Scottish Court of Session Decisions

In September 1910 John Kennedy, miner, Burniebrae, Redhall, Shotts, as tutor and administrator-in-law of his pupil child Jane Kennedy, pursuer, raised an action against the Shotts Iron Company, Limited, iron and coal masters, Shotts, defenders, in which he sued for £250 as damages for personal injury to his said child, caused through a defective railing on a common stair in a tenement of houses.

After the action was in Court William James Wood, 46Queen Street, Regent Park, Glasgow, and another, the trustees and executors of the late Robert Alexander Inglis, technical chemist, Glasgow, were added as additional defenders to the action on the motion of the pursuer.

The pursuer pleaded, inter alia—“2. The pursuer's said child having been injured through the fault of the defenders the Shotts Iron Company, the said defenders are liable to make reparation to the pursuer. 3. The pursuer's said child having been injured through the fault of the defenders Inglis' trustees, the said defenders are liable to make reparation to the pursuer.”

The defenders the Shotts Iron Company pleaded, inter alia—“3. The pursuer's daughter not having suffered any loss or damage through the fault of the defenders, the latter are entitled to absolvitor, with expenses.”

The defenders Inglis trustees pleaded, inter alia—“3. The pursuer's said child not having been injured by the fault or negligence of these defenders, or of anyone for whom they are responsible, the said defenders should be assoilzied, with expenses. 4. These defenders being divested by a lawful contract of lease of the possession and control of the said tenements, had not, in the circumstances set forth, any duty in regard to the condition thereof to the pursuer, and they should be assoilzied.”

The facts, ascertained at a proof, appear from the opinion of the Lord Ordinary ( Ormidale), who on 1st June 1912 found the defenders the Shotts Iron Company liable to the pursuer in damages, which he assessed at £60, assoilzied the defenders Inglis' trustees, and found the defenders the Shotts Iron Company liable in expenses to the pursuer and to the defenders Inglis' trustees.

Opinion.—“There is no controversy as to how the little girl Jane Kennedy met with the accident and sustained the injuries for which she now seeks compensation.

“On the 9th August 1910 she went with her mother, about eight o'clock in the evening, to visit a Mrs O'Hara at a house, 23 High Tarbothie, Shotts. The house is approached by and up a stair of about fourteen steps, which affords an access common to Mrs O'Hara's house and a house adjoining it, occupied at the time of the accident by the witness Mrs Lennie. Both of the houses open on to a landing at the top of the stair. The stair and the stairhead or landing are protected by an iron baluster railing having a wooden handrail on the top. The two houses form part of a block or tenement of eight double houses known as Inglis' Land. After remaining with her mother in Mrs O'Hara's house for a short time the child, who was about four years old, went out on to the stairhead landing. She appears then to have leaned against one of the rails, and the rail giving way the child fell over on to the ground below, a distance of about nine feet, carrying the rail along with her. I have no doubt that the weight of the child, young though she was, was sufficient without the application to the rail of any shaking or other violence to dislodge the rail, for it is proved that the stone at its base, into which it had originally been thrust and batted down with lead, was broken away, and that the rail had nothing to hold it in its place. It merely rested on the surface of what stone there was left.

“There is a conflict as to whether the rail which slipped over was the fifth rail from the top of the stair as averred on record or the fourth. This seems to me immaterial; but I see no reason to doubt the evidence of the pursuer's witnesses that it was the fifth rail. There is no evidence, in my opinion, relevant to infer contributory negligence.

The defenders Inglis' trustees are the proprietors, and the defenders the Shotts Iron Company are the tenants under them of the whole block or tenement. Mrs O'Hara, again, is a tenant of the Shotts Company. Are both the defenders, or one or other of them, responsible for the accident?

