Scottish Court of Session Decisions

The cause called before the First Division, comprising the Lord President (Hope), Lord Kirkwood and Lord Murray for a hearing.

At advising, on 12 January 1996—

LORD PRESIDENT (Hope)—The pursuers are the heritable proprietors and tenants of premises at 23 Royal Exchange Square, Glasgow. They seek damages from the first defenders and the second defenders jointly and severally for the loss and damage which they claim to have suffered as a result of settlement within the tenement at that address. They aver that the first defenders are and were at all material times the tenants and occupiers of premises at the basement level of 25 Royal Exchange Square which, together with the premises at 23 Royal Exchange Square, form part of the tenement building known as 21–29 Royal Exchange Square, Glasgow. The second defenders are a firm of consulting engineers, whose services were engaged by the first defenders to advise on, design a scheme for and direct and supervise the removal of a section or sections of wall within their premises at the basement level of the tenement.

The action is laid against both defenders on two grounds. The first ground is that of nuisance. The second ground is described by the pursuers in their pleadings and pleas-in-law as being fault and negligence. It has been agreed that the case so far as directed against the first defenders should go to proof before answer. The second defenders have, however, challenged the relevancy and specification of the averments so far as directed against them. The matter came before the Lord Ordinary on the procedure roll, where he held, after a debate, that the second defenders' attack on the relevancy of the pursuers' averments in art 10 of the condescendence was well founded. He sustained the second defenders' first plea-in-law to the extent of excluding art 10 of the condescendence from probation. He held that the remaining averments were appropriate for a proof before answer. The second defenders have now reclaimed against that interlocutor, in regard to the Lord Ordinary's decision to remit to probation the pursuers' averments of nuisance which are set out in art 9 of the condescendence. They do not challenge the Lord Ordinary's decision to remit to probation the pursuers' averments of fault and negligence which are set out in art 11 of the condescendence, although a number of criticisms of these averments were advanced in the debate of the procedure roll. The pursuers have lodged a ground of appeal in which they state that the Lord Ordinary erred in law in holding that the averments in art 10 of the condescendence were irrelevant.

The factual averments which provide the background for the various cases which the pursuers have laid against the second defenders in arts 9,10 and 11 of the condescendence are to this effect. Early in 1989 the first defenders engaged the services of the second defenders as consulting engineers, with a view to the removal of a section or sections of a wall on their premises which both defenders were aware was a load-bearing wall which contributed the support of the floor and ceiling on each of the upper flats. The pursuers aver that the second defenders knew or ought to have known, as those holding themselves out as consulting engineers, that the removal of a section or sections of the basement wall was likely to cause cracking and settlement of the spine wall consequent upon redistribution of loads as the section or sections were removed. They also aver that the second defenders knew or ought to have known that such cracking and settlement would result in damage to the pursuers' premises and that the second defenders advised the first defenders of the likelihood that such damage would occur. The original scheme was to create three openings, each of 2.25m, in the basement wall. But some time after July 1989 the first defenders decided that one single opening of 12m in width should be created instead. The pursuers aver that the second defenders knew that the creation of one opening would result in a redistribution of loading such that the extent of the cracking and settlement and consequent damage was likely to be greater than would be the case with three openings. On or about 20 August 1989, on the instructions of the second defenders, contractors employed by the first defenders removed a section of the basement wall along 90 per cent of the wall's length. It is averred that, as a direct and immediate result of this interference with the wall, and as the second defenders had anticipated, the premises of each of the pursuers on the upper floors sustained damage.

In art 9 of the condescendence the pursuers aver that the damage to each of the pursuers' premises was caused by nuisance created by the second defenders. There then follow these averments, which explain the basis upon which the case of nuisance is being made against these defenders: ‘As hereinbefore condescended on, they instructed and directed hazardous works within the said premises which they occupied at the material time, which they knew constituted an interference with the support enjoyed by each of the pursuers. In the course of the said hazardous works, they disturbed the support of each of the pursuers' said premises and thereby caused them damage. If the second defenders had not created the said nuisance, the said premises would not have sustained damage.’

Then, in art 10 of the condescendence, the pursuers aver that further and in any event their loss, injury and damage was caused by the fault of the second defenders. The basis of this case is explained in the following averments: ‘They knew that the execution of the said works was likely to cause damage to the pursuers' said premises, of the type which in fact occurred. In these circumstances, it was their duty not to instruct and direct the removal of the said section of the said wall.’

