Scottish Court of Session Decisions

[1] In this action the pursuers and their children, who reside at Alemoor Park, Edinburgh, claim that they sustained personal loss, damage and injury as a result of using and consuming unwholesome water supplied via the mains to their house. The defenders are the water authority for the area including Alemoor Park. The pursuers aver that contractors, acting on behalf of the defenders, laid the water main to the Alemoor Park housing development. The contractors, who are not parties to this action, began work on 6 February 1998. It is alleged that "during construction" a fox entered the water main via an uncapped piece of pipe. It is averred that the fox died within the water main and its decomposed body contaminated the water supply when water passed through the new water main. The pursuers also aver:

Swabbing consists of passing through a pipe some form of swab that detects and removes foreign bodies from the interior of the pipe. Another resident of Alemoor Park complained to the defenders about a smell from her water supply. The defenders investigated and confirmed that there was a noxious smell coming from the water main; further investigation revealed that the water supply had been contaminated by the dead fox. Some details of the character of the contamination are given. The pursuers and their children used the water coming to the house through the main for a period from about 29 April 1998 to 31 May 1998. The defenders make averments about the contractors and about their own (the defenders') reliance upon the expertise and skill of the contractors in the installation of the water main, "including the proper swabbing and capping of the pipes during said installation". The defenders' averments are not to be taken into account for the purposes of this procedure roll debate except in so far as the pursuer adopts them; the Court must judge all questions of relevancy upon the basis of the pursuers' averments.

[2] In Article 3 of the Condescendence the pursuers allege that their loss, injury and damage was caused by the defenders' breach of statutory duty. The defenders had a duty under Section 8 of the Water (Scotland) Act 1980 to provide a wholesome supply of water to the pursuers and it is said that the water supplied was not wholesome. The pursuers then aver, "The defenders accordingly failed in their duty and thereby caused loss, injury and damage to the pursuers." Section 8, which is in Part II of the Act, provides,

For the purposes of the Act, "a supply of water for domestic purposes" has the meaning given to it by Section 7. The terms "owner" and "occupier" are defined in Section 109 of the Act. It is clear that the pursuers maintain that the defenders failed in their statutory duty by not complying with a strict and absolute duty to supply the pursuers, as owners and/or occupiers of the premises, with a supply of wholesome water. That failure is said to confer upon the pursuers a right of action, for damages in respect of their loss against the defenders.

[3] The defenders have a general plea to the relevancy of the pursuers' averments. The pursuers' statutory case, as set out in Article 3 of the Condescendence, is said to be irrelevant in respect that Section 8 of the 1980 Act does not impose upon the defenders a duty that is owed to the pursuers individually (rather than to the public at large), and for the breach of which a claim for damages will lie. In any event, even if the Act were to be construed as imposing a duty upon the defenders, it is submitted that the duty is not absolute and that, as the pursuers have pled only a case of strict liability, the statutory case must fail.

[4] Mr Clancy, for the defenders, submitted that although the Water (Scotland) Act 1980 has been much amended since it was enacted nothing in the amendments affected the question of the construction of Section 8. The text of the section remained as originally enacted in the 1980 consolidation statute. It was clear, it was submitted, that Parliament did not intend to confer any private right of action for damages. The general position of public authorities was that they were in a special position in relation to the issue as to whether or not the imposition of duties upon them provided private rights of action in members of the public. For a general statement of the position as at 1995, reference was made to Clerk & Lindsell on Torts (17^th edition), paragraph 11-14. That passage referred to a significant trend against finding that a remedy in breach of statutory duty lies against public authorities charged with the protection of the public welfare. Counsel adopted the statement, "The more general the duty cast of a public authority, the less likely it is that a private right of action will be found to lie". Since that text had been written the case of X (Minors) v Bedfordshire C.C. [1995] 2 A.C. 633 had been decided. Lord Browne-Wilkinson, at page 730, attempted a general analysis and, by reference to various older authorities, explained the basic proposition in cases where the statement of claim alleges simply (a) the breach of statutory duty, (b) a breach of that duty causing (c) damage to the plaintiff:

