Phillip Samson Against Dc Watson & Sons (fenton Barns) Limited And Uk Insurance Limited
| Jurisdiction | Scotland |
| Judge | Appeal Sheriff Cubie,Sheriff Principal Lewis |
| Neutral Citation | [2022] SAC (Civ) 4 |
| Date | 01 February 2022 |
| Docket Number | EDI-CA7-20 |
| Court | Sheriff Appeal Court |
| Published date | 04 February 2022 |
SHERIFF APPEAL COURT
[2022] SAC (Civ) 4
EDI-CA7-20
Sheriff Principal M W Lewis
Appeal Sheriff A M Cubie
Appeal Sheriff N McFadyen
OPINION OF THE COURT
delivered by APPE AL SHERIFF ANDREW M CUBIE
in appeal in the cause
PHILIP SAMSON
Pursuer and Appellant
against
DC WATSON & SONS (FENTON BARNS) LIMITED and UK INSURANCE LIMITED
Defenders and Respondents
Pursuer and Appellant: Upton, advocate; Macdonald Henderson Limited
Defenders and Respondents: Cowan, advocate; Clyde & Co (Scotland) Limited
1 February 2022
Background
[1] DC Watson operated a storage facility at Fenton Barns Farm. The facility comprised
eight separate units within a converted farm building. The conversion had taken place
in 2001. Mr Samson leased unit 8 from DC Watson. He stored personal property in the unit,
which he values at £300,000. On 5 December 2016 the whole building burned to the ground.
The fire had been started deliberately in another unit and spread thro ugh the building. The
lease, such as it was, was brief and silent in relation to fire safety.
2
[2] Mr Samson raised an action seeking damages for his loss plus a further sum
representing repetition of the rent. The action is based primarily on a breach of an implied
term of the lease effectively that the property was safe.
[3] After debate, the sheriff dismissed the action. He concluded that: (i) Mr Samson’s
averments of the terms implied by law into parties’ lease were irrelevant; (ii) his averments
of loss of a chance were irrelevant; and (iii) UK Insurance Limited should not have been
convened as a party for any interest it might have.
The grounds of appeal
[4] Mr Samson challenges the decision and argues that the sheriff was wrong in relation
to the three matters above. He seeks the recall of the sheriff’s interlocutor and for the action
to be appointed to a proof before answer.
[5] The first ground of appeal is that th e sheriff erred by taking a restrictive approach to
the scope of the implied terms; by concluding that building standards and the laws on the
prevention and mitigation of fires in buildings are not relevant to the assessment of what is
reasonable; and by determining that the implied terms did not apply to the other parts of
the building insofar as the condition of the other parts was capable of affecting unit 8.
[6] The second ground of appeal relates to a subsidiary point pled in relation to an
alternative case. Mr Samson offers to prove that if the premises had been constructed with
reasonable fire resistance, the fire would have been contained and there was reasonable
chance that the loss to Mr Samson would have been less.
[7] The third ground of appeal is brief. UK Insurance Limited is the insurer of DC
Watson. It was convened by Mr Samson for “any interest it may have”. The sheriff erred
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