Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61) enacts—Section 1—“Where after the commencement of this Act any action … is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect—( a) The action … shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof.”

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55) enacts—Section 219—“The Commissioners shall from time to time … cause to be made under the streets or elsewhere such main and other sewers as shall be necessary for the effectual draining of the burgh…

Messrs James Brownlie & Son, Arthurlie Bakeries, Barrhead, pursuers, brought an action against the Provost, Magistrates, and Councillors of the Burgh of Barrhead, defenders, concluding for ( first) £600, ( second) £6000, ( third) £10,000, and ( fourth) £5000 in name of damages for injury to their property by flooding alleged to be due to inadequate drainage.

The parties averred, inter alia—“(Cond. 1) The pursuers are bread manufacturers in the burgh of Barrhead and are owners of the Arthurlie Bread and Biscuit Works situated wholly within the burgh. The defenders, as the local authority within the burgh, own the main and other sewers therein and are responsible, inter alia, for the effectual draining thereof. … ( Ans. 1) Admitted. Explained that the pursuers' works were purchased by them in 1887. The works had been previously used as a spinning and weaving factory and the property is old and dilapidated. It is situated close to a stream known as the Levern Water, which naturally drains the basin in which Barrhead is built. The works are low lying. The floors of the buildings are little higher than the channel of the Levern and are considerably lower than the ordinary flood-level of that stream. A tributary called the Kirkton Burn bounds the property on the east immediately before it joins the Levern Water. For these reasons the property has always been more or less subject to flooding from these streams. Explained further that Barrhead was turned into a police burgh in 1894, and the defenders' predecessors at once proceeded to form a drainage and sewerage system for the burgh. It was formed on the approved modern system of separating as far as possible the surface-water drainage from the sewerage. The sewers carry only sewerage proper and the rainfall from the roofs of the houses. The outfall sewer, which passes close to the pursuers' property, is led about three-quarters of a mile down the valley, where the sewerage is purified and discharged into the Levern. (Cond. 2) The pursuers' said works … are fitted throughout with drain pipes, which are connected by the usual trap drains with the sewers of the burgh of Barrhead, belonging to and controlled and administered by the defenders. … Admitted that the drains in pursuers' premises consist of surface drains leading to the Kirkton Burn and of drains connecting with the burgh sewer. Explained and averred that the pursuers' sewerage drain (including traps, &c.) was connected with defenders' burgh sewer at the sight of and to the satisfaction of defenders' Master of Works for the time. ( Ans. 2) Admitted subject to the following qualifications and explanations. … The drains within the pursuers' property consist partly of surface-water drains which connect directly with Kirkton Burn, and partly of drains which connect with a branch sewer belonging to the defenders at a manhole in Glen Street. The history of the drains last mentioned is believed to be as follows:—When the defenders' predecessors formed a sewerage system in 1895 the pursuers did not desire to take, and did not in fact take, advantage thereof. … The levels were such that such connection should not have been made without careful consideration and adjustment of the pursuers' drains to the new conditions after the construction of Glen Street. Any possibility of regurgitation from the defenders' sewers in time of flood could have been effectually prevented by inserting pressure valves in the pursuers' drains, but the pursuers negligently failed to consider the matter or to make any such provision. (Cond. 3) The said sewers with which the pursuers' drains are so connected are of faulty design and have for many years been insufficient for draining the part of the burgh in which the pursuers' works are situated. … The result of the insufficiency and faulty design of said sewer is that the water therein frequently rises in the traps and manholes in the pursuers' premises and regurgitates therefrom on to their premises. As a result of the insufficiency of said sewers the pursuers' said premises are in times of heavy rainfall periodically flooded by water and

