Contributory negligence no defence in disrepair claims

Sheriff MacKenzie has held that a landlord's defence of contributory negligence is irrelevant in a breach of contract claim by a tenant for damages for dampness and disrepair.

In the unreported GLC case of Deans v. Glasgow Housing Association (Glasgow Sheriff Court, 19 August 2009)the court repelled the defender's contributory negligence defence following a diet of debate on 18 May and 3 July. A contributory negligence defence generally apportions some of the blame on the pursuer, and if successful results in any award of compensation being substantially reduced.

In the present case the defenders' claimed inter alia 'The pursuer ought to have followed the defenders' advice by removing the Calor gas heaters and tape from the vents in the bedroom, and by venting the tumble dryer'.

Sheriff MacKenzie held 'I am in respectful agreement with the analysis of the structure of the Law Reform (Contributory Negligence) Act 1945 set out by Lord Glennie in Stewart and Stewart v. Pure Ltd [2008] CSOH 49 and the consequent rationale of his decision in that case. As Lord Glennie observed, in Reeves v. Commissioners of Police of the Metropolis [2000] 1 A.C. 360 Lord Hope of Craighead identified that there are two limbs to consider in relation to the interpretation of the 'Act'. Considering the second 'limb', referable to the pursuer's conduct, a defence of contributory negligence would not have been open under contract at common law. Applying such a approach to the present case I am satisfied that the defender's pleadings and plea in law regarding contributory negligence should not be remitted to probation'.

Separately, the court deleted the defenders' pleadings which sought to blame the tenant for the cause of the dampness and disrepair. The defenders had averred 'It was the duty of the pursuer to see to it that the subjects were adequately heated and ventilated. Further it was her duty to take and act upon the advice from the defenders as her landlord'. These averments were deleted as the court decided to follow the approach of Lord Johnson in Guy v. Strathkelvin District Council 1997 Hous LR 14.

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