Scottish Court of Session Decisions

On May 1906, Robert Cameron, carter, Commissioner Street, Crieff, as an individual; and William Cameron, labourer, his son; Mrs Ann M'Gregor or Cameron, his wife, with his consent; James Cameron, a son in minority, with his consent as curator; and the said Robert Cameron as tutor for his pupil child Neil Cameron, raised an action in the Sheriff Court at Stirling against James Young and Alexander Young, sometime bakers in Stirling and residing there, in which they sought to recover certain sums of money, respectively, as damages for injury and loss sustained through the insanitary state of a house occupied by them and rented from the defenders by the first-named pursuer.

The pursuer Robert Cameron, with whom the others lived, in the month of May 1903 took as tenant, through the defenders' factors Messrs Stothard & Son, a dwelling-house belonging to the defenders at a rent of £9, 10s. per annum, and the family continued to reside in it till November 1905, on the second of which month the father was taken ill with typhoid fever and removed to Perth Infirmary, the mother and the children being taken ill and removed a few days later. On 4th November, on an inspection, the drains of the house were found defective, and three other sons who had not been attacked removed to another house at a rent of £15, where the father and others on recovery returned.

The pursuers, inter alia, averred—“(Cond. 4) The pursuers, Robert Cameron and Mrs Ann M'Gregor or Cameron, William Cameron, and Alexander Cameron, another son of the said Robert Cameron. on several occasions, and particularly in or about the month of June 1905, complained of disagreeable smells in the house and also of dampness, to the said factors, who promised to have the walls lined with wood. Nothing, however, was done, and both the pursuers, Robert Cameron and his wife, subsequently made repeated complaints to the said factors but without result, and on or about 23rd August 1905 the pursuer Robert Cameron's youngest son took scarlet fever. The boy was removed to the fever ward at Perth Infirmary and the house disinfected by the sanitary authorities, who, however, apparently did not suspect bad drainage as the cause of the outbreak. Notwithstanding this outbreak of fever, the defenders took no steps to have the source of the bad smells complained of ascertained, and as these continued, pursuers, Robert Cameron and his said wife, and also the said William and Alexander Cameron, again frequently during the months of August and September 1905 complained to the defenders said factors, who promised to have the premises inspected and the drains examined. Particularly in said month of September the pursuer Mrs Ann M'Gregor or Cameron stated to Mr Stothard senior, as defenders' said factor, that she was sure the smells arose from defects in the drainage, and that unless he had it seen to at once they (the pursuers) would remove from the house. Notwithstanding this and the promises made by the said factors, nothing was done by the defenders or their factors, and the said Robert Cameron immedately thereafter made inquiries regarding another house with a view to removing thereto, but was unable then to get a suitable house to which he could get immediate entry.”

The pursuers, inter alia, pleaded—“(2) The several pursuers having sustained loss, injury, and damage through the fault or culpable negligence of the defenders, and the several sums claimed by the pursuers respectively being fair and reasonable compensation, decree should be granted as craved.”

The defenders, inter alia, pleaded—“(1) No title to sue. (2) The pursuers' averments are irrelevant and insufficient in law to support the conclusions of the action. … (7) If it be the fact, as condescended on by the pursuers, that they continued to live in said house after they considered it unfit for their habitation, they are barred from suing for damages on account of injury to their health.”

On 21st June 1906 the Sheriff-Substitute ( Dean Leslie) dismissed the action, repelling the defenders' first plea-in-law, but sustaining their second and seventh pleas.

Note.—“… The pursuers claim damages for injury to their health as well as for personal suffering, and for destruction of furniture and clothing resulting from the insanitary condition of the house.

The defenders plead that the pursuers other than Robert Cameron, the lessee, have no title to sue. From the record they are all apparently members of the lessee's family. As such they were entitled to be in residence with him in his house, and in my opinion have therefore a valid title to sue for damage they may have suffered through the fault of the defenders….

