Grant v. M'Clafferty [1906] ScotLR 44_179 (08 December 1906)

Grant v. M'Clafferty [1906] ScotLR 44_179 (08 December 1906)

Where a tenant remains in possession after knowledge of a dangerous defect, but does so in reliance on the landlord's promise to repair, the tenant cannot be held, as a matter of relevancy, to have voluntarily accepted the risk so as to bar recovery; the issue is one of fact for trial.

Citation
[1906] ScotLR 44_179
Parties
Pursuer/appellant: Elizabeth Grant; Defender/respondent: John M'Clafferty
Jurisdiction
Scotland
Judgment Date
08 December 1906
Procedural Posture
Reparation (personal Injury) / Appeal From Sheriff Court; Motion for Jury Trial; Relevancy of Averments
Outcome
issue allowed; pursuer's averments held relevant; case to proceed to proof or jury trial
Legal Topics
Negligence, Personal Injury, Defective Premises, Volenti Non Fit Injuria, Promise to Repair
Tort Landlord and Tenant Negligence Personal Injury Defective Premises Volenti Non Fit Injuria Promise to Repair

Case Brief

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Parties

Elizabeth Grant

Pursuer/appellant

John M'Clafferty

Defender/respondent

Procedural Posture

Reparation (personal Injury) / Appeal From Sheriff Court; Motion for Jury Trial; Relevancy of Averments

Legal Issues

  1. 1 Whether a tenant who remains in a property with knowledge of a dangerous defect, after a landlord's promise to repair, is barred from recovery by volenti non fit injuria.
  2. 2 Whether the pursuer's averments are relevant to go to proof or jury.

Ratio Decidendi

Where a tenant remains in possession after knowledge of a dangerous defect, but does so in reliance on the landlord's promise to repair, the tenant cannot be held, as a matter of relevancy, to have voluntarily accepted the risk so as to bar recovery; the issue is one of fact for trial.

Court Disposition

issue allowed; pursuer's averments held relevant; case to proceed to proof or jury trial

Orders

  • issue allowed for trial
  • record to be amended as to terms of tenancy