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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Drake v. Dow & Anor [2005] ScotSC 51 (19 August 2005)
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Cite as: [2005] ScotSC 51, 2006 SCLR 456
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Drake v. Dow & Anor [2005] ScotSC 51 (19 August 2005)

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT TAIN

SC37/04
   

JUDGEMENT

of

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
   

in the cause
   

BRIAN DRAKE
   

Pursuer and Appellant
   

against

   

MR CHARLES DOW and MRS IRIS DOW
   

Defenders and Respondents

 

 

 

Act: Party

Alt: Mr T Lawson Keir, solicitor, Mackenzie & Cormack, Tain

 

Tain: 19th August 2005

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 17 February 2005 in terms of which he dismissed the action and granted decree against the pursuer for payment to the defenders of the assessed expenses of £554.24 payable at £5 per week; finds the pursuer liable to the defenders in the expenses of the appeal as the same may be assessed by the sheriff clerk in terms of rule 23.3 of the Summary Cause Rules 2002; quoad ultra remits the cause to the sheriff to proceed as accords and in particular to pronounce final decree in terms of rule 23.3(11).

 

 

 

 

 

 

Note

[1] In this summary cause the pursuer and appellant sought decree against the defenders and respondents for payment of the sum of £1,491.08 with interest and expenses. The details of his claim as set forth in the summons were as follows:

  1. Seeking payment from defenders in respect of a notebook computer to the sum of £1,491.08. The defenders both live in Tain, and the loss occurred in Tain. This court has jurisdiction.

  2. On 10.3.04 I ordered and paid for a notebook computer from Rock Direct.com. The computer was subsequently stolen from the courier and a replacement system implemented. This was delivered to Castlehill B&B on 20.4.04 where I was living at that time. I lived at Castlehill B&B from 23.3.04 until moving on 1.11.04. [Documents A & B]

  3. On 30.9.04, whilst asleep during the night, the computer was stolen. The bedroom doors do not have locks allowing persons to come and go. I have no idea who stole my computer. I informed the police who attended soon after. When the defenders returned from holiday on 1.10.04 I told them of the theft but they showed no concern telling me they did not have contents insurance. I was advised that I should "save up and buy another one". [Document C]

  4. I consulted a solicitor regarding the possibility of an insurance claim. In verbal response to the solicitor, no claim was accepted and all liability denied. [Document D]

  5. I contend there has been a delict in the concept of onus. The defenders had legal obligation for a duty of care to my goods and a failure in this duty has occurred.

[2] Documents A and B are copies of respectively a sales order acknowledgement and a delivery note which appear to vouch the purchase by the pursuer of the computer in question at a total cost of £1,491.08. Document C is a letter dated 1 October 2004 from an officer of Northern Constabulary to the pursuer acknowledging his report of the theft of the computer and stating that an investigation into his complaint had commenced. Document D is a copy of a letter dated 25 October 2004 to the second defender from a firm of solicitors instructed by the pursuer. The second paragraph of this letter reads:

In our view Mr Drake has a claim against you in respect of his loss in that you have a duty of care towards him as one of your residents to take care of his property. We further understand that there are no locks on the bedroom doors and this, in our view, reinforces our client's claim. The computer is worth some £1,200.

[3] The defenders disputed the claim, and a statement of defence was lodged on their behalf by their solicitor in the following terms:

The Defenders have no liability to the Pursuer arising out of the apparent theft of the Pursuer's computer. As appears to be accepted by the Pursuer the Defenders were not at Castlehill B & B when the alleged theft took place. The Defenders did not steal the Pursuer's computer. The Defenders did not have a legal obligation for a duty of care to the Pursuer's goods. The Defenders run their premises at Castlehill B & B, Tain, as a bed and breakfast establishment for people referred to them by the Local Authority only. The Defenders do not accept travellers who wish to utilise the Defenders accommodation. The Defenders do not come within the scope of Hotel Proprietors Act 1956 in as much as Castlehill B & B is not a "Hotel" as defined in Section {1} {3} of the 1956 Act and in particular is not "an Establishment held out by the proprietor as offering food, drink and, if so required, sleeping accommodation without special contract to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received". The basis of the Pursuer's case is therefore irrelevant.

