McCallum v S & D Properties (Commercial) Ltd & Ors [1999] ScotCS 299 (15 December 1999)

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This action of reparation came before me on the Procedure Roll, when counsel for the first defenders, the second defender (who appeared in person) and counsel for the third defender moved me to dismiss the action so far as directed against each of them respectively, while counsel for the pursuer asked me to allow a proof before answer, leaving all pleas standing apart from the second plea-in-law for the first defenders, which he moved me to repel.

The pursuer avers in Article 2 that on or about 30 March 1993 at about 1.15pm she was in Great Western Road, Glasgow. It is a busy thoroughfare which is used by a high number of heavy goods vehicles. She was standing with her back to a shop called "J Donaghy Interiors", which was displayed in large letters above the shop windows. She avers that the shop is owned by the first defenders. It forms the ground floor of a three storey tenement building which dates from the 19^th Century. At the material time it was let to the second defender and was occupied by the third defender. The pursuer was standing about two feet in front of a window to the left of the shop door. Suddenly and without warning a heavy panel forming part of the shop frontage fell onto her right leg. The panel was made of stone. It was about 8 feet long and between 2 feet 1 inch to 2 feet 4 inches in width. She thereby sustained loss, injury and damage. The pursuer further avers in Article 3 that after the accident, investigations disclosed that the shop subjects were in a poor state of repair. The structures of both the pavement lights and the steel work beneath the shop front were corroding and in a poor state of repair. The pavement lights were broken and allowed considerable water ingress. These defects would have been obvious on any reasonably competent inspection. The windowsill above the cladding panel was affected by rot. The fixings comprised small splashes of cement known as "dabs". They failed because water penetration behind the panel led in freezing temperatures to ice being formed and exerting significant pressure on the dabs. In addition, vibration from traffic passing along the road in front of the shop, particularly heavy goods vehicles, caused the adhesion of the dabs to weaken. If the shop front and particularly the windowsill had been properly maintained by means of a programme of regular replacement and painting, that would have prevented water ingress occurring. The sill was made of untreated timber. It should have been replaced if it showed obvious evidence of rot and, in any event, every five to six years. It should have been painted about every two years.

Before I turn to the averments of fault, I require to say something about the lease between the first and second defenders. It was common ground that this lease was dated 5 October and 13 November 1973 and was executed in probative form. In terms thereof the first defenders let to the second defender, but excluding assignees (legal or conventional) and sub-tenants without the previous consent in writing of the landlords, the shop premises in question for the period of five years from and after 15 September 1972. There was subsequent provision for renewal of the lease, and the debate before me was conducted on the basis that the lease remained in force on 30 March 1993. By Clause THIRD the second defender accepted the premises in their present condition and undertook to uphold, repair, maintain and keep them in good and tenantable order and condition at all times during the currency of the lease. By Clause SIXTH the first defenders and their surveyors, agents or factors were entitled at any time to view the state of repair and condition of the premises and at any time during the currency of the lease by prior appointment during reasonable hours with or without workmen or others to enter the premises to carry out repairs to the premises as they might deem necessary. By Clause NINTH insurance against property owners' liability was to be maintained by the second defender during the currency of the lease for such amount as should be deemed necessary by the first defenders. These provisions are set out in the pursuer's pleadings. All that the pursuer avers about the position of the third defender is that he occupied the premises at the material time. This is admitted by the second and third defenders, but denied by the first defenders. The first defenders point to the prohibition on sub-letting without their written consent, and aver that this was not obtained. The second defender, however, avers that he sub-let the premises to the third defender in about 1989, that the third defender commenced occupation of the shop at that time and that he agreed to undertake all the obligations incumbent upon the second defender in terms of the lease. He also avers that the first defenders were aware that the shop had been sub-let by the second defender to the third defender in June 1989. These averments appear to be denied, or at least are not admitted, by the pursuer. They appear also to be denied by the third defender, even though he avers that he had occupied the shop for approximately five years prior to the date in question. I understood from the second defender that the sub-lease was not put in writing, and in any event no written sub-lease has been produced. This inter-defender dispute has a bearing on pleas of indemnity which have been tabled by the first and second defenders and of apportionment which have been tabled by all three defenders, but does not affect the pursuer's averment that at the material time the shop was occupied by the third defender, which is the averment of fact upon which I must proceed for present purposes.

