Scottish Court of Session Decisions

John Mathieson, hide-buyer, 27 West Campbell Street, Glasgow, as tutor and administrator-in-law of his pupil son William Mathieson, raised an action against John James Pollock and others, Aikman's marriage-contract trustees, as the proprietors of the tenement of offices at 24 Melville Lane, Glasgow, and of hoists used in connection with said offices, concluding for damages for injuries sustained by his said pupil son.

The pursuer averred, inter alia—“(Cond. 2) The said tenement is let out in offices to business men and traders. In order to facilitate access to said offices the defenders have provided the premises with lifts or hoists, by means of which passengers and goods can be conveyed to any part of the same. Said lifts are not, as a rule, worked by attendants, but persons desiring to use them operate them for themselves. … (Cond. 3) Said lifts are constructed in such a way that when they are not in a position to be entered at the particular floor where the intending passenger happens to be, a safety gate which is designed to work in relation to the lift comes down and closes the well of the lift in such a way that no one can enter the lift space without being warned of the absence of the lift. The said safety door is designed to remain closed until the lift is at the particular platform where the door is, when it opens through the mechanism of the lift. Said precaution is absolutely necessary for the safe working of all lifts, and, in particular, of the lifts in question, especially at the ground floor of the said premises, because the close leading from the street to the entrance of the lifts is not lighted in any way except by the light which comes in through said close from the street. The street is nearly 20 feet away from the lift entrance, and there was a dim light at the lift entrance. The well of the lift was in shadow. (Cond. 4) The arrangements of said lift were known to the pursuer's son, who had occasion on several previous occasions to use said lift when on errands to different traders in said building. The pursuer's son was, in particular, well aware that when the said safety door was not closed he would find the lift in position to receive him, and might then safely enter the lift space. (Cond. 5) On 5th December 1908 the pursuer's son was in the service of the Sutton's Express Company, who sent him to collect some parcels from Messrs Maclaughlan, Pepper, & Company, who are tenants of the defenders in offices within said tenement at 24 Melville Lane. The pursuer's said son arrived at said tenement about two o'clock that afternoon intending to reach Messrs Maclaughlan, Pepper, & Company's office by the said lifts. On going up to the said lifts he observed that the door of the left-hand lift was fully open, and it seemed to him that the lift was there ready to receive him. Unfortunately he was deceived by the appearance of the lift well and by the obscurity of the place, and stepping into the space where the lift should have been fell down a depth of twelve feet in the well of the lift. There he lay for a considerable time until some girls hearing his cries gave the alarm and had him rescued and attended to. (Cond. 6) The accident above condescended on was due entirely to the fault and negligence of the defenders or those for whom they are responsible. For a considerable time before the said accident this said lift and safety gate were not working properly, the gate frequently failing to shut when the lift left the platform at the ground floor. This was due to the mechanism by which the said gate was operated having been allowed to go out of repair. The condition of said lift apparatus and mechanism, and the frequent failure of said safety gate to close when required was well known to the defenders at the time of the accident, or should have been ascertained by them had the lift been frequently inspected in a regular and proper manner, as it should have been. It was the duty of the defenders on the lift going out of repair to have had it put in order immediately, or at least to have placed an attendant in charge of it, or to have closed it up altogether until it had been repaired. The defenders were in fault in omitting to discharge these duties, and the accident to pursuer's son was due to said omission.”

The pursuer pleaded—“(1) The pursuer's son having been injured through the fault of the defenders, is entitled to be compensated by them, and decree should be granted as craved.”

The defenders pleaded that the action should be dismissed as the averments were irrelevant.

The pursuer proposed the following issue—“Whether on or about 5th December 1908, and in or about the premises at Melville Lane, Glasgow, owned by the defenders, the pursuer's son William Mathieson, residing with him at 27 West Campbell Street, Glasgow, was injured in his person through the fault of the defenders, to the loss, injury, and damage of the pursuer.”

On 8th June 1909 the Lord Ordinary ( Skerrington) approved of the issue.

The defenders reclaimed, and argued—The pursuer's averments were irrelevant, because they had themselves averred that

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the offices were let to tenants. It followed in the absence of averment to the contrary that the tenants were also the lessees of the lifts, and as such had the duty of maintenance— Devlin v. Jeffray's Trustees, November 19, 1902, 5 F. 130, 40 S.L.R. 92; Keeney v. Stewart, 1909 S.C. 754, 46 S.L.R. 546. (2) There was no specification in Cond. 6 as to how the mechanism of the gate went wrong, or of faulty construction— Waterson v. Murray & Company, July 1, 1884, 11 R. 1036, 21 S.L.R. 695. (3) On the pursuer's own averments his pupil son was guilty of contributory negligence— Driscoll v. Commissioners of Burgh of Partick, January 10, 1900, 2 F. 368, 37 S.L.R. 274; Fleming v. Eadie & Son, January 29, 1898, 25 R. 500, 35 S.L.R. 422.

Argued for the pursuer and respondent—The averments clearly implied and were on the supposition that the lift was in the control of the defenders and had not been let. There was further the averment that the lift had been out of control for some time, and that the defenders knew or ought to have known of this. These averments were sufficient to make a relevant case.