United Kingdom House of Lords Decisions

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Cite as: 45 ScotLR 410, [1908] UKHL 410

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SCOTTISH_SLR_House_of_Lords

Page: 410↓

House of Lords.

Thursday, February 27. 1908.

(Before the Lord Chancellor (Loreburn), Lord Macnaghten, Lord Robertson, Lord Atkinson, and Lord Collins.)

45 SLR 410

Camerons

v.

Youngs.

(Ante, January 26, 1907, 44 S.L.R. 344, and 1907 S.C. 475.)

Subject_Title to Sue — Landlord and Tenant — Lease — Contract — Action of Damages on Ground of Insanitary Condition of House at the Instance of the Wife and Children of Tenant.
Facts:

An action of damages against the landlord for the loss and inconvenience suffered by the inhabitants of a house, which is let to a tenant, through its insanitary condition, is based upon the contract of lease, and consequently the wife and children of the tenant, as they are not parties to that contract, have no title to sue such an action. Cavalier v. Pope, [1906] AC 428, followed; Shields v. Dalziel, May 14, 1897, 24 R. 849, 34 S.L.R. 635, commented on; and Hall v. Hubner, May 29, 1897, 24 R. 875, 34 S.L.R. 653, reversed.

Headnote:

This case is reported ante ut supra.

The cause so far as at the instance of Robert Cameron, the father and husband, as an individual, to whom an issue had been allowed, had been settled.

William Cameron and others, the sons and wife, the remaining pursuers, who had been held to have no title to sue, now appealed to the House of Lords.

At delivering judgment—

Judgment:

Lord Chancellor—I have had the advantage of reading the opinion about to be delivered by my noble and learned friend Lord Robertson. I agree with it and have nothing to add.

Lord Macnaghten—I have had the same advantage, and I also concur and have nothing to add.

Lord Robertson—The facts giving rise to the important question now before the House are of the simplest. The respondents let to one Robert Cameron, the husband and father of the appellants, a dwelling-house at Crieff. The house was allowed to get out of repair in the matter of drains; disease was generated owing to this neglect, and Cameron and his family, the appellants, suffered accordingly. Cameron's own claim for damages was sued by him in this action, but he has been settled with and is out of the case. The question is whether the appellants, who are not parties to the contract of lease, have a good ground of action against the landlord.

It seems to me perfectly clear that they have not, and I rest my opinion not alone on the authority of Cavalier v. Pope, but on principle common to the laws of Scotland and of England, which Cavalier applied.

These respondents were perfectly entitled to let this house or not to let it, and in either case they were entitled to allow the house to fall to pieces and the drains with it so long as they did not injure any neighbour (by which I of course mean any neighbour in vicinage whether the title of that neighbour was of property or of passage) or violate any existing law of nuisance, the only restraint on their action being obligations of contract with their tenant. Now it happens that in the present instance they were under such obligation to their tenant, by virtue of a condition which the Scotch law implies in leases of urban houses, that the landlord shall not only give the tenant a habitable house but maintain it in that state. It ought to be, but apparently is not, superfluous to say that if the law implies this condition it is because this is the customary arrangement in Scotch towns, and therefore when nothing is said to the contrary parties are taken to have agreed to it. That an obligation to maintain a house habitable is not an essential term or obligation of the tenure of real property in Scotland but a matter of agreement is indeed most strikingly proved by the fact that in the case of farmhouses the contrary is the presumption of liability; for there it is the tenant and not the landlord on whom this duty of maintenance falls. It thus appears that the landlord's liability is conventional and contractual, and not the less so where it is implied by law and not written in the contract.

The argument for the appellants has indeed rested on invoking principles of the law of neighbours which have nothing to do with the rights of inhabitants of the house. Those principles are embodied in a distinct chapter of Scotch law, and are concerned with what may be called the external or foreign relations of the owner of a house. There he is liable, because the maxim sic utere tuo ut alienum non lœdas necessarily imposes on the proprietor the duty of exercising that measure of care which will avoid injury accruing to his neighbour from his house. He must not allow his house to get into such disrepair that it falls down on his neighbour's house or injures the passer-by in the street. In all those cases the person injured and claiming damages stands on his own rights, and his relation to the offending or negligent proprietor is not constituted or measured by any voluntary contract.

These principles have no application at all to persons who are within the house, for they have and can have no right to be there except by the licence of the owner, given by the owner on certain terms to the person with whom he chooses to contract. Nor can it be omitted from notice that if the appellants' contention were sound the liability of the landlord may be indefinitely increased or diminished according to the domestic or social relations or tastes of the tenant over which the landlord has no control.

I have examined all the cases prior to Cavalier which were cited at the Bar, and

Page: 411↓

with one apparent but not real exception, and one real exception, there is none which conflicts with that decision. All fall within the category of external relations which I have discussed.

The apparent exception is the case of Shields v. Dalziel, 24 R. 879, in the First Division. There it is quite true that the claim which the Court allowed was that of the wife of the tenant and not of the tenant. I must, however, point out that neither in the written pleadings nor in the oral argument did the landlord question or object to the title or instance of the wife, the defence being rested on totally different grounds. The pleadings were written and the argument was conducted by very able counsel, and presumably they deliberately abstained from stating this plea. Suffice it to say that the present question was not before the Court, and the decision in Shields v. Dalziel is not a judgment adverse to the doctrine of Cavalier v. Pope.

The other case which I have called an exception is Hall v. Hubner, 24 R. 875, decided by the Second Division. There the landlord argued that the pursuer being the tenant's wife was … a stranger to the landlord, and must seek her remedy not against him but the tenant. The learned Judges in their reported opinions take no notice of this argument, but their judgment allowing issues to be lodged amounted to its rejection. This decision I therefore think cannot be supported, but this is the only and the slender support of the appellants' case to be found in the Scotch cases prior to Cavalier v. Pope.

I am of opinion that the appeal ought to be dismissed.

Lord Atkinson—I concur.

Lord Collins—I concur.

Their Lordships dismissed the appeal.

Counsel:

Counsel for the Pursuers (Appellants)— C. D. Murray. Agents— Murray, Lawson, & Darling, S.S.C., Edinburgh— Walter H. Guthrie, London.

Counsel for the Defenders (Respondents)— Macmillan— Beveridge. Agents— Mathie, Macluskie, & Lupton, Stirling— Morton, Smart, Macdonald, & Prosser, W.S., Edinburgh— A. & W. Beveridge, Westminster.
1908