I turn now to the averments of fault, which I shall simply quote. In Article 4 the pursuer avers:

Counsel for the first defenders submitted that the pursuer's averments failed to instruct a case of fault against them. There was no averment that the alleged defect was within their actual knowledge and the averments anent their constructive knowledge were so lacking in specification as to be irrelevant and were unsupported by sufficient averments of fact. Reference was made to Wolfson v Forrester 1910 S.C. 675 and Murray v Edinburgh District Council 1981 S.L.T. 253. Although the pleadings in the present case did not refer to the Occupiers' Liability (Scotland) Act 1960, the common law position was as stated in the Act. No duty such as was averred by the pursuer was imposed by the common law on a landlord. The terms of the lease might do so, but in the present case the terms of the lease pointed in the opposite direction. Counsel next submitted that even if there was a duty on the first defenders to inspect the premises, the system here desiderated was so unspecific that it did not give them adequate notice of what was required. There were insufficient averments which would enable evidence to be led and the conclusion to be drawn that there was any basis for the annual inspection desiderated by the pursuer. There were no supporting averments of normal practice or of complaints. Reference was made to Gibson v Strathclyde Regional Council 1993 S.L.T. 1243 and Argyll and Clyde Health Board v Strathclyde Regional Council 1988 S.L.T. 381. Finally, counsel for the first defenders submitted that the pursuer's averments of res ipsa loquitur were irrelevant because the pursuer did not aver that the building or the stone panel were in the exclusive management and control of the first defenders at the material time. This was an essential pre-requisite for the application of the maxim. Counsel referred to McLeod v Glasgow Corporation 1971 S.L.T. (Notes) 64, Carrigan v Mavisbank Rigging Co Ltd 1983 S.L.T. 316 and Murray v Edinburgh District Council, supra.

The second defender adopted the submissions of counsel for the first defenders. His position, as I understood it, was that the fixings on the slab were inadequate from the outset. He had entered into a lease with the third defender who accordingly had the obligation of maintenance. If the action so far as directed against the first defenders was dismissed, it should likewise be dismissed so far as directed against him. If, however, a proof before answer was to be allowed against him, the first defenders should remain in the process because he sought a contribution from them. Over the years the first defenders had attended to repair notices served by the local authority. The second defender confirmed that the sub-lease had not been put in writing.

Counsel for the third defender said that he could adopt much of what has been said by counsel for the first defenders. It was incumbent on the pursuer to identify which of the three defenders she contended had the management and control of the stone panel at the material time. She had not pled her cases against each of them on an esto basis, and her averments that all three defenders were in effect in control of the premises were inconsistent and contradictory. This alone was a reason for dismissal. Counsel went on to submit that the averments alleging fault on the part of the third defender were irrelevant in the absence of an averment that there was a patent defect in the fixing, ascertainable by inspection. There was no averment that there was any means of looking behind the panel to see how it was fixed. The pursuer must aver and prove that there was a defect and, more importantly, that reasonable inspection would have disclosed it. Counsel referred to Gavin v Rogers (1889) 17 R. 206, Milne v Townsend (1892) 19 R. 830 and Murray v Edinburgh District Council, supra. There must be averments of intervals of inspection which were reasonable and practicable, which should be related to the period of time for which the defect had been present. There was no averment by the pursuer as to the length of time for which the third defender had been in occupation. The case of fault had been framed as he were an insurer. The position was the same as in McDyer v The Celtic Football and Athletic Co Ltd 1999 S.L.T. 2, especially at p.7A-D. In addition to the submissions about the maxim res ipsa loquitur advanced by counsel for the first defenders, counsel for the third defender submitted that it was not applicable here because it did not apply where the pursuer averred an explanation for the incident: Milne v Townsend, supra, per Lord Adam at p.836.

In moving me to allow proof before answer, counsel for the pursuer submitted that the pleadings disclosed a sufficiently relevant and specific case against each of the three defenders to entitle the pursuer to a decision after evidence was led. He referred to the well known test of relevancy laid down in Jamieson v Jamieson 1952 S.C. (H.L.) 44. He submitted that the pursuer offered to prove that in the middle of the day in a busy Glasgow Street she was injured by a stone panel which fell onto her. The starting point for her claim was to establish who was the frontager who might be liable. There was difficulty in knowing which of the three defenders had possession and control of the subjects at the time. The third defender was in occupation, but without a written lease there was a question whether he had a legal right to occupy the subjects. If a tenant occupied under a full repairing lease, he was the person to sue. The present lease reserved certain rights to the landlord. The liability of an occupier depended on the existence of rights and duties. Counsel referred to Ballie v Shearer's Judicial Factor (1894) 21 R. 498. Counsel submitted that there ought to be some enquiry into the basis on which each of the three defenders was in occupation of the subjects. An enquiry was needed to establish who was the frontager.

