Scottish Court of Session Decisions

James A. Dickie, 11 Broughton Place, Edinburgh, pursuer, raised an action against the Amicable Property Investment Building Society, 22 Rutland Square, Edinburgh, and against Adam Watson & Son, house agents, 23 Union Street, Edinburgh, defenders, in which he concluded for £750 by way of damages in respect of personal injuries sustained by him. He averred, inter alia—“(Cond 2) In the month of August 1909 the pursuer entered upon negotiations for the tenancy of the house 11 Broughton Place, Edinburgh, with … Messrs Adam Watson & Son, who were authorised by the defenders to carry out all arrangements with regard to the terms of the tenancy. After the pursuer, along with his sister Miss Margaret Duff Dickie, had looked over the house, which consists of two flats and a basement, on two separate occasions, the pursuer resolved to take the house on lease provided that the defenders did certain things to put it into good tenantable condition and repair with regard to certain minor matters, and in particular with regard to the railing or banister, on the street floor, at the top of the stair leading down to the basement or kitchen flat. (Cond. 3) On 17th August the pursuer and his said sister went to Adam Watson & Son's office, where they saw Mr Watson of that firm. After talking the matter over with him, the pursuer agreed to take the house at a rent of £35 if Mr Watson should undertake to put several minor things right, and in particular to repair and make secure the said railing or banister which was loose and in a very shaky and dangerous condition, chiefly owing to the fact that two or three of the uprights were loose in their sockets and also at the top in the metal strap of the banister. Mr Watson, on behalf of the defenders, undertook as part of the bargain to repair and make secure the said railing or banister, and on the faith of that undertaking the pursuer signed a missive of lease, and the next day entered upon the occupation of the house. (Cond. 4) Notwithstanding the undertaking given by Mr Watson the railing or banister was not repaired, and a few days after he had entered, the pursuer … again called at Messrs Watson & Son's office to press them to get the repair done. Mr Watson promised that it would be attended to. No attempt however was made to repair it, and during the month of September several requests were made by the pursuer to repair it, but with no avail. The pursuer was in daily expectation of the factors coming to repair the banister according to their undertaking and duty as landlords. (Cond. 5) In the month of October 1909 a man, acting, it is believed and averred, on the instructions of Adam Watson & Son, called and examined the said railing, in order, as he said, to report to Mr Watson. Nothing followed upon this call, and the pursuer and his sister frequently thereafter called at the office and were always met with a promise that the matter would be attended to. One day about the 22nd December 1909 Mr Watson himself called and saw the said railing, and admitted that it was in a shaky and dangerous condition, and again promised that it would be attended to at once, which undertaking was not fulfilled, and the railing was not repaired until after the accident to the pursuer occurred. (Cond 6) On the evening of Wednesday, 26th January 1910, the pursuer and his said sister were in the kitchen.… The pursuer thereafter proceeded to go upstairs.… Miss Dickie accompanied him from the kitchen to the foot of the stair. As he was approaching the top of the stair, Miss Dickie called to him to remember to

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put out the hall gas, and he turned round to answer her and to bid her good-night. As he turned round he put out his right hand and took hold of one of the uprights of the railing. The upright gave way with the slight strain, thus causing the pursuer to lose his balance, and he was precipitated down the stair, carrying the upright with him, and falling on his face and injuring himself very severely. The pursuer's fall was entirely caused by the said upright giving way…”

The pursuer pleaded—“(1) The pursuer having been injured through the fault or otherwise through the breach of contract of the defenders, he is entitled to decree as concluded for with expenses.”

The defenders pleaded, inter alia—“(1) The pursuer's averments being irrelevant and insufficient to support his pleas, the action should be dismissed.”

The pursuer proposed the following issue for the trial of the cause — “Whether on or about 26th January 1910, and in the dwelling-house No. 11 Broughton Place, Edinburgh, occupied by him, the pursuer was injured in his person, through the fault of the defenders, to the loss, injury, and damage of the pursuer?”

On 18th May 1911 the Lord Ordinary ( Guthrie) approved of the issue, and appointed it to be the issue for the trial of the cause.

Opinion.—“There are three questions raised here—(1) whether the pursuer has any right to inquiry at all; (2) whether, if he has, the inquiry should be by jury trial or proof; and (3) if it should be by jury trial, what should be the form of the issue.

In reference to the first question, the pursuer bases his case both on the contract, which is implied in the case of urban dwelling-houses, that they shall be tenantable and habitable at the start, and shall be so maintained, and also on the express contract averred by him in condescendence 2 and again in condescendence 3.

The defenders say, admitting the pursuer's statements to be true, that he is barred from recovering. He avers, they point out, his complete knowledge of the condition of the alleged defective banister or railing, and he admits that he stayed on in that knowledge; and they maintain that in these circumstances the pursuer's duty was either to have left the house or to have had the banister put right at the expense of the landlord. Having done neither, they say he took his risk.