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sewage regurgitating from said sewers. The defenders' averments in answer so far as not coinciding herewith are denied. ( Ans. 3) … The sewer is well constructed and is sufficient for the needs of the district which it drains. … If the pursuers' property has suffered from regurgitation, which is denied, it is due as above explained to their own failure to take necessary precautions in the construction of their own drainage system and its adaptation for connecting with the defenders' sewers. (Cond. 4) In the year 1911 part of the pursuers' premises, which were then let to a tenant, was flooded by water and sewage from the burgh sewers. A claim was made on the defenders, who paid compensation to the tenant for the damage done. ( Ans. 4) Denied. Explained that a claim was made against the defenders in 1911 in respect of an alleged flooding, and that the defenders without admitting liability compromised the matter by paying the claimants £5, 5s. (Cond. 5) On or about 30th November 1917 the pursuers' premises were again seriously flooded by water and sewage regurgitating from said sewers and a claim was then intimated by the pursuers against the defenders. Negotiations took place between the pursuers and the defenders' officials in regard to this claim and it was arranged that the pursuers would depart from the claim on the understanding that the defenders would take means to ensure that there would be no recurrence of the flooding. Defenders joined with pursuers in remitting to M'Creaths & Stevenson, C.E., Glasgow, to report on the position of the burgh sewer at the point in question, and on or about 17th December 1917 the said engineers reported to defenders that the main sewer was of insufficient size to carry off flood water, and that to prevent a recurrence of flooding it would be necessary to provide a remedy to carry away flood water from the sewer at a level low enough to prevent flooding from the sewer into pursuers' premises. In spite of this no adequate steps have been taken by the defenders to have the state of matters in question put right, nor indeed were any steps taken prior to the occasions of flooding in February and August 1920 hereinafter condescended on. ( Ans. 5) Admitted that in 1917 the pursuers made a claim against the defenders in respect of an alleged flooding of their works. Quoad ultra denied, and explained that the defenders refused to entertain that claim. (Cond. 6) On or about 10th February 1920, following upon a heavy rainfall, a recurrence of flooding took place in the pursuers' works. The burgh sewer, to which the drain pipes in the pursuers' works are connected, became overcharged and proved insufficient to carry away the water and sewage coming into it, with the result that a large quantity of water and sewage was forced through the traps and manholes into the pursuers' works. … ( Ans. 6) Admitted that some flooding of the pursuers' works took place about the time stated. … This claim is excluded by the terms of the Public Authorities Protection Act 1893, and the conclusions there-anent fall to be dismissed. (Cond. 7) On or about 17th August 1920, following upon a heavy rainfall, there was a further recurrence of flooding of the pursuers' premises. The main burgh sewer again became overcharged and water and sewage regurgitated in large quantities into the pursuers' works. As a result of this flooding, damage was caused to the pursuers' stock, as well as material disturbance to their business. … The defenders' averments in answer are denied. If any flooding from the Kirkton Burn or Levern Water took place, which is not admitted, the flood water therefrom did not reach the pursuers' premises, or if any did, it was only in small quantities, and after said premises were already inundated and damage caused to the premises and their contents by the flooding from the sewers. ( Ans. 7) Admitted that the flooding of the pursuers' premises following upon a heavy rainfall took place on the date mentioned. Quoad ultra denied. Explained that on the occasion in question the Kirkton Burn and the Levern Water were both in high flood, and the surface drains were all regurgitating, and the cause of the flooding of the pursuers' premises was an overflow from these sources, and particularly from the Kirkton Burn, the banks of which the pursuers had negligently failed to keep in repair. If there was any regurgitation from the pursuers' drains connecting with the defenders' sewer, which is not admitted, it was small in quantity, and constituted an inappreciable contribution to the flooding. … (Cond. 8) As a result of the floodings above referred to the pursuers' premises have been and are still being seriously damaged. In particular the floors of the main building, which are of wood fixed on wooden joists with an asphalte foundation, have been materially and permanently injured by the effects of the flooding through absorption of water in the floors themselves and leakage of water into the foundations, thus resulting in continuously increasing injury by weakening of the floors and rotting of the supporting joists. The roofs of the main building, which consist of wooden floorings covered with slates and glass, have also been and are being materially and permanently injured through absorption of water into the timber, causing straining and setting up of the flooring boards under the slates, rotting of the timber, rusting of the nails, and general deterioration of a continuously increasing nature. … Further, the ovens used by pursuers in connection with their business have also been seriously and permanently damaged, which damage is continuing to develop. … (Cond. 10) The periodical flooding by sewage of the pursuers' premises and the consequent loss and damage to the pursuers above condescended on were due to the fault and negligence of the defenders. The sewers in the burgh sewage system, and in particular the sewer into which the drainage from the pursuers' works is discharged, are badly designed as above set forth and, inter alia, constructed of too small a capacity to carry away the drainage of the district

