Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 112
	OPINION OF LORD BANNATYNE in the cause NEIL ROBERT TODD Pursuer; against MYLES CLAPPERTON AND ANOTHER Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Stalker; Drummond Miller, WS

Defenders: McCaffrey, HBJ Gateley Wareing (Scotland) LLP

28 July 2009

Background

[1] The pursuer lived at the material time in a house which he and his partner rented from the defenders (hereinafter referred to as "the property"). He avers that at the material time he was entering the sitting room door of the property when it began to swing closed towards him. The door consisted of a wooden frame with fifteen glass panels, each measuring about 6 inches in width by 10 inches in height. He placed his left hand on one of the glass panels to stop the door closing and it broke. He blames the defenders for the accident and seeks damages for the injuries he sustained.

[2] The case came before me for proof. Parties were agreed that the value of the claim was £25,000.

[3] Following submissions, the only basis upon which the pursuer blamed the defenders for the accident was a breach of the condition implied by Section 113 and paragraph 1(2) of Schedule 10 to the Housing (Scotland) Act 1987.

Matters not in dispute

[4] It was clear from the evidence and parties' submissions that a number of factual and legal matters were not in dispute, namely:

That the pursuer and his partner had initially occupied the property as tenants in terms of a lease granted by a Mr Fraser. That they had occupied the property as tenants from on or about 25 June 2004.

That the lease is one to which Schedule 10 paragraph (1) of the Housing (Scotland) Act 1987 applied. Therefore there was an implied condition in the lease, incumbent on the original landlord Mr Fraser, that the property was, at the commencement of the tenancy, in all respects reasonably fit for human habitation.

That by purchasing the property, on 23 July 2004, and assuming the rights and obligations of the landlord, the defenders assumed an obligation to put the house in a condition in which it was in all respects reasonably fit for human habitation, so far as that had not been done by Mr Fraser.

That if the condition of the house was such that by ordinary user a personal injury may naturally be caused to the occupier, then the house was not in all respects reasonably fit for human habitation.

That on 17 May 2005 the property remained in the ownership of the defenders and the pursuer and his partner continued to occupy the property as tenants.

That the defenders, as landlords, had a duty to keep the property in all respects reasonably fit for human habitation.

That the property consisted of an entrance hall, a sitting room, a bedroom and a bathroom.

That the entrance hall measured approximately one square metre.

That the sitting room of the property was situated to the left of the entrance hall near to the front door entrance to the property.

That the door to the sitting room opened inwards.

That the door comprised a wooden frame with fifteen glass panels each measuring approximately 15 cm (6 inches) in width by 25 cm by (10 inches) in height.

That the living room door had been regularly opened and shut during the period that the defender and his partner had been occupying the property.

That during the period that the defender and his partner had been occupying the property up to the date of the accident they had made no complaints to the defenders about the condition of the property and in particular had not notified the defenders of any defect in the living room door.

Matters in dispute

[5] Central to the case was the issue of whether the pursuer had proved the accident averred on record.

[6] The pursuer's position in evidence was that he and his partner had taken out rubbish. They then returned to enter the living room. His partner was in front of him. He described her as fairly close to him. She pushed the living room door open and it hit a footstool in the living room. It was moving back towards him. He put his left arm out with an out-stretched hand to prevent the door from closing. He was right handed. His hand touched a glass pane which he identified initially as the third from the top on the handle side of the door and it broke and cut his hand to ribbons. He then changed his mind and said that it was the second from the top which had broken.

[7] It was implicit in the evidence that the pursuer gave that he used no real force in seeking to stop the door from closing.

[8] In both examination-in-chief and cross examination the pursuer was asked about the following entries in his medical records 6/5 and 6/6 of process:

i. 6/6 of process, page 20, note taken by ambulance man "Put hand/arm through glass door".

ii. 6/6 of process, page 21, note taken by K Chalmers - at stage of triage Borders Regional Hospital - "Forcing open door when hand went through glass pane".

iii. 6/6 of process, page 2, Accident and Emergency note Borders Regional Hospital - "Forcing open door when left hand went through glass pane".

iv. 6/5 of process, page 16, medical assessment following transfer to St Johns Hospital - "Forced opened door - left hand and forearm went through glass".

v. 6/5 of process, page 25, operation notes, St John's Hospital - "Punching glass window".

vi 6/5 of process, page 32, nursing notes, St John's Hospital - "History of trying to open door into flat and glass panel shattered over left arm".

vii 6/5 of process, page 40- St John's Hospital, 19 May 2005 - "Pushed left arm through internal door"

[9] The pursuer's position in evidence regarding these various entries was that he had no clear memory of speaking to the persons who had taken these notes. However, he was reasonably clear that he did not say to anyone that he had forced the door open or punched the glass. He could not imagine why he would have said forced or punched as he did not force open the door or punch it. He had no reason to do either of these things. He could not give any explanation as to why any of these entries, all of which other than (vii) were made within a few hours of his accident, were in these terms. It was his view that the only entry that gave an explanation of the cause of the accident which was close to what had actually happened was entry (vi).

[10] The pursuer in the course of cross examination denied striking or punching the glass panel. In particular he denied doing this in circumstances where his partner was seeking to stop him entering the living room.

[11] Further, in the course of cross examination, when asked about his relationship with his partner prior to 17 May 2005, he denied having a volatile relationship with her; denied that voices were ever raised in arguments and that during arguments doors were slammed; he claimed that his partner never asked him to leave the property; he also insisted that his partner had not put his clothes in a black bag in the garden or tried on any occasion to bar him entry into the flat. The most he would admit to was arguing with her a couple of times.

[12] Lindsay Haldane, the pursuer's partner, gave evidence. She described clearing out stuff from the bedroom and both she and the pursuer putting this out in rubbish bags. She then went back to the living room. The pursuer came in behind her. She pushed the door open to the living room. It hit off the footstool in the living room. She then heard the shattering of the glass. She did not see the accident. She initially said that the third pane down on the door had broken but changed her mind and, stated that the second pane down had broken. In giving this evidence she changed her position in exactly the same way as the pursuer, who had also initially asserted that it was the third pane down which broke and then changed his mind to say it was the second pane from the top. It was implicit in her evidence that the force she had used to open the living room door was minimal.

[13] She said when asked in cross examination about her relationship with the pursuer that there had been no shouting or slamming of doors. The most she said had had happened was squabbles. However, she did admit that when she and the pursuer had left the flat in October 2005 they had separated for a period.

[14] Her position was that she had had no concerns about the property which had been newly refurbished when she and the pursuer had taken the lease. She had made no complaint to the defenders about the property prior to the accident.