“It is maintained by both defenders that they are not liable in any way to the pursuer, on the ground that there was no contractual relation between them and the girl Kennedy; that whatever might be their liability as in a question with the tenant of the subjects, Mrs O'Hara, they are under no liability to keep the premises safe and secure for members of the public who may happen to be Mrs O'Hara's guests or visitors, and the following cases were cited in support of that contention:— Cameron v. Young 1908, A.C. 176; Cavalier v. Pope, 1906 AC 428; Laing v. Fox, 1897, 1 Q. B. 415; Robins v. Jones, 1863, 15 C.B. (N.S.) 221. In all these cases the accident occurred inside the premises

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which had been let. On the evidence in this case I am not prepared to hold that they have any application. Little, it is true, was said in the course of the lengthy proof about the exact nature and extent of Mrs O'Hara's occupation or tenancy, but it is not proved that the stair and the stairhead formed part of the subjects let to her, as her house was. They could not well be, for it was a common stair. Accordingly it seems to me that anyone lawfully using the stair was entitled to assume that reasonable care would be taken to safeguard them from danger by the person who truly had the possession and control of the stair and the stairhead.

“It was further maintained, however, that the girl Kennedy was a mere licensee permitted by those who were the owners or were otherwise responsible for the stair to be on it, but that unless she were on it upon the business or for the benefit of those responsible they owed her no positive duty, and could not therefore be guilty of actionable negligence—that she was bound at her own risk to take the stair just as she found it, or, to use the words of Keating, J., in Smith's case, that in using the stair she took it ‘with all its imperfections’— Gautret v. Egerton, 1867, L.R., 2 C. P. 371; Smith v. London, &c., Docks Company, L.R., 3 C.P. 326. Clearly the girl Kennedy was not on the premises on any matter of business. But I do not read the cases cited as laying down the rule contended for. The decision in Gautret was on relevancy, and the averments were held to be irrelevant for want of specification. In Smith's case the view that the defendants were under no duty to the plaintiff because he had no business with the defendants was in effect negatived. It was held that the gangway there was an invitation to all persons having business on board the ship, not .necessarily business in which the defendant was directly interested, to go upon it. I think that here the stair was an invitation to all persons having a legitimate interest to enter Mrs O'Hara's house to do so by means of the stair which was the only access provided. As said by Byles, J., in the course of the argument in Smith's case, at p. 331, the bell of a door says ‘Come and ring me.' If so, then the person responsible for the proper upkeep of the stair owes a duty to the person who uses it, viz., to take reasonable precautions to safeguard the user from the risk of danger and injury. The present case seems to me to be within the principle of the judgment in Millar v. Handcock, 1893, 2 Q.B. 177. When the house was let to Mrs O'Hara, the stair not being let to her, there was an implied undertaking to maintain the stair so far as might be necessary for the reasonable enjoyment of the subjects let. In Millar's case no doubt the persons who are referred to as ‘using’ the stair on the understanding that they might lawfully do so were persons who had business with the tenant, and the person who was injured was a person who had been visiting the tenant on business, but there the subjects let were business premises. When the subjects let are a dwelling-house, it seems to me that the lessor or the person who retains the stair under his control must be assumed to sanction the use of the stair not only by the tenant but by those who may happen to visit her. The premises let could not be reasonably enjoyed by her otherwise, and it seems to me that such visitors are just like the persons coming on business, as in Millar's case, entitled to be protected from danger in using the stair provided as the access and the only access to the house of their friend. They are not only permitted, but they are invited to use the stair. Moreover, even in the case of a mere licensee as I read the authorities, the owner or occupier of the ground over which the licensee is allowed to pass is not protected from liability if he places anything of the nature of a trap in the way of the licensee. Now the railing here was to the ordinary passer-by truly of the nature of a trap, for the defective rail when in position had to such a person all the appearance of being sufficient for its purpose, and he was therefore entitled to rely on its apparent sufficiency. It was not as if the danger or risk had been a perfectly obvious one in the sense that it was discoverable at a glance, however casual. It might have been a totally different case if the railing round the stairhead had disclosed a gap due to a rail having fallen out and not having been replaced, and the child fallen through that gap. In that case she, if a mere licensee, might have been bound to take the stair as she found it with all its visible imperfections.

“It is in my opinion proved that the defect in the railing was one which a person charged with the duty of keeping the premises in repair could easily have detected if only there had been reasonable inspection. On such inspection it would have been at once seen that the rail had no hold in the stone on which it rested. The stone had weathered and got broken away to the extent of nearly two inches. A shake of the handrail would have dislodged the rail. It had no grip in the wooden coping. That there was a good deal that required attention and repair at this part of the railing is evident from the fact that not only the rail which was carried away by the girl Kennedy, but the two rails next to it were after the accident replaced by longer rails.