His Lordship went on to refer to a number of "indicators" including the absence of any other remedy for breach and the presence of other means of enforcing the statutory duty. Where there are such other means, that points against the existence of a private right of action for damages; the question is always one of statutory construction having regard to the particular provisions in the relevant statute. Counsel submitted that the Court had to look at the particular statute and ask if the duty was to be performed for the benefit of a limited class of the public and whether or not Parliament intended to confer on that limited class a private right of action for damages. When one looked at the Act, it was plain that people residing in the whole of Scotland were within the areas constituting the limits of supply of various different water authorities. Thus it was plain that everybody in Scotland who fell within the terms "owners and occupiers of premises" would have a right of action under Section 8 (if any such right existed) against some water authority, being the water authority within whose limits of supply the premises if such persons were situated. The areas covered by particular limits of supply fell to be determined under Part II of the Act. Section 7, giving a statutory meaning to the term "a supply of water for domestic purposes", referred to "a sufficient supply for drinking, washing, cooking, central heating and sanitary purposes" and went on to make specific inclusions and exclusions. The persons entitled to a supply of wholesome water could not be confined to those who were the owners and occupiers of premises; guests or temporary members of a household or other visitors to the house who consumed or used the water were also entitled to a supply of wholesome water. It was clear that there was no particular definite and defined class of individuals in whose interests the duty contained in Section 8 was imposed. The case fell to be contrasted, for example, with Rickless v United Artists [1987] 1 All E.R. 679 in which a particular class of individuals, namely artistic performers, were identified as intended to be the beneficiaries of the duties created by the Dramatic and Musical Performers' Protection Act 1958. Counsel had not been able to discover any Scottish case relating to the construction of Section 8 or of its predecessors. Reference was made, however, to McColl v Strathclyde Regional Council 1983 S.L.T.616 in which the pursuer, as a rate payer and water consumer, had raised an action of interdict to prevent the addition of fluoride to the regional water supply. She did not, however, seek damages (no fluoride having been added at that juncture). Different considerations applied to an action of interdict brought against a water authority which was intending to add a possibly harmful substance to the general water supply. There was no other Scottish case in which the question of the possible existence of a right of private action to damages was discussed. In the present case, the correct view was that the duty imposed by Section 8 was a duty imposed for the benefit of society in general.

[5] It was also relevant to look at the presence or absence of any other remedy for the breach of statute. Section 10 afforded a remedy. Section 11 contained enforcement provisions at the instance of the Secretary of State. It was pointed out that these enforcement provisions had been significantly modified by the Water Act 1989 and Schedule 22 to that Act, applied by Section 68 thereof. The only English case that bore upon the matter was Read v Croyden Corporation [1938] 4. All E.R. 631. There the plaintiffs brought an action in respect of the contraction of typhoid by a child plaintiff as a consequence of allegedly negligent pollution of the water supply. It was held that the parent of the child, as a rate payer, had a right of action under Section 35 of the Water Works Clauses Acts, 1847, but that the child, not being a rate payer, had no such right of action under the statute. However, it was submitted, the wording of the statute there was quite different. What was more important about the case was that it made it clear that the duty said to be owed to the rate payer was not an absolute obligation but was limited to the exercise of all reasonable care and skill to ensure that the water provided accorded with the provisions of the Act: see the judgement of Stable J, at page 651C. That proposition supported the second branch of the defenders' relevancy argument. Even if the Court held, contrary to the main submission, that the defenders, under Section 8, owed a duty to the pursuers giving rise to an action of damages in respect o breach of the duty, the case pled in Article 3 of the Condescendence was irrelevant because it rested upon the proposition that the obligation was absolute; it contained no averments of any failure in the exercise of reasonable care, whatever the standard of care might be.