[15] The last witness for the pursuer was a Mr Rodney Appleyard who was a chartered building surveyor who, in particular, specialised in the area of fenestration. He spoke to his report, 6/19 of process. He had examined, prior to coming to court, what was said to be parts of the pane from the living room door which had broken when it came into contact with the pursuer's hand. In preparing his report, he had not visited the property and had not exmained the living room door. He only spoke to his examination of the samples of glass he had been sent by the pursuer's solicitor, number 6/18 of process. He had also been supplied with certain photographs 6/8 of process which were said to show the living room door.

[16] He advised that he had tested the glass sample by means of a laser detection glass unit and confirmed it to be normal annealed 4 millimetre nominal glass i.e. a normal window glass type known as float glass. He advised that the laser detection glass unit showed that it was not toughened glass and he confirmed this by noting that the sample was not of glass granules which would have been produced if the pane had been made of toughened glass.

[17] There was no evidence that without such testing or seeing the glass in its broken state the type of glass which had been fitted in the pane of the door could have been identified.

[18] He went on to say that for glass of this type and thickness to be installed in a door at the height from the floor of the pane which he understood had been broken was a breach of British Standard 6262, Part 4, 1994. The relevant part of that standard is in the following terms:

"7.2 Doors

For glazing wholly or partly, within 1500 m.m. from floor or ground level, the following should apply.

However, if the smaller dimension of the pane is 250 m.m or less and its area is 0.5 m² squared or less, glass not conforming to BS6206.

may be used provided that it's nominal thickness (see: BS952) is not less than 6mm.

7.3 Door side panels

For glazing wholly, or partly, within 300mm from the edge of the door and wholly, or partly within 1500 millimetres from floor or ground level, the following should apply. However, if the smaller dimension of the pane is 250mm or less and its areas is 0.5 m² or less then glass not conforming to BS6206 may be used, provided that its nominal thickness (see: BS952) is not less than 6 millimetres"

[19] It was his position reading short that in order to conform to said BS6262 the glass in the door panel which had broken should have been 6 millimetres thick. Alternatively it was his fallback position that safety glass of which he said that there were two types should have been used.

[20] The first of these is termed laminated glass which as the name implies consists of two sheets of float glass bonded together with a PVB interlayer. This interlayer holds the glass together and does not allow dangerous shards to manifest and create a risk environment for human injury in the event of impact and breakage.

[21] The second is termed toughened where the glass is cut to the required size, processed through a heat chamber where the molecular structure is changed. This glass when treated is approximately three times stronger than normal annealed glass and when broken fragments into small granules. In this form the glass causes nothing more than a gravel rash in the event of human impact and breakage.

[22] It was accordingly his opinion that the glass which was in the door panel which had been broken did not conform to BS6262 and was not safety glass and was likely to cause injury to persons making normal use of the door. It was his view that the explanation of the accident given by the pursuer was plausible and that no real force would have been required to break this glass pane given its nature. It was position that if 6mm thick glass or safety glass had been used then the accident would not have happened. If glass of either of these types had been used a very considerable force would have been required to break the glass, a force beyond ordinary use.

[23] The first witness for the defenders was Mr Myles Clapperton. He gave very brief evidence. I accepted his evidence in its entirety. I could find no reason to hold him anything other than credible and reliable. Cross examination of him was minimal. In submissions it was not suggested on behalf of the pursuer that I should find him either incredible or unreliable. His evidence was to the effect that he and his wife had bought the property in order to rent it. His position in evidence was that he had had a valuation report for the purposes of obtaining a mortgage prepared. However, other than the inspection for that purpose it appeared that no other inspection of the property had been carried out on his behalf. He had looked at the property when considering purchasing and noted that it was recently refurbished. Other than that he had not carried out an inspection. That during the course of the time up to the date of the accident when he owned the property no complaints had been made by the pursuer or his partner about the condition of the flat or in relation to repairs and maintenance. The only other matter about which he gave evidence was that he had spoken to a Mr Chisholm who was the upstairs neighbour of the pursuer and his partner. Mr Chisholm had complained to him about noise coming from the property. He had said things such as:

"He has been chucked out again this weekend.

Black bags with clothes in the front lawn.

Heard them arguing.

He had problems with the noise of their arguing and slamming doors."

[24] The next witness for the defenders was Mr Cameron Chisholm. He stated that he had lived upstairs from the pursuer and his partner when they were residing in the property. He said that he had spoken to them about noise. He had heard shouting; swearing; slamming of doors and this had happened a lot. He said that this occurred mostly at weekends. He said that there were quiet periods then matters would erupt. The arguments were so loud that he was able to say what they were about. He advised that they were about money and the pursuer's drinking. He described the pursuer and Miss Haldane's relationship as being a quite volatile one. He described an incident where black bags were thrown into the front garden. He presumed that they had been full of clothes and that the pursuer was being thrown out of the flat.

[25] The last witness for the defenders was Donald Robertson who was a valuation surveyor. He described that there were two basic types of inspection of a house for valuation purposes. There was firstly a mortgage valuation for security purposes and secondly a Home Buyers Report which was more detailed. He said that for the purpose of preparing neither type of report would a valuation surveyor have assessed internal or external glazing. There was no cross examination of this witness. I had no difficulty in holding that he was credible and reliable.

Submissions on behalf of the pursuer

[26] The pursuer's counsel commenced his submissions by moving that I should find in favour of the pursuer and award damages as agreed.

[27] So far as the various cases in law which were advanced on behalf of the pursuer in terms of Article 6 of condescendence the only one relied upon by counsel in his submissions was breach of the condition implied by Section 113 and paragraph 1(2) of Schedule 10 to the Housing (Scotland) Act 1987. That condition is in the following terms:

"In any contract to which this paragraph applies there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation."

[28] As I have said earlier in this opinion, there was no dispute that such an obligation was incumbent upon landlords.

[29] All of the other cases in law which were advanced against the defenders in terms of Article 6 of condescendence were abandoned by counsel for the pursuer.

[30] He then submitted that if the condition of the house was such that by ordinary user personal injury may naturally be caused to the occupier, then the house was not in all respects reasonably fit for human habitation. In making this submission he relied on two authorities, namely: Summers v Salford Corporation 1943 AC 283 per Lord Atkin at 289 and Haggerty v Glasgow Corporation 1964 SLT (n) 95. As I have stated earlier in this opinion counsel for the defenders accepted that this was a correct statement of the law.

[31] He then submitted that by purchasing the property, and assuming the rights and obligations of the landlord, the defenders assumed an obligation to put the house in a condition which it was in all respects reasonably fit for human habitation, so far as that had not been done by Mr Fraser. In support of this submission he referred me to Barr v Cochrane 1878 5R 877 and Rankine The Law of Leases in Scotland at pages 256 and 257. Again counsel for the defenders accepted that this was a correct statement of the law.