“There was a conflict as to whether the attention of Forrest, a foreman joiner in the employment of the Shotts Company, to whom the tenants were in the habit of making complaints and requests, was drawn to the state of the railing on the occasion of a not dissimilar accident which happened in 1907. I am reluctant to discredit Forrest, who denies that any notice was then given to him. I cannot help thinking that he would have had the railing repaired if there had been, but, however that may be, I am satisfied that if he was charged with the duty of inspection in connection with the stair in question

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he should have discovered the defect for himself.

“The question whether both the defenders, or if only one which of them, is liable to compensate the child is a narrow and difficult one. The pursuer maintains that both are liable—Inglis' trustees because they are the owners of the property, and the Shotts Company because they were charged with the duty of seeing that the premises were kept in repair. In any view they maintain that the control of the property was confused and sub-divided, and no express or definite agreement having been come to or in practice followed with regard to outside repairs, that therefore both must be subjected in liability.

“In my opinion the Shotts Company are alone liable. No doubt with regard to premises like those in question the owner may be primarily liable in a question with a member of the public for their being kept in a properly safe condition, but there is nothing to prevent his so demitting the possession, and control of his property as to transfer this liability to some one else. In the present case Mr Inglis, who died in January 1910, his trustees thereafter coming in his place, was in effect the proprietor. (As a matter of fact he had nine hundred years' lease of the subjects, running from 1857, from the Shotts Company.) Prior to 1892 he appears himself to have let his different houses to various tenants, there being an arrangement between him and the Shotts Company that the latter should collect the rents for him, and that on the other hand a preference should be given to the workpeople of the Shotts Company as tenants. The Shotts Company, as Mr Turnbull their manager puts it, were to have a first claim on the houses. How long that arrangement had existed is uncertain, but it was in force when Mr Turnbull first came on the scene in 1887, a previous arrangement embodied in a letter having gone out of existence prior to that date. In 1892 Mr Turnbull concluded a new arrangement with Mr Inglis, by which the Shotts Company leased the houses from him themselves for seven years. The lease, as already noted, covered the whole of the houses in the block or tenement, and necessarily, it seems to me, embraced all the outside stairs which formed accesses to the houses. This lease was renewed from time to time, the last renewal being for seven years from May 1908. The terms and conditions are set out in letters passing between the parties, dated 17th and 19th February 1892. The important term in the present connection, that namely relating to repairs, is thus dealt with. In Mr Inglis' letter dated 17th February he says—“provided … all repairs inside the houses and offices be made by you … all outside repairs on the houses being of course done by myself.' In his reply on 19th February Mr Turnbull puts it thus—‘During the lease the cost of outside repairs to be borne by you and of inside repairs by us.’ I read the two statements of the stipulation as substantially identical. It was quite naturally only the apportionment of the expenses connected with the houses which was in the minds of parties. I do not think that either party had in view the question of whose was to be the duty of actually executing the repairs. The question of who undertook this duty, with its resultant liability for negligence in the performance of it, must be determined, in my judgment, by what in fact and in practice was done after the lease was entered into. I have come to the conclusion that the Shotts Company undertook the duty of seeing to the necessary repairs being effected on Mr Inglis' property. Without examining the evidence in detail it seems clear enough that the actual working arrangement was that Mr Inglis, who was not on the spot, was to leave the matter in the hands of the Shotts Company, he, however, recouping the Shotts Company of any expense incurred by them in effecting repairs on the outside of the houses. In relation to their own tenants the Shotts Company were in the position of owners, retaining the full possession and control of those portions like the stairs and stair-heads which were not actually let to their tenants. It was to the Shotts Company, and to them alone, that their tenants looked for any and all repairs whether inside or outside their houses. They knew of no distinction or difference in this regard, and had no dealings with Mr Inglis. They were employees of the Shotts Company, and the rents of their houses were paid to the Shotts Company by deduction from their wages. Any expenses they were put to in connection with outside repairs the Shotts Company deducted from their rent when remitting it to Mr Inglis. But before the accident to the girl Kennedy, with only one exception, if it be an exception, the repairs were all effected by the Shotts Company at their own hand without previous consultation with or notification to Mr Inglis or his trustees. On the one occasion when they did notify Mr Inglis it was in connection, not with a repair, but with an addition to the premises—the erection of new ashpits or outhouses. It has to be kept in view that the Shotts Company were the owners of many houses in the same locality in addition to being tenants of Inglis' land, and for the repairs on these, both inside and outside, they were admittedly responsible in the fullest sense. It was quite natural, therefore, for them in practice to make no distinction between their supervision of their own and Mr Inglis' houses, and I think it was proved that they did not. A Mr Wellwood, who was in the service of the Shotts Company up to 1901, was charged with the duty of looking after the houses. Mr Wellwood lived in the district for some time after 1901, and died in 1908. He had gone to reside in Girvan some time before his death, and although he continued to receive payment from Mr Inglis of £2 a year down to his death, as a fee or gratuity for looking after Mr lnglis' property at Shotts, there is no evidence, except perhaps with regard to some clothes poles, to show that he actually took any hand in

