Smith v School Board of Maryculter
| Jurisdiction | Scotland |
| Judgment Date | 20 October 1898 |
| Date | 20 October 1898 |
| Docket Number | No. 3. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Trayner.
SchoolBoard SchoolSchoolmasterSanitary State of SchoolhouseReparationVolenti non fit injuria.
In an action of damages brought by a schoolmaster against the School Board which employed him, the pursuer averred that by the terms of his engagement, which was terminable on three months' notice, he was entitled to a free house, and was bound to occupy it; that before his occupancy commenced the Board agreed to provide a proper water supply for the house but failed to do so, and that against the protest of the pursuer they carried out a drainage system which the pursuer expected would render the house insanitary; that in October 1896, when the pursuer and his family went to occupy the house, he was informed that the water was unfit for drinking, and that nothing was to be done for the present towards providing a proper water supply; that before the spring of 1897 the water had become dangerous to life, and that an open sewer behind the house rendered it insanitary and unfit for human habitation; that the pursuer continued his remonstrances with the Board, but that although they repeatedly promised that the matter would be attended to, it was not until his wife died [in August 1897] that the work was commenced; that although the pursuer did his utmost to obtain water from a spring a quarter of a mile distant, he and all his family suffered from illness from October 1896 till the evil was remedied; and that in consequence of the injurious and dangerous quality of the water supply, and of the injurious and dangerous condition of the drain, his wife took typhoid fever, and died in August 1897. The action was laid upon breach of contract and failure in duty on the part of the defenders.
Held that as according to the pursuer's averments he had continued to occupy the house with his family after he knew that it was in a condition so insanitary as to be dangerous to life, he must be held to have taken on himself the risk of injury to the health of his family, and that the action was irrelevant.
William Murray Smith, master of the West Public School of the parish of Maryculter, in December 1897 raised an action against the School Board for 1000 as reparation for loss caused by the death of his wife, and injury to the health of his family, in consequence of the alleged insanitary state of the West Schoolhouse.
The pursuer averred;(Cond. 1) On the 30th day of October 1893 the pursuer was by the School Board appointed headmaster of the Public School of the parish of Maryculter, and by the terms of his appointment it was a condition that he was to get, inter alia, a free house and garden, which house and garden he was, also by the terms of his appointment, expressly bound to occupy. A copy of the minute of appointment is herewith produced.* That the pursuer at first had charge of a school at Kirktown, but that after the autumn vacation of 1895 he was transferred to the West School; that by direction of the Board he continued to occupy the schoolhouse at Kirktown till July 1896, when his residence was transferred to the West School. (Cond. 4) Shortly before the school vacation of 1895 the pursuer, on their invitation, attended a meeting of the Board in the school at Kirktown, for the purpose of giving information as to the house accommodation that he would require for himself and his family at the West School. At that date the water supply for the West School and for the teacher's house was from a pump well situated at the premises, and as the pursuer had been informed that this water was unsatisfactory, he, as a condition of his removal to the schoolhouse at the West School, expressly stipulated that a proper supply should be taken in. After consideration the Board resolved that they would have the water tested by the sanitary authorities of the county, and that if the water was condemned by the sanitary authorities, they unanimously resolved, or at least stated and undertook to the pursuer, that they would take a water supply from one or other of the two well-known springs at Hillbrae or at Standing Stones, which are more than a quarter of a mile distant from the West School. This was intimated to the pursuer, and he accepted of the same as a resolution on which he was to rely, and did rely. (Cond. 5) A specimen of the water was shortly thereafter submitted by the Board to the sanitary authorities, and, as the pursuer has been informed and believes, was found by them to be dangerous, and condemned accordingly. (Cond. 6) The School Board failed to keep the undertaking made to the pursuer at the meeting referred to in article 4 hereof, and on his return in the month of October 1895 to open the West School after the holidays, he found that, instead of the pump being removed and a supply of spring water introduced from Hillbrae or Standing Stones, the pump well had simply been cleaned out and the pump repaired. The pursuer was, however, assured by Mr King, a member of the Board, that this was only a temporary expedient, and that the promise would be duly carried out. The pursuer further averred that extensive additions had to be made to the school buildings. (Cond. 8) The plans adopted by the Board for the closets, latrines, and drains were objectionable and dangerous, and the pursuer protested against the arrangements. By