[4] In his stated case the sheriff records that the case called in court on 20 January 2005 when the pursuer represented himself and the defenders were represented by their solicitor. After setting out the details of the claim and the statement of defence the sheriff continued:

 

When I first read the pursuer's case I was not at all certain upon what basis the pursuer was pleading a case of fault against the defenders. I did not understand what the pursuer meant by "..... there has been a delict in the concept of onus." When the pursuer came to address me it became clear that he was founding his case upon the Praetorian Edict nautae, caupones, stabularii. It is clear that the strict liability imposed on innkeepers (caupones) has been accepted with some variations as part of Scots Law: Walker, Delict, 2nd edition, pages 288-289 and authorities there cited. At page 291 the learned author writes: "An inn, for the purposes of edictal liability, is a building to which the public are entitled to resort for accommodation and refreshment, as contrasted with a lodging or boarding house, guest house or private hotel, in which control may be retained over the choice of lodgers to be admitted and in which there is no obligation to the public generally..... The primary function of an inn is to provide accommodation for travellers in itinere, and edictal liability may be limited to overnight guests and not extend also to those who lodge for a period".

I took the view that the pursuer had not set out in his written pleadings why the Praetorian Edict should apply to the defenders' premises and that therefore this case was, as submitted by the solicitor for the defenders, wholly irrelevant. I stated in open court that the pursuer's claim was not soundly based in law. I stated that even if the pursuer proved what he had set out in his statement of claim, he would not be entitled to the remedy sought. I therefore, in terms of Rule 8.3(3)(c) dismissed the action.

For the avoidance of doubt, although I looked at the case of Watling v Mcdowall, (1825) 4 S.86, I did not found upon it.

[5] The defenders' expenses were subsequently assessed in the sum of £554.24, and by interlocutor dated 17 February 2005 the sheriff dismissed the action and granted decree against the pursuer for payment to the defenders of the assessed expenses of £554.24 payable at £5 per week.

[6] On 3 March 2005 a note of appeal was lodged by the pursuer in the following terms:

The pursuer appeals the sheriff's interlocutor of 17.2.05 to the sheriff principal and requests the sheriff to state a case.

The point(s) of law upon which the appeal is to proceed is/are: (give brief statement)

Due to the Sheriff's early comment that both parties were in agreement, after only reading aloud my claim details, I missed the opportunity to contest the statement for the defence.

    1. That "the Defenders run their premises at Castlehill B & B, Tain, as a bed and breakfast establishment for people referred to them by the local authority only" is incorrect and may be contested.

    2. That "the Defenders do not accept travellers who wish to utilise the Defenders accommodation" is incorrect, and may be contested.

    3. Regarding my length of residency, it was always on a temporary basis, being extended from time to time, Mrs Dow frequently inquired if I had heard anything from the Highland Council.

    4. Watling v. McDowall (1825) details the use of the Praetorian Edict as a means of defence, to counter a charge for payment of an outstanding half-years' rent. I was using the Edict as a means of Pursuit and did not owe anything. I was not, as mentioned, in point 3 above, a permanent lodger.

    5. Watling v. McDowall (1825) further continues that were the Defendant "otherwise liable, it is thought that she would have to prove a pretty strong case of masterful violence, and to show all due precaution on her own part, to escape liability". At no point does this case judge that lodgings do not fall under the Edict. Negligence and due precaution (lack of locks to bedroom doors) are still matters of contention and I do not accept the Sheriff's view that I was at fault for not jamming the door from inside.

[7] No adjustments to the sheriff's draft stated case were proposed on behalf of the defenders. The pursuer proposed adjustments in the following terms:

    1. It appears to me that both the solicitor for the defence, Mr Keir and the Sheriff in his draft Stated Case, keep quoting from the Hotel Proprietor's Act 1956 and labouring the point that it does not apply. At no time have I ever stated that it does.