[32] He submitted that the defenders having taken on that obligation, they ought by inspection or otherwise, have satisfied themselves that the house was not in a condition such that by ordinary user a personal injury may naturally be caused to the occupier. In support of this submission he referred to Lamb v Glasgow District Council 1978 SLT (n)64. In particular he relied on the following passage in the Opinion of Lord Grieve:

"A landlord, however, is obliged by the common law to put urban subjects in habitable or tenantable condition at entry and that must entail an inspection of the subjects at that time. That obligation extends to making sure that the subjects are wind and water tight, and generally in a tenantable condition which, in my opinion, includes seeing that there was no part of the subjects in a condition likely to endanger the tenant."

[33] He submitted that on the evidence the defect in the pane of glass was a patent one and on all of the evidence would have been discoverable by a reasonably careful inspection directed towards identifying danger to an ordinary user of the property. It was his position that in order to give content to the implied condition there must be an obligation to carry out such an inspection. In addition for the inspection to have meaning it should have some relation to the obligation to put the property in a condition where in all respects it was fit for human habitation. Thus a valuation inspection did not fulfil such a condition.

[34] Furthermore it was his position that even if a reasonably careful inspection of the property would not have revealed that the condition of the pane of glass was a danger to the occupants of the property nevertheless the defenders were in breach of their obligation to put the property in a condition such that it was in all respects reasonably fit for human habitation. This proposition he based on a single authority namely Mearns v Glasgow City Council 2002 SLT (Sh Ct) 49. This was a decision of Sheriff Principal Bowen QC. The facts of the case so far as material for the purposes of the instant action were: the tenant sought damages from her local authority landlord in respect of loss suffered as a result of flooding from a burst pipe. This was found to have resulted from the giving way of a temporary repair taking the form of a solder wiping placed over a hole in the pipe, prior to the tenants family taking occupancy of the subjects 15 years earlier. The Sheriff applying the test in the said case of Summers v Salford Corporation held the defenders liable on the basis that they had failed to deliver premises which were reasonably fit for human habitation at the commencement of the lease. One of the arguments on behalf of the defenders before the Sheriff Principal was that the solder wiping was a latent defect for which the defenders were not responsible and that it had not been established that an inspection of the subjects at the time of entry would have revealed the repair. The Sheriff Principal held that even if the defect fell to be regarded as latent, there was no more injustice in imposing responsibility on the landlord than there would be in making the tenant liable for the consequences see: page 52 C to D.

[35] Counsel then turned from the legal issues in the case to the factual issues and first contended that the condition of the living room door was such that one of the panes of glass in the door may naturally have been broken by ordinary user and the tenant may naturally thereby have been injured. Therefore, the condition of the property was such as to render it not in all respects reasonably fit for human habitation.

[36] The foregoing contention was based on the evidence of Mr Appleyard.

[37] He firstly submitted that Mr Appleyard in his evidence stated that he had examined glass passed to him by the solicitors for the pursuers. He accordingly submitted that I should find that this was glass from the living room door and in particular was glass from the pane which had broken.

[38] Secondly in the course of his evidence Mr Appleyard had stated that the glass pane which had been broken was within what had been described as a critical zone of the door as defined by the British Standard in that it was within 1500 m.m. of the floor. He submitted that I should accept this evidence despite the fact that it was not based on any inspection of the locus but rather on photographs of the door.

[39] He submitted that if I accepted the glass examined came from the relevant pane and from a critical area then in his submission on the evidence of Mr Appleyard it was established the glass pane through which the pursuer had put his arm did not meet the requirements of the relevant British Safety Standard in that it was only 4mm thick and therefore did not conform with the building regulations. I was taken through Building Standards (Scotland) Regulations 1990 in some detail in order to establish that the failure to conform to the relative British Safety Standards resulted in a breach of these building regulations. I do not intend to rehearse these arguments in that I understood it not to be disputed on behalf of the defenders that if the glass was in breach of the British Safety Standard it was also in breach of the Building Regulations. Counsel in addition relied on the evidence of Mr Appleyard to the effect that the glass was not safety glass.

[40] Counsel then contended that on the basis of Mr Appleyard's whole evidence it had been established (a) the pursuer's accident was plausible i.e. could have happened in the circumstances as described by the pursuer; (b) it would not require excessive force to break the glass given that it was only 4 millimetres thick; (c) that it did not follow because it had not been broken in the past it would require excessive force to break it; and (d) that had the glass been of the type which conformed to the British Safety Standard it would not have broken on the basis of the pursuer's version of events.

[41] Counsel went on to submit that an inspection of the type he had earlier submitted should have been carried out would have led the person carrying out the inspection to ask themselves about the glass in the door and thus identify the defect. His primary position was that the defect was patent but even if latent then for the reasons he had submitted the defenders were still in breach of the implied condition.

[42] He then submitted that the injury had been caused by ordinary use. In other words it was his position that he had established that the accident had happened as averred on record and as spoken to by the pursuer and Miss Haldane. He submitted that I should accept the pursuer's evidence that he had not used any real force when seeking to stop the door shutting. He submitted that if I accepted that evidence then I could properly hold that the accident had been caused by ordinary use and by the ordinary user. It was his position that the pursuer's evidence on this matter was supported by that of Miss Haldane and Mr Appleyard.

[43] He accepted that in proving that the accident had happened as averred on record the evidence of the pursuer and Miss Haldane was of critical importance in that they were the only witnesses to the circumstances of the accident.

[44] He accepted that there were two matters arising in their evidence which could be said to count against my accepting as credible and reliable the said two witnesses. First the notes in the medical records and secondly the evidence of Mr Chisholm.

[45] He submitted that I should not hold that these particular factors undermined their credibility and reliability. In relation to the notes in the medical records it was his general position that these were not of any particular significance in judging their credibility and reliability in that: First, it was not established that all of these had been taken by separate individuals. It was therefore possible that the same error was being repeated throughout the medical records. He suggested that differences within the notes themselves pointed perhaps to misinterpretation by the persons taking the medical notes. He pointed out that punching only appeared once and therefore did not fit in with the rest of the records. He submitted that the words putting and pushing which appeared in certain of the notes did not differ materially from what the pursuer was saying in his evidence. He reminded me that medical staff were not of course interested in the same thing as lawyers and therefore I should be careful in taking too much from such medical records. He submitted that the single entry in relation to punching differed from all the other medical notes and that I should in particular discount it.

[46] As regards the evidence of Mr Chisholm he pointed out that Mr Chisholm's evidence had been that these incidents had occurred at night and at weekends. The accident which was the subject of the instant action had happened at about 6 pm on a weekday. Thus he submitted that the evidence of Mr Chisholm did not support the contention of the defenders that the incident which was the subject of this action was a drink fuelled episode. He also pointed out that there was no evidence of any violence, that the most Mr Chisholm's evidence amounted to was slamming of doors. He submitted that the pursuer had come across in court as being a rather laid back character and not a violent person and as I understood it he asked me to prefer the evidence of the pursuer and Miss Haldane in relation to these matters to that of Mr Chisholm.

