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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 144
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OPINION OF LADY
SMITH
in the cause
SUSANNA BELL
Pursuer;
against
NORTH AYRSHIRE
COUNCIL
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
McNaughton, Advocate; Digby
Brown, S.S.C.
Defenders: McPherson, Solicitor-Advocate; Simpson & Marwick, W.S.
10 August 2007
[1] The
pursuer has a friend who lives in a house she rents from the defenders. When she was visiting her friend, she tried
to open a window, her hands slipped and they went through the glass. She blames the defenders for her accident and
seeks damages for the injuries she sustained.
[2] The
case came before me for proof. Parties
were agreed that the value of the claim was ฃ17,500.
[3] The
basis on which the pursuer blamed the defenders was that her friend had, she
said, reported to the defenders prior to her accident that the window was stiff
and difficult to open and that they had failed to repair it. The window was said, in those circumstances,
to be a danger in terms of section 2 of the Occupiers'
Liability (Scotland) Act 1960 ("the 1960 Act") and the defenders were said to be in
breach of their duties under s.3 of the 1960 Act.
Matters not in Dispute
[4] It
was clear from the evidence and parties' submissions that a number of factual
matters were not in dispute, namely:
[5] The
pursuer's accident occurred on 24 May
2003, some time between 10.30 and 11pm.
The friend was Donna McLaughlan who
lived at 11 Montgomerieston Place,
Kilbirnie, a house of which she had become the tenant in August 2001. The defenders were her landlords. The two women had spent the evening in the
house watching DVD's. As it was a warm evening,
when the pursuer was going upstairs to use the w.c., Ms McLaughlan asked
her open her bedroom window. When asked
in cross examination why she did not mention her difficulty with the window
before she asked the pursuer to open it she answered: "I didn't think - and I've got to live with
that, haven't I?". She also said that
she did not foresee the danger of an accident occurring due to the stiffness of
the window.
[6] The
bedroom window in question was the same style as that in others of the defenders'
properties and had two plastic handles
fitted to its lower edge. To open it,
the handles required to be moved from a horizontal position (parallel to the
windowsill) upwards so as to release the catches and then pushed outwards so as
to effect the opening of the window. The window frame was made of wood and had a
rubber seal around it which assists in keeping it wind and watertight. The seal can give rise to some suction which
has to be overcome when the window is opened. The window was designed to open for
ventilation purposes only; it did not
serve as a fire escape.
[7] The
pursuer could not remember having opened a window of this type before although
she had seen such windows. She tried to
open the window by putting her hands on the handles, lifting them and then
pushing. The window did not open at
first so she pushed "a bit harder" with "an extra stronger push", using "extra
pressure". The two handles then went
right round and her fists went through the window. Her right hand/wrist was injured with cuts and
lacerations as a result.
[8] After
the accident, the defenders were contacted and they made emergency arrangements
for the window to be boarded up.
[9] The
defenders' Technical Officer, James Woodward, visited the house on or about 28 May 2003 to inspect the damage. He
instructed that the window be reglazed and, having spoken to Ms McLaughlan
and the pursuer, also issued an instruction for the pivot sashes in the bedroom
window to be eased. That work was
carried out and completed by 12 June
2003. The window was working
without difficulty when the joiners left.
They called again, at a date shortly thereafter, in response to Ms McLaughlan
requesting a further visit, and did further work to ease the window. It was, again, working without difficulty
when they left.
[10] Ms McLaughlan
requested that Technical Services attend again to ease and adjust the bedroom
window on or about 23 June 2003
and by 10 July 2003, the
defenders had responded to that request.
The details of that request and the response are all recorded in the
defenders' written records (7/1 of process) as are the details of the
instructions issued by Mr Woodward when he visited.
[11] As regards
the above work that was carried out on the window after the pursuer's accident,
as was confirmed by Ms McLaughlan, in addition to the emergency boarding
up, workmen had called on two occasions.
On the first occasion they had eased the window using "WD 40". It seemed fine for, she said "10 or 15
minutes" but it was then as bad as ever.