[6] In reply to the criticisms of the statutory case, Miss Haldane accepted the statements of the general principles contained in the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire C.C. She drew attention to the fact that the principles there summarised derived from cases going back to Butler (or Black) v Fife Coal Co Ltd [1912] A.C. 149, also reported in 1912 S.C. (H.L.) 33. Reference was made to the speech of Lord Kinnear at page 165 and 41 respectively. His Lordship's observations had been approved by Lord Diplock in Lonrho Ltd v Shell Petroleum (No.2) [1982] A.C. 173 at p.185. She accepted that it was necessary to examine the particular statute in order to determine its scope and purpose. She submitted that Section 8 met the tests formulated by Lord Browne-Wilkinson for the creation of a duty enforceable by private actions for damages. The persons entitled to the benefits derived from the performance by the water authority of its statutory duty under Section 8 were a limited class, namely the owners and occupiers (as defined) of premises within particular limits of supply, being owners and/or occupiers "entitled to a supply for" their domestic purposes. No one had disputed the title of Mrs McColl to sue Strathclyde Regional Council in respect of their statutory duty to supply wholesome water. While it was accepted that hers was an action for interdict, it would have been odd if she had not been entitled to recover damages if, before she could attempt to stop it, they had added fluoride to the water and she had been able to prove that she had suffered loss, injury and damage as a consequence of that addition. Counsel submitted that the class of persons was defined here with some precision. It did not include guests within the premises, even if they were the guests of the owners or the occupiers. There was no other enforceable remedy; the pursuers had no right under Section 10 in respect of the performance of a duty under Section 8. Section 10 was concerned with the exercise of "powers". The powers there referred to were the powers contained not in Part II of the Act but in Part III, headed "Powers of Water Authorities for the purposes of Water Supply". Part II of the Act, containing Section 8, was concerned with duties, not with powers. Section 11 conferred certain powers on the Secretary of State but provided no remedy, no redress for the injured pursuers. She founded strongly upon the decision in Read v Croyden Corporation. That decision, albeit by a single judge in England, had never been challenged. It was there decided that a breach of the similarly worded statutory duty under Section 35 of the Water Works Clauses Act, 1947 conferred a right of action for damages upon a rate payer. There was no valid distinction between that wording and the wording under consideration in the present case. She drew attention to the reasoning of Stable, J. at page 653 where his Lordship said,

[7] I accept that Section 8 of the Act must be looked at in its context. Part I of the 1980 Act (which is a Consolidation Act) designates a central authority - the Secretary of State - and imposes upon him the duty to promote the provision of water supplies "throughout Scotland": Section 1. It is plain that Parliament envisaged that the water was to be provided for the benefit of all domestic consumers of water throughout the whole of Scotland. Section 2 is one of several sections that clearly indicate that the Secretary of State may act through inter alia water authorities. Part II [duties of water authorities] establishes area water authorities and prescribes the "limits of supply", which are areas not necessarily co-extensive with local government areas of jurisdiction in other respects. Indeed the limits of supply can be varied by order (Section 4). Once the water authorities are established and their limits of supply defined, the duties contained in Section 6, Section 8 and Section 9 are imposed upon them. Section 6 limits the obligation to supply water by providing a test of "reasonable cost". It is for the Secretary of State to determine any issue as to reasonable costs. What Section 8 does is to require that the water authority provide to those entitled, as a result of the application of the provisions contained in the previous sections, a supply of wholesome water sufficient for their domestic purposes (as explained in Section 7). Section 9 lays upon the area water authority a duty to supply water on certain terms and conditions for purposes other than domestic purposes. It is also important, in my opinion, to take account of Section 10, which makes the water authority liable to make full compensation to any person who has sustained damage by reason of the exercise by them "of any of their powers under this Act ...". That section provides for the determination of issues relating to the compensation to be effected by arbitration. There is a time limit for such claims. Miss Haldane, as noted, argued that this section provides no remedy because it refers to "powers", not the duties. I do not find this reasoning convincing. Part III which deals with "Powers of Water Authorities" is concerned with giving water authorities powers that they may, or may not, need in order to perform their duties. I can accept that the notion of "powers" is not co-extensive with the notion of "duties". But if a water authority has a duty to supply water, whether under Section 6, Section 8 or Section 9, it must have a power to do so. Furthermore, Section 10 is contained in Part II, and not in Part III of the Act. As this is a Consolidation Act it is to be expected that Parliament would construct it in a logical and ordered way. (That expectation is less confident with ordinary legislation, which is subject to amendment, sometimes on a large scale and in circumstances of urgency, with the result that the original bill loses some of its coherence). If Parliament had intended that the Section 10 remedy should be available only in respect of the powers specified in Part III then I should have expected to find Section 10 in Part III of the Act.

[8] Against this background I turn to the considerations referred to in the speech of Lord Browne-Wilkinson and summarised very briefly in Clerk & Lindsell on Torts at paragraphs 11-14 and 11-15. Although I was not referred to the Law of Civil Remedies in Scotland by Professor D M Walker, I note that Chapter 59 contains a very full and helpful discussion of the matter, as at 1974. It respectfully appears to me that Professor Walker's approach to this issue, which is entirely in line with the other passages to which I have been referred, sets out the considerations in a logical and intelligible way. Following broadly the discussion in Walker, there is no doubt that Section 8 imposes a duty upon the area water authority to be performed within their limits of supply. They cannot delegate the performance of that duty to somebody else, unless in accordance with some arrangement sanctioned under the statutory provisions.

