Thomson v St Cuthbert's Co-operative Association Ltd
| Jurisdiction | Scotland |
| Judgment Date | 09 July 1958 |
| Date | 09 July 1958 |
| Docket Number | No. 36. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Migdale.
Heritable PropertyCommon property and common interestTenement Flats in separate ownershipStandard of duty owed to each other by proprietors of flats in same tenement Whether mutually liable for damage ex dominio solo or only in delict and breach of contract.
The proprietor of a second floor flat in a tenement brought an action of reparation against the proprietors of the ground floor in respect of damage done to her flat as a result of the fracture of a cast iron supporting beam situated within the ground floor. The pursuer averred that the defenders were in breach of an absolute duty to support the upper floors of the tenement and, alternatively, that they were negligent in failing to take reasonable care to provide support for the upper floors. On her alternative case the pursuer did not aver any duty of inspection to be specifically incumbent upon the defenders.
Held that the law of the tenement did not impose absolute duties of mutual support or protection on the proprietors of the separate flats; that to establish liability to make reparation the ground floor proprietors must be proved to have been negligent; and (rev. judgment of Lord Migdale) that the averments of negligence were irrelevant in that no duty of inspection was specifically averred; and action dismissed.
Mrs Margaret Duthie or Thomson brought an action of damages against St Cuthbert's Co-operative Association Limited.
The following summary of the facts giving rise to the pursuer's claim is taken from the opinion of the Lord Justice-Clerk:
"The pursuer is the proprietor of the second flat dwelling-house of a tenement property, the defenders are the proprietors of the premises on the ground floor, while the first or intermediate flat belongs to a Mrs Brown. So far as appears the tenement property has been in existence since at least 1894. In 1952 a cast iron beam which the pursuer says was situated in the defenders' premises fractured, and as a result the partition walls in the upper houses were unsupported and were damaged. Structural repairs were carried out by the Corporation under their statutory powers and by interlocutor of the Dean of Guild Court the pursuer was ordained to pay 255 as her contribution. The pursuer says that she will require to have further work carried out to her own dwelling-house to have it restored to its former condition. This she estimates at 232, 9s. 6d. She accordingly sues the defenders for 487, 9s. 6d."
The pursuer averred, inter alia:(Cond. 3) "The said loss and damage sustained by the pursuer were caused by the fault of the defenders. As proprietors of the said shop premises situated on the ground floor it was their duty to uphold them and to provide adequate support for the upper floors. In any event it was their duty to take reasonable care to provide adequate support for the upper floors. In these duties the defenders failed and thereby caused all the premises situated on the upper floors, including the pursuer's said dwelling-house, to subside and to be damaged. They did not provide adequate support for the upper floors nor did they take reasonable care to do so. The said cast iron beam was grossly inadequate to bear the stress placed upon it by the weight of the said building. The said beam had a span of about 16 feet 6 inches and measured about 12 inches in depth. It had a 6 inch top flange and a 10 inch bottom flange. The safe working load of the said beam was approximately 7 tons. The load in fact placed upon the said beam in the said building was approximately 30 tons. Although the said cast iron beam was situated wholly within their premises and could be readily inspected, examined and tested by them, the defenders allowed it to remain as part of the structure of their premises despite the fact that it was patently inadequate to support the weight placed upon it. The defenders ought in accordance with proper engineering practice to have had the said cast iron beam replaced by a steel beam of adequate strength. If the defenders had performed their said duties, as they ought to have done, the said damage to the pursuer's said dwelling-house would not have occurred."
The pursuer pleaded, inter alia:"(1) The defenders as heritable proprietors of a lower tenement having failed to provide adequate support for the upper tenements including the pursuer's said dwelling-house and the pursuer having sustained loss and damage thereby, the pursuer is entitled to reparation therefor, as concluded for. (2)Separatim. The pursuer having suffered loss and damage through the fault of the defenders as condescended on, is entitled to reparation therefor as concluded for."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons, et separatim lacking in specification, the action should be dismissed."
On 19th February 1958, after hearing parties in the Debate Roll, the Lord Ordinary (Migdale) repelled the pursuer's first plea in law, andquoad ultra allowed a proof.
At advising on 9th July 1958,
LORD JUSTICE-CLERK (Thomson).[His Lordship gave the narrative quoted supra, and continued]The pursuer puts her case on two alternative grounds. First, that the defenders as proprietors of the ground floor are bound to provide adequate support for the upper floors and that they must reimburse the pursuer for the loss which she has sustained through their failure to perform this obligation which, in her view, is an absolute one. Second, she contends that, if there is no such absolute duty, the defenders were negligent in failing to discover the structural weakness and to repair it, and consequently are liable in damages.
On the first point the Lord Ordinary found against the pursuer. The pursuer appeals to the law of the tenement. It is well established that in tenement property, in the absence of provision in the titles, the proprietors of the various floors are subject to certain reciprocal rights and duties. This springs from the very nature of tenement property and the common interest which each proprietor has in the continued existence of the tenement as a whole. Custom has hallowed what convenience dictated. There are positive and negative sides to the situation. The negative side of the relationship has frequently been considered in the Courts and causes no difficulty. The proprietor of one component is not at liberty to do what he likes with his own property; his ownership is limited by the legitimate interests of the other owners. Thus, a lower proprietor can be prevented from carrying out structural operations on his own property if an upper proprietor can show that these operations threaten his interest as for example the adequacy of the support which he has enjoyed. Similarly, an upper proprietor can be prevented from unduly adding to the burden which the lower proprietor already carries. The tenement is conceived as an entity in which all have an interest and the freedom of action of the separate owners is curtailed by the overriding necessity of the continuance of the entity. In the interests of the status quo attempts by one member may be interdicted at the instance of another, and if the illegitimate innovation has been completed the status quo must be restored.
The present case, however, is concerned with the positive and
not the negative side of the relationship. The pursuer says that arising out of the common interest the lower proprietor must support the upper flats, that the obligation is unqualified and that, if for any reason other than damnum fatale, support is not afforded, the pursuer is entitled to damages for any loss thereby sustained. This right to damages is independent of negligence and arises purely from the reciprocal relationship. This is tantamount to saying that the continuance of the advantages which one member enjoys in virtue of his common interest can be demanded of the others as of right. It involves that the ground floor owner must warrantapparently in perpetuitythe sufficiency of the support of the upper flatsThis, in my view, goes far beyond what the law of the tenement countenances. That the common interest may impose some positive duty on members is undoubted. If one asks the general question "Can one member of the community call on another to do some positive act of repair or maintenance?"the answer must be in the affirmative. A simple illustration is the obligation on the topmost proprietor to maintain the roof. Failure to do so may not only damage his own property but may threaten the stability of the tenement and may damage the properties of the lower proprietors. The topmost proprietor's advantage of being supported is his quid pro quo for his obligation to see to the roof. It seems inherent in the relationship that if he should fail to fulfil his obligation he should be compelled to do so. But the question remains whether his obligation to maintain the roof is an absolute one which persists in perpetuity, whatever age the property has reached or into whatever condition it has fallen. Clearly, if the property were stricken by some damnum fataleits restoration as a whole would be a communal affair. Similarly, if thedamnum fatale affected only the roof the restoration of the roof would again be a communal affair. There have been cases where tenements have become ruinous and have been rebuilt. In the...
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