Scottish Court of Session Decisions

At advising on 11th October 1955,—

LORD PRESIDENT (Clyde).—This is a reclaiming motion by the pursuer against an interlocutor of the Lord Ordinary, who, after a discussion in the Debate Roll, has assoilzied the second-named defenders, the Scottish Special Housing Association, Limited, from the conclusions of the action.

The pursuer is claiming damages for an injury which he sustained while engaged in cleaning windows on the second floor of a house owned and occupied by the second-named defenders and situated in Edinburgh. According to the pursuer's averments he stepped out on to the sill of one of the windows in order to clean the outside of it, and, in trying to pull down the sash for this purpose, he lost his balance and sustained injuries as a result of his fall.

The action was originally brought against his employers only, who are now the first-named defenders. But after sundry procedure the pursuer brought in the second-named defenders as well, and it is the relevance of the case against these latter defenders which arises at this stage of the case. Before us the first-named defenders did not seek to attack the Lord Ordinary's decision assoilzieing the secondnamed defenders, and admittedly there has to be inquiry into the liability to the pursuer of the first-named defenders themselves.

The case sought to be made by the pursuer against the second-named defenders is, however, quite a separate case, and is exclusively based on breach by them of the provisions of section 52 of the Order scheduled to the Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926. [His Lordship quoted the section.]

The pursuer's case is that the second-named defenders had reconstructed the building after the commencement of the Order; that in granting the necessary authority for this reconstruction the Dean of Guild Court expressly stipulated that the plans should provide for the reconstruction of the upper storey window sashes so as to comply with section 52; that the sashes were not so reconstructed; and that the pursuer in cleaning the windows had therefore to go on to the sill outside, where he lost his balance and fell. The second-named defenders' failure to comply with section 52, it is maintained, thus caused the accident to the pursuer.

The real question raised by the reclaiming motion is therefore whether the breach of section 52 alleged by the pursuer can be founded upon by him as the basis of a claim for civil damages at his instance against the second-named defenders.

It has long ago been decided that the mere fact that a duty has been created by a statute will not entitle a person injured by the breach of that statutory duty to claim damages from the person upon whom the duty is imposed—Atkinson v. Newcastle Waterworks Co., per Lord Cairns, L.C., at p. 448—and the Courts have frequently had to determine whether a particular statutory obligation does or does not confer a right upon a person injured by its breach to damages for that injury. The solution in each case must depend upon what the intention of Parliament was in enacting the obligation in question, and what persons consequently have a right to enforce it or to found upon it as a basis for a claim of damages.

Certain factors, however, have been held to be of importance in assisting the Court to determine this question. If, for instance, the Legislature has provided no machinery by way of penalty or otherwise for enforcing compliance with the duty, there is a presumption that a civil right of action accrues to the person damnified by the breach. Otherwise the duty might never be performed—Cutler v. Wandsworth Stadium Limited, per Lord Simonds at p. 407 and Lord Normand at p. 413. On the other hand, however, where machinery is incorporated into the statute for enforcing compliance with the statutory obligation, the position is different. The presence of such machinery does not necessarily deprive the injured person of a civil remedy based on the breach of statute—Groves v. Lord Wimborne —but, as Lord Tenterden, C.J., said in Doe v. Bridges, at p. 859, "where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner." This passage has frequently been adopted and quoted with approval in the House of Lords, e.g., Pasmore v. Oswaldtwistle Urban District Council, per Lord Halsbury, L.C., at p. 394; Cutler v. Wandsworth Stadium Limited, 2 per Lord Simonds, at p. 407.

The Courts, however, have deprecated laying down any hard and fast rules on the matter. As Lord Simonds said in Cutler, at p. 407:

"The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the circumstances, including the pre-existing law, in which it was enacted."

The issue was similarly expressed in the same case by Lord Normand (at p. 413), when he said:

"If there is a penalty clause the right to a civil action must be established by a consideration of the scope and purpose of the statute as a whole."

It was maintained by the pursuer in the present case that the material consideration was the scope and purpose not of the statute as a whole, but of the particular section providing for the duty. I can find no logical basis for this contention, nor any authority to support it. Indeed the authorities directly reject it, e.g., Groves v. Lord Wimborne, per Vaughan Williams, C.J., at p. 417; Vallance v. Falle, per Stephen and Matthew, JJ., and the matter is, in my view, correctly summed up by Singleton, J., in Cutler v. Wandsworth Stadium Limited, where he says at p. 312:

"This, indeed, stands out clearly from the long line of authorities cited to us: one must have regard to the Act as a whole and not merely to the section which creates the duty: one must look to see what is ‘the scheme of the Act.’"