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around the pursuers' works, or at all events the capacity of same has for a long period been increasingly insufficient for that purpose. Since the burgh sewers were laid there has been no addition made to them in order to cope with the increased needs of the burgh or to effect the drainage which defenders are under a statutory duty to discharge or for which they have given facilities. The defenders have been aware of this for a long period, and in any event since the year 1911, but they have taken no steps to enlarge the sewers or prevent flooding in times of heavy rainfall but have allowed the sewage collected by them in said sewers to be discharged on to the pursuers' premises. Further, the defenders in terms of section 219 of the Burgh Police (Scotland) Act 1892 are under a statutory duty to make such main and other sewers as shall be necessary for the effectual draining of the burgh. This duty they have failed to perform, and as a consequence of said failure the pursuers have suffered the loss and damage above referred to. The defenders' averments in answer are denied. If any flood water from the Kirkton Burn or Levern Water reached the pursuers' premises, which is denied, this was only in small quantities and after they were already flooded by water from the sewers. … Explained further that the drains in the pursuers' premises are of the type usual in such premises and in every way sufficient for their purpose, and were approved of by the defenders' burgh engineer at the time. ( Ans. 10) Admitted that the defenders have certain statutory duties with regard to the construction and maintenance of sewers under section 219 of the Burgh Police Act. Quoad ultra denied under reference to the previous answers. The flooding complained of by the pursuers was not due to regurgitation from the defenders' sewers but to water from other sources for which the. defenders are not responsible, and in particular from the Kirkton Burn, for which the pursuers have themselves to blame. … In any case the defenders have sufficiently discharged their statutory duties with regard to their sewerage system. If and so far as any material contribution to the flooding of the pursuers' property came from the defenders' sewers it was due to no insufficiency or defect therein, but to the pursuers' own negligence in connecting their drainage thereto without making the necessary alterations which the situation required.”

The pursuers pleaded, inter alia—“1. In respect the pursuers have suffered and are continuing to suffer loss and damage through the fault of the defenders, as condescended on, the defenders are bound to compensate the pursuers therefor. 2. In respect the pursuers have suffered and are continuing to suffer loss and damage owing to the defenders' failure to implement their statutory duty, as condescended on, the defenders are bound to compensate the pursuers therefor.”

The defenders pleaded, inter alia—“2. The material averments of the pursuers being unfounded in fact, the defenders should be assoilzied. 3. The flooding complained of not having been due to the negligence of the defenders, decree of absolvitor should be granted. 4. The defenders, having complied with their statutory duty and having provided thereunder a sufficient system of drainage for the burgh, are not responsible for the flooding complained of and should be assoilzied. 5. The damage complained of having been caused or materially contributed to by the fault of the pursuers, they are barred from suing the defenders therefor. 6. The claims for floodings, other than that of 17th August 1920, being barred by the Public Authorities Protection Act, the defenders should be assoilzied. 7. In any event the damages sued for are excessive.”

The Lord Ordinary ( Ashmore) of consent dismissed the first conclusion of the summons and quoad ultra allowed a proof before answer.

Opinion.—“At the discussion in the procedure roll counsel for the defenders argued that the pursuers' claim for £600 for damage sustained by. the pursuers in February 1920 as set forth in article 6 of the condescendence was barred by the Public Authorities Protection Act 1893 in respect that this action was not commenced till 16th February 1921. Counsel for the pursuers thereupon intervened admitting that the contention stated was well founded, and he consented to the said claim for £600 being repelled. I shall accordingly, of consent, assoilzie the defenders from the first conclusion of the summons.

Counsel for the defenders urged four other objections, and I shall refer to these briefly seriatim. (1) With reference to the averments in articles 4 and 5 of the condescendence as to flooding in 1911 and 1917, he maintained that these averments are irrelevant as excluded by the said Act of 1893 and as not bearing on the claims for damage which arose only in August 1920, and, moreover, as being merely ancillary and relative to the claim of £600 from which ex concessu the defenders are now to be assoilzied. (2)… (3) With reference to the pursuers' averments generally, he submitted that the pursuers' case was evidently based on the assumption that the damage claimed became apparent only in August 1920, that on the face of it that assumption is so unreasonable that in the absence of explanation it ought to be rejected and the claims ought to be held irrelevant. …

The counter arguments by the pursuers' counsel may be stated generally as follows:—On the question of relevancy he founded on the principles affirmed in Darley Main Colliery v. Mitchell ( 1886 11 AC 127), and these principles in their application to the present case he used as showing that the pursuers had no actionable claim until the damage had actually occurred, and that in August 1920, when, as averred, fresh damage did occur to the cumulo amount of £21,000 (£6000, £10,000, and £5000), a new cause of action arose and the proceedings were begun within six months thereafter. … No specific argument was submitted and no authority was cited on either side with