Submissions on behalf of the defenders

[47] Counsel commenced his submissions by submitting that the pursuer had failed to prove his case. It was his submission that the pursuer had failed to prove first a breach of the implied obligation upon which he relied and second and in any event that the accident had occurred as averred on record.

[48] It was counsel's submission that the implied obligation on which the pursuer was relying was analogous to the duty of care in terms of the Occupier's Liability (Scotland) Act 1960. He thus submitted that it was necessary for the pursuer before he could be successful in this action to have demonstrated an awareness of the defect on the part of the defenders prior to the date of the accident or be able to establish that the defenders ought to have been aware of the defect prior to the accident.

[49] In support of the above he referred me to Morgan v Liverpool Corporation 1927 2 KB 131. This was a case in terms of the Housing Act 1925, however, the section of that Act founded upon contained obligations which were entirely on all fours with those upon which the pursuer relied in the instant case. Counsel referred me to the following passage at page 141 in the Judgment of Lord Hanworth MR:

"There is, however, another and fatal objection to the plaintiff's claim. 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 the maxim 'lex non cogit ad impossibilia' it is necessary in order to attach responsibility to the landlord that notice should have been given to him."

[50] It was his position on the basis of the foregoing authority that whatever the nature of the defect either latent or patent before the landlord could be held responsible the defect had to be brought to the attention of the landlord. Further support for that contention he said could be found in the judgment of Atkin L J in the same case at pages 149 and 150:

"It (the clause in the Housing Act) is merely a statutory term of the contract. If it had been an expressed term I think there would be no doubt that in ordinary circumstances 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 occupation 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, soley 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. Any other view would certainly impose a very considerable hardship upon the landlord, as is illustrated by this case. Here is a case of something which arose quite suddenly. It is possible that a very careful inspection of the window cords might have revealed the state in which they were, that there are many other defects which arise quite suddenly, leaks quite suddenly spring up in joints of water pipes and gas pipes, and so on, and to say that the landlord is responsible for the consequences of those not being in repair in circumstances in which no time could have elapsed between the time when the defect first arose and the time when the injury from it occurred, would certainly be to impose a very harsh obligation upon a landlord which the courts do not impose except subject to a condition that he must receive notice of the defect. To my mind in those circumstances it is clear, that if the landlord gives the exclusive occupation to the tenant, the landlord does not in fact know, and in this case could not know of the defect".

Thus it was his position that given that in this case there was no dispute between the parties that there had been no notice of the defect in the pane of glass prior to the accident the defenders could not be held liable.

[51] Secondly it was his position that the property was reasonably fit for human habitation at the relevant time. It was his position that a single pane of glass in a door containing 15 panes of glass which was 4 millimetres thick rather than being 6 millimetres thick could on no basis be said to be unfit for human habitation.

[52] Thirdly he submitted that no reasonable inspection would have discovered that the said glass pane was only 4 millimetres thick and not 6 millimetres thick. He accepted that the landlord had to inspect the property before he rented it out. He accepted that the inspection should be directed towards examining the fabric of the building in relation to safety issues. However, he asked how was any landlord in having an inspection of the property carried out for that purpose to discover that a single glass pane in situ was only 4 millimetres thick and not 6 millimetres thick. Or how was the landlord in such circumstances to discover it was not safety glass. As he pointed out the expert on behalf of the pursuer in order to establish the nature and type of the glass had had to examine it with a laser and to examine the broken glass itself.

[53] In addition he relied on the evidence of Mr Robertson who had said that on an inspection carried out by someone like him the condition of the glass would not have been discovered.

[54] He sought to distinguish the instant case from that of Kerr v East Ayrshire Council 2005 SLT (Sh Ct) 67. The facts of that case so far as material to the instant case were that a tenant was injured after her hand went through the window pane of her front door whilst trying to demonstrate a problem to workmen. The tenant sought damages from her local authority landlords. There was evidence from an independent health and safety consultant that the use of a single pane of glass in the front door of a dwelling house in the position in which it was situated was an obvious hazard as it was within an impact zone and that there was a real risk of accidental human contact. The pursuer relied on the common law and Section 2(1) of the Occupiers Liability (Scotland) Act 1960. She averred that the glass which broke was not in conformity with BS6262. It was held that the defenders were in breach of their common law and statutory duty under the Act. Counsel accepted that on the face of it the facts of the said case very much appeared to be on all fours with that of the instant case. However, he pointed out to me that in his submission critically the pursuer, prior to the accident, had reported in person to the defenders that the door was in a dangerous condition and in particular that the glass was in a dangerous condition.

[55] Counsel then turned to the facts of the present case and submitted that the pursuer had not proved the accident averred on record. It was his submission, first, that I should not hold that the pursuer was a credible witness.

[56] In so submitting counsel relied on the hospital records. He pointed out to me that in the course of the hospital records there was only one reference to putting his hand through the glass. On the other hand there were three references to pushing; four references to force being used and one reference to punching. He submitted that almost all of the entries were at complete odds with the pursuer's version of events.

[57] In addition he relied on the evidence of Mr Chisholm. It was his position that Mr Chisholm had no reason to lie. The pursuer and Miss Haldane had denied the evidence given by Mr Chisholm. It was his submission that I should prefer the evidence of Mr Chisholm and if I did so this seriously undermined the credibility of both the pursuer and Miss Haldane.

[58] Overall he submitted that rather than the accident on record having been proved I should hold that the pursuer was using excessive force to open the door.

[59] Next he turned to look at the evidence of Mr Appleyard. His broad submission in relation to him was that I should treat his report and therefore his evidence with caution. He described Mr Appleyard as having a high opinion of himself. He pointed out that it was only 4 years ago that Mr Appleyard had obtained a degree, only 2 years ago that he was admitted as a chartered surveyor. In addition he pointed out that Mr Appleyard had not visited the property thus had not carried out an inspection of the door. It was his submission that his evidence was largely based on speculation or assumption. He pointed out that in the course of his evidence Mr Appleyard had not said what steps should have been taken by a landlord in order to find out what type of glass had in fact been used in the door. Mr Appleyard had at no stage given evidence that a reasonable inspection would have revealed 4 millimetre glass rather than 6 millimetre glass had been used or would have revealed that other than safety glass had been used. He submitted that it was dangerous to assume that the glass was in a critical area in the absence of exact measurements which were not available given that no inspection of the locus had been carried out by Mr Appleyard. It was his position that Mr Appleyard's evidence that the lightest of touches could have broken this 4 millimetre pane of glass did not fit in with the evidence of the pursuer and Miss Haldane that this was a frequently used door. He submitted that if the glass could so easily have been broken it would have broken some considerable time prior to when it did.

