Scottish Court of Session Decisions

In 1993 Strathclyde Regional Council (SRC), in pursuance of functions delegated to it by the Secretary of State for Scotland, entered into a contract with the defenders for the provision and installation of inter alia safety fencing alongside part of the M8 motorway. A fibre optic cable associated with the CITRAC electronic traffic information system ran in a duct through the ground on which the safety fencing was to be installed. The pursuer avers that on or about 16 January 1994 employees of the defenders, while carrying out excavation in connection with the installation of the safety fencing, damaged the cable. In this action the pursuer concludes for payment of damages representing the cost of repairing and reinstating the CITRAC cable. The action proceeds on the basis that the damage was caused by breach of contract and negligence on the part of the defenders.

The safety fencing to be erected by the defenders comprised an untensioned single sided open box beam mounted on steel posts. Its purpose was to protect lighting columns which were positioned at the back of the verge of the motorway, between junctions 26 and 27. From the Bill of Quantities (No. 6/1 of process, page 143) it may be seen that the total length of beam was just over 2600 metres, and that the posts (since they numbered 1087) were to be set at intervals of just under 2.5 metres. The configuration of the work is illustrated in a sketch (No. 6/13 of process) prepared by Gordon Cooper, a supervising engineer in the employment of the relevant section of the Roads Department of SRC, and spoken to by him in evidence. The drawing shows that the fencing had to be set back a minimum of 600 mm from the kerb of the hard shoulder, and that there was to be a minimum clearance of 330 mm between the back of the fence and the lighting columns. Those two dimensions constrained from opposite sides the position to be occupied by the fence.

CITRAC is a system of conveying information to drivers. At intervals along the motorway there are overhead gantries on which signals are displayed, indicating such matters as lane closures and speed restrictions. The signals displayed on the gantries are centrally controlled. The gantries are linked to the control room by a fibre optic cable laid in ducts in the ground on the verge of the motorway. The line of the ducts was close to the line on which the safety fence was to be erected.

Because of the presence of the CITRAC cable the method of erecting the safety fencing was modified. Whereas the posts for such fencing can normally be driven into the ground or embedded in concrete in holes dug by mechanical excavator, this contract provided for holes to be dug by hand.

The contract contained certain "Additional Special Requirements in relation to ... CITRAC" (No. 6/1 of process, page 131). These included the following:

The contract also contained certain substitute clauses in the Specification. These included (No. 6/1 of process, page 134) the following:

The contract incorporated the Institute of Civil Engineers (ICE) Conditions of Contract (Fifth Edition) (No. 6/7 of process), subject to certain modifications (set out in No. 6/6 of process). In terms of clause 1(1)(c) (as modified) "Engineer" was defined as meaning the Director of Roads for the time being of SRC or other engineer appointed from time to time by SRC and notified in writing to the Contractor. Clause 1(1)(d) (as modified) defined "Engineer's Representative" as meaning the Area Engineer of the appropriate area of the Department of Roads, SRC or other engineer appointed from time to time by SRC or the Engineer. Clause 2(2) provides:

Clause 13 provides:

It is not in dispute that at some stage on Saturday 15 or Sunday 16 January 1994 a gang of men working for the defenders, having discovered cable ducts in first one then a succession of holes which they were in the course of excavating for safety fence posts, proceeded to break open the ducts and cut and remove the cable (which turned out to be the CITRAC cable) over a distance of about 200 metres. The defenders' position is that before doing so their ganger contacted SRC by telephone, and a representative of SRC attended on site, inspected the cable, declared it to be redundant and gave permission for its removal.

The defenders do not, as I understood the submissions made on their behalf, dispute that if permission to remove the cable was not given, or purported to be given by someone who was not the Engineer or the Engineer's Representative or an assistant to the Engineer's Representative, the damage that they did to the cable constituted a breach of contract on their part. The pursuers do not, as I understood their submissions, dispute that if such permission was given by someone in the position of Engineer or Engineer's Representative, or assistant to the Engineer's Representative, the defenders were not in breach of contract in doing what they did. It is therefore not necessary for me to examine the question of the extent of the authority of assistants to the Engineer's Representative to give instructions. The issue, as presented in the parties' submissions, is one of fact rather than of construction of the ICE conditions.

