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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 12
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PD921/06
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OPINION OF LORD McEWAN
in the cause
SUSANNA BELL
Pursuer;
against
NORTH AYRSHIRE
COUNCIL
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
McNaughtan; Digby Brown S.S.C.
Defenders: MacPherson, Solicitor-Advocate; Simpson &
Marwick W.S.
25 January 2007
[1] In
May 2003 the pursuer went to visit a friend at her home in Kilbirnie. While there she was asked to open a bedroom
window. To do so she gripped the two
handles which had to be moved upwards from horizontal to 90 degrees. Then she should have been able to push open
the window. She moved the handles and
pushed. The window was stiff and would
not move. She applied more pressure and
the handles suddenly moved causing her hands to slip off the handle and go
through the window. It is said that the
defect had been reported many months before to the landlords (the defenders)
but no repairs had been done. It is
alleged that other named local authorities would have investigated and repaired
it within days or a few weeks.
[2] The
pursuer sues founding on the duties of care specified in Section 3 and 2 of the
Occupiers Liability (Scotland)
Act 1960 in respect of the stiff window which she says is a "danger ... due to
the state of the premises ...". The duty arises
in respect of "... anything done or omitted to be done (and) ... shall ... be such
care as in all the circumstances ... is reasonable to see that that person will
not suffer injury or damage by means of any such danger ..." (Section 2). The duty to the pursuer who was a visitor
arises under Section 3. It is not
disputed that the defenders owe her the duty just narrated. The recently amended Record is in Rule 43
form. There are no pleas-in-law but the
matter appeared before me on a debate on the relevancy of the case. The defenders asked me to dismiss the action;
the pursuer sought proof before answer.
The argument on both sides was brief although a number of authorities
were looked at and canvassed.
[3] What
the defenders said was this. The stiff
window was not a danger and the test was not whether the flat was "not fit for
human habitation". These words were not
in the 1960 Act. Mr McPherson referred
me to Guy v Strathkelvin District Council 1997 SCLR 405, a case of a damp
home. Here there was no danger and the
accident was not of a type foreseeable with a window and in any case was
outwith the range of dangers (Hughes v
Lord Advocate 1963 SC (HL) 31 at 38
and 42). A cracked pane or a loose
handle would be very different. "Fit for
habitation" was simply a term of art as could be seen in Summers v Salford Corporation
[1943] AC 283 at 288. It was not
said that the tenant herself saw any danger and here the use was ordinary. The cases of Hughes' Tutrix v Glasgow
District Council 1982 SLT 70 and Haggerty
v Glasgow Corporation 1964 SLT
(Notes) 95 (OH) were both decided after proof.
[4] For
the pursuer Mr McNaughton said that it was clearly averred that the stiff
window was a danger. The window had to
be looked at as a whole and it was reasonable use of the house to open the
windows from time to time. He referred
me again to Haggarty in the Inner
House at 1964 SLT (Notes) 54, to Morgan v
Liverpool Corporation [1927] 2KB 131
and Kerr v East Ayrshire Council 2005 SLT (Sheriff Court) 67 a case
decided after proof. To open this window
a hand near to the glass had to push it.
That was a clear and present danger if excessive force had to be used.
[5] The
defect was reported and a failure to remedy was an "omission" in terms of
Section 2 of the Act, even if it did not need an emergency repair. To plead the practice of other local
authorities sets up a standard, and here the defect had been left for a long
period. Gibson v Strathclyde Regional
Council 1992 SCLR 92.
[6] Counsel
concluded by reminding me that in reparation cases the Court should be slow to
grant dismissal without any inquiry. (Miller v South of Scotland Electricity Board 1958 SC (HL) 20 and Jamieson v Jamieson 1952 SC (HL) 44).
