Mooney v Lanarkshire County Council
| Jurisdiction | Scotland |
| Judgment Date | 22 January 1954 |
| Date | 22 January 1954 |
| Docket Number | No. 30. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
NegligenceHeritable PropertyHouse built by local authority for lettingTenant obtaining possession before work completedVisitor injured by obstacle on front pathWhether authority liable as landlords or as independent contractors.
The tenant of a house built by a local authority for letting entered into occupation before the work of making up the front path was completed. A friend of the tenant's wife, calling at the house after
dark, tripped over a metal "toby" protruding from the path and was injured. In an action at her instance against the local authority the defenders maintained that the pursuer's case was irrelevant on the ground, inter alia, that quoadthemselves she was only a licensee and that the obstacle was not a danger of which they were bound to warn herHeld (diss. Lord Mackay) that, as the defenders had ceded possession and control of the house and garden to their tenant, their duties towards persons such as the pursuer in relation thereto were not those of an occupier of heritage but those of a contractor working on heritage: that, as such, they were bound, if they created a dangerous obstruction on the pathway, to bring it to the attention of persons lawfully using the pathway, and in particular (per Lord Patrick) to light it during the hours of darkness; and that on the facts averred the pursuer had stated a relevant case for inquiry.
Malone v. LaskeyELR, [1907] 2 K. B. 141, and Ball v. London County CouncilELR, [1949] 2 K. B. 159,distinguished.
Mrs Sarah Mooney brought an action of damages in the Sheriff Court at Hamilton against the County Council of the County of Lanark for personal injuries sustained by her on 9th November 1949 on the pathway of the dwelling-house at 15 Wallace Place, Kirkmuirhill, of which the defenders were proprietors.
The pursuer averred, inter alia1:(Cond. 2) "On 9th November 1949 pursuer was invited by Mrs Mary Graham or Sim to the house tenanted by the latter's husband at 15 Wallace Place, Kirkmuirhill, which is situated on the east side of a road now formed and known as Wallace Place. About 7.45 p.m. on said date pursuer proceeded southwards along said Wallace Place and on reaching No. 15 she went eastwards from Wallace Place into the pathway to said house, when her foot struck or caught on a metal cover or toby projecting above the level of the pathway, causing her to fall heavily to the ground, as a result of which she sustained injuries as after condescended upon. The said cover or toby was situated in the centre of the pathway leading to said house occupied by Mr Sim and was projecting about six inches above the level of the pathway. The defenders had laid a surface of ashes on said pathway preparatory to laying a final surface of tarmacadam on the pathway. At the time of the accident and for some time before it, the surface of the ashes was about six inches lower than the surface of the toby, which was about one foot square and was situated in the middle of the pathway near the entrance from the street. A surface of tarmacadam was laid on the path by the defenders on the day after the accident. With reference to the averments in answer admitted that the pathway formed part of the garden ground let to the defenders' tenant and was not an access to any other house. Explained that the defenders had not completed the construction of the pathway. They still had possession and control of the pathway for the purpose of completing it. Esto the defenders had at some time haunched the metal toby round with ashes (which is
denied), at the date of the accident and for some time before it the toby projected from the level of the pathway as stated and there was no gradual slope from the surface of the pathway to the surface of the toby. Denied that the difference in level was slight or that the said pathway was in a reasonably safe condition. Averred that said pathway had been in a dangerous condition for some time " (Cond. 3) "The said accident was entirely due to the fault and negligence of the defenders. It was their duty in carrying on work on said pathway to take reasonable care for the safety of all persons whom they knew or might reasonably anticipate would use said pathway. They knew that said pathway was the only access to said house from the street and that members of the public calling at said house, including the pursuer, would use said pathway both in daylight and in darkness. Accordingly it was their duty to take reasonable care to have the said metal cover or toby level with the pathway by building up the pathway round the toby to the level of the toby so that there was a gradual slope from the general surface of the pathway to the surface of the toby, and so maintaining the pathway at all times when they were not working thereon, or alternatively during the hours of darkness to have placed there a light or other indication to the pursuer of the existence of such a danger. In these duties the defenders failed and by their failure caused the said accident. They did not have the said metal cover or toby level with the pathway, and the pursuer avers that on the day following the said accident the defenders raised the level of said pathway to the level of said metal cover or toby and surfaced the said pathway with tarmacadam. They did not have any light or other indication placed there or at any point along Wallace Place, which at night remained in total darkness, as the defenders well knew"The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the action, the action should be dismissed with expenses."