[9] I now turn to consider whether there are other sanctions or remedies. It is not disputed by the defenders that the common law may afford a remedy where the claimant can show that his loss was caused by negligence on the part of the water authority if such negligence has resulted in the supply of unwholesome and harmful water to the injured claimant. Indeed, Mr Clancy pointed out that, in so far as the case of Read v Croyden Corporation had any bearing upon the matter, the statutory obligation there was not regarded as a strict obligation but was measured by reference to a standard of care. Thus the right of a person injured by using unwholesome water supplied by a water authority could be realised only if the claimant established some departure by the water authority from a standard of care. Apart from any possible common law remedy, the Act does provide other sanctions. The Secretary of State has power under Section 11 to take various steps where a water authority has defaulted in respect of any duty imposed by the Act. In my opinion, Section 10 gives a statutory remedy in respect of damage sustained by reason of the exercise of the Section 8 power/duty to supply wholesome water. Accordingly, when the Act was passed in 1980, there were several sanctions for breach of the duty created Section 8. I do not consider it would be right for me to take note of any subsequent amendments in relation to the character or working out of these sanctions, as I do not consider that such amendments to the legislation could affect the interpretation of the relevant words in Section 8, which go back many years. It is also important to note that the duty is owed to the public at large. The duty under Section 8 is different from the duty under Section 9, but the persons envisaged by Section 8 (taken along with the definition of "a supply of water for domestic purposes" in Section 7) include all domestic consumers in Scotland. They even include, as I pointed out in the debate, the supply of wholesome water for horses kept for private use. A supply of water for domestic purposes, namely a sufficient supply for drinking, washing, cooking, central heating and sanitary purposes plainly envisages that the water will be consumed not just by the owner/occupier of the premises but by others consuming the water though not falling within the definition of owner or occupier of the premises. It would be bizarre if the local authority owed a duty to me while I remain in occupation of my own premises but owe no such duty to me when I go to dine in a friend's house within the same water authority area. Of course, if a person wishes to enforce the due performance of statutory duties arising under Section 8 he may be able to do so by way of judicial review. He may also be able, like Mrs McColl, to raise an action of interdict. In each case, however, he would have to show a title to sue. I think that one effect of Section 8 may be to restrict the title to sue to the persons specified therein as owners and occupiers of premises within their limits of supply, being persons entitled to a supply for their domestic purposes. Thus if a person owns or occupies no premises within the East of Scotland Water Authority's area he would have no title to sue whether by way of judicial review or interdict in respect of an alleged failure by the East of Scotland Water Authority to supply wholesome water in their mains and pipes. On the other hand, if he were to sustain injury as a result of consuming unwholesome water provided in the mains and pipes, he would certainly have a title to sue at common law for damages for the injury sustained by the negligence of the water authority which had supplied the unwholesome water for consumption by those in the area at the material time. It may be that such a person would also be able to raise an action of interdict against the water autho

[10] I have come to be of the view, though the matter is not free from difficulty, that Section 8 of the Water (Scotland) Act 1980 does not entitle a person to sue for damages simply upon the basis that he, as an owner or occupier of premises within the limits of supply of a particular water authority, has been injured by using unwholesome water provided by that water authority in their mains and pipes. The duty in respect of the supply of wholesome water is not a duty for the protection of a defined limited class of the public; it is owed to every domestic consumer within the authority's area. The owner or occupier has other remedies, namely to sue at common law or to claim compensation under Section 10. The duty is enforceable by the Secretary of State (or, now, the Scottish Executive). In any event, I agree with the submission for the defenders that, as Stable, J. held in Read v Croyden Corporation, that the duty created by such a section is not an absolute duty imposing strict liability for any failure. The pursuers in the present case have chosen to plead the statutory case on the basis of an absolute duty with strict liability and I have been referred to no authority which challenges the reasoning of Stable, J.as to the need to establish a departure from a standard of case. It is noteworthy that that decision predates the enacting of the legislation consolidated in the 1980 Act. In the light of these considerations, conclude that the pursuers' statutory case in the third Article of the Condescendence is irrelevant.