In art 11 of the condescendence there follows the remaining case against the second defenders, which is that the damage was caused by their negligence. This is said to be attributable to the second defenders' failure to take reasonable care to minimise any damage to the pursuers' premises. There are averments about the particular duties which the second defenders as consulting engineers of ordinary competence exercising reasonable care should have performed in the circumstances. It is averred that, had the second defenders performed the duties which were incumbent upon them, the pursuers would have suffered loss, injury and damage to an extent materially less than that which they in fact sustained. No point was taken in the reclaiming motion about the relevancy or specification of these averments, which the Lord Ordinary has held should go to proof before answer. But it is important to note that the case of negligence is directed not to the decision to create an opening in the basement wall, but to the alleged failure to take reasonable care to supervise and monitor the effect of this work and to take measures to minimise any damage to the upper premises. The averments in arts 9 and 10 on the other hand attack the second defenders' decision to instruct and direct the removal of the section of wall, on the grounds that this was a nuisance because it interfered with the support enjoyed by the pursuers, and that this was attributable to the second defenders' fault, as they knew that the works were likely to damage the pursuers' premises.

In my opinion the Lord Ordinary was right to allow the case of nuisance in art 9 of the condescendence to go to a proof before answer. I think that this was appropriate, having regard to the averments of fact which provide the basis for the averment in art 9 that the second defenders knew that the works which they instructed and directed constituted an interference with the support enjoyed by each of the pursuers. I also consider that the Lord Ordinary was right to exclude from probation the pursuers' averments of fault in art 10 of the condescendence. But before I explain why I am in agreement with him on both points, it may be helpful to examine briefly the principles of the law of Scotland relating to liability and damages for nuisance, on which we were addressed by counsel for both parties.

There is now no doubt, since the decision of the House of Lords in RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council, that, with the possible exception of a case involving interference with the course of a natural stream which was the subject of certain dicta in Caledonian Railway Co v Greenock Corporation, the essential basis for liability and reparation for nuisance is culpa. Lord Fraser of Tullybelton said in the RHM case that he found no support in the authorities for the contention that nuisance gives rise to liability even if culpa or fault is not proved against the defender. But the analysis of the authorities in that case did not go into the difficult question as to what types of delictual conduct on the part of the defender, amounting to culpa or fault on his part, are actionable on the ground of nuisance and what types are actionable by reference to the ordinary principles of negligence. I think that this point has given rise to some confusion in the present case, especially in regard to the pursuers' averments of fault in art 10 of the condescendence and in regard to the attack which the second defenders have made against the averments in art 9 of the condescendence which are based on nuisance and not on negligence.

I think that it is important to note at the outset, as some doubt was expressed about this in the course of the argument, that liability in damages for nuisance is a species of delictual liability. That is the foundation for the principle that liability in damages for nuisance is based on culpa. According to the law of Scotland liability in reparation for damages arises either ex contractu or ex delicto. There is no other basis on which a liability in reparation for damages can arise, according to our law. A claim of damages for nuisance is a delictual claim, as it does not depend for its existence on any contract. It arises where there is an invasion of the pursuer's interest in land to an extent which exceeds what is reasonably tolerable. The plus quam tolerabile test is peculiar to the liability in damages for nuisance. Where that test is satisfied and culpa is established, the requirements for the delictual liability are fulfilled. Liability in damages for negligence, on the other hand, depends on a failure to take reasonable care where there is a foreseeable risk of injury. That is another species of delictual liability, the basis for which also depends upon culpa.

Culpa which gives rise to a liability in delict may take various forms. In vol 14, Stair Memorial Encyclopaedia, Nuisance, para 2087, it is stated that the usual categories of culpa or fault are malice, intent, recklessness and negligence. To that list there may be added conduct causing a special risk of abnormal damage where it may be said that it is not necessary prove a specific fault as fault is necessarily implied in the result: see Chalmers v Dixon, per Lord Justice-Clerk Moncreiff at p 464. In Campbell v Kennedy at p 126 Lord President McNeill said that the remedy of an action of reparation is confined to cases of breach of contract and of damage caused by delinquency, and that no action of damages caused by delinquency can be relevant unless negligence or culpa of some description is averred. In Chalmers v Dixon at p 464 Lord Justice-Clerk Moncreiff said: ‘A good deal has been said as to the necessity of proving culpa. I think that culpa does lie at the root of the matter. If a man puts upon his land a new combination of materials, which he knows, or ought to know, are of a dangerous nature, then either due care will prevent injury, in which case he is liable if injury occurs for not taking that due care, or else no precautions will prevent injury, in which case he is liable for his original act in placing the materials upon the ground.’