In the event, therefore, the factual issues on which the case turns are:

1. whether instructions were given that the cable found in the excavations might be removed, and
2. whether such instructions, if given, were given by a person who had authority to give them.

The ganger of the defenders squad of workmen, Mark Austin, gave evidence that the job was "100% hand dig", although he did not know the particular reason for that. On Saturday 15 January 1994 the squad, in excavating a post hole by hand, found cable ducting at a depth of between 300 and 400 mm. Further trial holes were then dug at increasing distances from the first one, and the ducting was found in them all. He therefore decided to contact SRC for guidance. There was no point in his contacting his own superior, Chris Handy, because he would simply have told him to contact SRC. He telephoned the contact number that had been provided by the defenders. The person to whom he spoke was initially reluctant to attend at the site, but agreed to do so when it was pointed out that the squad was standing idle. The person in question arrived at the site less than an hour later. Mr Austin did not remember who the person was, although his impression was that his name was "Graham". He was "pretty certain" that he was the assistant resident engineer. He did not recognise the names "Gordon Cooper" and "Brian Williamson" (the two employees of SRC actively involved with the contract). He had seen the person before on site. He showed him the ducting, and the latter said that it was redundant, that a new cable was being put in, and that it could therefore be ripped out. The defenders' squad therefore proceeded to rip out the cable. They broke the ducting, cut the cable at approximately 20 or 30 metre intervals, and pulled it out. Ten to twelve such lengths were removed. They were simply discarded on the verge, and not removed by the defenders. In cross examination he said that on site instructions were normally given orally then confirmed in writing. He had experience of council employees going back on oral instructions. He nevertheless did not insist on getting the instruction in writing. He thought that if he had requested a written instruction he would not have got one, and would have had to wait until the Monday. He rejected the suggestion put to him that no one had come on site and given an instruction to rip out the cable, and that he had simply decided to do so. He said that "the biggest cowboy in the world" would not do that, and he was no cowboy. He had left the site for his next job before he learned that there was a problem.

Evidence to a similar effect was also given by another member of the defender's squad, William Mann. He confirmed that it was a "hand dig" job, but did not know why - he thought it might be because they were digging in boulder fill, but accepted that it might have been because of the proximity of cables. He said that on Saturday 15 January ducting was exposed first in one then in more holes, that Mr Austin telephoned the contact number, and that he remembered hearing the telephone conversation and gathering that the person to whom Mr Austin was speaking was reluctant to come out, and had to be persuaded by its being pointed out that ten men were "on stop". He could not remember the name of the person who attended at the site, nor could he remember seeing him before. He was youngish, in his 20s. He arrived about an hour after the telephone call, spoke to Mr Austin in Mr Mann's presence, and said that the cable was redundant and that they could "just smash it out". Mr Mann said "We assumed he knew what he was talking about". He confirmed that the cable was cut out in lengths and left lying on the verge. He too left the site without knowing that there was a problem. That came to his knowledge only about six months ago.

Evidence was given for the pursuer by three former employees of SRC. Gordon Cooper was a supervisory engineer who had a hand in designing the job and preparing the contract. His evidence was that in contractual terms the "Engineer" was SRC's Director of Roads, that the "Engineer's Representative" was originally the Area Engineer, but that the Chief Engineer in the section to which he belonged was substituted in that role. He was himself, in contractual terms, an assistant to the Engineer's Representative. The other person in his department involved in the contract was Brian Williamson, who was one of his staff, and who was also in contractual terms an assistant to the Engineer's Representative. He attended a pre-tender meeting (the minutes of which were No. 6/9 of process). The defenders were not represented at that meeting, but he thought that they would have been provided with a copy of the minutes. As the minutes show, various points about the CITRAC cable were emphasised at that meeting. He also held a pre-start meeting with the defenders on 1 December 1993. He was responsible for the supervision of the contract, and Brian Williamson was also involved, reporting to him. The person in charge of the contract for the defenders was Chris Handy, who was based in Henley on Thames. He was present at the pre-start meeting, but not thereafter until after the incident had occurred. Mr Cooper was on holiday for a week from 14 January, having last been on site on 12 January. He first became aware of the problem on his return on Monday 24 January. By then the safety fence was in place. He therefore did not see the holes in which the cable ducting had been located.

