1sr Div.

COND. 7. In particular, not far from the wall of the building and near the exit from the close forming Young V. No. 267 Main Street, there was a saucer-shaped

Campbell.

1923.

depression about a foot across and two inches or 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.

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.

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 Sheriff Lee [after a narrative of the facts, etc.].broken and worn and is at present in a very defective The defenders plead that the pursuer has no title state in many places and in a condition disgraceful to sue, in respect that she is the wife of their tenant, to the defenders, liable to cause accidents, and danger- and, not being herself a party to the contract of ous to those using the said back court. The process lease, has no ground of action against the landlord. of deterioration is believed to have been gradual and I do not think that this plea can be sustained. It the pursuer is unable to give any precise date at does not appear from the pursuer's pleadings that which the said pavement became dangerous, but the she is a married woman, or who is the tenant of condition of the said pavement has been defective the house in which she resides. She does not sue and dangerous and the hole or depression which on the obligations of the contract of lease, but as caused the accident the pursuer met with has been a resident, who as such had a right to use the court there for some years, and at all events for a period as an access to her home. The matter seems to far beyond what was required to enable the defenders be ruled by Mellon v. Henderson (1913 S.C. 1207), · to have the defects discovered and remedied. The which decided that the rule laid down in Cameron defective state of the said back court was obvious v. Young (1908 S.C. (H.L.) 7) does not apply to to the defenders or those entrusted by the defenders the case of an accident occurring, not in the house with the charge of the said property and for whom let, but in an access to the house, which unlike the they are responsible. house remains under the control of the landlord.

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:

66 1. The defence stated is irrelevant.

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

case was heard before the First Division on 1st substantive rules of Scots law which had not 1st Div. December 1923. been before them..

Avizandum, 1st December 1923.

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

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 Lord Skerrington. The pursuer met with a well aware of the alleged danger. Further, serious and regrettable accident through a fall she averred wrongly the duties of the defenders consequent on her having caught her foot in a to the pursuer with regard to the court. The saucer-shaped depression in the pavement of a decision in Fairman v. Perpetual Investment court which is common to and is situated Building Society ([1923] A.C. 74) had altered immediately at the back of two tenements the law of Scotland in this matter, and now the landlord had no higher duty to persons in 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

belonging to the defenders. The pursuer's
pleadings in the Sheriff Court are neither
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 hap-
pened when the pursuer was crossing the back
court from the one close to the other, presum-
ably on her way to her own home after visiting
her daughter, who resides in the adjoining tene-
ment. 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 pur-
suer'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 reason-
ably 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-

Young v.
Campbell.

December 15, 1928,

Young v.

December 15,

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.

1st Drv. ments as meaning that the defect would have been obvious to an expert who examined the Campbell. court. This explanation, however, will not do. A depression in the pavement of a court is a 1923. 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 to do in answer to the defenders' allegation | House of Lords in the English case of Fairman 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] A.C. 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

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

([1923] A.C. 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

Process-Printing documents for Inner House-Bound

volume of House of Lords case and appendix in prior case
in England being inserted as a number in the defenders'
inventory of the documents put in evidence by them
without challenge by the pursuers-On a proposal by the
defenders and reclaimers to print as part of their appendix
excerpts from the volume, motion made by the pursuers
and respondents to have such an appendix disallowed—
Held that, if the bound volume was to be referred to, it
must be printed in its entirety, and order granted inter-
pelling the clerk of Court from receiving prints of an
appendix containing any such excerpts.

liable as for negligence to any person who has
lawfully entered the premises in the course of
such use thereof by the lessee as the lessor
must have contemplated when he let the
premises, and for which he draws the rent.
The case of Cameron v. Young did not perhaps
expressly decide the point in the negative,
for the action was there laid upon contract,
but the dicta both in this case and in Cavalier 17.
V. Pope, where there was the specialty that the
injured party knew of the danger, seem to go
the whole length. It is now represented that
this alleged encroachment upon the under-
standing of the law of Scotland has been
extended further so as to make the rule nega-
tiving liability to apply to the case of a common
access for the use of a number of tenants, an
access necessary to be provided and maintained
if the owner of the premises is to continue the
business of letting the several houses which
it serves (Fairman v. Perpetual Investment
Building Society, [1923] A.C. 74). That was an
English case. Common stairs and the rules
thereof are, I take it, of much greater an-
tiquity in Scotland than in England, and it
may still be open to argue, in view of a chain
of decisions (followed in still more numerous
unreported cases), that the liability of the
owner of a common access in the case figured
is a rule of positive law in Scotland. In Scotland
a common access to the dwelling-houses in a
tenement on the street, though private property,
is often a quasi-public place. It may have no
door; indeed generally it has none, and the
local authority may be under obligation to
light it. Certain people, as, for example,
postmen, are obliged to enter it upon no private
business of their own. If the question were to
be regarded as open, I confess I would have
difficulty in holding that a proprietor who
provides and maintains an open common
access to a number of houses which he lets
for profit does otherwise than invite the postman
to enter. It is unnecessary, however, here to
consider such questions.

Counsel for Pursuer, Morton, K.C., Paton;
Agents, Clark & Macdonald, S.S.C., and Robert
Grierson, Writer, Glasgow. - Counsel for De-
fenders, Watt, K.C., Cooper; Agents, Macpherson
& Mackay, W.S., and Turnbull & Findlay,
Writers, Glasgow.
M. D.

Single Bill.

The British Thomson-Houston Co. Ltd., Crown House, Aldwych, London, brought an action of interdict, delivery, and damages against Charlesworth Peebles & Co., engineers, 134 St Vincent Street, Glasgow, on the ground of an alleged infringement of certain letters patent.