On 4th July 1951 the Sheriff-substitute (Bryden) allowed the parties a proof before answer. The defenders appealed to the Sheriff (Sir A. C. Black, Q.C.), who on 16th February 1952 recalled the interlocutor of the Sheriff-substitute, sustained the defenders' first plea in law and granted decree of absolvitor.
The pursuer appealed to the Court of Session, and lodged a minute of amendment, to which the defenders lodged answers. The minute and answers having been allowed to be received, the case was heard before the Second Division (without Lord Mackintosh) on 10th and 11th December 1953, when by agreement of the parties the defenders and respondents opened in the debate.
At advising on 22nd January 1954,
LORD JUSTICE-CLERK (Thomson).The pursuer says that, having been invited to call one evening on a friend, she tripped over an exposed and protruding toby on the pathway leading from the roadway to the front door of her friend's house. This friend's husband is the tenant of the defenders. The defenders had built this house for letting, and apparently, as so often happens nowadays, the tenant had entered into occupation before the job was completed. The pathway was in process of construction; the bottoming was laid but it still had to get its coating of tarmacadam, which would have levelled it up and prevented the toby from protruding.
The earlier history of the litigation is sufficiently summarised in Lord Patrick's opinion. The pursuer's case is now in substance that it was the defenders' duty in carrying out the operation of constructing this pathway to take reasonable care for her safety, on the view that they were bound to anticipate in leaving the job unfinished that the exposed toby might cause danger to people like her coming to the tenant's house on their lawful occasions. The defenders say that this is an irrelevant case, the duty being too broadly stated. They appeal to the fact that they were the landlords of the property. They say that their liability is to be measured on the footing that they were landlords, with the result that the pursuer must take the pathway as she found it and that the only duty which they owed to the pursuer was not to expose her to a concealed danger. The pursuer's senior counsel conceded that he could not argue that this was a concealed danger and particularly that in view of the authorities he could not argue that it was made a concealed danger because it was dark at the time. Accordingly the debate turned on whether the defenders could claim the limited liability enjoyed by landlords in possession and control of property.
It is trite law that no liability attaches ex dominio merely. In considering the rights of people who come on to other people's property the basis of liability is possession and control of the heritage. If the owner has parted with possession and control to a tenant, his liability so far ceases. The extent of the divestiture is a matter of contract between owner and tenant. If an owner lets to a tenant the top flat of a block, it may be that he still retains possession and control of the entrance and stairway. If he lets a house and garden, in the absence of any special stipulation, he will usually be understood to have parted with possession and control of everything to the outside gate. If the owner has divested himself and finds himself on the property in some other capacity, he cannot found on his ownership as measuring his obligations to third parties.
The liability of the person in possession and control of heritable property has since the decision in Dumbreck18been made to depend in Scotland, as in England, on the relationship in which the person who comes on the property stands to the person in possession and control. There are, according to that decision, three possible relationships and only three: invitee, licensee and trespasser. This doctrine, which has the effect of putting the person in possession and control in something of a privileged position, towards licensees at any rate, was developed in the days of large landed estates, and the reasons for it are well expressed by Willes, J., in Indermaur v. DamesELR.19 While it still has its uses in regard to such landed estates as remain, its suitability to the complex relationships of urban and suburban...
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