She complained to the defenders after a few days and workmen came out
again. She accepted that she might have
telephoned the defenders on that occasion (which would explain why the
defenders' Technical Services department have a record of the request and
attended in response). They planed some
wood off the frame. The window was fine
for a couple of days but it was then, she said, "back as bad as ever again". When asked if she had complained again, she
first said that she could not remember and then that she probably had done and
then she referred to the fact that they were getting new windows anyway, which
they did, but not until the following year.
It was, in short, evident and I was satisfied that it was the case that Ms McLaughlan
had decided to make no further repair request in respect of the window even
although she continued to find it stiff to open.
[12] Mr Woodward
was from the defenders' "Technical Services" department, the department which
carries out (and from at least 2001 has carried out) all repairs to the
defenders' housing stock. That
department is separate from the Housing Department. They work to a target of 28 days for the
completion of repairs notified. The
Housing Department do not and did not carry out repairs nor do or did they
instruct them.
[13] The defenders' Housing Department have an office in Main
Street, Kilbirnie. Its activities, contents and layout have, in
all material respects, been the same since
2001. Ms McLaughlan was in
the habit of calling at that office to pay her rent. That office also deals with matters such as
allocations of tenancies, arranging "void" inspections at the end of tenancies,
estate management, dealing with the defenders' obligations to the homeless and
pursuing non - payments of rent. There
is a counter in the office. There are
also notices, literature and a public telephone. The telephone is situated close by and to the
right hand side of the door to the street, as was shown in the photographs in
7/14 of process. There is a notice
beside it which displays a "Freefone" number for repairs, a number which connects to the defenders' Technical Services
department. There is a booklet hanging
from it indicating particular code numbers to use for particular types of
repair, one of which is "Window won't
open/close properly".
[14] At times, as explained by the defenders' Area Housing Manager
and two clerical officers who gave evidence,
tenants try to tell persons working in the housing office that they need
a repair to be carried out. If that
happens, the practice is that they are referred to the Freefone number for
repairs, advising them that they can either telephone from home or, if they
prefer, use the telephone in the housing office. In the case of, say, an elderly person who has
difficulty in using the telephone, staff may assist them with dialling the
number. Housing office staff do not take
down reports of repairs themselves or arrange for them to be dealt with. Their role is limited to responding to any
attempt by a tenant to intimate the need for a repair by directing the tenant
to the correct channel of communication, namely to Technical Services, via the
Freefone number.
[15] Tenants also receive, on taking up their tenancies, literature
which includes details of their rights to have repairs carried out and how to
arrange for that to be done, namely by contacting Technical Services via the
Freefone number. An example of such
literature was contained in 7/13 of process. Ms McLaughlan accepted it was possible
that she had received a leaflet like 7/13 but she had not read it. Even if she had, she would still have gone to
the office in Main Street
to report a repair requirement as it was only two minutes away from home.
[16] The defenders have no record of any repair request or report of
a stiff window problem from Ms McLaughlan at any time prior to 24 May 2003. None of the defenders' witnesses gave
evidence that such a request or report had been received.
[17] Prior to Ms McLaughlan taking entry to the house, the
defenders had carried out a routine inspection of it. It is their practice, in the course of such
an inspection, to check that all windows open and close properly. It was not suggested that such a check was not
carried out during the inspection of 11, Montgomerieston
Place.
Matters in Dispute
[18] Central to the case was the issue of whether or not Ms McLaughlan
had, prior to 24 May 2003,
reported to the defenders that her bedroom was stiff and requested that they
repair it.
[19] Ms McLaughlan said that she had been having difficulty in
opening the window. She would put her
foot against the bed and "shove" to get it open. The window was very tight and she had a
problem every time she tried to open it. She said that on one occasion when she was
down at the defenders' Main Street
office, paying her rent, she mentioned that her windows were really tight and
she was having difficulty getting them open. She said she was told to bear with it and they
would ease off; the house had been lying
empty for eight months before she moved in and the windows would settle. She could not say who it was she spoke to. She could not remember exactly when it was
that she had the conversation; it was a
couple of months or three months after she had moved in "say, October, not November". She did not ask them to do anything about
it.
[20] Ms McLaughlan said that she mentioned her window problem
at the office again "a while later". That was "say, another eight months later",
in the summer. Again, she did not know
who she had spoken to. She said that she
said the same thing and was again told the same thing and something about weather conditions.