After sundry procedure the Lord Ordinary, on 19th July 1923, inter alia, granted interdict.

The defenders reclaimed and, as a result of
correspondence, the respondents presented a
note to the Court setting forth, inter alia:

The defenders and reclaimers have intimated to
the pursuers
and respondents that they propose to
print in an appendix to the said reclaiming note and
as part of the evidence to be laid before their Lordships
of the Second Division excerpts from the bound
volume of the House of Lords case and appendix
in an appeal to the House of Lords in an action in
the High Court of Justice in England-The British
Thomson-Houston Co. Ltd. v. Duram Ltd. The
said appeal (which is reported in 35 R.P.C. 161) is
concerned with another patent belonging to the
pursuers and respondents, which the defenders and
reclaimers allege to be an anticipation of the letters
patent 23,499 of 1909. The excerpts which the
defenders and reclaimers propose to print consist
of certain portions of the pleadings of parties in the
said appeal and of certain portions of the shorthand
notes of the evidence led at the trial. None of the
said excerpts were spoken to by any of the witnesses
in the present action, and they were in no way made
part of the evidence therein. The pursuers and
respondents have informed the defenders and
reclaimers that they object to the print of the said
excerpts being boxed to the Court or received by the
clerk of Court in respect that they are not evidence
in the present action. The defenders and reclaimers
have, however, informed the pursuers and respon-

1923.

Co. Ltd. v.

2ND DIV. dents that the printing of the said excerpts is to be
proceeded with, with a view to the print being
British boxed. In the event of the said excerpts being
Thomson- printed and being held to be competent evidence it
Houston would be necessary for the pursuers and respondents
Charles- to print large additional excerpts or alternatively
worth to print the whole of the said volume.
Peebles The pursuers and respondents therefore respect
& Co. fully bring the matter to your Lordship's notice.
They humbly submit that the said excerpts are not
1928. evidence, and that no print thereof should be boxed
to the Court or received by the clerk of Court.

December 21,

Argued for the Respondents: The proposal here was to place before the Court partial excerpts or otherwise an incomplete copy of the bound volume referred to, because of the fact that the reclaimers had inserted the bound volume as a number in their inventory of the documents put in evidence by them. The fact that it was in that inventory did not, however, make it competent evidence in the present case, and it had been disallowed by the Lord Ordinary. The reclaimers could have made the particular witnesses, whose evidence they wished to use, witnesses in the present case in the ordinary way by citing them, but did not do so. The bound volume was neither probative nor proved, and should never have been put into the reclaimers' inventory. The crave of the note should accordingly be granted (Williamson v. Taylor, 1847, 7 D. 842; Lockyer v. Sinclair, 1845, 8 D. 1; Shedden v. Patrick, 1849, 11 D. 1057; Grierson v. Mitchell, 1912 S.C. 173; Neill's Tr. v. British Linen Co., 1897, 5 S.L.T. 164).

Argued for the Reclaimers: The respondents had had ample opportunity to examine the reclaimers' inventory of documents put in evidence, but did not do so. Accordingly it was now too late to object to excerpts being printed from a document appearing in the inventory. Such an objection was without support. Questions were put to witnesses in the present case by exact references to the evidence in the case in England, and the bound volume was thus referred to in the testimony of the witnesses. In any event it was always competent to refer to pleadings in a former case to shew the nature of the case, and the reference in the present case to the evidence in the prior case was to stop the patentee from denying a particular point of view. Reference to the bound volume would be necessary for a full hearing in the present case, and the excerpts supporting the reclaimers' point of view would therefore be properly before the Court (Phipson on Evidence (6th ed.), p. 251; Dickson on Evidence, section 293; Mollison's Trs. v. Crawfurd, 13 D. 1075). Neill's Tr. (cit.) was in contrast to the present case.

On 21st December 1923 the Court pronounced the following interlocutor: "The Lords, having

The Lord Justice-Clerk (Alness).-This is an unusual application. It invites the Court, in the Single Bills, and without any knowledge of the action to which it relates other than that contributed by counsel for the parties during the discussion which took place upon the application, to ban a proposal made by the defenders and reclaimers to print and box a document to the Court.

Of the action to which the application refers I will only say that it is one of interdict against the alleged infringement of a patent, that one of the defences to it is anticipation of the patent, that the Lord Ordinary decided the case in favour of the pursuers, and that the defenders have reclaimed against his judgment.

I must now consider the document which the respondents seek ab ante to restrain the reclaimers from printing and boxing to the Court. It is thus referred to in the note containing the respondents' application, and the description is unchallenged by the reclaimers: "The defenders and reclaimers have intimated to the pursuers and respondents that they propose to print in an appendix to the said reclaiming note and as part of the evidence to be laid before their Lordships of the Second Division excerpts from the bound volume of the House of Lords case and appendix in an appeal to the House of Lords in an action in the High Court of Justice in England-The British ThomsonHouston Co. Ltd. v. Duram Ltd. cerpts which the defenders and reclaimers propose to print consist of certain portions of the pleadings of parties in the said appeal and of certain portions of the shorthand notes of the evidence led at the trial." I should add (1) that the House of Lords case refers to an earlier patent of the respondents which is alleged to have anticipated the later one, and (2) that the House of Lords case was put by the reclaimers in their inventory of productions put in evidence by them, and forms No. 304 of process.

The ex

Now, I think that the proposal by the reclaimers to print an appendix containing excerpts selected according to their discretion from the House of Lords case is highly objectionable. Nor do I think that it is a good answer on their part to say that the respondents can print additional excerpts from the case should