The pursuers' contention on the facts comes to this—that on intimating his suspicions to the landlord as to the defective drains, a tenant is entitled to hold himself

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relieved of all responsibility for the danger of infection. He is not bound to satisfy himself whether there is a good ground for his suspicion, but merely to state it and sit still. Here the tenant could at any time by complaint to the Burgh Surveyor have ascertained exactly the condition of the drains of his house. He preferred not to do so, but to remain in the house because of the difficulty of finding another suitable.

In November a house for the family seems in fact to have been found, and at anyrate the pursuers might have submitted to having their family broken up temporarily that separate accommodation might be found for its members if the safety of their health could not otherwise be ensured. While in law a tenant is entitled to a sanitary and habitable house, it would be hard that a landlord should be held liable to a tenant who could disregard ordinary precautions in the way the pursuers did here according to their own showing. The law on the matter is succinctly laid down by the Lord Justice-Clerk in Smith v. School Board of Maryculter, October 20, 1898, 1 F. 5—‘I think that if any person has a contract by which he is entitled to have a house provided for him to live in, whether it be as part of a bargain for emoluments or as by lease, and he finds that the house is in such an insanitary condition that he judges it unsafe to enter or to remain in possession, and he still does occupy it, thereafter he has no claim in law for injury to himself or his family which follows on his continuing to use the house. If he remains, he must be held to do so because he chooses to remain, and so remaining he takes the risk which he knows to exist. His proper course is to quit a house that he holds to be unsafe. If he can prove that it is so, he has his remedy against those who, being under obligation to provide him with a house, have failed to do so, and so compelled him to find accommodation elsewhere. For damage caused by his having to do so he has a claim, but not for consequences following on his knowingly remaining in uninhabitable premises.’ This statement of the law seems to me to exactly apply to the present case, and I have therefore dismissed the action.”

On 1st August 1906 the Sheriff ( Lees), on appeal, recalled his Substitute's interlocutor, and sustained the defenders' first plea-in-law in so far as regarded the pursuers William Cameron, Mrs Ann M'Gregor or Cameron, James Cameron, and Robert Cameron qua tutor of Neil Cameron, assoilzieing the defenders from the action so far as at their instance, but allowed Robert Cameron as an individual and the defenders a proof before further answer of their respective averments.

Note.—“The pursuer alleges that the drains in the house tenanted by him from the defenders went wrong and caused injury to the health of the inmates; that intimation of the defective state of the drains was given to the defenders or their factor, and that it was promised that they would be inspected and put right if found to be wrong; and that on the faith of this promise he stayed on for a time in the house and took ill, but that as nothing was done to remedy the defects he had ultimately to leave the house, and thereby incurred expense.

I think these are averments which are relevant to go to probation, and that if proved they may subject the defenders in damages, the greater or less amount of which will depend on whether it is proved that the defenders or their factor induced the pursuer to continue in occupation of the house by promising to make what repairs might be needed. If, however, such promise is not proved, the defenders, if liable at all, will of course only be liable in the expenses connected with the removal. Such at least seems to be the rule of law to which our Courts have ultimately come, greatly to the benefit of negligent landlords.

The next question is whether the wife and children of the pursuer are also entitled in their own rights respectively to compensation for the injuries their healths are said to have sustained. The defenders contend these pursuers have no title to sue. Their argument is that they had no contract with these pursuers, and that therefore they cannot be sued for breach of contract where no contract was entered into.

A good deal might perhaps not unreasonably be said for the pursuers' reply, namely, that there was an implied contract between them and the defenders, as Cameron, being a married man resident with his family, was taking the house for them to reside in as well as him. And it certainly does seems an extraordinary position to take, to say the promise to get the house put right was made solely for his sake and not for theirs also. If a man takes a shop, customers are expected to come, and if they get injured from some defect in the structure they have undoubtedly a remedy against the proprietor. The same I fancy would be true in the case of an hotel. It may seem strange therefore that there is an implied contract for the safety of customers and others who may never come, and yet no contract implied—no jus quæsitum—for the wife and children who practically must come. It is further said that there is no law to prevent a proprietor expressly letting an unsafe house as unsafe. That is true, but in that event the injured person will have his remedy against the tenant, and I notice that in the English cases the real question at issue often is who is liable—did the proprietor covenant to do the repairs?