[21] As regards someone calling to repair the window, Ms McLaughlan,
in examination in chief, said that she thought the defenders would make the
"first move" to do something and that she just thought that they would
automatically send someone out. In cross
examination however, she said that she did not say that she wanted someone to
come and repair the window; she accepted what was said to her about the windows
easing off by themselves and she just thought she would give them "the benefit
of the doubt". Also in cross examination
she said that she expected the windows to get better, that she did not know
what was happening, that a couple of days went by and she totally forgot about
it, and that she was too busy doing other things in the house. She added that she did expect someone to call
but then said "well really, no" she did not expect anyone to call and that "honest
to God, I was none the wiser". She was
referred to the averment on Record at p.5B which asserts that she had asked the
defenders to repair the stiff window and said that she had not asked the
defenders to do so. She had reported it
twice and nothing was done. When pressed
as to whether she had actually "reported" the matter, she said that she told
them she was having bother opening her windows.
When asked if she told Mr Woodward about having previously
complained about her windows she said that she had not done so and then said
that she probably had done so.
[22] When Ms McLaughlan was asked about the telephone in the
defenders' office she said that she had not seen it until shortly prior to the
proof when she was asked to go and look at it by the pursuer's solicitor. She had not seen it before then because it "is
in an alcove that sits away in". That is
not a description that accords with what is shown in the photographs of the
telephone in 7/14 of process. They
indicate that the telephone would have been readily visible to persons as they
were walking towards the door of the office.
[23] Ms McLaughlan's evidence was characterised by vagueness,
uncertainty and, at times, contradiction. Her memory for detail seemed poor. She appeared prone to exaggeration; I would refer, for instance, to her evidence
about the position of the telephone in the defenders' office. I did not feel able to conclude that she was
a reliable witness. Even bearing in mind
that the standard of proof is but one of the balance of probabilities I do not,
in particular, find it possible to reach any conclusion as to what, if
anything, she said to the defenders' employees about her windows.
[24] No other witness supported Ms McLaughlan's account of
having told persons at the defenders' office that she was having difficulty
with opening her windows. Whilst
Mr McNaughton, counsel for the pursuer, sought to rely on there being no
evidence that she had not made such a
complaint, none of the defenders' housing officers were led in evidence by the pursuer
and although the defenders led three witnesses from their housing department, it
was clear that in the period 2001 - 2002, more than three persons worked in the
office in Main Street and took turns on the counter there. Those that did give evidence were clear,
straightforward and credible in their evidence about the practice of referring
tenants to the Freefone number for their repair needs and the impression was
that it was a simple one to operate. The
pursuer did not identify which of the defenders' staff it was that Ms McLaughlan
said she had spoken to about her windows. In these circumstances, the absence of direct
refutation of Ms McLaughlan's assertion that she had done so cannot assist
the pursuer in establishing that any such conversation took place.
[25] Further, it is clear that the practice in the housing office
was to refer tenants to the Freefone number for Technical Services and also to
the availability of the telephone that was available in the office if they
sought to report a defect requiring repair. Ms McLaughlan did not suggest that she
was ever pointed in that direction. It
would have been a simple matter for them to do so if she had effectively
communicated to them that there was a such a defect in her house. Ms McLaughlan herself accepted in
evidence that she did not ask for her windows to be repaired. In all the circumstances, I conclude that Ms McLaughlan
did not put the defenders on notice that her bedroom window was in a defective
state requiring repair.
[26] I would add that even if Ms McLaughlan did communicate a
complaint about her windows which was responded to by a member of the defenders'
staff telling her that the windows would ease by themselves, it is evident that
she accepted that as a response to whatever complaint she made and did not ask
for any further action on the defenders' part.
[27] I should also mention one other matter in respect of which
there was some disparity in the evidence as it is relevant when considering
causation. Mr Woodward gave
evidence that when he attended at the house and tried to open the window, he
did not have any particular difficulty in doing so. Ms McLaughlan's position was that he did
have difficulty but she also said he thought she was exaggerating about the
windows.. I found Mr Woodward's
description of being able to open the window without difficulty to be, however,
a credible one. It was consistent with
the unchallenged evidence that when the house was inspected prior to it being
let to Ms McLaughlan, the windows were checked to see that they opened and
no problems identified. Ms McLaughlan
gave no detail of whatever difficulty she thought he experienced, she was
unreliable in other respects and Mr Woodward was in the best position to
know whether he had difficulty or not. Moreover,
even on Ms McLaughlan's description of what happened when Mr Woodward
attended at the house, I was not satisfied that a reasonable landlord would
have assessed the state of the window as being a danger.
