M'Ilwaine v. Stewart's Trustees [1914] ScotLR 831 (15 July 1914)

M'Ilwaine v. Stewart's Trustees [1914] ScotLR 831 (15 July 1914)

The landlord was not in possession or control of the gangway, as the tenant had exclusive right to its use and could exclude others; therefore, the landlord owed no duty of care to the pursuer as a third party. Any duty to repair was owed only to the tenant, not to the tenant's customers or guests. The pursuer failed to prove the essential averment that the landlord was in control and possession of the premises.

Citation
[1914] ScotLR 831
Parties
Pursuer: Mrs Margaret Allan or M'Ilwaine; Defenders: John Charles Stewart and others, Trustees of Francis Pott Stewart
Jurisdiction
Scotland
Judgment Date
15 July 1914
Procedural Posture
Civil / Appeal From Jury Trial; Motion to Apply Verdict After Bill of Exceptions Disallowed
Outcome
Appeal dismissed; verdict for defenders applied; pursuer and her husband found jointly and severally liable in expenses.
Legal Topics
Negligence, Landlord and Tenant, Defective Premises, Duty of Care, Liability for Repairs, Expenses in Litigation
Tort Property Law Negligence Landlord and Tenant Defective Premises Duty of Care Liability for Repairs Expenses in Litigation

Case Brief

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Parties

Mrs Margaret Allan or M'Ilwaine

Pursuer

John Charles Stewart and others, Trustees of Francis Pott Stewart

Defenders

Procedural Posture

Civil / Appeal From Jury Trial; Motion to Apply Verdict After Bill of Exceptions Disallowed

Legal Issues

  1. 1 Whether the landlord owed a duty of care to a third party (customer of tenant) for injuries caused by a defective gangway forming sole access to tenant's premises
  2. 2 Whether the landlord retained possession and control of the gangway so as to be liable for its condition
  3. 3 Whether the landlord's undertaking of repairs created liability to third parties

Ratio Decidendi

The landlord was not in possession or control of the gangway, as the tenant had exclusive right to its use and could exclude others; therefore, the landlord owed no duty of care to the pursuer as a third party. Any duty to repair was owed only to the tenant, not to the tenant's customers or guests. The pursuer failed to prove the essential averment that the landlord was in control and possession of the premises.

Court Disposition

Appeal dismissed; verdict for defenders applied; pursuer and her husband found jointly and severally liable in expenses.

Orders

  • Bill of exceptions refused and rule discharged.
  • Verdict for defenders applied and defenders assoilzied (absolved).