Turning to the submissions for each of the defenders, counsel submitted in respect of the submissions on behalf of the first defenders that no averments of actual knowledge of the defect were required. Water penetration would have been prevented by proper maintenance. Under the lease the first defenders did retain certain rights and had a measure of control over the subjects. Counsel accepted that this was a difficult argument because the principal obligation for repair was on the tenant. He accepted that it all depended on the construction of the lease and that the action could only proceed against the first defenders if the provisions of the lease relied upon by the pursuer left some control with the landlords. This was therefore a question of construction of the lease. There were sufficient averments on record to the effect that inspection of the premises at intervals would probably have led to the discovery of the defect and therefore would probably have prevented the accident, so there was enough to meet the challenge based on Gibson v Strathclyde Regional Council. The maxim res ipsa loquitur was not confined to situations in which there was exclusive management and control. In support of this submission counsel referred to dicta in Scott v London and St Katherine's Docks Co (1865) 3 H. and C. 596, Inglis v London Midland and Scottish Railway Co 1941 SC 551 and Roe v Minister of Health [1954] 2 QB 66.

In respect of the second defender's submissions, counsel submitted that the alleged sub-lease was critical. He accepted that if the second defender could set it up, he would not be liable for the accident.

In respect of the submissions on behalf of the third defender, counsel for the pursuer agreed that there was no averment that an inspection would have disclosed the defect. The pursuer had a maintenance case which should be looked at charitably. On the question whether the maxim res ipsa loquitur could be relied on in the alternative where a pursuer had offered to prove the cause of the accident, counsel referred to Rodgers v Dunsmuir Confectionery Co 1952 S.L.T. (Notes) 9.

In his second speech, counsel for the first defenders submitted that Roe v Minister of Health had never been followed in Scotland, and Stout v United Kingdom Atomic Energy Authority 1979 S.L.T. 54 was to the contrary. This submission was adopted by the second defender. Counsel for the third defender submitted that there should be no general enquiry into such questions as whether the third defender had taken over from the second defender the responsibility for maintenance under Clause THIRD of the Lease. The pursuer averred that the second defender had that obligation and did not offer to prove that there was a sub-lease.

I propose to consider first the averments against each of the defenders based on the maxim res ipsa loquitur. The authorities referred to appear to me clearly to establish that in order for the maxim to be available the pursuer must establish that the occurrence is such that it would not have happened without negligence and that the thing that inflicted the damage was under the sole management and control of the defender, or of someone for whom he is responsible or whom he has a right to control. In so far as Denning L.J. may have suggested in Roe v Minister of Health that it is not essential to establish that there was sole management and control, this appears to me to be contrary to the authorities and in any event has never been followed in Scotland. In Murray v Edinburgh District Council Lord Maxwell at p.256 and in McDyer v The Celtic Football and Athletic Co Ltd Lord Macfadyen at p.7 both used the expression "exclusive management and control", for example, and this appears to me to be supported by the authorities referred to by each of them. In the present case the pursuer simply avers in Article 2 that the shop was owned by the first defenders, at the material time it was let to the second defender and was occupied by the third defender. In Article 4 there is an assertion that the cladding panel was wholly or partly under the possession and control of the first defenders at the material time. This is incompatible with the averment of fact in Article 2, and I do not propose to have regard to it. The same applies to the assertion in Article 5 that the cladding panel was under the management of the second defender at all material times and that he was in possession and control of the subjects. In any event, whichever part of the pursuer's pleadings one turns to, there is no averment that either the first defenders or the second defender had exclusive management and control of the subjects and in particular the cladding panel at the time of the accident. This is sufficient to make the averments about res ipsa loquitur in each of Articles 4 and 5 irrelevant. The averments against the third defender are in a different position, because the pursuer avers that he occupied the shop, the cladding panel was under his management at all material times and he was in possession and control of the subjects. I am prepared to treat these as averments that he had exclusive management and control. The averments in Article 6 based on res ipsa loquitur appear to me, however, to be irrelevant for two reasons. Firstly, the authorities appear to me to establish that the maxim has no application where the cause of the occurrence is known. As Lord Adam put it in Milne v Townsend at p.836, the res can only speak so as to throw the inference of fault upon the defender in some cases where the exact cause of the accident is unexplained. Where there is evidence to establish the cause, the question is whether on those facts the defender can be shown to have been negligent. In the present case the pursuer offers to prove how the cladding panel came to fall on her, and it is on the basis of her averments of fact about the cause of the accident that she alleges that the third defender was negligent. It does not appear to me to avail the pursuer that her case of res ipsa loquitur is pled on an esto basis. The narrative of fact remains the same, and what she seems to be averring in Article 6 is that the accident was caused by the fault of the third defender, and if she does not succeed in establishing fault directly she can still do so by inference. It must be borne in mind that the inference reflected in the maxim res ipsa loquitur is not that there has been negligence, but that because of the nature of the accident the cause of it must have been a negligent act or omission. For this reason it does not appear to me t

