1sr Div.

Campbell.

December 15, so deep in the middle, which formed a dangerous trap for people using the back court, as persons walking there were liable to catch their feet or trip or slip in the hole and to fall, and it was in this hole that the pursuer's foot caught and which caused the accident in question.

COND. 8. The said back court is entered from Main Street, Bridgeton, by two open closes, and forms part of the defenders' property; it is open to the public and is used by the tenants of the defenders' said property and their families, there being two tenements in the said property and twelve houses in each close; the number of those using this back court is large, and it was the duty of the defenders to see that the back court was maintained in repair and in a safe state for those using it, but this duty they neglected.

COND. 9. The property in question is not believed to be a very old one, and it would appear therefore that the material of which the pavement of the back court was formed must have been of poor quality. At all events the said pavement has become much broken and worn and is at present in a very defective state in many places and in a condition disgraceful to the defenders, liable to cause accidents, and dangerous to those using the said back court. The process of deterioration is believed to have been gradual and the pursuer is unable to give any precise date at which the said pavement became dangerous, but the condition of the said pavement has been defective and dangerous and the hole or depression which caused the accident the pursuer met with has been there for some years, and at all events for a period far beyond what was required to enable the defenders to have the defects discovered and remedied. The defective state of the said back court was obvious to the defenders or those entrusted by the defenders with the charge of the said property and for whom they are responsible.

....

COND. 10. Alternatively, the said back court has been allowed to remain in its dangerous condition owing to want of inspection and examination by a competent tradesman which it was the defenders' duty to have had made periodically, but which they either neglected to have done or failed to pay attention to the reports they received. The defective state of the said pavement was open and obvious, and would have been revealed by an inspection. There was no duty on the pursuer to inspect the said back court or to have its defects remedied.

The pursuer pleaded, inter alia :

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1. The defence stated is irrelevant.

3. The defects in the defenders' said property being obvious and having been there for some years and for a period far more than sufficient to have enabled them to be recognised and remedied, the defenders are responsible for accidents due to the said defects.

"4. The defenders or those for whom they are responsible having been aware of the said defects, the defenders are in fault in not having had the same remedied.

a

failed to have such inspection made, and the defects which would have been revealed by it remedied, are at fault and are liable for the results of accidents due to their neglect.'' The defenders pleaded, inter alia :

"3. The defenders not having been guilty of any negligence in relation to the accident in question, are not liable in reparation.

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4. The pursuer being guilty of contributory

negligence is barred from claiming reparation."

On 30th October 1923 the Sheriff-Substitute (Lee) repelled the first and second pleas in law for the defenders and the first plea in law for the pursuer, and allowed a proof.

Sheriff Lee [after a narrative of the facts, etc.]. The defenders plead that the pursuer has no title to sue, in respect that she is the wife of their tenant, and, not being herself a party to the contract of lease, has no ground of action against the landlord. I do not think that this plea can be sustained. It does not appear from the pursuer's pleadings that she is a married woman, or who is the tenant of the house in which she resides. She does not sue on the obligations of the contract of lease, but as a resident, who as such had a right to use the court as an access to her home. The matter seems to be ruled by Mellon v. Henderson (1913 S.C. 1207), which decided that the rule laid down in Cameron v. Young (1908 S.C. (H.L.) 7) does not apply to the case of an accident occurring, not in the house let, but in an access to the house, which unlike the house remains under the control of the landlord.

The defenders also plead that the action is irrelevant. There are recent decisions which suggest that cases of this kind should not in general be decided without enquiry, and the pursuer appears to me to have averred everything necessary to make her case relevant. The defenders' main objection is founded on the well-known maxim volenti non fit injuria. But one has to go beyond the pursuer's averments to the defences to find any suggestion that the pursuer was either sciens or volens in respect to the defect of which she complains. She avers that the defect was of very long standing, and should easily have been observed by the defenders, who had a duty to inspect, but she does not say that she had either observed the defect or appreciated the danger. The defenders may be able to shew that the pursuer's long use of the court and familiarity with it put her in the position of voluntarily exposing herself to a known risk, but that is a point which must be considered in connection with the plea of contributory negligence after all the facts have been proved.