    2. The Sheriff's quote from Walker on Delict, has omitted that the learned author also writes: "Strict liability under the Edict applies where a traveller enters an inn and there deposits his goods, and renders the innkeeper bound to preserve for the owner whatever is entrusted to his care ..... The Edict is, "by the usage of Scotland, extended to vintners in boroughs [sic] though they be not innkeepers; and to householders who take in lodgers.""

    3. Upon his return after the half-hour recess, during which Mr Keir went to find reference to Watling v. McDowall (1825) and then the Sheriff retired to his chambers to look at the case, both Mr Keir and the Sheriff discussed my length of residency and agreed it was lengthy. My comment that it was temporary was ignored. To this end I submit Document A which clearly states my accommodation was never permanent. I would ask how can my length of residency carry so much weight when no import was given to my door not having a lock?

    4. As to my not having set out in my written pleadings why the Praetorian Edict should apply to the defender's premises, I would point out that my solicitor, Mr David Wilson, advised me not to include any written mention of the Praetorian Edict until I got into court. If my pleadings were incorrect it was due to my not having been trained in the practice of law. I find it hard to understand that I can be penalised for being a layman, when the Summary Cause action was originally designed so that the little man could have recourse to the justice procedure.

[8] Document A referred to in paragraph (3) of these proposed adjustments is a copy of a letter dated 28 September 2004 from the Director of Housing of Highland Council to the pursuer confirming an earlier assessment that he was homeless and advising him that, in order to give him time to obtain alternative accommodation, the Council would continue to provide him with temporary accommodation at the defenders' premises until 1 November 2004.

[9] Parties were heard by the sheriff on these proposed adjustments on 12 May 2005. According to the minute of the hearing made by the sheriff clerk, the pursuer's proposed adjustments were rejected by the sheriff "as held not to be adjustments". But the appellant was advised that the document incorporating his proposed adjustments would be made available to the sheriff principal for reference at the hearing of the appeal.

[10] I should perhaps mention that the stated case does not contain any questions of law. It may be that the sheriff overlooked the terms of rule 25.1(3)(c) of the Summary Cause Rules 2002 which (differing from rule 81(2) of the Summary Cause Rules 1976) provides that a draft stated case should contain appropriate questions of law. It would of course have been open to either of the parties to propose adjustments to the draft stated case to incorporate appropriate questions of law. Rule 25.3(2) provides that, in the hearing of an appeal, a party shall not be allowed to raise questions of law of which notice has not been given except on cause shown and subject to such conditions as to expenses or otherwise as the sheriff principal may consider appropriate. In the event, nothing was sought to be made of this particular provision at the appeal which effectively proceeded upon the basis that the question of law to be addressed was: "Did the sheriff err in law in dismissing the pursuer's case?" Here it will be recalled that rule 8.3(2)(a) provides that at the initial hearing of a summary cause the sheriff shall ascertain the factual basis of the claim and any defence, and the legal basis on which the action and the defence are proceeding. Rule 8.3(3)(c) provides that, if he cannot secure settlement of the action between the parties at the initial hearing, he shall, where it appears that the claim as stated or any defence stated in response to it is not soundly based in law in whole or in part, hear parties forthwith on that matter and may grant decree in favour of any party. It was on the basis of this provision that the sheriff dismissed the pursuer's claim.

[11] Opening the appeal, the pursuer emphasised that he did not rely on the provisions of the Hotel Proprietors Act 1956 and acknowledged that the defenders' premises were not a hotel within the meaning of that Act. He explained that he was relying upon the Praetorian Edict nautae, caupones, stabularii, and he referred in particular to two passages in the first edition of Walker on Delict. In the second (and current) edition these passages appear at pages 291 and 293 respectively. The first reads: "The Edict is, 'by the usage of Scotland extended to vintners in boroughs [sic] though they be not innkeepers; and to householders who take in lodgers'".