the plans so adopted and carried out, the closets and latrines were so placed, and the drains therefrom so arranged, that noxious and deleterious matter from the sewage overflows, and washings from these, would, on account of the lie of the ground and nature of the soil, certainly find its way by percolation into the pump well, which was entirely fed by percolation; and on the 5th day of November 1895, he, in connection with his objections, made an entry in the school logbook in the following terms:Mr King called to-day, and took note of attendance,eighty-six present. Drew his attention to what I think several glaring mistakes in the laying out of the playground and placing of the offices. The architect had promised to look after these things, but has done nothing. The statements contained in the said entry are true. The pursuer also on several occasions called the attention of the Board to an open drain at the back of the school premises, on the ground that it would be constantly full of sewage and offensive matter. The Board, however, disregarded the pursuer's protests and remonstrances, and carried out their own plans for the closets and latrines, and the drainage therefrom, and they culpably failed to remedy the evils complained of.(Cond. 9) By the direction of the Board the pursuer in the month of July 1896 removed with his wife and family to the dwelling-house at the West School that the Board had there provided for him, as the house that he was bound to occupy in terms of his appointment, and in terms of the arrangement come to at the said meeting in 1895. (Cond. 10) Both before and after the pursuer removed to the West School he had repeatedly urged the Board to carry out the promise made to him at the meeting in 1895 to introduce a water supply from the spring at Hillbrae or from that at Standing Stones, but the Board, notwithstanding repeated promises, culpably failed to provide this supply, although there was no water supply at the West School, either for the scholars or for the pursuer's family, except the pump. The pursuer trusted, however, to their promises, and in the meantime he did his best to supply himself with water for cooking and drinking from the distant spring at Standing Stones. (Cond. 11) On the pursuer's return from the autumn holidays of 1896, he found that the promised water supply from Hillbrae or Standing Stones had not been introduced, and thereupon he had a meeting with the clerk of the Board, and specially remonstrated with him on the subject. As a result of this meeting, he, on the 6th of October, the day on which the school was reopened, made an entry in the school logbook in the following terms:Saw the clerk, who informed me that he had visited the school during the holidays, and found the pump water quite unfit for drinking. On inquiry, find that nothing is to be done for the present towards providing a proper water supply. Mr King stated to me that it was quite impossible for surface water to be getting in. Shewed him that it was not only possible, but also that it was the case. Explained the danger of sewage contamination, and expressed my want of confidence in the drainage plan. This matter was settled in July last year, the Board having agreed to take water from Standing Stones or Hillbrae. Have protested against this overturning of arrangements. The statements contained in the said entry are true. (Cond. 12) The scheme for the closets, latrines, and drains carried out by the Board resulted as the pursuer had warned them it would. As a direct consequence the water in the pump well became more and more contaminated, and before the spring of 1897 it became positively dangerous to life. The drain at the back of the school premises became also, as a direct result, an open sewer, constantly filled with offensive sewage matter from the closets and latrines, and injurious to health, and this open sewer rendered the of pursuer's house insanitary and unfit for human habitation. (Cond. 13) The pursuer continued his remonstrances with the Board, but although they repeatedly promised that the matter would be attended to, it was not till his wife died that work was commenced. (Cond. 14) The School Board was well aware of the dangerous quality of the water supplied by them to the pursuer, and was well aware that the water was contaminated with sewage from the closets, latrines, and other school premises, and that it was injurious and dangerous to health, and they had been certiorated to this effect by the sanitary...
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