The pursuer required the cause to be remitted to the Court of Session for jury trial. The Argued for the Defenders: The pursuer's averments were irrelevant, and the action ought to be dismissed. The pursuer had averred a clear case of contributory negligence on her own part. She averred that the defect in the pavement of the court was obvious and of long standing, but offered no explanation or excuse for the fact that she herself was not

been before them.

Avizandum, 1st December 1923.

On 15th December 1923 the Court recalled the interlocutor of the Sheriff-Substitute and dismissed the action.

the pursuer's position than to avoid setting traps for them, i.e. to keep his premises free from concealed danger. He was no longer bound, as he had been in Scotland, to keep his premises "reasonably safe" for his licensees. Fairman overruled Miller v. Hancock ([1893] 2 Q.B. 177), which had been understood to lay down law identical with the law of Scotland. It therefore by implication overruled M'Martin v. Hannay (1872, 10 M. 411). It was not necessary to consider the two Scots cases referred to in Fairman (Lord Buckmaster at p. 82) as overruled, as it was at least open to argument that both of these were cases of trap or concealed danger (Kennedy v. Shotts Iron Co., 1913 S.C. 1143, Lord Mackenzie at p. 1151, and Grant v. John Fleming & Co., 1914 S.C. 228). Even if the pursuer were held to have been invited by the landlord here, her rights would be no higher (Fairman, Lord Buckmaster at p. 80 referring to Indermaur v. Dames, (1867) L.R., 2 C.P. 311; see also Latham v. R. Johnson & Nephew Ltd., [1913] 1 K.B. 398, Hamilton L.J. at pp. 410 et seq.; M'Kinlay v. Darngavil Coal Co., 1922 S.C. 714, affd. 1923 S.C. (H.L.) 34; Mechan v. Watson, 1907 S.C. 25, Lord Kinnear at p. 29).

Argued for the Pursuer: There would be a danger of denying justice if the pursuer were held to have averred herself out of Court. There was no vital inconsistency in saying that a danger was obvious and admitting by implication that she herself had not noticed it. That was exactly the proposition to be extracted from Lord Carson's opinion in Fairman (at p. 99). It would be idle to argue that the decision in Fairman would have no repercussions in Scotland, but it was submitted that the case must be read strictly secundum subjectam materiam, and that the present case was not ruled by it. The law of Scotland had been only partially and incidentally considered by the House of Lords in Fairman's case, and their Lordships had no intention of disapproving

candid nor artistic, but her counsel admitted that she is a married woman living in family with her husband, who is tenant of a house in one of the tenements. There is an open close in each tenement connecting the public street with the back court. The court is used by a large number of persons. The accident happened when the pursuer was crossing the back court from the one close to the other, presumably on her way to her own home after visiting her daughter, who resides in the adjoining tenement. It was not disputed that although the pursuer was not herself one of the defenders' tenants she was within her right in using the back court as she did. On the contrary, it may reasonably be inferred that she was one of the class of persons (consisting of residents in the two tenements and also of members of the public) for whose accommodation this back access had been provided by the original building owner, and continued to be provided by the defenders, not from any philanthropic motive, but because he, and after him the defenders, considered it to be for his and their advantage that both residents and members of the public should be offered and should enjoy this accommodation. Accordingly, the pursuer's position was very different from that of an intruder whose presence in the defenders' back court was tolerated because they were too kind, or too inert, to interfere with her. The case which the pursuer intended to make against the defenders appears to be this that they, being the persons having the possession and control of the back court, negligently failed to maintain it in a condition which was reasonably safe for the persons (including the pursuer) who lawfully used it. Up to this point the pursuer seemed to have a fairly promising case, but a sudden outburst of candour led her to aver repeatedly and emphatically that the depression which caused the accident had been both obvious and dangerous for some years. Her counsel tried to explain away these aver

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December 15,

1923.