In Edinburgh Railway Access & Property Co v John Ritchie & Co at p 302 the Lord Ordinary, Lord Low, said, of the question as to whether operations in themselves lawful conducted by a proprietor within his own property which result in injury to his neighbour render him liable in damages; ‘The general rule I take to be, that there must be fault or delinquency, but in this case I do not think that the question arises, or at all events is of importance. If the necessary or natural result of the blasting was to cause structural damage to the pursuers' property, although there was no want of care and skill in the conduct of the operations, then the defenders were not, in my judgment, entitled to carry on the operations at all, because no man is entitled to cause an explosion in his property, the necessary or natural result of which is to blow down or injure his neighbour's house. On the other hand, if injury to the pursuers' buildings was not a necessary or natural result of the blasting, but injury in fact resulted, the inference is that the operation was negligently or unskilfully conducted.’

In that passage the same distinction is drawn as that noted by Lord Justice-Clerk Moncreiff in Chalmers v Dixon, between conduct which is deliberate, involving the intention to carry out the operation which proves inevitably to be harmful, and conduct which is negligent in that harm would have been avoided if due skill and care had been taken in the conduct of the operation. This distinction was noted also by Lord Guthrie in Hester v MacDonald at p 390 when he said that the culpa which gives a right of action to the sufferer from the act is either intentional injury or negligence. He added that there are, however, cases where the intention is presumed, when the act itself infers malice. In Noble's Trs v Economic Forestry (Scotland) Ltd at p 664A–B Lord Jauncey was making the same distinction when he said: ‘A landowner will be liable to his neighbour if he carries out operations on his land which will or are likely to cause damage to his neighbour's land however much care is exercised. Similarly will a landowner be liable in respect of carrying out operations, either at his own hand or at the hand of the contractor, if it is necessary to take steps in the carrying out of those operations to prevent damage to a neighbour, and he, the landlord, does not take or instruct those steps. In the former case the landowner's culpalies in the actual carrying out of his operations in the knowledge actual or implied of their likely consequences. In the latter case culpa lies in not taking steps to avoid consequences which he should have foreseen would be likely to flow from one method of carrying out the operation.’

The Lord Ordinary in the present case referred to the quotation by Lord Fraser of Tullybelton in RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council at pp 43–44 of a passage from the speech of Lord Atkin in Sedleigh-Denfield v O'Callaghan at p 896, where Lord Atkin said: ‘The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required....’

The Lord Ordinary said that it was clear in his opinion that when Lord Fraser referred to nuisance as being based on fault he meant fault in the sense described by Lord Atkin and added: ‘Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required. What degree of personal responsibility is required in any given case will no doubt depend on the particular facts and circumstances.’

Although Lord Fraser of Tullybelton added emphasis to the phrase ‘some degree of personal responsibility is required’ when quoting from Lord Atkin, I do not think that these words can be regarded as providing a complete guide to what is involved in the concept of fault in Scots law. The purpose of the quotation, as I understand it, was to underline the point that liability for nuisance did not arise merely ex dominio and without fault. The essential requirement is that fault or culpa must be established. That may be done by demonstrating negligence, in which case the ordinary principles of the law of negligence will provide an equivalent remedy. Or it may be done by demonstrating that the defender was at fault in some other respect. This may be because his action was malicious, or because it was deliberate in the knowledge that his action would result in harm to the other party, or because it was reckless as he had no regard to the question whether his action, if it was of a kind likely to cause harm to the other party, would have that result. Or it may be—and this is perhaps just another example of recklessness—because the defender has indulged in conduct which gives rise to a special risk of abnormal damage, from which fault is implied if damage results from that conduct. In each case personal responsibility rests on the defender because he has conducted himself in a respect which is recognised as inferring culpa by our law. So what is required is a deliberate act or negligence or some other conduct from which culpa or fault may be inferred.