[60] In relation generally to the evidence which had been led on behalf of the pursuer regarding the photographs of the locus he pointed out that the photographs had not been spoken to by the photographer. In relation to the glass samples which had been examined by Mr Appleyard he pointed out that the evidence of the person who was said to have recovered the glass from the floor at the door was not led; the evidence of the lawyer to whom said glass was delivered had not been led and the evidence of the person who had sent the glass sample to Mr Appleyard had not been led. It was his position that there was no chain of evidence in relation to this critical aspect of the case. How was the court to hold that the glass examined by Mr Appleyard came from the broken pane of glass. In addition where Mr Appleyard was relying on the photographs to give a view as to the height at which the pane of glass which had broken was situated it was of considerable importance that the photographs themselves should be spoken to by the person who took the photographs.

[61] He submitted that a further defect in the pursuer's case was that there was no evidence as to what would amount to a reasonable inspection by a landlord. It was his submission under reference to Gibson v Strathclyde Regional Council 1993 SLT 1243 and to Morton v William Dixon Limited 1909 SC 807 that it was essential for the pursuer to lead such evidence and no such evidence had been led. Thus there was no evidence as to what the practice was of landlords in such a situation and no evidence upon which I could base a decision as to what amounted to a reasonable inspection.

[62] Counsel then referred me to a number of cases which he submitted supported his general position that he had advanced:

i.                    Wallace v City of Glasgow District Council 1985 SLT 23. In that case the pursuer alleged a breach of the Occupier's Liability (Scotland) Act 1960. The pursuer argued that it was unnecessary for her to do more than aver that a danger existed on the defenders premises and that her accident had resulted from that danger. Thereafter the onus was upon the defenders to prove that the accident had occurred without failure on their part to take reasonable care. The Inner House held that the pursuer's, said averments were insufficient to establish a failure to exercise reasonable care.

Counsel took from that case that the decision supported his submission that notice of the danger had to be given before liability on the part of the landlord arose.

ii. Rimmer v Liverpool City Council 1985 QB1. In this case the local authority designed and built certain flats. A thin glass panel was used as part of the inside wall. Thereafter an injury was sustained by a tenant falling onto the panel. It was held dismissing the appeal that a landlord who designed or built premises owed a duty of care to persons who might reasonably be expected to be affected by the condition of the premises; accordingly, although a landlord qua landlord might not owe any such duty, the local authority, as their own architects and builders, owed the plaintiff, as a person who might be reasonably be expected to be affected by the glass panel in the flat a common law duty of care to see that he was reasonably safe from personal injury caused by the panel. Counsel in particular drew my attention to the fact that it was doubted in that case that the defenders qua landlords owed any such duty. He also pointed to the fact it was only on the basis that the defenders knew or ought to have known that the panel was dangerous that they were found responsible.

iii. Haggerty v Glasgow Corporation 1964 SLT (n) 95. This was an action in terms of the Occupiers Liability (Scotland) Act 1960 and The Housing (Scotland) Act 1950 Section 3(1) which was a previous incarnation of the implied obligation with which I was dealing. Lord Millisan at page 96 held as follows:

"The question that arises is accordingly, did the cracked pane of glass put the house into such a state of repair that by ordinary user damage might naturally be caused to a person in the position of the pursuer? In my opinion this question falls to be answered in the negative... in considering the question of what degree of force would be required to break the cracked pane, I cannot leave out of account the fact that for over 6 years this cracked pane had not broken. During that period the door must have been opened on innumberable occasions and no doubt on many occasions it had been opened by pushing on the pane. ... In such circumstances I have come to the conclusion that the pursuer must have used exceptional force in opening the door on the occasion of an accident."

Counsel commended the approach of Lord Milligan to the facts of the instant case. He said that given that the pane had not broken on previous occasions when the door was opened or shut showed that on the occasion of the accident excessive force must have been used.

[63] In the whole circumstances counsel submitted to me that the pursuer's case for the foregoing reasons must fail.

Discussion

[64] The first issue was this: had the pursuer proved that the accident had happened in the manner averred on record? The critical question in determining this issue was: on the evidence was the pursuer a credible and reliable witness?

[65] There were a number of factors which caused me to conclude that I could not hold the pursuer to be a credible and reliable witness.

[66] First there were the entries in the pursuer's medical records. These entries were broadly contemporaneous with the accident having been made, in all cases other than number (vii), in the hours immediately following the accident. Not one of these entries in my view conformed exactly to the description of the accident on record and spoken to by the pursuer in evidence. Rather in my judgment almost all of the entries differed materially from the position averred on record and spoken to in evidence.

[67] I recognise that entries in medical records should be approached carefully and should not be read as accurate precognitions by a pursuer as to the precise circumstances of an accident. Rather they are very short statements taken purely for medical purposes, in circumstances where the person giving the statement may be in considerable pain, and perhaps even in shock. I also accept that one should not take an isolated entry which does not precisely correspond to what is said on record and hold that as undermining a pursuer's credibility and reliability.

[68] However, in this case there were a substantial number of entries which appeared on the face of them to have been made by a number of different persons which present a consistent picture of force being used to open the door. Three entries refer to forcing open the door and one entry says "punching glass window". That is a picture which is quite inconsistent with what the pursuer said in the course of his evidence and what is averred on record. Another entry has him pushing his arm through the door. Once again that is a different position from what was said in evidence although I accept not as materially different as other entries to which I have referred. The number of said entries; their broad consistency in their difference from what was averred on record and what was stated in evidence; the fact that the entries appear to have been made by a number of different persons and at different hospitals, together with the pursuer's inability to give any reason for the differences between his evidence and what was noted in these entries and his denial of using the words "forced" or "punched" (it seemed to me inherently unlikely that staff would have written these terms if they were not words that had been used by him and I did not accept his denial of having used the words "forced" or "punched") caused me to conclude that these entries materially undermined his credibility and reliability on the central issue of how the accident had happened.

[69] The second factor which caused me to conclude that I could not accept the pursuer as credible and reliable was his position as to whether there had been arguments in the property, where there had been shouting and swearing and slamming of doors. He broadly denied these allegations. He denied having a volatile relationship with Miss Haldane and the furthest he was prepared to go was to say that they had argued on a couple of occasions.

[70] Mr Chisholm the upstairs neighbour during the relevant period, gave evidence on behalf of the defenders on this matter. His position was that there were a lot of arguments between the pursuer and his partner involving shouting, swearing and slamming of doors. This was an entirely different picture from that presented by the pursuer. I had no difficulty in preferring the evidence of Mr Chisholm to that of the pursuer. I had no difficulty in finding Mr Chisholm to be a wholly credible and reliable witness. He was an entirely independent witness, who had no reason to lie. He did not give evidence for a very lengthy period, however, during that short time I formed a favourable impression of him. He gave his evidence in a clear fashion and made no attempt to exaggerate. In addition to his evidence there was the evidence of the defender confirming that Mr Chisholm had complained to him prior to the accident about problems in the property due to the behaviour of the pursuer. In the circumstances this added support to Mr Chisholm's position.