[11] Mr Clancy also submitted that the common law case was irrelevant. I need not narrate the pleadings in full: most of the pleadings under scrutiny are contained in Article 4 of the Condescendence. That contains the statement, "It was their duty to take reasonable care to provide a supply of wholesome water to the pursuers". I think it would have been clearer if that duty had been formulated for the purposes of the present case in slightly different terms by saying that it was the defenders' duty to take reasonable care not to provide a supply of unwholesome water to the pursuer. For the injury sustained by the pursuers did not result from a failure to supply wholesome water but from the supplying of unwholesome water. The point may appear to be of no particular importance but it does help to throw into relief the fact that the defenders could not delegate their statutory duty. Whatever the relationship with the contractors who constructed and listed the mains, the duty to provide wholesome water, and not to provide unwholesome water, to the residents of Alemoor Park rested firmly and exclusively upon the defenders as the water authority. As is clear from the averments in Article 2 of the Condescendence, the pursuers' case is that the unfortunate fox entered the water main "during construction"; it thereafter died, decomposed and thus contaminated the water supply. The only error which is particularised was a failure by the contractors (who, according to the pursuers, "tested the water main on behalf of the defenders"), to "swab the third leg of the water main". That was where the decomposing fox lay. The error, whether one of commission of omission, and resulting in the failure to discover the dead fox, was perpetrated by the contractors. They failed to detect the body of the fox by swabbing the third leg where the body lay.

[12] In submitting that the common law case, as pled, was irrelevant, Mr Clancy drew attention to the pursuers' own averments which, properly read, signified that the omission which caused the problem was an omission by the contractors. No act or omission of the water authority was condescended on. He did not dispute that it might be open to the pursuers to make a case at common law based upon the water authority's negligence failure to detect the dead fox in the water main before that main was used to convey water to the households in Alemoor Park but no such case was pled. His complaint was that the pursuers' pleadings did not make it clear in any way whatsoever what the fault of the defenders was said to be. If the fault to be founded upon was the failure of the contractors to swab the third leg of the water main then the pursuers had to aver how the defenders were to be held responsible for that omission. It was not even averred that the defenders knew of that omission on the part of the contractors. If the defenders were to be held vicariously liable for the fault of the contractors then that had to be averred. In this regard reference was made for an accurate summary of the law to the passage in paragraph 33.9 of Gloag and Henderson "The Law of Scotland" (10^th edition 1995). It was not suggested that the wrongdoing contractors were subject to the control of the defenders in the inspection by swabbing of the main in question. Accordingly the pursuer was not offering to prove that the contractors were other than independent experts. If the contractors fell to be regarded as independent experts then the employers would have no vicarious liability for their negligence. It was not disputed that the statutory duty of the water authority rested upon them rather than upon the independent contractors; for the independent contractors had no responsibility whatsoever in relation to the supply of water to the pursuer. But if the water authority were to be held negligent that would have to be on the basis that they knew or ought to have known that the pipe had not been properly inspected, tested and cleaned before being used to carry water. There was no averment of that kind at all. The case made by the pursuers appeared therefore to fall under the third proposition referred to in the passage in Gloag and Henderson. There was no averment of any duty to check the contractors' work. Because the pleadings did not suggest that the defenders were vicariously responsible for the fault of omission by his contractors, and because no personal fault was specified on the part of the defenders themselves, it followed that the pursuers' common law case was irrelevant for lack of specification. It was not for the defenders to speculate as to the basis upon which the pursuers were seeking to make them liable. The requirements of fair notice demanded that the alleged fault of the defenders should be specified.

[13] In reply, Miss Haldane submitted that the case at common law was quite clear. The duty condescended upon was a duty in respect of the supply of wholesome water. That duty rested upon the defenders and the defenders alone. It did not rest upon the contractor. In this regard reference was made to Bett v The Dalmeny Coal Co Ltd (1905) 7 F. 787 and to Butler v Fife Coal Co Ltd [1912] A.C. 149 at pages 173/179. The defenders could not escape liability by saying that they had employed a competent contractor, because the duty to supply wholesome water could not be delegated to a construction firm. It followed that the act of the contractors in failing to check the third leg of the pipe was the act of the defenders themselves. She was pressed to explain the basis upon which the defenders should be required to bear the responsibility for what might be a casual failure to perform the testing/swabbing properly. Should they have inspected the swabbing and testing work independently? Were they vicariously responsible for the contractors' fault, or was the fault personal. The answer, as I understood it, was that it really came down to this: the third leg of the main was not examined, therefore the defenders were responsible. The failure to examine was the defender's' failure, because examination was a necessary part of their duty to supply wholesome water through the pipe. The test of relevancy was whether or not the pursuers' case would necessarily fail if they succeeded in proving their averments. The pursuers could not be held responsible for failing to aver details of the arrangements that had been reached between the defenders and the contractors. That was not a matter within the pursuers' knowledge. The pursuer was therefore not in a position to aver any more as a matter of fact.