Submissions for the Pursuer
[28] Under reference to sections 2 and 3 of the 1960 Act, Mr McNaughton submitted that the defenders were in breach of
an implied duty to keep the premises fit for human habitation. The stiffness of the windows in Ms McLaughlan's
house rendered it unfit for human habitation. For support of that proposition
he relied on Morgan v Liverpool Corporation [1927] 2 KB 131, Summers v Salford Corporation [1943] AC 283, and Haggarty v Glasgow
Corporation 1964 SLT (N) 95.
[29] He accepted that the question of whether or not a stiff window
was such that ordinary use of it might result in injury was one of fact. On the evidence the stiffness of the window
did give rise, he said, to a risk of injury. The precise means of injury did not require to
be foreseen: Hughes v Lord Advocate 1963 SC (HL) 31. Ms McLaughlan had, he submitted,
complained about the windows to the defenders. If defects were actually or constructively
brought to a landlord's attention, then that was sufficient to fix him with
liability if they were not remedied: Hampton
v Galloway and Sykes (1899) 1F
501, Murray v
Edinburgh District Council 1981 SLT 253. Provided the tenant brought the defects to
the knowledge of the landlord, that was enough. There was no need to request a repair or an
inspection.
[30] He submitted that the evidence supported Ms McLaughlan
having reported that her windows were stiff on two occasions prior to the
accident and that she was credible and reliable. As I have commented in the above section
regarding matters in dispute, Mr McNaughton relied strongly on the fact
that no witness had directly contradicted Ms McLaughlan's account of
having made the reports. The defenders
were accordingly put on notice of the existence of a danger. The danger was that the window would either
have to remain jammed shut, giving rise to the risk of lack of ventilation and
damp or excessive force would be used to open it. Mindful of Ms McLaughlan's evidence that
she did not foresee that the stiffness of the window might cause an accident,
Mr McNaughton submitted that that was not the point; the question was what the defenders would have
foreseen. They were in a better position
to consider danger than the tenant. The
defenders had been put on notice but they did nothing. Had they acted, the accident would not have
happened. There should be no finding of
contributory negligence as the pursuer was not in a position to know that there
was a problem with the window. She just
did what anyone would have done.
Submissions for the Defenders
[31] On behalf of the defenders, Mr McPherson, solicitor
advocate, submitted that decree of absolvitor should be granted.
[32] His submissions fell into three main chapters: i. duty, ii. whether notice was given, and
iii. whether, if it was given, there was danger from the state of the premises.
He then dealt with causation and
contributory negligence.
[33] For the purposes of the first chapter, it was accepted that the
defenders had a duty to keep the premises reasonably fit for human habitation
and that it was open to the pursuer, as a visitor, to found on any breach by
the defenders of their obligations. The
obligations were purely statutory and arose under and in terms of section 3 of
the 1960 Act. They arose only in
connection with any contractual obligation that a landlord had for maintenance
or repair. The care that a landlord was
obliged to show in his performance of that obligation was the care provided for
under s.2, namely such care as is, in all the circumstances, reasonable to see
that a person such as the pursuer will not suffer injury by reason of dangers
on the premises. Such a danger required
to arise from failure on the part of the landlord to maintain or repair.
[34] Thus, the pursuer required, he submitted, to establish that
there was a danger, that it arose from the state of the premises and the
presence of the danger was due to the landlord's failure to maintain or repair
the property. It was important to note
that the landlord required to owe the duty to the
tenant. There was no separate "free
floating" duty owed to the pursuer.