Mr Morison raises the general question whether, unless an express stipulation was made that, in the first place, during the period intervening between the landlord's promise to execute repairs and the end of the time necessary to allow of their execution, and in the second place, during the period after the landlord has failed to execute the promised repairs, the landlord should be liable for any risk, there can be any right to recover. That is a very interesting and important question, and it appears to me that the part of it covering the first period has never been considered by the Court or settled. The other part, which is the one we are dealing with in this case, I must take as having been disposed of in this sense, that cases by which I am bound have been decided on a certain view of the law. I cannot read the cases of Webster and Grant and other cases that have been quoted without being compelled to the conclusion that the Court has proceeded on the view that the landlord will be liable, when the tenant stays on under a promise by the landlord to repair, which promise has not been duly implemented, and when an accident occurs during that period traceable to the landlord's failure to implement his promise.

That being so, the question arises whether the exception to the rule which the case of Webster implies can be pressed by the defenders here. The exception is, that if after the landlord has had reasonable time to fulfil his promise he does not do so, and the tenant remains on without further complaint or further promise, there is no further liability on the landlord. In that case the tenant is held to have waived his right to have the premises put into a proper condition and to have accepted them as they are. The question arises, Can I hold that the tenant here has barred himself in the circumstances alleged by him on record? He entered in August 1909, when he obtained a promise to put things right, and the matter was put into final shape on 22nd December, when the factor himself called as averred in condescendence 5, ‘and saw the said railing and admitted that it was in a shaky condition, and again promised that it would be attended to at once, which undertaking was not fulfilled, and the railing was not repaired until after the accident to the pursuer occurred.’ If a period somewhat similar to what was proved in the case of Webster, namely, five or six months, had elapsed, I should have held, following Webster's case, that there was no case for inquiry. But the period which elapsed here was only a month, and taking an analogy in order to see what is a reasonable time, I find that in the case of Grant five weeks had elapsed after the promise during which time the promise had not been fulfilled. Therefore I cannot say that this case is not one for inquiry, although it may turn out, on the evidence of the whole circumstances, that the pursuer is barred.

On the question as between jury trial and proof, I do not think there are any circumstances sufficient to make this case unsuitable for jury trial. Whether the case is taken on implied contract or an express contract, or both, the legal result is the same; and it does not matter that the fault here might be more strictly stated as breach of contract. That is a matter for the direction of the judge at the trial.

On the question of the precise form of the issue, the practice, right or wrong, as appears from the cases of Webster and Grant, is to put fault and not breach of contract in the issue. I therefore approve of the issue as stated.”

The defenders reclaimed, and argued—The

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action should be dismissed, as the pursuer's averments were irrelevant. It was only in respect of breach of contract that a tenant could sue his landlord for injury due to defective premises— Cameron v. Young, 1908 SC (HL) 7, 45 S.L.R. 410 ( aff. judgment of Court of Session, 1907 (S.C. 475, 44 S.L.R. 344). The landlords' delay in executing the repairs amounted in the circumstances set forth on the pursuer's record to a refusal to repair. The tenant should either have done the repairs himself at the landlords' expense or have left the house. It must therefore be held that he accepted the risk if there was one. Volenti non fit injuria — Webster v. Brown May 12, 1892, 19 R. 765, 29 S.L.R. 631; M'Manus v. Armour, July 16, 1901, 3 F. 1078, 38 S.L.R. 791; Caldwell v. M'Callum, Dec. 18, 1901, 4 F. 371, 39 S.L.R. 257; Smith v. School Board of Maryculter, October 20, 1898, 1 F. 5, 36 S.L.R. 8. Moreover, the accident was not a consequence naturally resulting from the breach of contract averred— Hadley v. Baxendale, 1854, 9 Exch. (W. H. & G.) 341. It could not have been within the contemplation of the parties that the pursuer would use the railings in the manner averred. (2) But if the averments were considered relevant, the case should go to proof and not to jury trial. The question being one of breach of contract — Cameron v. Young ( sup. cit.)—it was more appropriate that it should be tried by a judge. The question as to whether the damage was the necessary consequence of a breach of contract was for the Court— Hadley v. Baxendale ( sup. cit.); Mayne on damages (8th edit.) 26. (3) If, however, the case were sent to a jury, the issue should not be an issue of fault but an issue of breach of contract. The issue of fault allowed in similar cases prior to Cameron v. Young ( sup. cit.) was now inapplicable.

Argued for pursuer—The pursuer had stated a relevant case. It could not be said on the pursuer's own admissions that he had accepted the risk. On the contrary, he had by repeated complaints done all he could to get the defenders to do the repairs, but without success. It was not a case of volenti non fit injuria if the tenant was relying on the landlords' promises. He might stay on so as to become volens, but that would require to be shown as a matter of fact at the trial— Grant v. M'Clafferty, 1907 S.C. 201 (Lord President at 203), 44 S.L.R. 179. Russell v. Macknight, November 7, 1896, 24 R. 118, 34 S.L.R. 73, was an example of a case where it had been held that a defect had been accepted by a tenant without complaint. It was very different from the present case, which resembled Shields v. Dalziel, May 14, 1897, 24 R. 849, 34 S.L.R. 635. (2) The case should go to jury trial. It was an action of damages for personal injuries. Such actions were always tried by juries. (3) The issue granted by the Lord Ordinary was in proper form. It was the ordinary issue of fault, which was always allowed in such cases—see Shields v. Dalziel ( sup. cit.) and Cameron v. Young ( sup. cit.). The decision in the last-named case had not necessitated any alteration in the form of issue. M'Martin v. Hannay, January 24, 1872, 10 Macph. 411, 9 S.L.R. 239, was also referred to.

At advising—