Scottish Court of Session Decisions

Robert Morton & Sons & Ors v. Reid Heating [2002] ScotCS 113 (18th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF T. G. COUTTS, Q.C., SITTING AS A TEMPORARY JUDGE in the cause ROBERT MORTON & SONS MILTON LTD AND OTHERS Pursuers; against REID HEATING Defenders:   ________________

 

Pursuers: Haddow, Q.C., Grahame; Dundas & Wilson, C.S.

Defenders: Shand; Simpson & Marwick, W.S.

18 April 2002

Introductory
[1] In this action the pursuing company claims for damage to its property and the individual pursuers for personal injury sustained as occupants of the property. The property damage was caused by the presence of kerosene in the walls and floor of the kitchen area. The quantity of kerosene was described as "considerable" by the pursuers' counsel. The claim is that the presence of the kerosene was the result of the defenders' breach of contract and the negligence of their employees. The evidence in the action was stale and had manifestly been affected by the passage of time.

1. The events upon which the case is founded occurred on 13, 14 and 15 December 1994. The action passed the signet on 4 December 1997, has been amended at least twice and was proposed to be yet further amended during the course of the proof. I disallowed that further amendment as coming too late. Matters were rendered more complicated by the succession of installation and building works which occurred on the property after December 1994. They were further complicated by the fact that the photographs produced of a kerosene fuelled cooker presently installed in the defenders' property was the third which has been so installed since 1994. The case concerns the removal of the original, obsolete AGA cooker which had an adjacent, separately fired, boiler along with the associated pipework, in order that a new AGA cooker with boiler could be installed.

The pleadings
[3] The pursuers' case in relation to the removal reads:

"In the course of those works the defenders' employees cut supply pipes which had been feeding the previous cooker installation. As a result, substantial quantities of kerosene spilled onto the kitchen floor and along the 'wall'."

Further, it is averred that at no time prior to the carrying out of the works was there present within the premises any smell of kerosene, but following upon the carrying out of the works the presence of the smell was readily apparent and "with areas where kerosene was obvious" (sic). The pursuers' further factual averments read "the first pursuers' oil tank required to be replaced as did the related pipework ... The first pursuers lost approximately 144 gallons of kerosene". The pursuers' case of fault in relation to the contract between them and the defenders was taken thus:

"It was an implied term of the contract that the defenders would not carry out the works in a manner which would give rise to the risk of damage to the pursuers' property. It was an implied term of the contract that the defenders would not cut piping in a manner which would give rise to such damage".

The common law case pled in relation to the fault of the defenders' employees was:

"It was their duty not to carry out the works in a manner which was likely to give rise to damage to the pursuers' property. It was their duty not to cut pipes which were carrying kerosene".

2. The defenders, while admitting that there was a small spillage of about half a pint of oil which had been trapped in the old pipeline, averred that this was not spilled in the kitchen but in the hallway or porch adjacent to the front door. They further averred that on removal of the old AGA, evidence of a long-standing leak was found. The size of the old pipe was such that, even if it was half an inch in diameter, the quantity of oil contained in the pipe would have been no more than 0.24 litres. The defenders make other averments suggesting that there had been a leak from the tank.

The general background facts
[5] The defenders contracted in October 1994 to replace with a new AGA cooker a venerable cooker and boiler which had originally been coal fired but at some stage converted to burn kerosene. In 1994 the pursuers had noted problems with the insulation inside the cooker. That insulation was replaced and thereafter the second pursuer began her series of complaints connected with the cooking appliances in the farmhouse. Her initial complaint was of fumes from the old AGA which arose she said after the work had been done to the insulation. She was adamant that these were "flue fumes" and not raw kerosene. In the course of the work to replace the insulation, however, it is probable that a control box was left out of level. Such a box was a small open container for kerosene.