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reference to the closing words of section 1 ( a) of the said Act of 1893 as to the case of ‘a continuance of injury or damage.’ In these circumstances I shall express no opinion as to whether or not such a case is raised by the pursuers' averments or is available to them in law in the circumstances; but I refer to the recent English case of Rex v. Marshland, Smeath, and Fen District Commissioners ( 1920, 1 K.B. 155) in which Mr Justice M'Cardie, after characterising the words which I have quoted from the Act as being ‘curiously vague’ proceeds (page 173) to give his opinion as to the net result of the English authorities on the subject, viz., that ‘in order to come within these words a plaintiff must prove a continuing breach of duty together with a continuing damage.’

After weighing the arguments and the considerations on the one side and the other, I have come to these conclusions—that I cannot safely dispose at this stage and without inquiry of any part of the remaining claims made by the pursuers, that although the pursuers' averments, regarded generally, do strike me as somewhat unsatisfactory, that although on the subject of the damages they seem unnecessarily vague or inexplicit, I do not feel justified at present in ordering the pursuers to condescend on fuller details, and that accordingly the appropriate course is to allow proof before answer.”

Thereafter having heard the proof the Lord Ordinary sustained the second, third, and fourth pleas-in-law for the defenders and assoilzied them from the conclusions of the summons.

The pursuers reclaimed, and argued—1. The damage due to rot and rust started by the flood water was progressive and was still going on. The case was thus one of “a continuance of injury or damage” within the meaning of section 1 of the Public Authorities Protection Act 1893. The pursuers were therefore entitled to sue for damages in respect of the injuries caused by the floodings prior to the flooding of August 1920. 2. The adoption of a dual system of drainage did not relieve defenders from their statutory duty of effectually draining the burgh. It was proved that the sewerage system was inadequate and that this inadequacy led to the flooding of pursuers' premises. The pursuers were therefore entitled to damages. Counsel referred to the following authorities:— Hanley v. Magistrates of Edinburgh, 1913 S.C. (H.L.) 27, 50 S.L.R. 521; St George's Co-operative Society v. Glasgow Corporation, 1921 S.C. 872, 58 S.L.R. 568; Hawthorn Corporation v. Kannuhick, [1906] AC 105, per Lord Macnaghten at 108; Caledonian Railway Company v. Greenock Corporation, 1917, 54 S.L.R. 600, per Lord Skerrington at 617, [1917] AC 556, per Lord Finlay, L.C., at 567 and 569; Duke of Buccleuch v. Cowan, 1866, 5 Macph. 214, per Lord Inglis at 216; Nitro-Phosphate and Odam's Chemical Manure Company v. London and St Katherine's Docks Company, (1878) 9 Ch. D. 503; Flemings v. Gemmill, 1908 S. C. 340, per Lord Dunedin at p. 350, 45 S.L.R. 281;Beven on Negligence, p. 80.

Argued for defenders—1. There was no relevant averment of continuing damage. The continuance of the injurious effects caused by the floodings was not “a continuance of injury or damage” in the sense of the statute— Spittal v. Corporation of Glasgow, 1904, 6 F. 828, 41 S.L.R. 629. 2. The defenders having adopted the dual system of drainage were under no obligation to carry off by their sewers the surface drainage of the pursuers' yards. Further, it was proved that the floodings of February and August 1920 were due partly to the condition of spate of the Kirkton Burn and the Levern Water and partly to pursuers' negligence in the administration of their property. Counsel referred to the following authorities:— Hill v. Warren, 1818, 2 Stark 377; Rex v. Marshland, Smeath, and Fen District Commissioners, [1920] 1 K.B. 155, per M'Cardie, J., at 173; Earl of Harrington v. Derby Corporation, [1905] 1 Ch 205, per Buckley, J., at 226; Christie v. Glasgow Corporation, 1899, 36 S.L.R. 694, per Lord Low (Ordinary) at 696; Ballard v. North British Railway Company, 1923 S.C. (H.L.) 43, per Lord Dunedin ( diss.) 60 S.L.R. 441; Stretton's Derby Brewery Company v. Mayor of Derby, [1894] 1 Ch 431; Corporation of Raleigh v. Williams, [1893] AC 540; Glossop v. Heston and Isleworth Local Board, (1879) 12 Ch. D. 102; Attorney-General v. Lewes Corporation, [1911] 2 Ch 495.

At advising—