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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 89
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PD873/06
PD870/06
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OPINION OF LORD BRACADALE
in the cause
MELANIE ANDERSON
Pursuer;
against
JONATHAN FORBES AND
OTHERS
Defenders:
and
KIRSTY McAVOY
Pursuer:
against
JONATHAN FORBES AND
OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: A Stewart, Q.C., P Macdonald; Drummond Miller
Defenders: Jones, Solicitor Advocate; BTO
19 June 2008
Introduction
[1] These
two cases came before me for a discussion on the procedure roll. Mr Jones on behalf of all the defenders,
moved me to dismiss the action, failing which to exclude certain averments from
probation. Junior counsel for the
pursuers, Mr McDonald, invited me to appoint the case to proof, which
included proof before answer, and the questions of law could be addressed at
that stage. Alternatively, he invited me
to follow the procedure recommended by Lady Paton in Hamilton v Seamark Systems Ltd,
26 February 2004, unreported, namely, that in a situation where there was insufficient
specification, the case could be put out By Order giving the pursuers an
opportunity to amend. Mr Jones recognised
the possibility of that approach.
The
pleadings
[2] Each
of the pursuers was a tenant of a flat at 1162 Argyll
Street, Glasgow. Miss Anderson was the tenant of a flat on the first
floor of which the fifth defenders were the landlords, and Miss McAvoy was the
tenant of a flat on the third floor of which the ninth defender was the
landlord. It is averred that on 21 May 2003 someone entered the
common close and set fire to rubbish there, causing a fire to take hold. Each of the pursuers avers that she had to
jump from a window in the flat occupied by her in order to escape from the fire
and, as a result, sustained injuries.
[3] Each
has raised an action for damages for her injuries against eleven defenders. The actions are brought under the Occupiers
Liability (Scotland)
Act 1960 ("the 1960 Act") and at common law.
It is averred that at the material time the first to fourth defenders
were the proprietors of the shops at 1158, 1160, 1164 and 1166 Argyll Street;
that each of the fifth to tenth defenders were proprietors of flats at 1162 Argyll
Street; and that the eleventh defenders were the factors appointed by the first
to tenth defenders to manage the common parts of the property on behalf of the
proprietors.
[4] Miss Anderson
avers that since July 2002 she had been a tenant of the flat on the first floor
of which the fifth defenders were the proprietors. She avers that since before she became a
tenant the bottom of the stairwell in the close contained a substantial
quantity of rubbish including old upholstered furniture. She avers that when she moved into the flat
she told the landlord, the fifth defenders, that she was concerned about the
rubbish. It was not removed. She goes on to aver that sometime between
August 2002 and May 2003 the Environmental Health Department of Glasgow City
Council wrote letters to the occupants of all the properties at 1162 Argyll
Street. The
letters stated that the rubbish was a fire hazard and should be removed. She avers that she handed the letter to her
landlord. She avers that on or about 21
May 2003, someone entered into the common close and set fire to the rubbish
causing the fire to take hold. She avers
that it was the responsibility of the first to tenth defenders as proprietors
of the common parts of the property, including the stairwell and close, to keep
it free of accumulations of rubbish.
[5] Ms McAvoy
avers that since August 2002 she had been a tenant of the flat on the third
floor of which the ninth defender was the proprietor. She too avers that since before she became a
tenant the bottom of the stairwell in the close contained a substantial
quantity of rubbish including old upholstered furniture. She avers that when she moved into the flat
she told the landlord, the ninth defender, that she was concerned about the
rubbish. She avers that the ninth defender
stated that he would have it removed but failed to do so. She makes similar averments to those of Ms Anderson
with respect to the letter from the City Council and avers that the ninth
defender was also handed the letter.
[6] Both
pursuers aver that it was the responsibility of the first to tenth defenders as
the proprietors of the common parts of the property, including the stairwell
and close, to keep it free of accumulations of rubbish. In Statement 6 each avers that the first to
tenth proprietors were occupiers within the meaning of the 1960 Act.
The
issues
[7] These actions are personal
injuries actions and subject to the rules in chapter 43 of the Rules of
Court. This is one of the relatively
rare occasions on which cases under the chapter 43 procedure find their way to
a procedure roll discussion. Mr Jones
attacked the relevancy of each pursuer's case under a number of heads. The principal heads may be identified as follows:
whether the first to fourth defenders were sufficiently linked to the property
in the pleadings; whether a relevant case averring occupation and control of
the premises by the first to tenth defenders had been pled; whether, in
relation to the first to tenth defenders, reasonable foreseeability of the risk
of fire had been relevantly pled; and, whether a relevant case against the
eleventh defenders had been pled.