[7] Let
me now look briefly at the cases beginning with the English authorities. Both dealt with broken sash cords. In Morgan
a tenant who was opening an upstairs window was injured when the top sash fell due
to a broken cord. The presiding judge
found for the plaintiff stating that the premises were not in all respects
reasonably fit for human habitation. The
landlords appealed successfully but the Court was not unanimous in its
reasons. As a result much of what is
said is obiter dicta. Lord Atkin alone was of the view that the
broken cord rendered the house unfit, the house being small and heavily
populated (144/5). In Summers the sash cord in a bedroom of a
small house broke. The tenant told the rent
collector. Nothing was done and when
cleaning the window the tenant was injured when the other cord broke. The house was a working class home. Opening the window for ventilation and
cleaning it was ordinary user. The House
of Lords allowed the plaintiff's appeal.
At 289 Lord Atkin said this:
"... if the state
of repair of a house is such that by ordinary user damage may naturally be
caused to the occupier either in respect of personal injury to life or limb or
injury to health, then the house is not in all respects reasonably fit for
human habitation ...".
On the facts Lord Romer said this
(298):
"... the first
result of the breaking of the sash cord was that the top part of the window
jammed in its frame. The next and
inevitable result was that the moment that the window was freed from the jam,
the whole of its weight was thrown on the other sash cord. The third and very probable result was that
this other sash cord also gave way under the strain, and thus the upper window
fell down. The position, therefore,
after the breaking of the first sash cord was that, if and so long as the
landlords continued their policy of masterly inactivity, either the top window in
the front bedroom would have to remain permanently closed and remain
permanently and increasingly darkened with dirt, or, if an attempt were made to
open it for the purpose of ventilation or to clean it, the attempt could only
be made at the risk of serious bodily injury to the person making it. Even if that person were fortunate enough to
escape injury, the window would remain permanently open at the top giving the
rain and snow and fogs of Salford uninterrupted access
to the room ..."
[8] As
is obvious, the facts of these cases were different to what is averred here yet
the Court is quite clear on the risks of forcing a jammed window. In both cases hand injuries and cuts
occurred. Mutatis mutandis that is what is averred in the case before
me. The window is in a bedroom. It was late spring. It seems to me perfectly normal use to want
to open it. Using excessive force with
hands near to glass is only too obvious a risk.
As in Summers the matter here was
reported and nothing done.
[9] It
seems to me perfectly proper to aver what other local authority landlords would
do. That is good pleading in cases such
as this and Gibson is Inner House
authority for the need to do so in like cases.
Nothing further turns on this point.
Guy in my view assists the
pursuer. In the Record 5A/B ordinary use
of the window is contemplated. It is
precisely that to which Lord Johnston attached importance at 409E in allowing
proof before answer. Kerr again was a case of a pane of glass
this time in a door frame. To some
extent the case turned on foreseeability and was decided after proof as was Hughes' Tutrix where normal use of
property was found. The defect there had
also been reported.
[10] Haggarty like the
present case was one where there was an issue of whether a cracked pane of
glass in a bathroom door was a breach of the landlord's obligation to keep the
premises in all respects reasonably fit for human habitation. The test set by Lord Atkin was approved and
followed, the Court saying that the test could not easily be applied before the
facts were ascertained. Lord Atkin's
tests, it seems to me, are embraced by the concept of acts or omissions arising
in section 2(1) of the 1960 Act as applied here by section 3. (Later, after proof, Lord Milligan found that
the pursuer's actings were not "ordinary user" and decree of absolvitor was
granted.) Hughes in my opinion does not help the defenders. A cutting injury is in my view entirely
foreseeable if hard force has to be exerted near glass either on a handle or
the window itself.
[11] In my opinion, this is a case which can only be determined once
the facts are known. It does not fall
into the category of rare and exceptional cases which can be disposed of on
relevancy (Miller per Lord Keith at
33). Since I am allowing a proof before
answer, the less said by me at this stage about the facts the better. As it is a Rule 43 case, there are no pleas
to sustain or repel.
