Scottish Court of Session Decisions

On 30th December 1904 Mrs Isabella M'Kinlay, wife of Alexander M'Kinlay, with her husband's consent, and Alexander M ‘Kinlay as tutor for his pupil child Mary M'Kinlay, brought an action in the Sheriff Court of Lanarkshire, at Glasgow, against John M'Clymont to recover damages for personal injuries.

The pursuers averred that the pursuer, Alexander M'Kinlay, a labourer, resided at 81 Lambhill Street, Glasgow; that the female pursuer, his wife, resided therewith him; and that the defender, who resided at 91 Pollock Street, Southside, Glasgow, was the owner of the house in which the pursuers resided.

The pursuers further averred—“(Cond. 2) The house in question is a single apartment, with a small sleeping apartment off it, and is occupied by the pursuers and their young family. Pursuers, Alexander M'Kinlay and his family, have resided in said house for over four months, and defender's father, James M'Clymont, who held himself out as proprietor, and with whom pursuer, Mr

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M‘Kinlay, had all his dealings, usually called for the house rent. (Cond. 3) The ceiling of the said house was old and rotten and dangerous to the inmates, and defender or his father, the said James M'Clymont, who acted as factor of pursuer's house, and for whom the defender is responsible, on the occasions of his calling for the rent, saw, or ought to have seen, that the ceiling was old and needed renewing, or at least repaired; but he negligently failed to have it renewed or repaired. The said James M'Clymont was continually about the tenement in the tenants' houses, in particular in the house of the pursuers. (Cond. 4) On the morning of Saturday, 10th December 1904, a portion of the ceiling, about two feet square, fell and gave the female pursuer and her family a severe shock, besides causing the pursuers' family great annoyance and inconvenience. Later on the same day the said James M'Clymont called at the house on his usual rounds for the rent. Mr M'Kinlay pointed out to him what happened, and urged him to have the ceiling at once repaired. The said James M'Clymont, notwithstanding that he saw the condition of the ceiling and indicated that the matter would be attended to, walked out muttering that what he wanted was rent. Mr M'Kinlay was daily expecting to have the ceiling repaired, but nothing was done. He relied on its being put into a condition of safety every moment, and accordingly he did not remove from the premises. On the Thursday following, a further fall of the ceiling took place. Large pieces of the falling plaster struck the female pursuer and the daughter Mary, a girl of about eleven years of age. It struck them on the head, neck, and shoulders, and severely injured them. They were then under the necessity of receiving medical treatment, and are so still. They are, each of them, suffering from nervous shock, and it will be a considerable time before either has recovered. The girl Mary M'Kinlay is unable to go to school, and will not be able to do so for a further considerable time. The female pursuer is unable to attend to her domestic duties, and her children suffer in health in consequence.…”

The defender pleaded that the action was irrelevant.

On 10th February 1905 the Sheriff-Substitute ( Davidson) repelled this plea and allowed a proof.

The defender appealed to the Sheriff ( Guthrie), who on 7th April 1905 recalled the Sheriff-Substitute's interlocutor of 10th February and dismissed the action as irrelevant.

Note.—“The pursuer's averments in article 3 of the condescendence show that he was aware that the ceiling of his house was dangerous (see Fraser v. Hood, 1887, 15 R. 178, 25 S.L.R. 164, a case decided in the best days of the First Division), and yet he continues to live in it. The alleged fall of part of the ceiling, ‘two feet square,’ on Saturday 10th December last, was a pregnant proof of the state of rottenness which he sets forth. He is told the same afternoon by the factor that it would be attended to; but although it is not attended to, no further complaint is made, and he and his family remain in the house till another serious fall of plaster took place on the following Thursday. They still remain there, or at all events he describes himself as residing there on December 30th when this action was served, and after a summons of sequestration for rent had been served on December 22nd, and, it must be presumed, on January 25th, when the record was closed on a statement that the defender had obtained a warrant to eject the pursuer ‘after a long process.’ No doubt it is averred that the pursuer's wife and children could not remove on account of their health, and by reason of the nexus placed on the furniture by the defender's sequestration. These, perhaps, are not averments of much importance to the present question of relevancy, but point to the dilemma either that the pursuer's averments as to the dangerous and dilapidated condition of his house, or his averments as to the state of his wife and child's health, must be grossly exaggerated.

“It is enough, however, for the decision of the question of relevancy that the pursuer and his family remained in the rotten and dangerous house, which had already begun to fall about their ears, for four days, instead of betaking themselves to a place of refuge, and that without again demanding that the house should be made habitable. The recent decisions on this subject have become rather numerous and a little bewildering. Yet, I doubt not, through these cases one consistent purpose runs, viz., that men are not to get damages for injuries which they should have foreseen, and could have avoided by moderate prudence.”

The pursuers appealed to the Court of Session, and argued—The pursuers had complained that the ceiling was unsafe, and the defender had undertaken to repair it. The averment that the defender's factor “indicated that the matter would be attended to” was sufficient averment of an undertaking to repair it. It was relying on this undertaking that pursuers continued to occupy the house. The present case was very like but more in pursuer's favour than, that of Shields v. Dalziel (May 14, 1897, 24 R. 849, 34 S.L.R. 637), where the pursuer was held entitled to rely on the factor's promise in spite of his continued procrastination for many months. If the pursuer had removed in face of this offer to repair he would have been, on the authority of M‘Kimmie's Trustees v. Armour (November 23, 1899, 2 F. 156, 37 S.L.R. 109), acting unreasonably, and probably would have been liable in damages for breach of contract.

The defender (respondent) argued—The averment in this case “indicated that the matter would be attended to” was not a sufficient averment of a promise; it fell far short of the averment in Shields v. Dalziel ( cit. sup.), which was “undertook and promised to put it right.” The shorter interval here between the promise (if it were a promise)

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and the fall of the ceiling was really in defender's favour. The pursuer on his own statement had occupied the house for four months apparently without complaint; in view of this he was not entitled to rely on a mere indication that the matter would be attended to, especially if it were so urgent that the ceiling fell only five days after the complaint. The present case was analogous to the cases of Webster v. Brown, May 12, 1892, 19 R. 765, 29 S.L.R. 631; Smith v. School Board of Maryculter, October 20, 1898, 1 F. 5, 36 S.L.R. 8; M'Manus v. Armour, July 10, 1901, 3 F. 1078, 38 S.L.R. 791.

At advising—