I shall now consider the remainder of the cases of fault against each of the defenders. I take as my starting point that, as I understood to be common ground between the parties, the duty of care of an occupier of premises towards members of the public in adjacent streets is similar to the duty owed under the Occupiers' Liability (Scotland) Act 1960 towards persons entering on the premises. Accordingly, the care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards such persons in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible is such care as in all the circumstances of the case is reasonable to see that such persons will not suffer injury or damage by reason of any such danger. Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards persons in adjacent streets the same care in respect of dangers arising from any failure on his part in carrying out his responsibility aforesaid as is required to be shown by an occupier of premises towards such persons. In Murray v Edinburgh District Council at p.255 Lord Maxwell said that it was clear on authority that a person is only in occupation or control of premises if he is in a position in law to say who shall and who shall not come on the premises, and in particular a landlord is not in occupation or control of premises which he has let. The authorities referred to by him included Kennedy v Shotts Iron Co Ltd 1913 S.C. 11 43, which serves to establish that possession and control are necessary for liability. Counsel for the pursuer recognised this in his submissions about the terms of the lease. As a matter of construction of the provisions already referred to, I am satisfied that the first defenders were not left in occupation or control of the premises, nor were they responsible for their maintenance or repair. Occupation and control of the premises were relinquished to the second defender, and the primary obligation of maintenance and repair was passed to the second defender by Clause THIRD . Such residual rights as the first defenders retained in respect of repairs were subsidiary to the obligations of the second defender, and were not in my opinion sufficient to give rise to a duty of care towards members of the public who happened to be in the street outside the premises, because the first defenders were not in control of the premises at the material time. For these reasons therefore the pursuer's case of fault against the first defenders is in my opinion irrelevant.

Quite apart from what I have said so far about the relevancy of the averments of fault against the first defenders, the averments of fault against all the defenders appear to me to be irrelevant, more for what they do not say than for what they do say. The averments of fact which require to be borne in mind in considering these cases of fault are that the cladding panel was fixed with "dabs", and the fixings had failed because of water penetration behind the panel and vibration from passing traffic. Although the matter is not put very clearly, I am prepared to accept that on a fair reading of the averments of fact the pursuer alleges that the water penetration occurred because the timber sill above the panel was affected by rot and allowed the ingress of water. It is not however averred that any of the defenders knew or ought to have known that the water penetration was taking place, or that it was reasonably foreseeable that it might result in an accident of the kind sustained by the pursuer. Moreover, the pursuer does not aver for how long the water penetration had been occurring. It is thus not possible to conclude, taking her averments pro veritate, that the taking of any particular step at any particular time would probably have prevented the accident. Furthermore, the pursuer avers no factual basis for the steps desiderated. She alleges that the sill should have been replaced if it showed obvious evidence of rot and in any event every five to six years, that it should have been painted about every two years, that a reasonable landlord would have inspected the subjects annually and that a reasonable tenant or occupier would have inspected the subjects quarterly. These averments are not related to normal practice or to any other consideration which might render such precautions appropriate. These factors, in my opinion, render the cases of fault against each of the defenders irrelevant.

I should add that I heard submissions by counsel for the third defender about the specification of a claim for necessary services allegedly rendered to the pursuer. Counsel for the pursuer accepted that more specification was required and invited me, if I were minded to allow a proof before answer, to put the case out By Order so that an opportunity could be given to the pursuer to amend her pleadings in this regard. As it is, however, I shall for the reasons I have given, sustain the first plea-in-law for each of the defenders and dismiss the action.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCallum v S & D Properties (Commercial) Ltd & Ors [1999] ScotCS 299 (15 December 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/299.html Cite as: [1999] ScotCS 299

Scottish Court of Session Decisions