3. The kerosene was supplied to the old cooker from a tank outside the farmhouse. It stood on metal legs at a height equivalent to the ceiling level of the porch. The kerosene was fed to the cooker and boiler by gravity. A cast iron pipe led from the tank along the wall of the porch of the farmhouse at a height of about 7-8 feet, descended then ran behind a door-facing to the step from the porch into the kitchen. Thence it ascended into the kitchen and ran along the kitchen wall behind an electric cooker to the concrete plinth upon which the old AGA stood. The feed pipe, by the stage it reached the cooker, was composed of copper. There were valves and a T-junction on the porch side of the cooker and the feed pipe thereafter split, one part going to a control box feeding the burner at the oven side of the cooker and the other proceeding along the front of the plinth to the other side of the cooker where the control box for the burner for the boiler was situated. The witnesses from the defenders were unable precisely to recall the progress of the pipe from the cooker to the boiler. One thought that, as would have been normal, it would have proceeded along the back of the AGA. However, the cooker had been converted from coal burning and it appeared that it had not been removed for a pipe to be installed behind it. I did not regard this matter as materially affecting the general reliability of the defenders' installers although it did indicate that care required to be taken to distinguish what usually happened with what actually happened during the events in question.
4. The old tank and feed pipe were to be replaced with a new tank and feed pipe at a different location, thus making the pipe above described redundant and requiring to be removed. The works preparatory to the installation of the new tank and piping were done by a Mr Aitchison to whom reference is made hereafter. The old AGA was removed on 13 December. Mr Aitchison, who was present, assisted the defenders' employees to remove the boiler section. The plinth whereon the AGA had stood was left exposed on the said first day. The redundant pipe work was removed on 15 December. The pipe work at the plinth had by then been disconnected or severed for a period of in excess of 24 hours. No spillage of kerosene from the contents of the pipe was noticed during that time.
5. On 15 December the remaining pipe work was removed by being cut in sections. When the pipe required to be cut at its lowest point which was at or just outside the step from the porch into the kitchen some oil escaped. This required to be and was mopped up. The only other evidence of any spillage of oil during the course of the removal was from Mr Aitchison who said that about a quarter of a pint of kerosene had spilled onto the plinth when the boiler was removed but that was mopped up at the time.
6. After the installation of the new AGA was completed, Mr Aitchison returned to build a cupboard between the new cooker and the electric cooker on the porch side of the plinth. There was no spill and he noticed no kerosene smell at the time of that operation during which, inevitably, his face was close to the floor, kitchen wall and plinth where the pipes had been. The new AGA was removed by the defenders in January 1995.
7. Some time thereafter evidence was found within the structure of the building of a presence of kerosene sufficient to produce a noticeable smell. Various efforts, including treatment of the wall with applied detergent, were made to endeavour to remove that smell. The carpeting was subjected to chemical cleaners. In mid-1995 after core samples were taken which showed presence of a pungent vapour, Mr Colin Young excavated and removed an area of the kitchen floor. He found 10 feet of the wall and the floor one foot from the wall to have been contaminated. He came to the kitchen after another firm had removed the plinth and part of the floor. He removed a large quantity of material which he said he had taken out by the barrow load. He took out the material until he did not sense a smell in the material he was handling. It was thought that his operations had in fact cured the problem and Mrs Morton expressed herself satisfied at that time. Prior to Mr Young's arrival a firm Equibuild UK Ltd had removed the AGA plinth, excavated and then back-filled to the solum. This was to cope with the effects of oil spillage.
8. In 1998 Mrs Morton still sensed a smell of kerosene and yet another firm was called in to give quotation and to carry out works. They carried out extensive works, in some instances re-doing the work of Mr Young. Their investigations by way of boreholes and removal of material indicated that there had been kerosene which had lain trapped on the clay sub-soil and had by capillary attraction again contaminated the wall. It was thought that at least two litres must have penetrated the building as far as the solum beneath the structure.

The evidence of the Morton family
[12] The court heard evidence, principally from Mrs Morton, but also from her husband and daughter. In relation to Mrs Morton's evidence the approach taken by her counsel, as I noted him, was that the court would have to determine whether Mrs Morton's evidence about the extent of the signs of spillage was deliberately unreliable or merely an exaggeration explicable by the passage of time. Mrs Morton had given evidence about the leakage at the porch door describing that event as "oil flowed out"; she said that kerosene was running down the walls when the pipe was cut and the worst was at the end nearest the tank. She said that on 26 December she opened Mr Aitchison's cupboard and "it was flooded with kerosene". She said that she saw liquid kerosene on top of linoleum completely covering it to a depth and seeping into the wood of the cupboard. The carpet was saturated. There was, she said, "a pool of oil" discovered in 1998 in the solum of the house and she claimed that her health had been affected by all this. She also said, however, that she went into the kitchen after 4.00pm on the first day of the defenders' works. The cooker had been removed but she did not see any problem. The kerosene, she said, was coming up from the floor after the old pipes were removed altogether. She also noted fumes emanating from her first new Stanley cooker which was replaced. She was adamant that these fumes were of a different character from kerosene and stated that it was only after the defenders' activities that the smell of kerosene became apparent in the house.

9. Mr Morton's evidence was to the effect that he could not smell kerosene from the old cooker, that there was a pool of oil in the new cupboard which was all wet, that there was oil on the wall and on the carpet at the kitchen door. He agreed that there were signs of spillage on the plinth. The tiles were coming off the plinth after the new AGA was taken away.
10. Ruth Morton claimed that she could smell and see kerosene on the carpet around the kitchen door. She did not notice that smell until two weeks had elapsed after the removal of the pipe. She could not remember seeing kerosene anywhere other than at the step into the kitchen.

