Scottish Court of Session Decisions

Lord Sands—This is a case stated by an arbiter for the opinion of the Lord Ordinary upon the Bills under section 7 (11) of the Small Landholders (Scotland) Act 1911, incorporating as amended the Second Schedule of the Agricultural Holdings (Scotland) Act 1908. It appears that the Board of Agriculture are proceeding compulsorily to create a number of small holdings upon a part of the estate of Sir Arthur Campbell Orde, Bart., in North Uist under the powers contained in the Act. The proprietor claims compensation, and this arbitration has been set on foot to determine the amount of such compensation. One of the items of claim is in respect of the depreciation in the value of Sir Arthur Campbell Orde's estate, of which the land to be devoted to the new small holdings forms a part, by reason of the prospective increase of the education rate of the parish in which the estate is situated. The sequence of events contemplated, and which as the case is stated I must regard as inevitable, is this—The formation of the small holdings will lead to the provision of a number of new dwelling-houses where there were few or none before. The new holders, who are to occupy these dwelling-houses, will in accordance with ordinary human experience bring children with them, or at all events procreate children there. As there is no provision in the neighbourhood for the education of this juvenile population the Department administering the Education Acts will require the School Board to provide a new school. The cost of the provision and maintenance of this school will not be fully met by Government grants, and the balance will have to be provided from the rates. This will lead to an increase of the rates of the parish. Part of this increased burden will fall upon the estate here in question. As the prospective amount of rates is an element affecting the value of an estate, the prospective increase will cause a depreciation in the value of this estate.

I am asked by the arbiter for an opinion upon the question whether within the meaning of the statute the last item in this long consequential sequence—“the depreciation in the value of the estate”—is “in consequence of and directly attributable to” the first, viz., “the constitution of the new holdings.”

I shall assume for a moment that the words “and directly attributable to “had not found a place in the statute, and that it had read simply” in consequence of the constitution of the new holding or holdings.” In that case there would not have been much difficulty in this aspect of the matter. But there is a presumption against tautology in a statute, and therefore some distinct meaning must, if possible, be given to the words “and directly attributable to.” There is a presumption against its being enough to show merely that the depreciation was in consequence of the creation of the new holdings. The key, if there is a key, must be found in the word “directly” in its relation to the other words.

In determining whether any, and if so what, meaning can be given to the words “and directly attributable to,” regard must be had, not to considerations of abstract logic, of metaphysics, or of etymology, but to the ordinary use and understanding of language. The answer is not to be found in Whateley or Hume or Skeat, but in the speech of common life in relation to the facts set forth. In my opinion, in accordance with the ordinary use and understanding of the English language, whilst the depreciation by increase of the school rate is both “in consequence of” and “attributable to” the creation of the small holdings, it is not “directly attributable” thereto. I attempt no positive definition of what is “directly attributable” according to our use of language. “Directly due to” is perhaps a more common phrase, but the intention is much the same. I recognise that it does not in every case include only the proximate cause. The proximate cause of death may be loss of blood, but according to our use of language the death is “directly attributable” to a stab. There must, however, in my view be an element of immediacy, or if not of immediacy, of congruity among the links of the chain, which is here absent. According to my recollection of the Origin of Species, as humble bees fertilise red clover, and mice prey upon bees, and cats prey upon mice, the multiplication of cats is favourable to the spread of red clover. The spread of red clover, which is said to be observable near new villages, may therefore quite properly be said to be in consequence of or to be attributable to the increase in the number of cats, but I do not think that in accordance with the ordinary use of language it would be said to be “directly attributable” thereto. On the contrary, I think anyone who was calling attention to the matter would say that the spread of the clover was “indirectly due” to the multiplication of cats. A long sequence is not perhaps by itself necessarily negative of the use of the phrase “directly attributable” or “directly due to, “particularly in mechanical matters. There is a long sequence between the pull of the trigger and the fall of the stag, yet perhaps the last might be said to be directly attributable to the first. But when as in the present case not only is there a long sequence, but the links are in totally different categories, “directly attributable” does not describe the causal relation in accordance with the ordinary understanding of language.

I was invited by the Board of Agriculture to consider another argument which it was contended leads to the same result. The damage suffered by the landlord in respect of the increase of rates is not, it is said, peculiar damage suffered by him as proprietor of these particular lands, but damage suffered byhim and equally by all the other heritors as owners of rateable lands in the

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