[12] The second passage occurs in a paragraph which deals with the provisions of the Hotel Proprietors Act 1956 (upon which the pursuer had said he was not relying). It reads: "If liable as an innkeeper for loss of or damage to property the proprietor's liability to any one guest is limited to £50 in respect of any one article, or £100 in the aggregate, except where (a) the property was stolen, lost or damaged through the default, neglect or wilful act of the proprietor or some servant of his....." In a footnote to this passage on the same page it is said: "It may be 'neglect' to have a communicating door between separate rooms which can be easily forced".

[13] Under reference to these passages, May v Wingate (1694) Mor 9236, Watling v McDowall 1825 4S 86 and Gabriel v Enchanted Bed and Breakfast CC 2002(6) SA 573(C) the pursuer submitted that the Praetorian Edict applied in the law of Scotland not only to inns properly so called but also to lodging and boarding houses such as the defenders' premises.

[14] The pursuer submitted in the second place that the defenders were liable to him for the cost of his computer on the ground that there had been a quasi-delict on their part. He drew attention to a definition of quasi-delict which he had taken from an on-line dictionary on the Internet and which defines quasi-delict as an act whereby a person, without malice, but by fault, negligence or imprudence not legally excusable, causes injury to another. He submitted in short that the fact that there had been no lock on the door of his bedroom at the defenders' premises could be viewed as neglect on their part. They had, so he said, been negligent in that the absence of a lock on the door had meant that he had been unable to secure it during the night. He explained that when the police had arrived following his report of the theft of the computer they had said to him that he would have a difficult job claiming on his insurance policy given that there had been no lock on the bedroom door. The absence of a lock was, said the pursuer, critical to the whole situation.

[15] I understood the pursuer to accept that, when he had appeared at the initial hearing before the sheriff, he had not founded upon any quasi-delict or negligence on the part of the defenders. At the hearing of the appeal he said that he should have done so and he confirmed that he did now rely on this aspect of his claim.

[16] For the sake of completeness, I should mention that the pursuer also mentioned (1) that the defenders could have obtained insurance cover against any liability on their part for loss of property belonging to guests in their premises, (2) that the defenders received into their premises passing travellers as well as homeless persons who had been referred to them by the local authority, and (3) that at no time during his stay at their premises had he been there under a special contract (as in Watling v McDowall) or as a permanent guest. On the contrary, he had been staying there on twenty four hours notice to remove elsewhere.

[17] In response, the defenders' solicitor submitted that the pursuer's statement of claim was irrelevant in that it made no mention at all of the Praetorian Edict. In any event, the Edict applied only to premises which might properly be described as an inn which was open to the public generally and not to premises which took in lodgers. It was common ground that the pursuer had not simply been an overnight guest at the defenders' premises but had been staying there for some time. So, even if the Edict did apply to these premises, they did not apply to someone in the pursuer's circumstances. As for his submission to the effect that there had been a quasi-delict or negligence on the part of the defenders, it was not open to him to advance this at the appeal given that it had not featured in either the pursuer's original statement of claim or his grounds of appeal, nor had he made any such submission at the initial hearing before the sheriff.

[18] I can deal shortly with the submission that the defenders are liable to the pursuer on the ground of negligence or quasi-delict on their part. In my opinion the sheriff cannot be faulted for not having taken this submission into account when it was not presented to him at the initial hearing by the pursuer. Nor am I prepared to entertain the submission in this appeal. It is true that in the final sentence of his grounds of appeal the pursuer referred to negligence and the lack of locks on the bedroom doors. Understandably the sheriff made no reference in the draft stated case to these matters. If the pursuer wished to raise them in the appeal, he should in my opinion have proposed adjustments to the draft stated case which would have properly focused the issue. As can be seen from the adjustments which he did propose, he did not do this beyond making a passing reference at the end of paragraph (3) to his door not having a lock. And even if I had been prepared to entertain this submission, I should have rejected it. All that the pursuer says in effect in paragraph (3) of his statement of claim is that his bedroom door in the defenders' premises had no lock on it, that during the night when he was asleep his computer was stolen, that he does not know who stole it and that the defenders were away on holiday at the time. I do not exclude altogether the possibility that the defenders might be liable to the pursuer for the loss of his computer on the ground of their negligence. But one would need to know in far more detail than has been averred by the pursuer what were the surrounding circumstances before such liability could be affirmed. In my opinion the pursuer's claim as stated does not afford a sound basis in law for his submission that the defenders are liable to him on the ground of their negligence or quasi-delict.