[35] As regards Mr McPherson's second chapter, he submitted
that Ms McLaughlan had not put the defenders' on notice of the need for a
repair. What mattered was not what was
in her mind but whether or not the relevant notice had been communicated. On the evidence, it had not. The position of the defenders' staff was clear;
if they had had any understanding that
they were being given notice of a defect by her, they would have told her how
to direct her communication to Technical Services. It was hard to see why they or any of their
colleagues would opt for trying to divert the tenant or suggest solutions to
her, as seemed to be suggested, rather than take the easy route of directing
her to the Freefone number. Ms McLaughlan's
evidence that she had not been directed to the Freefone number supported the
view that she had not, whatever her perception was now, at the time made any
report of having defective windows that needed to be repaired. The pursuer had not proved the averment at 5B
to the effect that the tenant had asked the defenders to repair the window. Without some clear communication of the need
for the landlord to carry out a repair, the pursuer's case could not
succeed.
[36] Alternatively, Mr McPherson submitted that if it was
accepted that Ms McLaughlan had made a relevant report and was "fobbed
off" in the way suggested by her in evidence, what the evidence showed was that
she had, as a matter of contract, accepted that as the landlord's response.
[37] Regarding the third chapter, Mr McPherson submitted that Ms McLaughlan's
own evidence as to the nature of the difficulty with the window was not
reliable. It was exaggerated. If she had serious difficulties with the
window, it was difficult to see why she put up with them for so long. Mr Woodward had not had difficulty
opening the window. Stiffness was a
relative matter and one of degree. There
was no objective evidence about the window and the dangers that it may or may
not have presented. The pursuer's
evidence was problematic. It was not
clear that it actually presented a picture of the window being particularly
stiff; it was consistent with the window
being stiff but not unduly so. Nor was
it clear that the accident had anything to do with the stiffness of the window
[38] In any event, stiffness of a window did not of itself
constitute a danger. The authorities
relied on by the pursuer could be distinguished. Danger would have required foreseeability and
it was not established that danger was foreseeable. There was no evidence of accidents such as
this happening elsewhere. It was not an
obvious danger. The mere presence of
glass and stiffness did not give rise to a danger. Using windows does not put a person's hands at
risk of injury; the circumstances were not comparable to those in Hughes v Lord Advocate. The chance
of loss of ventilation if the window would not open was not a danger.
[39] Regarding causation, Mr McPherson submitted that the
pursuer was in difficulty. The
obligation of the landlord to inspect and carry out any repair that was
required could not arise if there was no report of a repair need. The defenders attended promptly when the
tenant did ask for them to do so.
[40] Regarding contributory negligence, he submitted that were I to
find that the pursuer exerted force, then she could be found to have been at
fault to some extent.
Relevant Law
[41] It was a
matter of agreement that the defenders, as landlords, had a duty to repair and
maintain the house at 11 Montgomerieston Place and that that duty included an
implied term that they were obliged to keep the premises reasonably fit for
human habitation: Rankine: Leases 3rd
ed p.241; Housing (Scotland) Act 1987 Sch 10 para 1(2), Housing (Scotland) Act
2001 Sch 4 para 1. The duty to
repair and maintain may, of course, involve carrying out repairs in respect of
defects which do not render a house unfit for human habitation but are
nonetheless matters which the landlord can properly be called on to attend to. For example, a house with a roof leak may,
depending on the nature of the leak, still be reasonably fit for human
habitation, as may one with a malfunctioning central heating system yet these
are matters which a landlord such as the defenders would be obliged to repair
as part of their repair and maintenance obligations. That, of course, highlights that not every
defect which a landlord can properly be called on to repair under his leasehold
obligations will amount to a danger. Whether
or not it does will be a question of fact.
[42] The
pursuer's claim is a statutory one, based on section 3(1) of the 1960 Act, the
provisions of which refer back to section 2(1). Those subsections provide:
"2 (1) The care which an
occupier of premises is required, by reason of his occupation or control of the
premises to show towards a person entering thereon in respect of dangers which
are due to the state of the premises or to anything done or omitted to be done
on them and for which the occupier is in law responsible shall, except in so
far as he is entitled and does extend, restrict, modify or exclude by agreement
his obligations towards that person, be such care as in all the circumstances
of the case is reasonable to see that that person will not suffer injury or
damage by reason of any such danger.
....................