Whether
the first to fourth defenders are sufficiently linked to the property
Defenders' submissions
[8] Mr
Jones first submitted that the pursuers had failed relevantly to link the first
to fourth defenders to the property at 1162 Argyll
Street. The
first to fourth defenders were respectively identified in Statement 2 as being
the proprietors of 1158, 1160, 1164 and 1166 Argyll
Street. In
statement 4 at page 9D, the pursuer Anderson avers that it was the
responsibility of the first to tenth defenders as the proprietors of the common
parts of "said property", including the stairwell and close, to keep it free of
accumulations of rubbish. Mr Jones
submitted that "said property" must refer to 1162
Argyll Street.
It was not averred that the first to fourth defenders were proprietors
of 1162. If it were to be maintained
that the proprietorship of shops carried with it occupation of the common
close, there should be a record for that.
Pursuers' submissions
[9] Mr McDonald pointed out that
statement 2 should not be read in isolation.
The pursuers aver that the first to fourth defenders were the
proprietors of the common stair and that is sufficient notice given that the
pursuer only requires to aver the facts necessary to establish liability.
Discussion
[10] In my opinion the averments
as to the first to fourth defenders being the proprietors of the shops which
clearly have addresses close to 1162, taken together with the averments that
they were the proprietors of the common parts of the property at 1162 does give
sufficient notice and that the first proposition advanced by Mr Jones is not
well founded.
Whether the pursuers
have pled a relevant case averring occupation and control of the premises by
the first to tenth defenders
Defenders' submissions
[11] Mr Jones' principal submission related to the question of
occupation and control of the premises.
He submitted that the pursuers' averments of occupation were so lacking
in specification as to be irrelevant and there being no averments about control,
the cases against the first to tenth defenders were irrelevant. There was simply a bald averment that they
were the occupiers of the common close.
The only implication available was that, with the exception of the
eighth defenders who were said to be residents, they were occupiers by virtue
of their proprietorship. Mr Jones
submitted that the averment that the defenders were occupiers of the common
stairwell and close was not sufficient to found a relevant case under the 1960
Act. The pursuer would require to set
out the basis on which she sought to prove that each of the first to tenth
defenders was in possession and control.
Pursuers' submissions
[12] Mr McDonald argued that the pursuers' averment that the
proprietors were occupiers within the meaning of the 1960 Act was sufficient to
give the defenders notice. The fact that
they were occupiers within the Act was the basic fact which was required to be
proved in order to set in train an action under the 1960 Act. This was sufficient to satisfy the
requirements of Rule 43.2. The averment
that the proprietors were occupiers within the meaning of the Act effectively
meant that the pursuer was averring that each of the defenders had possession
or control of the premises.
[13] Mr McDonald pointed to the way in which the defenders had
responded in their answers, for example, it was averred in answer 4 that on
occasions prior to the fire, at least the fourth, fifth and eighth defenders
had taken steps to try and stop such dumping of rubbish. It was averred that an entry phone system had
been installed. It was open to a
particular defender to aver that he was not an occupier.
[14] Both Mr McDonald and Mr Stewart took issue with the proposition
that simply being a proprietor was not enough to found possession and control. Ordinarily, proprietorship will give
control. Mr McDonald pointed out that in
Pollock v Stead and Simpson Limited 1980 SLT (Notes) 76 the second defender averred that she had been divested of all form
of control. The circumstances here were
very different. None of the defenders had
averred that they had no interest in the property anymore. In any event, it was averred that four of the
proprietors had shops, two were landlords who had some degree of control, and
one was resident. This meant that seven
out of the ten had additional connections with the premises set out in the
pleadings.
[15] Mr Stewart submitted that while bare ownership of property did
not infer control, ownership in the sense of having title and beneficial
ownership did infer control in the absence of contrary evidence. He drew attention to the passage in Kennedy v Shotts Iron Company Ltd 1913 SLT 121 to the effect that all that
was left was bare control and in Pollock
that the beneficial ownership had passed.
Here, when the pursuers averred that the first to tenth defenders were
proprietors, that was apt to instruct a case that they were full beneficial
owners. Then, like the landlords in Kennedy they had control of the common
parts in the absence of evidence to the contrary.