[19] As for the Praetorian Edict, the statement at page 291 of Walker on Delict (2nd Edn) to which the pursuer referred is taken from Erskine's Institute of the Law of Scotland (1871) III.1.29 where it is said that the Edict "is, by the usage of Scotland, extended to vintners in boroughs, though they be not innkeepers ..... and to householders who take in lodgers". This last point is supported by a reference to May v Wingate. Walker also refers to Scott v Yates (1800) Hume 207, Watling v McDowall and Bell's Principles of the Law of Scotland (10th Edn, 1899) at paragraph 236.

[20] In May v Wingate the pursuer founded upon the Praetorian Edict on the basis that, while he had been lodging in the defenders' house, he had given them a bag of money and when he had later asked for its return they had declared that it had been stolen. According to the report of the case in Morison's Dictionary of Decisions, it was considered by the Court of Session on 16 February and again on 10 July 1694. On the earlier occasion the first question before the court was "if setters of rooms, etc. were in the same case with innkeepers and taverners". It is reported that the court thought they were. But no further explanation is given of the court's reasoning. On 10 July 1694 a debate evidently arose whether the defenders were liable on the Praetorian Edict as caupo, or only as an ordinary depository. According to the report, "The Lords found, seeing he had lodged in Wingate's house, and gave them the money to keep, and then went out of town and returned again, and at that time it was stolen, that therefore they were in the precise terms of the Edict, and to be liable tanquam caupo, seeing it was acknowledged, that at the accepting, (Mrs Wingate) promised to secure it".

[21] In Scott v Yates the defender kept a lodging-house in Edinburgh. The pursuer had been one of her lodgers. She brought a complaint to the defender that a trunk of hers, which had stood in her own room and of which she herself had always kept the key, had been opened and certain trinkets of some value carried off. In this situation she made a claim for their value against the defender, as answerable for the honesty of her servants. She founded upon the Praetorian Edict. The Lord Ordinary (Dunsinnan) granted decree in favour of the pursuer. On appeal it was argued that the Edict was not applicable since the chest which had contained the articles in question had never been committed to the defender, nor had she been told, nor did she know, that it had contained any such articles, and the pursuer herself had constantly had the charge of the key. But the appeal was refused and it was held that the Edict did apply to such a case. But again no further indication of the court's reasoning is given in the report.

[22] In Watling v McDowall the pursuer hired a room from the defender in which he resided as a lodger for upwards of a year. An action having been brought against him for payment of a half year's rent in the sheriff court, he pleaded in defence that while he had been residing in the house part of his clothes had been stolen for the value of which, he contended, the defender was answerable under the Praetorian Edict. The sheriff depute (who would today be the sheriff principal) found that the Edict did not apply. In his note he wrote inter alia: "This is a case of some importance and difficulty. The sheriff is chiefly moved by the severity of the Edict nautae caupones, and the hardship of extending it to others who have not been considered generally as liable. The case in Fountainhall, alluded to by Erskine, as including the letters of lodging, February 16 and July 5 1694, May v Wingate, is a case of circumstances, where there was a peculiar confidence reposed in depositing a sum of money, and negligence proved on the part of the defender". What was in effect an appeal to the Court of Session was refused and, according to the report, "The court wished it to be distinctly understood, that they did not mean to decide the question whether or not the keepers of lodgings fall under the Edict; but that, in the circumstances of this case, the (defender) even although she did fall under the Edict, was not responsible".