3(1) Where premises are
occupied or used by virtue of a tenancy under which the landlord is responsible
for the maintenance or repair of the premises, it shall be the duty of the
landlord to show towards any persons who or whose property may from time to
time be on the premises the same care in respect of dangers arising from any
failure on his part in carrying out his responsibility aforesaid as is required
by virtue of the foregoing provisions of this Act to be shown by an occupier of
premises towards persons entering on them."
[43] Thus, if a landlord is obliged under a lease to maintain and
repair a tenanted property and he fails
to fulfil his obligation to do so in some respect and that failure gives rise
to the presence of a danger in the property then but only then he becomes
subject to an obligation to persons
other than the tenant who are present in the premises such as, for instance,
visitors. The nature of that obligation
is that he is bound to take such care as is in the circumstances reasonable to
see to it that such person will not suffer injury by reason of that
danger. The duty arises only in respect
of dangers that arise from the failure to repair and maintain and to that
extent I would take issue with what is said by Lord Johnston in Guy v
Strathkelvin DC1997 SCLR 405 at
p.408; it is not the case that third parties can sue on any failure to repair and maintain, as seems to be suggested by
him. The failure would require, given
the terms of sections 3(1) and 2(1) of the 1960 Act, to have given rise to a
danger and the landlord would have to have failed to take reasonable care to
see that those third parties would not suffer injury by reason of the danger
for it to be actionable at the instance of such parties.
[44] Further, the duty, plainly, cannot arise unless the landlord is
aware of the danger and he cannot reasonably be expected to have such awareness
unless he has been put on notice that there is a defect in need of repair. As was commented by the Master of the Rolls,
Lord Hanworth, in Morgan v Liverpool Corporation (a case
concerning the breaking of a sash cord when the tenant of the house was opening
a bedroom window) at p.141:
"It has long
been established law that where there is a covenant on the part of a landlord
to keep the premises in repair, the tenant must give notice to the landlord of
what is out of repair, for he, the tenant, being in occupation has an
opportunity of knowing what the condition of the premises is, an opportunity
denied to the landlord who may be at a distance; and on the principle which is
stated by Lord Sumner in Murphy v Hurly (1) - the maxim "ex non cogit ad impossibilita" - it is
necessary in order to attach responsibility to the landlord that notice should
have been given to him."
In the same case, Atkin LJ, though
dissenting on the question of whether or not a broken sash cord rendered a
house unfit for human habitation, agreed, at p.150, on the question of the need
for notice:
"....the
obligation of the landlord to do repairs does not come into existence until he
has had notice of the defect which his contract to repair requires him to make
good. The reason for that is obvious. The landlord has given the tenant exclusive
possession of the house. The landlord
therefore, is not in a position to know whether the house is in repair or out
of repair, and it is held that it would be quite contrary to justice to impose
an obligation to repair of this kind upon a landlord in respect of matters of
which he has in fact no knowledge. It
appears to me that the reason for reading in that condition depends, and
depends in truth and in fact solely upon that consideration; he has given the exclusive occupation of the
house to his tenant and he himself does not know, and, more than that, he has
not the means of knowledge. The result
is, to my mind, that in all cases of that kind, speaking generally, it is a
condition of the liability of the landlord that he should receive notice of the
repairs."
Lawrence LJ also agreed, at p.153:
"On the question
of notice I am in complete agreement with the judgments delivered by the Master
of the Rolls and Atkin LJ and have very little to add. In my opinion the established rule is that the
obligation of the landlord to keep the premises in repair is not broken unless
notice has been given to him of the want of repair, and that mere knowledge is
not sufficient to saddle the landlord with liability. The foundation of such rule is that the tenant
in occupation is generally in a far better position to know of any want of
repair. I am further of the opinion that
for the reasons stated by Atkin LJ the rule applies to latent as well as to
patent defects, and certainly applies to the defect which existed in the
present case."
Morgan
was relied on by Lord Milligan for the obiter comment in Haggerty v Glasgow
Corporation (a case concerning the breaking of a pane of glass in an
internal door in a tenanted house where the glass had been cracked for some
time prior to the accident), at p.96, that:
"Even if the pursuer
had succeeded in proving that the cracked pane had the effect of making the
house unfit for human habitation it would still have been necessary for her to
have established that the defenders were aware that the pane was cracked."
