed and averred that the plumber again reported to the defender that new drains were required. In July 1905 the pursuer again complained to the defender and to his factor, and threatened to throw up his lease. Certain repairs were then executed by the defender, and assurances were given by the defender and his factor that the drains had been put right. Relying upon these assurances the pursuer was induced to continue his tenancy. ( Cond. 5) In the beginning of this year the drains were inspected by the Burgh Engineer, and it is believed and averred that the defender was requisitioned by him to lay new drains within six days. This he failed to do. ( Cond. 6) In February 1906 the pursuer's daughter Elizabeth became ill with diphtheria. The said illness was caused by the insanitary condition of the said drains for which the defender is responsible. It was the duty of the defender to keep the house in a sanitary and habitable condition. The means adopted by the defender to remove the nuisance, viz., by repairing the old drains, were insufficient. The defender had been informed by the plumber and knew that the drains could not be properly repaired, and it was his duty to lay new drains as suggested by the plumber and requisitioned by the Burgh Engineer. The defender never had the drains put right or the house put in a sanitary condition, and the assurances given by defender and his factor that the drains were all right were unwarranted, and given in the knowledge that their plumber had told them the drains would never be right until the old drains were replaced by new drains. ( Cond. 7) In consequence of the condition of the said drains the pursuer has suffered great annoyance and discomfort, and also anxiety during the illness of his family. In addition to expenses incurred in obtaining medical advice and attendance and in providing drugs, fcc., he has incurred considerable expense in connection with his removal to another house. For the annoyance, anxiety, and loss thus occasioned he considers the sum sued for reasonable compensation.”

The defender, inter alia, pleaded that the pursuer's averments were irrelevant and insufficient to support the conclusions of the summons.

On 26th November 1906 the Lord Ordinary ( Mackenzie) allowed a proof before answer.

Opinion.—“After considering the cases cited and the full argument submitted by Mr Watson, I am of opinion that this is a case in which there must be inquiry.

… [ His Lordship examined the averments.] … “It may be that on the proof the defender may be able to show he was not to blame, but as I read the record the averments amount to a case of defects which repair would not remedy, existing to the knowledge of the landlord, who nevertheless gave an assurance that the drains were all right. This seems to make the present more like the cases of M'Nee and Others v. Brownlie's Trustees, 26 S.L.R. 590; Shields v. Dalziel, 24 R. 849; and Caldwell v. M'Callum, 4 F. 371, than the cases of Henderson v. Munn, 15 R. 859; Webster v. Brown, 19 R. 765; Baikie v. Wordie's Trustees, 24 R. 1098; and M'Manus v. Armour, 3 F. 1078. It may be that it may turn out on the evidence that such an assurance was given to the pursuer that he was not bound to leave the house.

The pursuer's averment of damage is this:—… [ Quotes Cond. 7.] …

The pursuer may have difficulties if it comes to the question of damages, but looking to the interlocutor in Chalmers v. Dixon Limited, 3 R. 461, at p. 468, I am not prepared to throw out as irrelevant the items mentioned in the first sentence of Cond. 7.

I shall accordingly allow a proof before answer.”

The defender reclaimed.

The pursuer in the course of the discussion lodged in process the following “specification of pecuniary loss”:—

1. Illness of his Daughter Elizabeth.

( a) Medical advice and attendance.	£2	10	0
( b) Chemist's account for drugs, disinfectants, &c.	2	0	0
( c) Cabs removing Elizabeth from hospital at Colinton	0	5	6
( d) Convalescence expenses—removing her to Biggar — expenses there of board, &c., for 6 weeks at £1, 10s. per week …	9	0	0
Fares to and from Biggar, cabs, &c., for herself and travelling companion	1	0	0
Since said illness Elizabeth has been in constant ill-health, and this has necessitated further medical attendance, medicines, &c., up till the end of 1906, when owing to the state of her health she has been been removed to the Royal Infirmary to be treated for St Vitus' Dance. She is at present there, and the pecuniary outlay occasioned thereby to the pursuer amounts to at least	5	0	0
( e) Fares, cabs, and incidental expenses incurred by the pursuer in connection with three visits to Biggar to see his daughter during her convalescence	3	0	0
“ 2. Illness of Three Members of his Family. During the winter of 1905–6 three other children, viz., Thomas Yarrow and Minnie and Rita suffered intermittently from sore throats, headaches, and general ill-health, due as the doctor is now of opinion to the condition of the drains. An account was thereby incurred to Dr Murray, 1 Brandon Street, amounting to	0	10	0
Page: 565↓	£22	15	0
And for medicines, amounting to 3 0 0 Two of said children, viz., Thomas Yarrow and Minnie, had to be sent to Biggar to recuperate for three weeks. Their board amounted to ….	9	0	0
And fares and cabs,&c., amounted to	1	0	0
“3. Expenses of Removing. ( a) As soon as the pursuer had ascertained that the drains of the house were in a dangerous state and had occasioned the illness of his daughter Elizabeth and the other children, he was forced at once to look out for another house. He could not do this at leisure nor (owing to the time of the year) in the evenings, and was forced to find a house and make all arrangements during business hours. The pecuniary loss in his business thereby occasioned to him amounted to at least	10	0	0
( b) The cost of removing from 37 Meadowbank Crescent to 282 Bonnington Road amounted to	7	10	0
( c) The pursuer was three days from work in connection with same, including loss of.	5	0	0
		£58	15	6”