Of course Cameron can claim for the loss he has sustained through the illness of his family; but have they no claim in their own rights? Did they live and remain in the house at their own risk, but he not? That seems a somewhat anomalous state of matters. A somewhat analogous position would be if a man hired a cab to take him and his family to the train, and owing to some defect the cab broke down and all the party were injured; is he the only one who has a remedy?

The reply of the defenders to all these questions is that in the recent case of

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Cavalier v. Pope, 22 T.L.R. 648, the House of Lords decided that where a landlord undertook to put a house right and did not do it, and both the husband and wife were injured through this breach of contract, the husband had a remedy but the wife had none. The case, no doubt, is an English one, but it is directly in point, and as I am not aware of any distinction in principle between Scotch and English law on this point, it is my duty I fancy to decide this case in accordance with the decision there pronounced.”

The pursuers appealed to the First Division of the Court of Session, the pursuer Robert Cameron as an individual for jury trial, and the remaining pursuers against the interlocutor of the Sheriff, and argued — (1) Title to Sue. All the pursuers had a good title to sue. There was a common law obligation on the landlord that the house he let should be, and should be maintained, in a sanitary condition and fit to live in; and he was liable to those rightfully inhabiting the house for a breach thereof though they might not be tenants, i.e., parties to the contract of location— M'Kinlay v. M'Clymont, October 28, 1905, 43 S.L.R. 9. The rule in England was different, and Cavalier v. Pope, [1906] AC 428, had no bearing since it was laid on contract. Again, the defect having been intimated to the landlord, and he having failed to remedy it, there was culpa on his part and liability on that ground. The wife and children of the tenant had therefore a good action. In previous cases a wife had been allowed to sue without objection to title— Shields v. Dalziel, May 14, 1897, 24 R. 849, 34 S.L.R. 635; Hall v. Hubner, May 29, 1897, 24 R. 875, 34 S.L.R. 653; and in at least one case in the Outer House the child had been so allowed though objection to title was taken— Hamilton v. Nimmo, November 25, 1902, 10 S.L.T. 394. (2) The action was relevant. The pursuers had not debarred themselves by staying on in the house. They did that relying on the promise of inspection and repair made by the factors. That promise was specifically averred. That was sufficient to nullify the plea that the pursuers had accepted the risk and to prevent the case otherwise relevant becoming irrelevant on that ground— Shields v. Dalziel, cit. sup.; Hall v. Hubner, cit. sup.; Caldwell v. M'Callum, December 18, 1901, 4 F. 371, 39 S.L.R. 257, all distinguishing Webster v. Brown, May 12, 1892, 19 R. 765, 29 S.L.R. 631. Further, the danger here was one which was not likely to be appreciated by the tenant, and to make him responsible he ought to have been warned — Clark v. Army and Navy Co-operative Society, Limited, [1903] 1 KB 155, Mathew, L.J., at p. 168. The cases cited by the defenders were not in point— Henderson v. Munn, July 7, 1888, 15 R. 859, 25 S.L.R. 619, had been decided purely on the pleadings; in M'Manus v. Armour, July 10, 1901, 3 F. 1078, 38 S.L.R. 791, the defect was obvious and should have been avoided; in Russell v. Macknight, November 7, 1896, 24 R. 118, 73 S.L.R. 34, no complaint was ever made; in Webster v. Brown, cit. sup., the tenant had accepted the risk by remaining in face of unreasonable delay to repair.

Argued for the defenders and respondents—(1) Title to sue. Cavalier v. Pope, ut supra, settled that the pursuers, the tenant's wife and children, had no title to sue. That decision applied in Scotland — Virtue v. Commissioners of Police of Alloa, December 12, 1873, 1 R. 285, 11 S.L.R. 140. (2) The case was irrelevant. The averment that the pursuers remained in the house on the promise of repairs by the landlord was insufficient. Their duty was to leave when they came to know of the danger, and they had failed in their duty in not leaving and had accepted any risk— Henderson v. Munn, ut supra; Brown v. Webster, ut supra; Smith v. Maryculter School Board, October 20, 1898, 1 F. 5, 36 S.L.R. 8. The action should be dismissed.

At advising—