The same approach was evident in
the earlier Scottish case of Hampton v Galloway & Sykes where a tenanted property in Union Street in Aberdeen was
flooded due to a drainage pipe being blocked by a piece of wood. On the evidence, the landlords were unaware
that the wood was obstructing the pipe. At
p.507, Lord Trayner said:
"The defenders
were bound by the lease to the pursuer to keep the premises wind and water
tight. This was just expressing in the
lease a landlord's obligations at common law. The Sheriff inclines to the opinion that this
obligation in the lease amounted to a guarantee. In that opinion I cannot concur. The landlord's obligations obliges him at his
own cost to repair any defect through which the premises may become or have
become less than wind and water tight when such defect is brought to his
knowledge .......... He is not bound to inspect the premises periodically in order to
see what their condition is, when he has no reason to suspect or believe that
they are other than they should be."
Hampton
was relied on by Lord Maxwell, in Murray v Edinburgh District Council (a case
concerning a wooden ventilation panel which fell from a wall onto the pursuer's
wrist) as support for the comments he makes at p.256 regarding what was
required to establish a breach of s.3(1) of the 1960 Act:
"Moreover, in
the averments alleging the breach of s.3(1) the pursuer makes no averments
suggesting that the defenders knew or had cause to know of or had been informed
of a defect in the panel or its attachment. In general at common law a landlord's
obligations with regard to maintenance or repair do not include an obligation
to inspect, the landlord only being obliged to put right defects which have
been actually or constructively brought to his attention."
In short, a failure in notification
by the tenant will be fatal to a visitor's claim, even if it is shown that
there was danger in the premises due to a repair and maintenance requirement. Further, notification alone is not
sufficient. There must also have been a
failure to repair and the subsistence of a danger as a result.
Discussion
[45] As will be
evident from the findings that I have made above, I am not satisfied that the
pursuer has established that relevant notification was given to the defenders
by the tenant, Ms McLaughlan. That
being so and the law applicable to this claim being as above, her case cannot
succeed. I accept that the pursuer was
injured but what happened to her was an unfortunate accident not something for
which another person was liable. Not all accidents give rise to a right to
claim damages, contrary, it might be thought, to what has become popular
belief.
[46] I would, however, add that even if I had been satisfied that
such notification had been given, I would not have found, on the evidence, that
had the defenders attended at the premises prior to the pursuer's accident,
they could reasonably have been expected to conclude that the window
constituted a danger, without which liability under s.3(1) of the 1960 Act
would not have arisen. Whatever the
difficulties with the stiffness of the window that she may have had, their
nature was such that they did not cause Ms McLaughlan to regard them as
liable to give rise to injury and even taking her evidence at its highest, she
did not actually seem particularly concerned about the window. If she had been,
she could reasonably have been expected to request that it be repaired (something
which she accepted she did not do) and make a positive effort to have the
defenders attend. Equally, she could
reasonably have been expected either to refrain from asking the pursuer to open
the window or to warn her at the time she did so. It seems plain, on the evidence, that the
tenant did not regard the window as a danger. Then, Mr Woodward, the landlord's
representative, did not have difficulty in opening the window. In all the circumstances, had it been
necessary for me to address the question, I would not have found that the
window was a danger.
[47] Further,
turning to causation, it is possible, on the evidence, to reach a conclusion as
to what would probably have happened if Ms McLaughlan had notified the
defenders and they had attended prior to the accident. They made repeated visits to "ease" the
window. After the last of these, the
windows reverted, on her evidence, to being "as bad as ever" but she did not
call them out again. I conclude that
that is what would have happened if the defenders had attended to the window
prior to the accident. In short, it
would still, on Ms McLaughlan's evidence, have been in the condition that
it was on 24 May 2003
as she would have decided not to notify the defenders that she was having
continuing problems.
[48] In all the
circumstances, it is difficult to see how it was ever considered that this
claim had reasonable prospects of success.
[49] Finally, had the issue of contributory negligence arisen for
consideration, I would not have concluded, on the evidence, that the pursuer
had failed in the duty she had to take reasonable care for her own safety.
[50] In these circumstances, the pursuer's case fails and I will
pronounce decree of absolvitor.