Discussion
[16] Rule of Court 43.2, so far as material, is in the following
terms:
"(1) The summons shall be in Form 43.2-A and
there shall be annexed to it a brief statement containing -
(a) averments in
numbered paragraphs relating only to those facts necessary to establish a
claim;"
It is, of course, well recognised
that pleadings under chapter 43 should be simple, straightforward and
brief. The averments should relate only
to those facts necessary to establish the claim. They must, however, set out a relevant case
and give the defenders sufficient notice of the case against them. I gratefully adopt the observations of Lady
Smith in Clifton
v Hays plc, unreported, 7 January 2004, at paragraph [11]:
"Whilst the
rules contained in that chapter are designed to simplify written pleadings and
avoid complexity where possible, I do not understand anything in those rules as
detracting from the principle that defenders are entitled, when presented with
a summons, to be able to ascertain without undue difficulty the nature of the
case against them. More importantly, I
do not understand anything in those rules as detracting from the fundamental
principle that a pursuer ought not to raise an action against the defender
except in circumstances where he has information upon which he is able to make
a relevant case. That is the approach
that professional responsibility demands.
The new rules are directed towards relieving pursuers of the burden of
setting out in the pleadings all the flesh needed to clothe the bare bones of
the case but they are still, in my opinion, obliged to set out those bones in
the summons. Unless they do so, I cannot
see that they are complying with a requirement to state the facts necessary to
establish the claim, as set out in Rule of Court 43.2".
It seems to me at the outset that
where, as here, a pursuer decides to raise an action against eleven defenders
she is required to set out in the pleadings a relevant case against each of the
defenders.
[17] The discussion turned principally on the case under the 1960
Act. Section 2(1) provides:
"The care which
an occupier of premises is required, by reason of his occupation or control of
the premises, to show towards a person entering thereon in respect of dangers
which are due to the state of the premises or to anything done or admitted to
be done on them and for which the occupier is in law responsible shall ...be such
care as in all the circumstances of the case is reasonable to see that that
person will not suffer injury or damage by reason of any such danger".
[18] Commenting on the definition of an occupier of premises under
the Act as being "a person occupying or having control of land or other
premises", the author of Stewart, Delict, 4th Edition (2004) states
at para. 18.2:
"However, we
still require to know what is meant by occupying or having control. To resolve this question regard is had to the
law as it applied before the Act. This
is still effectively determined by the common law which is expressly saved in
the Statute. The test is a matter of
possession and control and it will be a matter of fact in each case."
[19] With that in mind I turn to note certain cases to which I was
referred. In Kennedy (supra) a child
was injured on an outside stair leading to two dwellinghouses. In consequence of the defective state of the
iron banister railing, the child fell through and was injured. Inglis Trustees were proprietors of the
building and the Shotts Iron Company were lessees from them of a block of eight
houses which included the two houses to which access was gained by the
stair. The question was whether there
was a duty on either of the defenders, as in a question with the pursuer, to
keep the railings of the staircase in a safe condition. Lord McKenzie said:
"There is no
liability on the owner of property ex
dominio soli. Nor where a dwelling
house is let is there a right of action against the landlord by one who is not
a party to the contract for defects within the subjects let (Canavan v Young 1980 AC 176). Where,
however, a staircase is common to two or more tenants of the same landlord
there is a duty upon him to see that it is kept safe, not only in a question
with his tenant, but in a question with those lawfully resorting there."
Later, in agreeing with the Lord
Ordinary that liability rested with the Shotts Iron Company Lord McKenzie said:
"Though Inglis
Trustees are the owners of the property, the test to be applied in fixing
liability is to ascertain with whom the possession and control was at the date
of the accident."
After analysing the evidence in
relation to the leases, Lord McKenzie concluded:
"The result of
all this, in my opinion is that what was left in Inglis Trustees was their
ownership of the property. The
possession and control was with the Shotts Company."
[20] In Pollock (supra) a woman who had taken a
fortnight's let of a first floor flat in a tenement in Rothesay claimed to have
slipped on the common staircase leading from the first floor flat to the
street. She alleged that each of the
four defenders were in breach of section 2(1) of the 1960 Act. She averred that they were the infeft
proprietors of certain shops and dwelling houses and averred:
"By reason of
their said proprietorship the first, second and third defenders and William
Mortimer were at the material time in occupation and control jointly and
severally or severally of the close and staircase hereinafter mentioned."