[14] I find the pursuers' position to be very unsatisfactory. Of course the pursuers cannot be required to make averments on matters of fact that lie outwith their knowledge, unless perhaps it is appropriate for the pursuers to use the Administration of Justice Acts to recover such material as enables the facts to be clarified and averred. But although the pursuers can make only such factual averments as the evidence before them warrants, the formulation of the statements of duty and failure of duty is a matter for counsel who drafts the pleadings, on the basis of such facts as the evidence suggests the pursuers would be able to establish. The fact that the omission to inspect the leg is averred to be an omission by the contractors, and was not a personal omission by the defenders, should have alerted those responsible for the pursuers' pleadings to the need to formulate a case based upon vicarious liability of the defenders for the faulty omission of the contractors, or a case based upon some personal fault of the defenders themselves. Our rules of pleading would not even require the pursuers to make a final and irrevocable choice between these alternatives. Both could be pled in the alternative at the same time; and provided both cases were relevantly stated the case would be relevant for enquiry. I do not consider our rules of pleading entitle the pursuers to leave the matter entirely obscure. They have not pled an esto case based on the defenders' averments. I simply cannot tell, on the pleadings before me, whether the pursuers are maintaining that the defenders are responsible for the contractors' fault, or that the contractors were acting as the agent of the defenders or whether it is suggested that there was some fault directly attributable to the acts and/or omissions of the defenders themselves. The pursuers' pleadings suggest that the defenders engaged independent contractors to test and swab the pipes which they themselves had constructed. If the defenders engaged competent independent contractors to do an expert job suitable to be done by such contractors, the defenders would have performed their duty of reasonable care. For the common law case must be, and is, based upon the failure to take reasonable care. Even if the defender is in a position like that of the water authority where the duty in respect of the supply of water cannot be delegated, and the performance of that duty cannot be delegated either, it is still necessary for the pursuers to explain what faults caused the problem and why the defenders are to be held responsible for that fault. Is it suggested that the defenders employed incompetent experts to check the pipes? Is it suggested that the defenders knew or ought to have known that the testing was inadequate? If so how should they have known? Should they have conducted an inspection themselves? Even in a case where a person has a duty of this kind that he cannot delegate, he is not be responsible if he engages a fully competent independent contractor to carry out the work and that independent contractor is guilty of a casual carelessness in such a way that the carelessness is not detectable by those who engaged him because he possessed such expertise. If, for example, a householder is advised that his electrical wiring is dangerous and that the house should be re-wired, he has a duty to take reasonable care to ensure that the re-wiring is done in such a way that it does not pose a danger to persons entering his house. The duty he owes to such persons is not one that he can delegate to others. However, what he is entitled to do, and in almost every case he is likely to do, is to approach an independent contractor with a good reputation and instruct him to carry out the necessary work, being work that the householder himself is not competent to do. When the work is completed and the wiring is concealed under floorboards, behind skirting boards and within walls the h

[15] Although it is true that the pursuers' case should not be dismissed as irrelevant unless it can be said that the case will necessarily fail, that general rule does not free the pursuers (in the absence of a case of res ipsa loquitur) from the need to specify the fault founded upon. Furthermore we are still entitled and bound to apply the test of the weaker alternative. Where, as here, the pursuers offers to prove that the defenders engaged contractors to do the work and the pursuers do not aver that the contractors lacked the competence to do the work; and where the pursuers aver that the omission that led to the problem was an omission by the contractors but the pursuers do not aver that the defenders had any knowledge of that an omission or should have had any knowledge of that omission then the pursuers' case is likely to fail. That is, at the very least, the weaker alternative in these pleadings. In these circumstances I am not satisfied that the case, as pled, is relevant.

[16] It would be unfortunate in a case of this character, in which the sums sued for are small, if the pursuers were required to seek leave to amend in the Inner House in order to meet the criticisms that have been levelled at the common law case. I have therefore decided to put the case out By Order in order to give the pursuers an opportunity to move for leave to amend the common law case in order to make good the deficiencies that have been identified. If any such motion is made it will be entertained on its merits. If no such motion is made, or if the motion is made and amendment does not follow, I shall sustain the plea to the relevancy of Article 4 of the Condescendence. It would then follow that the whole action would fall to be dismissed.