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inspecting the premises or effecting repairs as Mr Inglis' representative. It was certainly not known to the Shotts Company that he did or was supposed to do so. The inspection after 1901 was all done by Forrest. Forrest was somewhat reluctant to admit that he was charged with a responsible duty in regard to outside repairs on Inglis' land, but I am satisfied that in fact and practice he made no distinction between Inglis' land and the subjects owned by his employers. It was to him that the tenants all alike applied when they wanted anything done. Their requests, no doubt, were mainly concerned with inside repairs, but as I have already said, they knew nothing about any distinction between outside and inside repairs. It is noteworthy that after the accident to the girl Kennedy it was to Forrest that application was made to have the railing sorted, and it was he and another workman employed by the Shotts Company who repaired it. This they did without notification of any kind to Inglis' trustees, merely charging the costs in the usual way when the rent came to be remitted. I think it is somewhat remarkable that when this action was raised, they being the only persons called as defenders in the first instance, they made no intimation of the claim for damages to Inglis' trustees. I do not think that the Shotts Company disputed that if Forrest's attention had been called to the defective condition of the railings at Mrs O'Hara's house prior to the accident he would have attended to it. Forrest admits that he had in relation to Inglis' Land houses the duty of effecting such repairs as he saw for himself were necessary, as well as those to which his attention was directed by the tenants, but he says he was not to be held responsible. It seemed to me that Forrest used these words without knowing exactly what he meant by them. But whether that be so or not, I read Forrest's evidence as in effect an admission that he was charged with seeing that necessary repairs were effected on the outside of the houses of Inglis' Land. He failed to perform this duty, and for his failure the Shotts Company are responsible. They were truly the persons having the control of the outside common stair so far as their tenants were concerned, and I think that Mr Inglis and his trustees were absolved from all liability to members of the public who used the stair to visit a tenant of the Shotts Company. It was on the invitation of the Shotts Company and not of Mr Inglis that such a visitor used the stair.

“There remains only the question of the amount of compensation to which the pursuer is entitled. In estimating the compensation I see no reason to doubt the accuracy of Dr M'Millan's conclusion that the child's skull was fractured. The defenders' doctors referred to the absence of certain symptoms which they say usually follow such an injury, but they admit that there may be a fracture without them. They further admit that if there was an escape of cerebro-spinal fluid, which I hold is proved to have been the case here, there must certainly have been a fracture. The child was for a month in bed, and it was another month before she was out and about. She is now in excellent health except in one particular. I refer to the stammer which is said to have resulted from the accident. There is some difficulty about this, for the child by persistently remaining silent when examined by the doctors made it impossible for them to form an opinion as to whether there was a stammer or not. I am prepared, however, to accept Mrs Kennedy's evidence that the shock of the accident did, to some extent at least, affect the child's speech, but there is no proof that the condition is permanent.

“In the whole circumstances I think £60 should be sufficient compensation, and for this sum I shall give decree against the Shotts Company.”