One other general consideration should be stated. If the class of persons for whose protection it is alleged that the duty was imposed is indefinite and difficult to define, this would tend to exclude the construction of the section which would give a right to civil damages for breach—see Singleton, J., in Cutler v. Wandsworth Stadium Limited, at p. 312—and would favour the view that the Legislature intended the sanction of prosecution for a penalty as appropriate and sufficient for the obligation imposed by the section—Lord Reid in Cutler v. Wandsworth Stadium Limited at p. 418. But where on the other hand the predominant purpose of the statute is manifestly the protection of a particular class of workmen, by imposing on their employers, for instance, the duty of taking special measures to secure their safety, then the inference is readily drawn that the Legislature intended to confer on these workmen a right to sue for damages where the duty is not fulfilled—see Lord Normand in Cutlerat p. 413. Instances of this type of case are to be found in Black v. Fife Coal Co 1912 SC (HL) 33 ; Bett v. Dalmeny Oil Co.; and Groves v. Lord Wimborne . A similar inference was drawn by the Court in Monk v. Warbey in regard to the statutory obligation to insure against third-party risks in terms of the Road Traffic Act, 1930, section 35. As Greer, L.J., says at p. 80:

"The Road Traffic Act, 1930, was passed for the very purpose of making provision for third parties who suffered injury by the negligent driving of motor vehicles by uninsured persons to whom the insured owner had lent such vehicles. How could Parliament make provision for their protection from such risks if it did not enable an injured third party to recover for a breach of section 35?"

Accordingly, before a right to civil damages can arise out of the statutory duty imposed, there must be a clear intention to confer such a right and a definite class of persons upon whom the right is so conferred.

In the light of the above considerations I now turn to the circumstances of the present case.

The section founded upon by the pursuer is contained in the Order in the Schedule to the Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926. The Order was passed to consolidate with amendments the Acts and Orders relating, inter alia, to the Dean of Guild Court of the city and the regulation, control and administration of streets and buildings in the city. The Order also deals in separate Parts with quite different matters (e.g., Water of Leith purification) which do not concern us in this case, and which I do not consider it necessary to examine further for the purpose of ascertaining the scope and purpose or the scheme of the Act within the meaning of the decisions already referred to. Section 52, upon which the pursuer founds, is one of a long series of statutory provisions in the Part of the Order dealing with buildings, and forms part of what, since that date, has constituted the building code for the city. In that same part of the Order are to be found provisions for the administration and enforcement of the building code by the Dean of Guild Court, including powers to impose penalties for failure to obtemper its orders (see section 34). The general underlying purpose of this portion of the Order is the maintenance and improvement of the safety and healthiness of buildings in the city, and, in my view, in such a setting the primary purpose of section 52 was to facilitate the cleaning of upper storey windows for reasons of health, and to secure that object by making it easier to carry out the necessary periodical cleaning, the enforcement of compliance with the provisions of section 52 being secured by the penalty provisions of section 34, which appear to me to be adequate for the purpose.

A closer consideration of the terms of section 52 confirms this view and negatives the contention that the section was designed to constitute a charter for window cleaners. In the first place, the section only applies to certain windows, and could therefore only form a somewhat timid and wavering approach to enacting such a charter. For it only operates in the case of new buildings or in the case of reconstructed buildings. Buildings which are not reconstructed require no such alteration of their window sashes, an exception which is difficult to understand if the section was passed to protect window cleaners. The exception is much more intelligible if the object of the enactment was to introduce improvements in new or altered buildings. But, in the second place, even among these restricted categories of buildings the obligation is not absolute. Although the opening words of the section are framed in unqualified terms, the final part of the section shows that the Dean of Guild Court is left with a discretion not to insist on the requirement in particular cases. Dean of Guild considerations, therefore, and not window cleaners' safety, is the main outlook of the enactment. In the third place, it cannot be affirmed from a consideration of the section that it was manifestly enacted for the benefit of any particular class. Window cleaners, as such, are not even mentioned in the section, and there is nothing to indicate whether the class of persons for whom the provision is alleged to have been enacted was intended to be confined to window cleaning tradesmen, employed for that purpose, or any householder or occupier who happened at any time to clean one of the windows.

All these considerations appear to me to point clearly to the conclusion that the section is just one link in the general building code of the city, where the duty of compliance is owed to the Dean of Guild Court, and where a party injured by a breach of that duty would have no right to found upon the breach as a basis for a civil claim.

But there is one final aspect of the matter which seems to me to clinch it. The duty is, at the best for the pursuer, a duty to construct it is not expressed as a duty to maintain. The duty therefore is one imposed on the person who erects or reconstructs the building and not upon the owner or the person in possession and control of the building at the time of the accident. If the pursuer were to prevail, it would mean that the Legislature has imposed on the person who erected or reconstructed a building a liability to pay damages although he has sold the building and although he is in no sense any longer in control of it, and even although his successors in the building have boarded up or interfered in other ways with the particular window sash. I cannot believe that Parliament intended to introduce so novel and inequitable an obligation, and I am satisfied that no such startling consequences were ever intended by the provision in question.

It was sought to assimilate the present case to cases such as Ghannan v. Glasgow Corporation, where a householder, injured in descending an unlighted common stair, founded as the basis of his action against the local authority on the provisions of a local Act under which they were taken bound to light common stairs and to keep the same lighted. This type of case is, however, totally different from the present. Not only was there no penalty clause for failure to carry out this duty to light, but the section in the local Act was manifestly passed for the protection of that class of person who was making the claim. Neither of these considerations applies in the present case.

In my opinion, therefore, the conclusion reached by the Lord Ordinary in his opinion was the correct one, and I move your Lordships to repel the first plea in law for the pursuer, which was added by him in the course of the hearing in the Inner House, and to sustain the first plea in law for the second defenders.

LORD RUSSELL .—I have had the advantage of considering the opinion delivered by your Lordship. I am in full agreement with it and do not desire to add anything.