The second defender sought
dismissal of the case so far as laid against her upon the ground that the bare
averments that she was at the material time in occupation and control of the
staircase by reason of her being the infeft proprietor of property at 8 and 10
Tower Street were irrelevant. In
dismissing the action so far as laid against the second defender, the Lord
Ordinary (Jauncey) said:
"It is trite law
that in matters arising out of the unsafe condition of property there is no
liability for the owner thereof ex
dominio soli. The test to be applied
in fixing liability is to ascertain with whom the possession and control was at
the date of the accident [under reference to Kennedy]. Infeftment per se does not necessarily import
occupation and control because a property may be the subject of a lease or
indeed may be in the occupation of a purchaser consequent upon the execution of
missives and the payment of the purchase price."
[21] From a consideration of these cases it seems to me that each
pursuer requires to plead a case in which she can bring home possession and
control of the common close to each of the first to tenth defenders. In my opinion simply to aver that a defender
was a proprietor of a flat or shop and to aver that that defender was an
occupier within the meaning of the 1960 Act is not sufficient to found a case
based on possession and control. It
seems to me that the pursuer requires to offer some factual basis on which a
particular defender is in possession and control of the common close.
[22] As Mr Jones' attack was on the fundamental relevancy of the
case against each defender it seems to me that I should at this stage leave out
of account what is said by a particular defender by way of answer.
[23] In my opinion the pursuers have pled relevant cases in relation
to the eighth defenders who are averred to have been resident proprietors. Each has also done so in relation to her own
landlord. Whether each has done so in
relation to the landlord of the other is a moot point but one which I would
have been inclined, had it been the only issue, to leave to be answered after
proof.
[24] In relation to each of the first to fourth defenders and the
sixth, seventh and tenth defenders it seems to me that as presently pled the
pursuers have failed to plead relevant cases.
There is simply nothing averred in relation to each of these defenders
to indicate that their ownership of property gave rise to possession and
control of the common close.
Foreseeability
Defenders' submissions
[25] Each pursuer avers that at some point between August 2002 and
May 2003 the Environmental Health Department of Glasgow City Council wrote
letters to the occupants of all the properties at 1162 Argyll
Street in connection with the rubbish. In addition, it is averred that after the
fire a representative of the eleventh defenders had told a journalist of the
Sunday Mail that the eleventh defenders had written letters to their clients
prior to the fire requesting that they should move the rubbish. Mr Jones submitted that the references
to these letters appeared to be the basis of reasonable foreseeability of the
fire risk. They provided an inadequate
basis to establish reasonable foreseeability and the case should be dismissed,
failing which the averments in relation to both letters should be excluded from
probation. The pursuers had failed to
set out relevant averments of the basis upon which it could be maintained that
the defenders knew or ought to have known of the danger.
[26] It would be necessary for the pursuers to show that the
contents of the letters which had been sent to the occupants had been
communicated to the various proprietors, assuming the proprietors were under a
duty to do anything. Each pursuer would
require to aver a timescale for the receipt of the letters which would allow
for sufficient time for individual defenders to do something within a reasonable
time. There was nothing to suggest that,
with the exception of the two landlords and the eighth defender, any of the
proprietors had been put on notice of the risk.
Even in the cases of the landlords the pursuers did not offer to prove
that the letter was received and handed to the landlord sufficiently in advance
of the fire to enable the landlord to do anything about it.
[27] Mr Jones said that the letter from the local authority dated
November 2002 to which reference was made in the Answers was in materially
different terms from the letter that the pursuers aver were sent. If it was conceded that there was only one
letter, sent in November 2002, then that should be reflected on record
otherwise it was open to the pursuer to prove that there was another
letter. The answer in relation to that
letter by the defenders did not absolve the pursuer of responsibility for
averring when the letter upon which she relied was sent and received.
[28] Mr Jones submitted that there were no averments as to when the
letters, which, it was claimed the eleventh defenders had sent to their
clients, had been sent. The result of
that was that even if it had been sent to the proprietors, it may have been so
close to the time of the fire that there was no opportunity for them to do
anything.
Pursuers' submissions
[29] In relation to foreseeability Mr McDonald submitted that the
same principles applied under statute and common law with respect to the first
to tenth defenders. The averments that
the letter was sent to the occupants of the property and the averments that the
two pursuers made the landlords aware, demonstrated that two of the defenders
have received these letters. A third
defender was an occupant. In
Answer 4 it was averred that the Glasgow City Council Environmental Health
Department had written to occupiers on 21
November 2002. Thus, in the
Answers the defenders had provided the date of the letter and demonstrated that
they knew that there was a rubbish problem as at November 2002. None of the defenders were averring that they
knew nothing about the letter from the local authority.