[71] Further Miss Haldane admitted in the course of her evidence that the parties had split up in October 2005 for a period. This suggested a degree of volatility in the parties relationship, which the pursuer had not admitted in the course of his examination in chief or in cross examination. I also noted that he had not referred to this break up in the course of his evidence. The evidence of Miss Haldane in relation to this break up in my judgment cast further doubt on his credibility and reliability.

[72] The third factor which in my judgment cast material doubt on the pursuer's credibility and reliability was the inherent unlikelihood of the accident as averred on record and spoken to by the pursuer and Miss Haldane in the course of their evidence.

[73] The circumstances of the accident as spoken to by them were as follows: Miss Haldane was just in front of the pursuer as she went into the living room. The pursuer described himself as "fairly close behind her"; she pushed the living room door open (she did not have to push it hard at all); then the door hit a foot stool; it bounced back; as it came towards the pursuer he put out his left arm in order to stop it and his hand went through the glass. It was implicit in the evidence of both the pursuer and Miss Haldane that Miss Haldane only pushed the door gently. In addition, the pursuer would not even admit to pushing the door but merely to putting his hand out to stop it. It was implicit in his evidence that he had only used the most minimal of force. I accept that Mr Appleyard's position was that such a light force could have broken this pane of glass. Nevertheless how the accident happened as spoken to by the pursuer and Miss Haldane seems inherently unlikely in that:

i If the door was pushed softly by Miss Haldane there was no explanation as to why the door bounced back off the stool;

ii If it bounced back off the stool there was no explanation as to how Miss Haldane got out of the way of the door given that the distances involved were very small;

iii Why was the stool positioned there at all if it interfered with the opening of the door (a door, which on all the evidence, was very often opened. I gained the impression from the evidence that the stool was always there);

iv Why did the pursuer put up his left hand and not his right hand, his dominant hand, and the one which one would have excepted him to put up; and

v Why is the door still in the course of shutting when he was going through it?

Even if he had been fairly close behind Miss Haldane, given the short distance the door had to travel in order to close it would be expected that it would have closed before he even reached it. In my view the whole mechanism and circumstances of this accident as spoken to by the pursuer and Miss Haldane did not ring true.

[74] In my view, each of these three factors when taken on its own was of sufficient cogency to undermine the pursuer's credibility. However, when looked at cumulatively, they in my judgment completely undermined the pursuer's credibility. The second and third factors and to some extent the first factor also materially undermined Miss Haldane's credibility. Thus I was unable to accept their evidence in relation to the issue of how the accident happened. It follows I could not hold myself satisfied that the accident had happened in the manner averred and spoken to in evidence by the pursuer and Miss Haldane. Rather looking to the whole evidence I reached the conclusion that the pane of glass had been broken due to an exceptional amount of force being applied to it and that this action was not "ordinary use" of the door.

[75] Given my said finding that is the end of the matter and the pursuer must of necessity fail in his action. However, in deference to the detailed arguments upon which I was addressed in relation to the law, I now turn to deal with these.

[76] There were three further issues of either law or mixed fact and law upon which I was addressed.

[77] First, had it been proved that the property in all respects was not reasonably fit for human habitation?

[78] The proper test in deciding this issue is set forth by Lord Atkin in his speech Summers v Salford Corporation supra at 289 and adopted by the Scottish Courts in Haggerty v Glasgow Corporation supra at 55 and is in the following terms:

"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."

[79] Despite the criticisms made by counsel for the defenders I was prepared to accept the evidence given by Mr Appleyard as expert evidence. In my judgment from his qualifications as set out in his report and the way he gave evidence he had the knowledge, practical experience, and qualifications entitling him to give expert evidence. He gave his evidence in a reasonable and fair manner. He was not caught out to any material extent in cross examination. No contrary case based on expert evidence was put to him suggesting that his opinion was one which would not be accepted by other experts. I accordingly had no difficulty in accepting Mr Appleyard's evidence that this glass pane, given its thickness, namely 4 millimetres, and it not being safety glass when taken in the context of its position within the door i.e. at a height not greater than 1500 millimetres from the floor, was a defect of such a nature that ordinary user damage may naturally be caused to the occupier, in respect of personal injury. It was not in conformity with British Standard 6266 and it would be easily broken by normal use. It was his position that a reasonably small force, well within the range of normal use of a door when opening and shutting could break it. It was his position that if someone pushed the pane of glass it would have been enough to break it. His evidence came to this that normal actings of a human being in relation to the glass pane could have broken it. It was in an area of the door which would be normally used when opening and shutting the door.

[80] A number of other criticisms of the evidence of Mr Appleyard were made by counsel for the defenders.

[81] It was submitted on behalf of the defenders that due to the lack of a proper chain of evidence the pursuer had not proven the glass which Mr Appleyard had examined came from the pane of glass which was broken.

[82] I was prepared to hold that the glass examined by Mr Appleyard was on the balance of probabilities the glass which had come from the broken pane. Although I did not hear evidence from the pursuer's father-in-law who was said to have collected the glass or the solicitor who had been given the glass by him and sent it to Mr Appleyard, I did not think that I should hold as submitted on behalf of the defenders. There was evidence from Miss Haldane that the pursuer's father had been seen collecting the glass and that he handed this into the pursuer's solicitors. Although this was not the best evidence which could have been led, I did not see any reason why I should not accept this evidence when taken with Mr Appleyard's evidence that he had received the glass from the pursuer's solicitors as establishing that the glass examined came from the broken panel in the door.

[83] There was in addition some dispute as to whether it had been established at what height the pane of glass had been situated in the door and therefore whether it had been established it fell within the height limit of 500mm from the floor as set out in the British Standard.

[84] Although Mr Appleyard had not carried out a locus examination, I was prepared to accept his evidence that from an examination of the photographs of the locus, he could establish the height of the pane within the door and accordingly establish that it fell within the limits as set out in the British Standard.

[85] In relation to both of those issues there was no contrary evidence, i.e. there was no positive evidence which challenged the position on behalf of the pursuer that the glass examined came from the relevant panel and that the panel fell within the height limits and accordingly, given the whole circumstances of the evidence, I was prepared to accept that these two matters had been established.

[86] Having rejected the various criticisms of Mr Appleyard's evidence and having regard to his whole evidence, I am prepared to hold, applying the test of Lord Atkin, that the state of the pane of glass was such that ordinary use, such as opening the door by pushing on that pane, or by seeking to stop the closing of the door by putting ones hand out onto that pane would be likely to cause the pane to break and cause injury to the person so doing. Accordingly I hold that the house was not in all respects reasonably fit for human habitation.