Mr Cooper gave some evidence about having intimated to the defenders, some time before the incident, that there was a particular stretch of cable that was going to be re-routed, and that at that point there would in due course by a length of fencing that could be installed without hand digging of the holes, but it is not necessary to go into that in detail, because the defenders do not attempt to rely on any such intimation as having justified their interference with the cable. Mr Cooper's evidence was that he was away on holiday during the weekend in question, and therefore was not the person who attended at the site and identified the cable as redundant.

Afterwards, Mr Cooper had a meeting with Mr Handy on 28 January. His impression at the meeting was that Mr Handy accepted that the defenders were responsible for the damage to the cable. He was surprised when the defenders' insurers subsequently disputed liability. Mr Handy was not called as a witness by the defenders to give evidence about that meeting.

Mr Cooper confirmed that in his section only he and Mr Williamson were involved in the contract. His other staff had no involvement in it. The Accident Investigation and Prevention Section had commissioned the work, but they would have no occasion to be on site. He said that he would not expect anyone from the SRC offices in Cotton Street, Paisley, who was not involved in the contract to take anything to do with it. It would not be within their jurisdiction to do so.

Brian Williamson gave evidence on commission. He said that he was the engineer's representative on the contract. He first became aware of the problem on Monday 17 January, when he was contacted by telephone. He met a representative of the CITRAC section on site. He had not, himself, been at work over the weekend. That was borne out by the absence of any entry for the Saturday or Sunday in his diary (No. 6/12 of process). He did not instruct the defenders to sever the cable. He was a mere civil engineering technician. Above him in the organisation were his boss (Mr Cooper) and other more senior officers. The Engineer in terms of the contract was the Director of Roads, but he had no day to day involvement. The only other person who might have an involvement was the area engineer's representative, Graham Wylie, but it was not his position to give instructions to the contractor. The role of instructing the contractor belonged to Mr Williamson himself and to Mr Cooper.

Graham Wylie gave evidence confirming that he was a senior engineer on the staff of the area engineer. He was in charge of day to day operational matters. His interest in the contract site related to site safety. He had contributed to the drafting of the contract in that respect. He had nothing to do with the job while it was going on. He had no contact with the defenders at all and gave no instructions to them about the CITRAC cables. He thought it very unlikely that if anyone not involved with the contract took a telephone call about the contract on a Saturday in the absence of the person responsible for it, such a person would take it upon himself to attend on site and give instructions.

I am satisfied on the evidence that neither Mr Cooper nor Mr Williamson attended at the site on Saturday 15 (or Sunday 16) January 1994, identified the cable as redundant and gave instructions that it could be removed. Their evidence that they were respectively on holiday and not at work was clear and confirmed by their diaries. It is, moreover, in my view inconceivable that either of them, directly involved in the contract and fully alive to the vulnerability of the CITRAC cable as they were, would have given such an instruction. I did not understand Mr McGregor, who appeared for the defenders, to contend otherwise.

I am satisfied likewise that Mr Wylie did not attend at the site on 15 or 16 January and did not give any instruction to the defenders. Apart from Mr Austin's vague impression that the person who attended was called "Graham", there was nothing to point to Mr Wylie's involvement. It was not his role to involve himself in the giving of instructions, and I am satisfied that he did not do so. Again I did not understand Mr McGregor to contend otherwise.