1st Drv. ments as meaning that the defect would have been obvious to an expert who examined the Young v. Campbell. court. This explanation, however, will not do. A depression in the pavement of a court is a matter in regard to which the pursuer was as competent as any expert to decide whether it constituted a danger to herself and the other persons using the court. Further, she does not aver either that she was unaware of the defect which caused the accident, or that she had complained of it to the defenders or their factor, and had received a promise that the defect should be remedied. Moreover, she does not state at what date she became a resident in one of the tenements as it was her duty

which lays upon the proprietor the duty of taking every reasonable precaution to ensure the safety of all who are lawfully using his premises." My impression is that, apart altogether from the common stair cases, there is a considerable body of Scottish authority which might be cited in favour of this view.

Lord Cullen. - In this remitted cause the defenders contend that the pursuer's averments are not relevant to shew that they are under liability to her in respect of the accident from which she suffered, as set forth by her on record. In support of this contention the defenders found on the recent decision of the

that she had resided there for years.

In this state of the facts, as averred or impliedly admitted by the pursuer, it is clear that her accident was not proximately due to the breach of any duty owed to her by the defenders, but that it was due to her own voluntary and unexplained conduct in continuing to make use of a court which was obviously in a dangerous condition. Even if the pursuer had been the tenant of the house in which she resided, her unexplained conduct in continuing to expose herself to an obvious danger, would have precluded her from attributing her accident to the fault of her landlords. I do not see upon what ground the wife of a tenant can, as regards this question, be considered to be in any different or better position than the tenant himself.

For these reasons the action ought, in my judgment, to be dismissed. I do not think it necessary to express any opinion upon the interesting and important question which was argued to us in regard to the effect (if any), and the bearing upon the law of Scotland of the judgment of the House of Lords in the recent English case of Fairman v. Perpetual Investment Building Society ([1923] А.С. 74). Though the opinions which were delivered do not profess to define the law of Scotland, there can be no doubt that the two Scottish cases referred to by Lord Buckmaster (pp. 82, 83) were decided upon the principle that : "where the landlord retains control and possession of a common staircase his duty to the public is to keep it reasonably safe" (Kennedy v. Shotts Iron Co., 1913 S.C. 1143; Grant v. John Fleming & Co. Ltd., 1914 S.C. 228) -a principle of which the five noble Lords who took part in the judgment in Fairman's case unanimously disapproved. Although Lord Strathclyde dissented in the case of Grant, upon the ground that there was, in his opinion, no relevant averment of negligence on the part of the landlords, he seems to have entertained no doubt as to the existence of "the rule of law

([1923] А.С. 74), which was not brought under the notice of the Sheriff-Substitute. There is, I think, no doubt that an application of that decision in Scotland involves the upsetting of a considerable train of Scottish authorities whereby the law on the subject was here regarded as settled. While that is so, I am unable to perceive that the decision went on any principles of the law of liability for negligence which are not common to both countries. Moreover, as the report shews, the House had under its consideration certain representative Scottish cases on the subject. I am of opinion that we must follow the case of Fairman and hold that, as the defect in the paving of the back-yard which is alleged to have brought about the accident to the pursuer was not, according to her averments, of the nature of a trap, but was an open and obvious defect which had existed for a long period, the pursuer has set forth no relevant case.

Lord Sands. I agree with Lord Skerrington. If the pavement here in question was of a more broken and irregular surface than, under the wear and tear of life and of pavements, is the habit of pavements, that was an obvious source of danger of which the pursuer, if she used the pavement without remonstrance, must, in the circumstances, be held to have taken the risk.

The main part of the argument to which we listened was concerned with a question of more general juridical interest. I have always been disposed to sympathise with the view strongly held by the late Lord Ardwall, that the judgment in the case of Cameron v. Young (1908 S.C. (H.L.) 7), following the English case of Cavalier v. Pope ([1906] A.C. 428), made an encroachment upon what had been the general understanding of the law in Scotland. That understanding is taken to have been that when the owner of property lets property which is in an insecure or otherwise dangerous condition he may, in case of injury resulting therefrom, be