[87] The second issue was this: would a reasonable inspection carried out by the defenders or on their behalf on their assuming the obligations of their predecessors, have discovered the defect in said pane? In my judgment, on the evidence, it was not established that such an inspection would have discovered the defect.

[88] Mr Appleyard's evidence was that in order to identify the glass as being 4 millimetres in thickness and not safety glass, he had examined it through a magnifying glass and shot a laser light through it. In addition, in order to confirm his findings, he had examined the nature of the broken glass itself i.e. it was of significance that it was not in granules. As I understood it if the broken glass had been safety glass it would have been in granules. There was no evidence that any other form of test or examination could have identified that this was 4mm thick ordinary float glass and not 6mm thick ordinary float glass or safety glass. There was no evidence that a visual examination in situ of the pane would have been sufficient to distinguish between these types of glass.

[89] There was, in addition, no evidence as to the practice of landlords as to what they do by way of inspection in relation to examining a property before they let it. Thus there was no evidence which entitled me to hold what would have been a reasonable inspection or what would have been practicable in terms of such an inspection (see: Gibson v Strathclyde Regional Council). The only evidence as regards inspection came from the quantity surveyor led on behalf of the defenders and his position was that in the type of survey that would be prepared for valuation purposes in relation to obtaining a mortgage or for a purchaser where a house is being purchased by a party, that a defect of this type would have not been discovered. It is clear that neither of those two types of inspection would have amounted to a reasonable inspection on behalf of a landlord. These inspections are not directed towards discovering the type of defect which may cause injury to the ordinary user. Rather both inspections are directed towards establishing the value of the property. I accordingly reject the defenders counsel's submission that a valuation type inspection would have been sufficient to fulfil the defenders duty to inspect.

[90] In addition to the foregoing, all I could hold on the basis of the evidence before me was that one pane in the door was defective. There was no evidence about the other panes and whether they were defective. There was no evidence in my judgment from which I would have been entitled to draw an inference that any of the other panes were defective.

[91] Accordingly I was unable to hold that a reasonable inspection would have discovered this defect in that:

i. I accepted the submission made on behalf of the pursuer that any reasonable inspection would have had to have been directed to establish whether the subjects were reasonably fit for human habitation.

ii. However, in the absence of any evidence upon which I could decide what an inspection so directed would have consisted of, I was unable to say whether such a defect would have been discovered. There was no evidence before me as the practice of other landlords as to the nature and extent of their inspection and in particular no evidence as to the nature and extent of any inspection they would carry out in relation to glass within a house. In the absence of such evidence, I took the view that I was unable to establish whether this defect would have been found on inspection.

iii. On the evidence before me there was no patent sign of defect; the only evidence before me as to how the defect could have been discovered was the use of specialist tools as set out by Mr Appleyard and in addition there was no evidence that any other panel was affected. Against that background it appeared to me doubtful that any reasonable inspection would have detected the said defect. However, having regard to the state of the evidence, I am unable to make a positive finding to that effect.

[92] The third issue was this: were the defenders in breach of their obligations to put the house in a condition such that it was in all respects reasonably fit for human habitation, irrespective of whether a reasonably careful inspection of the subjects would have revealed that the condition of the door was a danger to the occupants of the house? In my opinion the answer to that question is: yes.

[93] I was referred to a number of cases in the course of the submissions in relation to which the courts had considered in what circumstances in terms of the Occupiers Liability (Scotland) Act 1960 or the equivalent English Legislation the courts would hold a landlord as occupier responsible for injuries arising from a defect. I did not for the reasons I will later in this Opinion elaborate upon find these cases of assistance in deciding this third issue in that in my judgment the obligation in terms of the statute incumbent upon a landlord as occupier is of a very different nature than that incumbent upon a landlord in terms of the implied condition relied on in the case before me. I accordingly rejected the defenders counsel's submissions that the implied condition was analogous to the duty in terms of the said Act.

[94] The implied condition is in two parts: first that the house is at the commencement of the tenancy, in all respects reasonably fit for human habitation and secondly to keep the tenancy in all respects reasonably fit for human habitation. Insofar as keeping the premises in a habitable condition, in order to attach responsibility to the landlord notice has to have been given to him of the defect (see: Morgan v Liverpool Corporation per Lord Hamworth MR at page 141 and Haggerty v Glasgow Corporation per Lord Milligan at 96. The position at common law was the same, see: Rankine, The Law of Leases in Scotland at page 242.

[95] Counsel for the pursuer in the course of his address accepted, first, that the undisputed evidence in this case was that there had been no such notice to the defenders of the defect upon which the pursuer sought to found. He thus accepted that he could not rely on the obligation to keep reasonably fit for human habitation and therefore had to rely on the first part of the implied condition, namely: that the house is, at the commencement of the tenancy (or in this case at the point at which the defenders took over as landlords and therefore took over the landlords obligations), in all respects fit for human habitation. There was no dispute that the relevant glass pane had been in that condition from that date

[96] Accordingly, the question before me came to this: were the defenders responsible for a defect which existed at the commencement of the tenancy, which defect was not discoverable by reasonable inspection? Or put another way, were the defenders in breach of that condition if the defect was a latent one?

[97] The defenders' counsel urged upon me, as I understood it, that I should hold, by extension of the reasoning in the cases which considered the second part of the implied condition (the "keep" element) which held that the landlord was not responsible if the defect was not brought to his notice then equally at the start of the lease he could not be liable for a defect present not discoverable by reasonable inspection.

[98] The Court of Appeal has, in relation to the second part of this implied condition, namely the keep element, have as I earlier said, decided that before responsibility lies with the landlord his attention must be drawn to the defect. The rationale for this is two fold:

(a) The landlord has no right of entry and it is the tenant who has the opportunity of knowing the condition of the premises (per Lord Hamworth MR in Morgan v Liverpool Corporation at 141) and

(b) If the defect is latent and no one knows about it the landlord should not be held responsible.

[99] In O'Brien v Robinson 1973 AC 912 in considering the parallel English provisions to those which I was considering the House of Lords held:

"That only when defects though previously latent and invisible, become patent and were made known to the landlord did his liability to repair arise."

In his speech at page 925 Lord Morris of Borth-y-Gest says

"Morgan's case must I think be regarded as a case in which the defect was latent... (Atkin L J at 150 in Morgan) said:

'Here is a case of something which arose quite suddenly. It is possible that a very careful inspection of the window cords might have revealed the state in which they were, but there are many other defects which arise quite suddenly, leaks quite suddenly spring up in joints of water pipes and gas pipes, and so on, and to say that the landlord is responsible for the consequence of those not being in repair in circumstances in which no time could have elapsed between the time when the defects first arose and the time when the injury from it occurred, would certainly be to impose a very harsh obligation upon a landlord which the courts do not impose except subject to a condition that he must receive notice of the defect. To my mind in those circumstances it is clear that, if the landlord gives the exclusive occupation to the tenant, the landlord does not in fact know, and in this case could not know of the defect'.