Mr McGregor invited me, however, to accept the evidence of Mr Austin and Mr Mann that, having exposed the ducting in a series of post holes, Mr Austin telephoned the contact number provided by the defenders, and that someone from SRC responded, attended the site, and declared the cable redundant and removable. I have to say that as they gave their evidence I had no impression that either Mr Austin or Mr Mann was lying. It seems to me, however, that I must have regard to probability in deciding what evidence I can accept. Probability, however, does not all point one way. On the one hand, it seems to me that, once those directly involved in the supervision of the contract, namely Mr Cooper and Mr Williamson, are eliminated, it is highly improbable that anyone from SRC would give such an instruction. Mr McGregor recognised the improbability that a senior officer who had a formal contractual role as Engineer or Engineer's Representative would take a call made to the Cotton Street offices on a Saturday morning. To that improbability there must be added the improbability that any such senior officer, if he did happen to take a call, would (a) respond to it by himself attending at the site rather than sending someone else, or, more importantly (b) make the gross error of declaring the CITRAC cable redundant. It is, in my view, likewise highly improbable that if a call was taken by someone who had nothing to do with the supervision of the contract, such a person would agree to attend at the site or, if he did so, would take it upon himself to authorise the removal of the cable. It therefore seems to me that the events which Mr Austin and Mr Mann describe, while plausible up to the stage of their digging a series of holes to confirm the presence of the ducting and thereafter making a call to the contact number with a view to obtaining instructions, are thereafter highly improbable. Conversely, it might be thought to be improbable that the defenders' squad would rip out the cable without any authority to do so. It seems to me, however, that the improbability of their taking that course is somewhat diminished by the fact that both Mr Austin and Mr Mann appeared in evidence to be uncertain as to why the holes were being excavated by hand. If they had been as clear about the risk to the CITRAC cable as any acquaintance with the contract documents would have made them, it would seem unlikely that they would break open ducting and destroy cable that might be CITRAC cable without express instructions to do so. If, on the other hand, they did not know what the reason for hand digging was, they may have been less sensitive to the importance of the cable. Another possibility is that in their evidence they were underplaying their awareness of the CITRAC cable, in the knowledge that it would be implausible to accept an oral instruction to rip it out in face of all that was said about it in the contract. Mr Cooper provided some support for that view, in giving evidence that he had discussed the CITRAC cables with Mr Austin and that he and the whole squad were aware of their importance.

One aspect of the evidence which I found surprising was the total absence of any reference to Mr Williamson taking the matter up with Mr Austin on Monday 17 January. I should have thought that he would have been so outraged by what the defenders had done that his first reaction would have been to confront Mr Austin and demand an explanation. It is a point that might have been used to challenge Mr Williamson's credibility, and to suggest that he did not challenge Mr Austin on the Monday because he already knew that he had been the person who gave the instruction to remove the cable on the Saturday. That point was, however, not taken in cross examination of Mr Williamson, and for that reason I do not feel able to attach material weight to it.

Another chapter of the evidence which may bear on whether it can be held to be proved that an instruction was given on 16 January is Mr Cooper's evidence about his meeting with Mr Handy on 28 January. His impression was that Mr Handy accepted the defenders' responsibility for the incident. Since Mr Handy was not called to give evidence, and Mr Cooper's evidence on the point is therefore unchallenged, I see no reason not to accept it. It is, however, in my view doubtful how much weight can be attached to it. Mr Handy might have accepted responsibility because he knew that there had been no instruction, or because he had not by that stage been in touch with Mr Austin and therefore did not know of the allegation that there had been an instruction, or because he did know of that allegation but took the view that if he could not identify the giver of the instruction he could not say that it came from someone authorised to give it. It is not clear from Mr Austin's evidence whether his first contact with Mr Handy was before or after 28 January. One would have expected Mr Handy to make contact with Mr Austin, as the ganger of the squad involved, before coming to the meeting with Mr Cooper; and if he had heard from Mr Austin an explanation in the terms given by Mr Austin in evidence, one would have expected him to put that point to Mr Cooper, at least in mitigation even if he thought it was not a complete defence. I am therefore inclined to treat Mr Cooper's evidence about Mr Handy's attitude at the meeting on 28 January as going some way to cast doubt on the evidence of Mr Austin and Mr Mann.