Counsel for the second defenders submitted that the averments in art 9 of the condescendence fell short of what was required because these averments did not mention fault and contained nothing from which fault, either in terms of negligence or a deliberate act, could be inferred. For this reason these averments were said to be wholly lacking in specification and it was submitted that, because fair notice had not been given, they ought not to have been allowed to go to proof before answer. Counsel for the pursuers made it clear in his reply that he was not seeking to base the case of nuisance on averments of negligence. He said that the pursuers' case against the second defenders in negligence had been stated separately in art 11 of the condescendence. What was being done in art 9 of the condescendence was to aver a case of nuisance based on an intentional or deliberate act. That act was the deliberate removal of a section of the basement wall in the knowledge that, as this was a load-bearing wall, the result of this interference with it would be to cause damage to the pursuers' property on the upper floors. It was not being suggested that the second defenders' action was malicious, in the sense that they were setting out to cause damage to the pursuers' property. But the action was a deliberate one, as it was done in the knowledge that damage would result from it. This was sufficient to show that they were at fault and thus liable in damages for the nuisance.

In my opinion the pursuers have made sufficient averments to entitle them to an enquiry of this issue. In art 5 of the condescendence it is averred that the second defenders knew that the creation of one such opening would result in a redistribution of the loading pattern in the spine wall to such an extent that cracking and settlement and consequent damage to the upper floors were likely to be greater than in the case of three openings of a lesser size. In art 6 of the condescendence it is averred that they instructed and directed the execution of the scheme and that it was on their instruction that the section of the wall was removed. It is then said that, as a direct and immediate result of this interference with the wall, and as the second defenders had anticipated, the premises of each of the pursuers sustained damage. I think that these averments of fact provide a sufficient basis for the averment in art 9 that the second defenders instructed and directed hazardous works within the premises which they occupied at the material time, which they knew constituted an interference with the support enjoyed by each of the pursuers.

Counsel for the second defenders submitted that the averment that the second defenders occupied the first defenders' premises at the material time was lacking in specification. This was said to be so especially as it was averred earlier in the pleadings that the first defenders were at all material times the occupiers of the basement premises. But I think that the pursuers have made sufficient averments for it to be appropriate for this issue also to go to an inquiry. They will be entitled, in the light of their averments, to lead evidence to show that the second defenders' presence in the basement premises was more than a merely transitory one, as they were in a substantial sense in control of what was going on there when work was being done under their supervision and direction at the request of the first defenders. If that is shown to have been the position, there will, in my opinion, be a sufficient basis for finding them liable for the effects of the nuisance which was caused by the work which they directed the workmen to carry out.

So far as the averments in art 10 of the condescendence are concerned, however, I can find nothing in them to indicate that the pursuers are entitled to damages from the second defenders on this separate ground. The averments are, at best for the pursuers, confusing because they suggest that a distinction has been drawn between nuisance on the one hand, which is art 9, and fault on the other, which is art 10. Counsel sought to explain this difference by saying that art 10 was founded on delict. But in my opinion delict, and the fault which gives rise to delictual liability, are essential to a case based on nuisance also. So the distinction which he sought to draw was not one which the law can recognise. Then it is averred that the second defenders knew that the execution of the works ‘was likely’ to cause damage to the pursuers' premises of the kind which in fact occurred, and that it was the second defenders' duty not to instruct and direct the carrying out of these works. If what is meant by these averments is that the second defenders knew that damage would inevitably result from the carrying out of the works, which is what the pursuers say in the preceding articles of the condescendence, than this seems to me to be a repetition of the case of nuisance which is pled in art 9. If it is being suggested that the damage was likely in the sense that, if due care had been taken, it might have been prevented, then the suggestion is that the second defenders were negligent. But the pleadings in art 10 are wholly inadequate to support a case based on negligence, which in any event counsel said he was not seeking to make in this article. For these reasons I consider these averments to be irrelevant and I think that the Lord Ordinary was right to exclude them from probation.

I would refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.

LORD KIRKWOOD —I am in full agreement with the opinion of your Lordship in the chair.

The decision of the House of Lords in RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council established that, in the case of an action of reparation based on nuisance, there is no liability ex dominio and that, with the possible exception of a case involving the alteration of the course of a natural stream (Caledonian Railway Co v Greenock Corporation), the basis of liability is culpa. In Chalmers v Dixon Lord Gifford observed at p 468 that: ‘Culpa is a flexible term. Much lighter fault may make a person liable in some circumstances than in others.’

So whether or not culpa, which can take a number of different forms, is established must depend on the facts and circumstances proved in any particular case.