[30] So far as the letter from the eleventh defender was concerned,
that letter had subsequently been recovered and is lodged as 7/1 of
process. The letter was dated 6 May 2003 which was 17 days
before the fire. There was thus a basis
on record for actual knowledge of the rubbish both in terms of the letter of
the local authority and the factor's letter.
Discussion
[31] It seems to me that on the basis of the present state of the
pleadings the defenders do have legitimate complaint in relation to the
pleadings of each of the pursuers on foreseeability of the risk of fire. Where there are eleven defenders each is
entitled to have notice of a relevant case against him. It is not clear whether the letter from the
City Council referred to in the answers is the same letter founded on by the
pursuer. Now that the letter from the
eleventh defenders to their clients has been recovered it would be
straightforward to make relevant averments.
In my opinion it would be possible for the pursuers to attempt to make
relevant averments of the foreseeability of fire risk in relation to each
defender, but as the pleadings presently stand each has failed to do so.
Eleventh
defenders
Defenders' submissions
[32] Mr Jones raised the question of the basis of duty on the
eleventh defenders. It was not clear
whether the pursuers were basing their cases against these defenders on fault
at common law and under the 1960 Act or at common law only. In any event, the pursuers had failed to set
forth the basis of any contractual agreement between the proprietors or the
occupiers and the factors that might give rise to any duty in respect of the
common parts of the close. There were no
averments setting out the nature of the relationship between the first to tenth
defenders and the eleventh defenders. In
particular, it was not averred whether the relationship was one of principal
and agent, employer and employee, or employer and independent contractor. The averments regarding normal practice of
factors and a minimum frequency of visits were irrelevant in the absence of
averments regarding the contractual obligations incumbent upon the eleventh
defenders as factors.
[33] There were no averments as to any duty on the part of the
eleventh defenders to inspect the premises, whether such duty had been breached
or whether there had been a failure to inspect at the appropriate
frequency.
Pursuers' submissions
[34] Mr McDonald pointed to the
averments that the eleventh defenders were the factors appointed by the first
to tenth defenders to manage the property on behalf of the proprietors. Managing the common parts would involve
control and would involve securing that there were no obvious dangers there. The eleventh defenders considered it
appropriate to write to the first to tenth defenders about the question of
removal of rubbish. In these
circumstances it would be difficult to see how it could be contended that the
eleventh defenders did not owe a duty of care.
Discussion
[35] The averments in Statement 4 in relation to the eleventh
defenders are as follows:
"The eleventh
defenders were the factors appointed by the first to tenth defenders to manage
the said common parts on behalf of the proprietors. It is normal practice for factors of tenemented
properties in the city of Glasgow
to make periodic visits to inspect the common areas of the properties which
they factor. The minimum frequency of
such visits is often specified in the contract between the factors and the
proprietors of the factored property.
Following upon the said fire a representative of the eleventh defenders
spoke with a journalist from the Sunday Mail.
He stated to the journalist that the eleventh defenders had written
letters to their clients prior to the said fire requesting that they should
remove the said rubbish."
In Statement 6 the averments of
fault against the eleventh defenders are as follows:
"As factors for
the common areas of the said property, it was the duty of the eleventh
defenders to take reasonable care for the safety of the pursuer. It was their duty to keep the said stairwell
clear of accumulations of rubbish."
[36] In my opinion the case against the eleventh defenders as
presently pled does not give sufficient notice to them of the pursuers' cases
against them. I agree that it is not
clear whether the case of each pursuer against the eleventh defenders is at
common law only or is also under the 1960 Act.
It seems to me that in order to plead a relevant case against the
eleventh defenders the pursuers require to make averments as to the nature of
the contract between the eleventh defenders and the persons with possession and
control. Reference to normal practice
would seem to be irrelevant unless there were averments as to the actual
arrangements pertaining to the eleventh defenders. If the case is based on failure to inspect
that should be pled. Now that the letter
sent by the eleventh defenders to their clients has been produced proper
averments should be made in relation to that letter, instead of vague reference
to what one person said to journalist.
Result
[37] I propose to put the case out By Order giving the pursuers an
opportunity to amend in order to meet the shortcomings which I have identified
in their pleadings in the course of this opinion. In these circumstances I shall reserve the
question of expenses.