Weighing all these considerations as best I can, I do not find it proved on the balance of probability that an officer of SRC declared the CITRAC cable redundant and authorised its removal.

Had I held that Mr Austin had received instructions that the cable was redundant and could be removed from an unidentified person who responded to his telephone call to the contact number, I would have taken the view that it was for the defenders to prove that the person who gave the instruction was acting within his authority in doing so. Mr McGregor argued that it was enough for the defenders to prove the instruction, and that it was then for the pursuer, if he could, to prove that the instruction came from someone with no authority to give it. In my view that submission is not well founded. If the defenders are to avoid the inference that the removal of the cable was a breach of contract, they must make out the case that it was properly authorised, and to do that they must in my view prove an instruction given by a person entitled to give it. Proof of an instruction would not in my view be enough to cast onto the pursuer the burden of proving that the instructor had no authority to do so. In any event, however, if that burden did rest on the pursuer, I am of opinion that the evidence led is sufficient to justify the conclusion that the instruction, if given, was not given by someone in the position of Engineer, Engineer's Representative or Engineer's Representative's assistant. The evidence in my view entitles me to hold that Mr Cooper and Mr Williamson were the only assistants with authority to give instructions, and I have held that they did not do so. The Director of Roads and the Chief Engineer (respectively the Engineer and the Engineer's Representative in terms of the contract) can in my view be excluded on a realistic view of the evidence, for the reasons which I have already given.

I therefore hold that the removal of the cable constituted a breach of contract on the part of the defenders.

Although the pursuer also pleads a case in negligence, Mr Brown did not press it, and I do not consider it necessary to express a view on it.

The sum sued for is £13,169.23, and the pursuer avers in article 5 of the condescendence that he incurred repair and reinstatement costs in that amount. There was produced an invoice for that sum issued by Renfrewshire Council (the statutory successors of SRC) to the Scottish Office on 4 June 1996 (No. 6/3 of process) in which the narrative referred to -

and a print-out from Scottish Office computer records (No. 6/15 of process) showing payment of that invoice. These documents were spoken to by Mrs Mary Calder, an officer in the Finance Division of the Scottish Executive, who had procured the print-out and explained the process by which approval for payment is obtained. Mr Cooper also gave evidence bearing on the sum sued for. He explained that he initially sought to achieve recovery of the sum of approximately £13,000 by withholding it against the sum paid to the defenders under the contract. Such a procedure would appear to have been available under Special Additional Requirement 5a. Mr Cooper explained that the sum in question was less than would have been required to replace like with like - the replacement had been with a different system. He indicated that his attempt to achieve recoupment by withholding the sum against the contract price failed, because for reasons he could not explain (because he did not transfer to Renfrewshire Council on local government re-organisation) that council, after it took over from SRC, paid the defenders the sum which he had withheld.

Mr McGregor argued that the evidence was not sufficient to prove that the sum sued for had actually been spent by Renfrewshire Council (or its predecessor SRC) in repairing the damage that the defenders caused. He submitted that the documents showed only that the Scottish Office had paid Renfrewshire Council. In my opinion that argument is not sound. The defenders do not attempt to dispute in any substantive way the amount of the pursuer's claim for damages. I am of opinion that the material produced, supplemented by the evidence of Mrs Calder and Mr Cooper, is sufficient to establish that that the pursuer has incurred expenditure of the sum sued for in connection with the repair of the damage which the defenders caused.

I shall accordingly sustain the pursuer's first plea-in-law so far as founded in breach of contract, and his second plea-in-law; repel the defenders' pleas-in-law; and grant decree for payment by the defenders to the pursuer of the sum of £13,169.23, with interest thereon at the rate of eight per cent a year from 1 November 1996 until payment. I shall reserve meantime the question of expenses.