Argued for defender (reclaimer) — The averments were irrelevant as they set forth no fault on the part of the landlord— Baikie v. Wordie's Trustees, July 14, 1897, 24 R. 1098, 34 S.L.R. 818; Henderson v. Munn, July 7, 1888, 15 R. 859, 25 S.L.R. 619; M'Nee v. Brownlie's Trustees, June 24, 1889, 26 S.L.R. 590; Forbes v. Ferguson, February 21, 1899, 7 S.L.T. 293—and as they showed that the tenant had accepted whatever risk there might be and had stayed on— Smith v. Maryculter School Board, October 20, 1898, 1 F. 5, 36 S.L.R. 8; Webster v. Brown, May 12, 1892, 19 R. 765, 29 S.L.R. 631; Armour v. M'Kiminie's Trustees, November 23, 1S99, 2 F. 156, 37 S.L.R. 109. Shields v. Dalziel, May 14, 1897, 24 R. 849, 34 S.L.R. 635, was distinguished, in that there the tenant received a definite assurance, which was however unfulfilled. The averments were also irrelevant in that they set forth no recoverable damage. Anxiety did not form, and had never been held to form, a ground of damage. Anxiety caused by a relative's illness, even assuming the illness was due to the defender's fault, was too remote from the alleged fault to be a ground of damage— Smith v. Johnson & Company, unreported but referred to in Wilkinson v. Downton, [1897] 2 QB 57, at 61. Mere annoyance and discomfort were also irrelevant, at anyrate when so generally averred. Chalmers v. Dixon, February 18, 1876, 3 R. 461, 13 S.L.R. 299, on the interlocutor in which the Lord Ordinary relied, was quite a different case, the nuisance being inflicted on outsiders who could not escape. Here the tenants could have removed at any time and escaped the alleged nuisance. As to the cost of removal and medical expenses since, anxiety, etc.—the principal stated ground of damage—was irrelevant, the Court should not allow the action to proceed, for the costs of removal and medical expenses could not in any reasonable view justify the action being brought in the Court of Session— Baikie v. Wordie's Trustees, cit. sup., per Lord Young; Henderson v. Munn, cit. sup.; Forbes v. Ferguson, cit. sup. [It was in consequence of this argument that the pursuer put in process the specification above referred to. After it was lodged the defender argued]—Head 2 of the specification was irrelevant. There were no averments on record for it. Of head 1, ( a), ( b), ( c) were relevant but overstated, ( d) and ( e) were irrelevant. Of head 3, ( a) and ( c) were irrelevant. Consequently there was no reasonable chance of the pursuer recovering £25, and the action was incompetent. Just as the criterion of the competency of an appeal for jury trial was whether the pursuer could be reasonably entitled to a verdict of £40, being the minimum amount prescribed by the Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 73, and the Judicature Act 1825 (6 Geo. IV, cap. 120), sec. 40— Sharples v. Yuill & Company, May 23, 1905, 7 F. 657, 42 S.L.R. 538; Dawson v. Stewart & Shaw, June 8, 1905, 7 F. 769, 42 S.L.R. 621—so here the criterion of the competency of the action was whether the pursuer could reasonably recover more than £25, the minimum prescribed by the Court of Session Act 1810 (50 Geo. III, cap. 112), sec. 28.

Argued for pursuer (respondent)—1. The case was clearly relevant. Fault and breach of contract on the part of the landlord were averred, and that the tenant had been induced to stay on by his representations. The averments of damage were relevant, and he was entitled to have them remitted to proof. 2. The cases of Sharpies ( sup. cit.) and Dawson ( sup. cit.) were under another Act, and had no bearing whatever on the present case. The only criterion of competency was whether the action concluded for £25 or upwards.