In my view, these and other parts of the judgment of Atkin L J are based on the reasoning that it is only when defects (previously latent or invisible) become patent and are made known to the landlord that his liability to repair arises. Furthermore is seems to me that both the words of Lord Simonds and his reasoning in McCarrick's case showed that a landlord's obligation to take action only arises when he has notice of a defect. He will not have notice, if no one knows there is a defect."

[100] Applying that reasoning to the first part of the implied obligation, namely at the outset to put the property in all respects fit for human habitation, it was argued limits the extent of the implied obligation to this, namely: that the landlord would be responsible for putting the house in such a condition that it is in all respects fit for human habitation except in so far as any defects are latent.

[101] Certain support for that construction of the extent of the obligation at the commencement of the tenancy can be gained from consideration of Lamb v Glasgow District Council.

[102] In that case Lord Grieve was considering the duties of a landlord in terms of Section 3(1) of the Occupiers Liability (Scotland) Act 1960. However he says this about the common law:

"The landlord however is obliged by the common law to put urban subjects in habitable or tenantable condition at entry and that must entail an inspection of the subjects at that time."

[103] I accept that what he says there has applicability when dealing with the implied obligation in terms of the statute and seeking to construe the extent of that obligation. That must in my view be so as the implied conditions imposed by the statute are in essence a restatement of what the position is at common law.

[104] Therefore if as part of the implied condition there is an obligation to inspect and this formed part of the pursuer's own submissions then the implied condition could not it was argued be absolute in its nature as a duty to inspect would never discover a latent defect.

[105] The foregoing reasoning and approach has a certain attractiveness to it I am, however, persuaded that it is wrong.

[106] It is in my judgment reasonably clear that the Court of Appeal in Morgan v Liverpool Corporation in deciding the question as to whether notice was required to bring home responsibility to a landlord in relation to his continuing obligation to keep the premises reasonably fit for human habitation in terms of the implied condition imposed in the statute had regard to the pre-existing common law, in terms of which it had always been the case that such was required.

[107] The question of the construction of the extent of the initial obligation, at the commencement of the tenancy to put the property into a condition reasonably fit for human habitation, can in my judgment be approached in the same way. Thus in my judgment I am entitled in approaching the issue of the nature and extent of that implied condition to refer to the position at common law.

[108] I am entitled to so approach that question in that:

1. It was the approach of the Court of Appeal when examining that issue in relation to the continuing obligation and I can see no reason why I should not be entitled to approach the initial obligation in the same way.

2. Separately the section imposing the implied conditions in my judgment appears to be no more than a statutory re-enactment of a pre-existing implied condition at common law and again for that reason it is my judgment that I am entitled to approach the construction of the obligation in this way. In my view the intention of this part of the statute, was to ensure that a tenant could not be deprived of the rights which by implication he had in terms of the common law.

[109] On examining the common law position it appears that it was to this effect, namely: that the landlord impliedly warranted (my emphasis) the position regarding the fitness for habitation at the commencement of the lease:

[110] Bells Principles says:

"Warrandice is implied on the landlord's part to make the subject effectual to the tenant or fit for its purpose, and so put the houses and fences in due repair." See paragraph 1253.

[111] The Laws of Scotland, Stair Memorial Encyclopaedia, volume 13, at paragraph 254 says:

"there is an implied warranty that the subject are reasonably fit for the purpose of the lease. This applies at the date of entry"

[112] Paton and Cameron - Landlord & Tenant at page 130 refers to this obligation as an "implied warrandice".

[113] Gloag and Henderson's Introduction to the Law of Scotland at page 768 contrasts the continuing obligation with the initial implied obligation and states in relation to the obligation to keep that it is not a warranty that no disrepair will occur, nor is there an absolute duty to keep the subjects free from defects, it amounts to an undertaking to put matters right on being given notice.

[114] Rankine on Leases at page 242 also contrasts the continuing obligation to keep reasonably fit for human habitation and the initial obligation to put in a condition which is reasonably fit for human habitation by saying that the continuing obligation is not a warranty and is not an absolute duty.

[115] It appears that both in Gloag and Henderson and in Rankine it is considered that the initial obligation is a warranty.

[116] A warranty in my view is a guarantee, or, put another way is an absolute obligation.

[117] Accordingly in my view there is a clear and unwavering acceptance that at common law the initial obligation is different from the continuing obligation and that the initial obligation is in the nature of a warranty or guarantee. Thus in my view in construing the implied condition in terms of the statute at the outset of the tenancy it should be construed as an absolute obligation, that is as a warranty.

[118] Accordingly in that I have held that the obligation at the outset is a warranty then it is no answer to say that the defect was latent at that time and was not discoverable by a reasonable inspection.

[119] In my judgment the purpose of the said section of the Act was not to restrict the rights available to the tenant at common law rather it was to ensure that he was not deprived of these rights. I should say that in the course of being addressed I was referred to no case which had in detail looked at the first part of the implied condition in terms of the Act. I was referred only to a single authority in which this issue had been specifically considered and that was Mearns v Glasgow City Council. It would be fair to say that the issue there was dealt with very briefly. The Sheriff Principal states as follows:

"Equally, if the defect falls be regarded as latent I am not convinced that there is any more injustice in imposing responsibility for it on the landlord than there would be in making the tenant liable for the consequences."

It does appear that the Sheriff Principal is there expressing no more than an obiter opinion and what he says is, to say the least, somewhat guarded. However I do find some support for the view which I have arrived at in relation to the construction issue in the reasoning of the Sheriff Principal. I would respectfully adopt the reasoning of the Sheriff Principal which, in my view, is in line with the reasoning of Atkin L J when considering whether the continuing obligation required notice. His reasoning at page 150 in Morgan v Liverpool Corporation (earlier quoted) appears to very much take into account the issue of justice and that it would be unjust for the landlord in relation to the continuing obligation if he were made liable where he had no notice. Equally in my view it could be said that where a landlord at the beginning of a lease is handing over the property to the tenant it would be unjust if the obligation to provide a property which was reasonably fit for human habitation was not absolute. At that stage he has absolute control of the property and if it is unjust to place the continuing obligation on him where he does not have control of the property and access to the property it is in my judgment equally unjust not to impose the obligation and to make it absolute where he has such control.

[120] Accordingly had I held that the pursuer had proved the accident on record I would have held first that the house was not reasonably fit for human habitation and secondly although I could not hold that a reasonable inspection would have discovered the defect I would have held the defenders responsible for the defect and held them liable in the agreed sum of damages.

Decision

[121] I accordingly for the foregoing reasons, grant absolvitor in favour of the defenders.