Scottish Court of Session Decisions

This was an appeal at the instance of David Baird, merchant, Gorebridge, in an action raised against him by Archibald Reid, clothier, Longridge near Fauldhouse. The summons concluded for “(First) The sum of £40 sterling, being the loss, injury, and damage sustained by the pursuer in consequence of a flow of water having come in, on or about the first, second, third, and fourth days of January 1875, upon the premises at West Calder, let by the defender to and occupied by the pursuer for the year from Whitsunday 1874 to Whitsunday 1875, said flow of water having been caused by the defective construction of the roof of said premises, or the defender having failed to keep the same in a proper and efficient state of repair, and by which flow of water the stock and effects of the pursuer in said premises were damaged to the above extent, and for which the defender is liable, having been bound to keep the said premises wind and water-tight during the pursuer's tenancy of said premises: (Second) The sum of £6 sterling, being the sum contained in a decree at the instance of David Lindsay, contractor, Gorebridge, against the pursuer, obtained at the Small-Debt Court at Linlithgow, dated 15th October 1875, for loss, injury, and damage sustained by the said George Lindsay in consequence of the said overflow of water—the said George Lindsay having been a subtenant of the pursuer in a part or portion of said premises at West Calder, and of which sum the defender, as the proprietor of said premises, is bound to relieve the pursuer.”

Baird, the landlord, stated in defence—“The roof was of proper construction, and was in a complete state of repair. The defender so believed; and he received no. complaints to the contrary prior to or since the dates mentioned in the summons. The alleged damage was caused by stress of weather. A large quantity of snow accumulated on the roof on or about Friday, the 1st of January 1875. On or about Saturday, the 2nd of January 1875, a change in the temperature occurred, the snow began to melt, and the gutter and pipes, having been previously blocked up by ice, the water rose above the leads and began to penetrate the roof and flow into the premises occupied by the pursuer, although the roof was perfectly sound. The water began to run on Saturday morning, 2d January, and continued all that day and the next day (Sunday, 3rd January), but the pursuer made no effort to stop ingress of water by clearing off the snow before it began to melt, or clearing the pipes to let the water run. On the contrary, he waited till the damage was completed, and then sent a telegram to the defender, upwards of forty-eight hours after the water began to run, asking him to come through to him, but without saying what he wanted with the defender. No complaints had been previously made as to the premises.”

The defender also pleaded damnum fatale and contributory negligence, and maintained that he was not bound by the small-debt action mentioned in the summons, and that in any view the damages claimed were excessive.

A proof was taken, and the pursuer stated that he opened a branch shop at Longridge in 1873, taking the pursuer's house, and subletting a portion of it to Lindsay for £12 a-year. His daughters kept this shop at Longridge, and generally went home to West Calder on Saturdays. The shop was shut from 10 p.m. on Thursday 31st December 1874 till Monday morning, 4th January 1875, when Reid, on going to the house found very serious damage done by the melting snow which had got in and destroyed the goods. He sent a telegram to the defender to come and see about it, but he did not do so till Whitsunday, nor did he send any one over, and he would allow no deduction from the rent. Reid admitted that in January 1875 he only asked £18, 10s. as the damage, but asserted that mildew had subsequently caused further loss. He also stated that he was compelled to pay Lindsay his subtenant £6 damages.

The pursuer's daughter gave similar evidence. The evidence of joiners and slaters was to the effect that there was only one small outlet for water collecting in the rhone, and so it went back on the roof where the lead did not extend high enough under the slates to prevent its getting into the house. An architect, examined for the defender, admitted that for the safety of a tenement the lead should extend under the slates to a point above the level of the blocking course. The defender in his own evidence said that nothing beyond opening two more outlets had been done to the roof since the snow-storm, and that he deemed it a tenant's duty to clear his roof of snow.

The Sheriff-Substitute ( Hallaed) on 15th March 1876 found for the pursuer, awarding him £40 besides the £6 paid to Lindsay as per decree of the Linlithgow Sheriff Court, and further found in law “(1) that the defender's ignorance of the defective construction above set forth does not liberate him from liability for damage arising to his tenant in consequence thereof; (2) that no culpa requires to be alleged or proved against the defender in order to enable the pursuer to recover damages as libelled.”

The note of the Sheriff-Substitute was as follows:—

“ Note.—When the term of Whitsunday 1875 came the defender did not propose any abatement of rent as compensation for the overflow. He received payment in full. He seems then to have taken the position still insisted in by him, that the pursuer had himself to blame for the damage, and that, quoad ultra, the occurrence was damnum fatale, which should fall upon the tenant alone.

“Had the damage to the pursuer's goods been truly a damnum fatale, the defender would of course have incurred no liability. But the pursuer put his finger on the defective construction which let the water in. The obligation to keep the house wind and water-tight was in that manner

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and to that extent not fulfilled. Therefore the defender, though personally blameless, must pay.

“No authorities were cited at the brief debate which immediately followed the proof; but it is thought that the result embodied in the foregoing interlocutor depends on clear and acknowledged principles of our jurisprudence. A landlord is bound to give his tenant a roof which shall keep him and his goods safe from injury by weather. He must provide not only against the ordinary shower, but if possible against the extraordinary snow-storm. Here it was not only possible, but easy. An inch or so of additional lead would have done it. This is not a damnum fatale, like an earthquake or a thunderbolt, against which no human foresight can provide. Though extraordinary, the possible accumulation of snow and subsequent thaw on the pursuer's roof were capable of being foreseen and provided against. The lead on the slates was too narrow, and so the water got in. The construction of the roof was in that respect manifestly defective. No culpa needed, therefore, to be proved by the pursuer, and none was proved against him.

“It is quite true that the tenant of a house is bound to use a reasonable degree of diligence in preserving it from harm.—Ersk. ii. 6, 43. He is bound to use such diligence to prevent his own claim of damage from undue increase. At the discussion it was contended for the landlord that the pursuer had failed in the fulfilment of that obligation; but the proof does not support that contention.

“It appears that this was not the first time that the pursuer had suffered from an overflow. But on the previous occasion he submitted to the loss and made no claim. It seems hard to convert this forbearance on his part into a weapon against him, and to contend, as was done at the debate, that had the tenant complained the landlord would have been put on his guard, and might have prevented the greater overflow of 2d January 1875. The landlord's treatment of the notice sent him in the present instance does not give much encouragement to that idea. Be that as it may, the landlord remains responsible for the defective condition of his roof, and the forbearance of the tenant does not impair that obligation.

“The well-known case of Weston v. The Incorporation of Tailors, July 10, 1839, 1 Dunlop 1218, was not a case between landlord and tenant. The question there was, whether a third party, injured by an overflow from the house above, had his remedy against the landlord of that house. Fault against the landlord was there held a necessary averment. There was no defective construction to complain of there. There is a demonstrated defect of construction here.

“As to the pursuer's estimate of the damage the defender cannot complain. He was asked to come and check it; but he declined to avail himself of that opportunity. The pursuer and his daughter seem to have done their best. There is no reason to suspect their estimate to have been an exaggerated one.”

Authorities—Erskine ii. 6, § 43; Bell Prin. § 1253; Chitty on Contracts, 308, 10th edn.; Goskirk & Son v. Edinburgh Railway Station Access Co., Dec. 19, 1863, 2 Macph. 383; Laurent v. Lord Advocate, March 6, 1869, 7 Macph. 607.

The defender appealed to the Court of Session.

At advising—