The defenders the Shotts Iron Company reclaimed, and argued—(1) The pursuer was not entitled to recover from either of the defenders. The element of a trap was absent from the case, as the defect in the railing was obvious. Moreover, the child was brought on to the property by its mother, who knew of the defect. In these circumstances, there being no contractual relation between the person having control of the stair—whichever of the defenders that might be—and the person injured, neither of the defenders was liable— Burchill v. Hickisson, 1880, 50 L.J. (N.S.), C.P. 101. The child not being a person invited to the premises, but being merely a licensee, the defenders would only be liable in respect of a concealed danger— Latham v. R. Johnson and Nephew, [1913] 1 KB 398; Devlin v. Jeffray's Trustees, November 19, 1902, 5 F. 130, 40 S.L.R. 92. (2) Assuming one of the defenders was liable, the Shotts Company were not. They were merely tenants, and had no duty towards the public, whatever might be their duty towards their own tenants, under contract, for the state of the stair. The landlord was liable for its condition in a question with a member of the public— M'Martin v. Hannay, January 24, 1872, 10 Macph. 411, 9 S.L.R. 239; Bailey v. Hutton, February 1, 1894, 21 R. 498, 31 S.L.R. 390. The stair had never been let to them. The houses alone were let to them, with the stair as access, and Inglis' trustees having retained possession and control of the stair were liable. In any event the stair was let to sub-tenants and the company had therefore no liability towards anyone brought on to the premises with whom they had no contractual relation— Cameron v. Young, 1908 SC (HL) 7, 45 S.L.R. 410.

Argued for the pursuer—(1) The defect was not obvious, and it was not proved that the child's mother knew of it. The stair was held out to the public as a means of access, and accordingly a safe means of access. The child was not a mere licensee in the sense in which that expression was used in Latham (cit. sup.). Visitors using the stair in accordance with the common usages of life were included among persons having business and were entitled to protection—Beven on Negligence (3rd ed.),

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vol. i, p. 448. The Court was not astute to limit “invitation” — Brady v. Parker, June 7, 1887, 14 R. 783, 24 S.L.R. 561; White v. France, June 7, 1877, L.R., 2 C.P.D. 308; Smith v. London and Saint Katharine Docks Company, L.R., 3 C.P. 326. If possession and control did not pass to the Shotts Company it must still be with Inglis' trustees. If it did pass it carried liability with it, for possession and control was the test of liability— Laurie v. Magistrates of Aberdeen, 1911 S.C. 1226, 48 S.L.R. 957; Laing v. Paull & Williamsons, 1912 S.C. 196, 49 S.L.R. 108; Hargroves, Aronson, & Company v. Hartopp and Another, [1905] 1 KB 472; Miller v. Hancock, [1893] 2 QB 177; Mathieson's Tutor v. Aikman's Trustees, 1910 S.C. 11, 47 S.L.R. 36; Smith v. London and Saint Katharine Docks Company (cit. sup.). One or other of the defenders was accordingly liable. The pursuer also referred to Fulton v. Anderson, November 18, 1884, 22 S.L.R. 100; and Sawyer v. M'Gillicuddy, (1889) 10 Am. St. Rep. 260. (2) On the evidence it was clear that possession and control were with the Shotts Company, and they were therefore responsible for the accident. Cameron v. Young (cit. sup.) did not apply, as the subjects let by the Shotts Company to their tenants did not include the stair.

Argued for the defenders Inglis' trustees—There was no liability ex dominio — Moffat & Company v. Park, October 16, 1877, 5 R. 13, 15 S.L.R. 4. The question which determined liability was who had possession and control— Laurie (cit. sup.); Mathieson's Tutor (cit. sup.); and Laing (cit. sup.). It was clear on the evidence that Inglis' trustees had parted with possession and control and retained nothing but the bare right of ownership. No doubt under contract Inglis' trustees were bound to relieve the Shotts Company of the cost of outside repairs, but in determining liability to a third party what was looked to was the fact of possession and control. Here the whole property, including the stair, was let to the Shotts Company, which distinguished the present case from those in which houses were let to a number of tenants and a right of user of a common stair given to all the tenants. Persons on the premises were there by the invitation of those who had possession and control. Counsel also referred to Mechan v. Watson, 1907 S.C. 25.

At advising—