Sheriff Appeal Court refuses appeal in occupiers’ liability case raised over children falling into hot bath

About this case:

• Citation:
  [2025] SAC (Civ) 14
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Appellant NM raised an action for damages as a secondary victim against her landlords TO and AO, contending they were in breach of the Occupiers’ Liability (Scotland) Act 1960 due to the discharge temperature of the tap. In the event of the pursuer’s success, quantum was agreed at £12,500.

The appeal was heard by Sheriffs Principal Sean Murphy and Nigel Ross, with Appeal Sheriff Philip Mann. Conway, solicitor advocate, appeared for the pursuer and appellant and Cowan, advocate, for the defenders and respondents.

Novus actus interveniens

The appellant was the tenant of the respondents’ property between March 2017 and November 2018. On 12 April 2018, she had been at the hospital with her 9-month-old daughter. When she returned home, she put her daughter to bed and turned on the hot tap in the bathroom to fill the bath. After filling the bath with scalding hot water, she went to attend to her daughter.

Ten minutes later, the appellant heard screaming from her two sons, aged 6 and 4. One of her sons appeared in front of her in soaking wet clothes. It transpired that the two had been fighting and fell into the bath, suffering injury. Before the sheriff, the appellant led evidence that the bath hot water tap discharge of 55 degrees Celsius throughout her tenancy put the property into such a state of repair that, by ordinary usage, damage might naturally be caused to a person in her position or that of her children.

It was found by the sheriff that, as the property had been built in 1995, it was not subject to the Building (Scotland) Regulations 2004. Moreover, he held that a tap discharging water at 55°C did not in itself constitute a danger, and that in any case the appellant’s actions in failing to warn her children of the hot bath and leaving them unsupervised in proximity to it constituted novus actus interveniens.

The solicitor advocate for the appellant submitted that the sheriff had been plainly wrong to hold that the discharge at outlet of domestic hot water at a temperature of 55°C did not present a danger. Further, no argument of novus actus interveniens had been raised by the respondents, and the sheriff erred in considering that bath-running practices were within judicial knowledge.

For the respondents it was submitted that the statutory duty incumbent upon a landlord as occupier under the 1960 Act was very different to their duty as landlord. Establishing a failure on the part of a landlord to perform their maintaining or repairing responsibilities was not sufficient to give rise to liability under the 1960 Act. The sheriff had held that the respondents had no actual or deemed knowledge of the hot water being too hot, and no ground of appeal formally challenged these findings.

Supervision was necessary

Delivering the opinion of the court, Sheriff Principal Murphy said of the sheriff’s findings on water temperature: “The conclusion by the sheriff takes account of the evidence of the effect of discharge at 55°C as reflected in the evidence referred to by the appellant by recognising that it was an ‘obvious hazard to young children’ – but so obviously so that supervision of the children was ‘necessary’. In our view that conclusion was factually correct. There was no evidence that either the appellant or the respondents had regarded a discharge temperature of 55°C as a danger prior to the incident.”

He continued: “Hot water required to be stored at 60°C to prevent the development of legionella bacteria and the consequential bath tap discharge temperature of 55°C was standard in a property of the age of the premises. In these circumstances we consider that it cannot be said that the water and sanitation installations were not in proper working order simply because of that discharge temperature, which is the appellant’s case in terms of section 13(1)( c).”

Addressing the other parts of the appellant’s case, the Sheriff Principal said: “We agree that the issue of deemed knowledge is nowhere to be found within the grounds of appeal. We can find no averment of constructive or deemed knowledge within the appellant’s pleadings in the statements of claim in the initial writ. This court has recently held [in Miller v Miller (2025)] that reliance cannot be placed upon a case in law which has not been pled. Accordingly the question of deemed knowledge on the part of the respondents is not competently before the court in this appeal.”

He concluded: “In our view the whole circumstances, not simply the absence of supervision, were capable of constituting novus actus interveniens. The filling of the bath with scalding hot water was a critical factor in creating the danger, as was leaving two young children unsupervised for an extended period. Accordingly in our view these two factors in combination broke the chain of causation between any fault on the part of the respondents and the resulting injury.”

The court therefore refused the appeal and adhered to the sheriff’s interlocutors of March 2024.