The present case involves the carrying out of building operations and, as Lord President Emslie observed in Lord Advocate v Reo Stakis Organisation Ltd at p 109, ‘the law of nuisance applies to damage caused by building operations just as it does to damage caused to a neighbour by other types of use of adjoining property’.

In RHM Bakeries (Scotland) Ltd Lord Fraser of Tullybelton at pp 43–44 quoted certain observations made by Lord Atkin in Sedleigh-Denfield v O'Callaghan. Lord Atkin observed at p 896 as follows: ‘For the purpose of ascertaining whether as here the plaintiff can establish a private nuisance, I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or in some I cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word "use". This conception is implicit in all the decisions which impose liability only where the defendant has "caused or continued" the nuisances.’

The Lord Ordinary expressed the opinion that when Lord Fraser referred to nuisance being based on fault, he meant fault in the sense described by Lord Atkin and he went on to observe that what degree of personal responsibility is required in any given case will no doubt depend on the particular facts and circumstances. While Lord Fraser, in quoting these observations of Lord Atkin, gave added emphasis to the words ‘some degree of personal responsibility is required’, I do not consider that, by doing so, he was intending to imply that, in the absence of deliberate act or negligence, proof that the defender had some degree of responsibility for the nuisance in question would necessarily be sufficient to establish culpa. In my opinion the reference to a ‘degree of personal responsibility’ was simply intended to emphasise that there was no liability ex dominio and that the party alleged to be liable had to be to some extent responsible for causing or continuing the nuisance founded on by reason of his use of the land or premises in question. However, the use of the land or premises must give rise to wrongful interference with the neighbour's enjoyment of his property and that raises the issue as to whether or not culpa has been established. Accordingly I agree that before liability in damages for nuisance can be established there must be proof of a deliberate act or negligence or some other conduct from which culpa can be inferred.

LORD MURRAY —I agree with the opinion of your Lordship in the chair and with the disposal of the case proposed.

It is accepted by the parties that the concept of culpa lies at the heart of the pursuers' case against the second defenders. It may be that one aspect of the Lord Ordinary's treatment of culpa could give rise to misunderstanding at a later stage of the case. In his opinion the Lord Ordinary raises the question what scope in nuisance cases there may be for culpa other than negligence in light of Lord President Cooper's dictum in the case of Watt v Jamieson at pp 55–58. The Lord Ordinary finds the answer essentially in what was said by Lord Fraser of Tullybelton in the RHM Bakeries case at pp 43–44, quoting with approval the speech of Lord Atkin in Sedleigh-Denfieldat pp 896–897. The passage from Lord Atkin quoted by Lord Fraser included the following: ‘I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required.... This conception is implicit in all the decisions which impose liability only where the defendant has "caused or continued" the nuisance.’

In his opinion the Lord Ordinary says: ‘It is therefore clear in my opinion that when Lord Fraser later referred to nuisance being based on fault he meant fault in the sense described by Lord Atkin. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required. What degree of personal responsibility is required in any given case will no doubt depend on the particular facts and circumstances.’

For my part I do not read Lord Fraser's words as adopting the dictum of Lord Atkin as a definition of culpa in the law of Scotland in the field of nuisance. This would indeed be surprising in view of the fact that the main thrust of what Lord Fraser says is to stress and reinforce the place of culpa in the law of Scotland in contrast with the more complex position in England with which Lord Atkin was concerned. In the passage from Lord Atkin's speech quoted by Lord Fraser the latter italicises the words ‘some degree of personal responsibility is required’. The emphasis laid by Lord Fraser on those words may lend some superficial support to the view which the Lord Ordinary appears to adopt. Read in context I consider that Lord Fraser was not seeking to redefine culpa in the field of nuisance in Scots law on the basis of Lord Atkin's dictum.He may well have referred to that passage merely to illustrate that even south of the border there was no place for strict liability for nuisance arising ex dominio, some degree of personal responsibility being required to bring home liability. In Scotland, where culpa is the ruling concept, this would apply afortiori.

Counsel for the second defenders submitted that the Lord Ordinary had erroneously proceeded on the view that in addition to culpaarising from a deliberate act on the one hand or from negligence on the other hand there was a third ground on which it could arise in light of Lord Fraser's adoption of Lord Atkin's formula for liability in nuisance; this third ground being circumstances from which some degree of personal responsibility arises for the consequences of a particular use of land adversely affecting a neighbour. If the Lord Ordinary intended to substitute this notion of fault for culpa in the accepted sense, then I would respectfully differ from him.