[23] It appears that there have been no reported cases in Scotland on this issue since 1825. In this situation it is perhaps not surprising to read in Bell's Principles at paragraph 236(4): "Where persons are not properly innkeepers, but letters of lodgings, they seem not to be within the rule; though the question is not settled". Likewise in Bell's Dictionary and Digest of the Law of Scotland (7th Edn, 1890) it is said in the entry for Innkeepers at page 534: "The Edict applies to the keepers of tippling-houses, with whom travellers lodge, and even to mere vintners; but it is a question still open, whether it applies to lodging house keepers". And in the entry for Lodging- houses at page 671 it is said: "It seems formerly to have been laid down, that the keepers of lodging -houses were, like innkeepers, etc., liable under the Edict nautae, caupones, for the safety of goods and luggage brought into the house by lodgers; May, 1694 M 9236, but there has been no recent decision to support the old precedent". There follow references to Watling v McDowall and Scott v Yates.

[24] Statements to similar effect are to be found in volumes 11 and 15 of the Stair Memorial Encyclopaedia of the Laws of Scotland. Thus at paragraph 147 in volume 11 it is said: "In modern times the liability of an innkeeper would cover the keeper of a hotel but not the owners of boarding houses, restaurants or public houses". And at paragraph 1742 in volume 15 it is said: "The strict liability for the loss of property brought to a hotel by a guest applies only to hotel keepers. It does not apply to the keepers of boarding houses, lodging houses, staff hotels, restaurants, refreshment rooms, public houses or garages".

[25] In my opinion, whatever may have been the position in 1694 or 1800, it cannot now be affirmed, in particular in the face of the reservation of the Court of Session in Watling v McDowall in 1825, that it is the law of Scotland that the proprietor of a bed and breakfast establishment may be liable under the Praetorian Edict to make good a loss sustained by a guest (such as the pursuer in this case) while staying at that establishment. It follows in my view that the sheriff in the present case correctly dismissed the action on the basis that the pursuer's claim was not soundly based in law.

[26] I might add that there is I think a further reason why in any event the pursuer's claim was not soundly based in law to the extent that it was based on the Praetorian Edict. This is to be found in the terms of section 1 of the Hotel Proprietors Act 1956 which provides:

1(1) An hotel within the meaning of this Act shall, and any other establishment shall not, be deemed to be an inn; and the duties, liabilities and rights which immediately before the commencement of this Act by law attached to an innkeeper as such shall, subject to the provisions of this Act, attach to the proprietor of such an hotel and shall not attach to any other person.

(2) The proprietor of an hotel shall, as an innkeeper, be under the like liability, if any, to make good to any guest of his any damage to property brought to the hotel as he would be under to make good the loss thereof.

(3) In this Act, the expression "hotel" means an establishment held out by the proprietor as offering food, drink and, if so required, sleeping accommodation, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received.

[27] The emphasis in section 1(1) is mine. It was accepted, rightly in my opinion, that the defenders' premises do not constitute a hotel within the meaning of this Act. Accordingly, in terms of section 1(1) they are not deemed to be an inn with the result that the duties, liabilities and rights which immediately before the commencement of the Act attached to an innkeeper as such (which would of course include liability under the Praetorian Edict) do not attach to the defenders since they are not the proprietors of a hotel within the meaning of the Act.

[28] For the sake of completeness I should consider briefly the decision in the South African case of Gabriel v Enchanted Bed and Breakfast CC. I do not have a copy of the report of this case, but a summary of it is to be found at www.deneysreitz.co.za-publications-seminars.asp. It appears that Messrs Deneys Reitz are a firm of attorneys in South Africa and on their website one of their assistants has provided some advice for the proprietors of hotels, bed and breakfast establishments and the like in light of the decision in this case. It further appears from what is said on the website that the proprietors of a bed and breakfast establishment in South Africa may be liable to guests staying at the establishment for the loss of their property on the basis of the Praetorian Edict. But of course it is one thing to say that the Edict applies to a bed and breakfast establishment in South Africa, and quite another to say that it applies to a similar establishment in Scotland, and for the reasons already indicated I do not think that it does. In any event, as I have also indicated, I think that a claim against the proprietor of a bed and breakfast establishment in Scotland under the Edict would be defeated by the terms of section 1(1) of the Act of 1956.

[29] It was accepted that the expenses of the appeal should follow success and I have therefore found the pursuer liable to the defenders in these expenses.

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