The defenders' evidence in relation to spillage
[15] The men involved in the removal of the original cooker gave evidence. James Cannon was present throughout the three days. He thought he had been there for four days. On days 1 and 3 he was with Mr Richard Davies and on days 2 and 3 with Mr McCutcheon. Mr Cannon claimed to have cut the pipe for its removal. Mr McCutcheon said that it was Mr Cannon's job to do so. Mr Richard Davies was present on day 1 and active in removing the old appliance. He spoke to a number of stains seen on the plinth after removal. He said that he had cut and capped a pipe at the plinth. The other pipe was capped or folded over at appropriate places. Mr McCutcheon who arrived on the second day installed and built the new AGA. The pipe at the porch was cut the day he was there. There was a seepage and he went to get rags. Basically, he said, there was just what was lying in the pipe, it was not gushing out and there was no other spillage when he was present. He said that there would be bound to be some leakage of oil when a pipe was cut but the quantity which he observed was small. None of these witnesses is presently employed by the defenders. A question arose as to whether one or any of these witnesses had been reprimanded by Mr McMeeking, the principal of the defenders, as was indicated in a letter Mr McMeeking wrote to Mrs Morton dated 4 January 1995 in which he said that he treated the situation very seriously and the operator concerned has been severely reprimanded for his actions. None of the operators said that they recalled being severely reprimanded and Mr McMeeking himself indicated that he had written his letter in an attempt to calm Mrs Morton down. His letter followed a letter to him dated 2 January 1995 from Mrs Morton in which she stated:

"It has become obvious that kerosene from the old pipes and control boxes of the old AGA system has been allowed to flow out onto the area below and around the site".

She said that the vapours were carcinogenic; that the trouble had been caused by neglecting to drain the old kerosene out of the old pipes, etc. before removal of the old appliance and complained about Mr McMeeking not treating the problem seriously.

11. While I accept that it is possible that the operators might have been challenged by Mr McMeeking about the events, I do not believe that there was a "severe reprimand". In addition, by that stage Mrs Morton had stopped the company's cheque to the defenders and wished that the new AGA be removed because, she said, it had become clear that there is old kerosene under the new AGA also. Mr McMeeking thereafter decided that he wished no further dealings with Mrs Morton. He removed his new AGA and left her to her own devices.

Submissions for pursuers
[17] It was submitted for the pursuers that the question for the court was how did a substantial quantity of kerosene get into the floor and walls of the farmhouse and when did that happen. The alternative spillage theory proffered by the defenders was not likely or established and there was no cause, on the balance of probabilities, for the presence of kerosene other than through the defenders' actings. The pipe had been left with an end not sealed against the passage of kerosene. A smell would be expected if there was such a leak but it only became apparent when the work had been completed.

Submissions for defenders
[18] The defenders principally rested on the proposition that it had not been proved by the pursuers as a matter of fact that the presence of kerosene in the fabric of the building was caused by the defenders' activity in cutting pipes. There might well have been other spillages in the kitchen area at any time, particularly in the light of the contaminant's re-appearance after some three years.

Decision
[19] I did not accept Mrs Morton as a credible or reliable witness. Her attitude throughout the whole events points to some exaggeration, but I hold that she was telling a deliberate untruth when she sought to persuade the court that there was a pool of kerosene at a depth on top of linoleum in the newly built cupboard. It is possible, accepting the evidence of Dr Cairns, an expert on concrete, that by way of capillary attraction some trace of kerosene might have become apparent on a concrete surface and, more particularly, on an area between linoleum and the concrete surface, depending on the porosity or otherwise of the concrete but there could be a pool of kerosene to a depth sitting on top of linoleum within the cupboard only if some kerosene other than that established to have emerged from the cut pipes had been introduced. Accordingly, I am not persuaded that I can accept the family evidence that there was no kerosene smell apparent prior to the removal of the old AGA. Secondly, the plinth on which the old AGA sat, was found to be sufficiently saturated to require to be removed by Messrs Equibuild but the only evidence of spillage on the plinth at the time of removal came from Mr Aitchison, a thoroughly reliable and credible witness, who spoke to a small quantity being mopped up. There was evidence from the defenders' employees, which I accept, that the plinth was stained and I find that there had been leakage of kerosene for some considerable time into the plinth area from the old AGA. There was evidence that this could occur, the control boxes could overflow, the joints could weep, the boxes themselves might not be level, the last being a matter which Mr Young appeared to think was the case. I find that the saturation of the plinth and on the balance of probabilities the underfloor area surrounding it had no connection with the cutting of the pipes on the first or third day of the defenders operation. It is significant that there was no evidence of a leak from a pipe near the plinth on any day, the only evidence was of a spill at an area completely separate from the area which was later said to have been contaminated and had visible kerosene. I hold that the spillage which occurred at the kitchen doorway was of small quantity and was dealt with sufficiently to exclude it from being the source of the subsequently found contamination. No doubt it caused some damage to floor coverings there but there is no question of negligence in that regard. Spillage to a minor degree is an inevitable consequence of the removal of the pipes as they had been installed. There would have been some residual kerosene in them. It was not suggested on behalf of the pursuers that such minor spillage would entitle them to the decree they concluded for.

12. No negligence is established against the defenders' employees. There was no evidence as to how this matter might properly have been dealt with and I cannot find the individual workmen negligent if there is some spillage as opposed to copious quantities of spillage involved in the operation.
13. In relation to the case based on implied terms of contract between the parties, the only material averment is that the defenders should not cut piping in a manner which would give rise to damage. In relation to the small spillage, that is too absolute, but in any event I find it positively disproved that the activities of the defenders upon the piping at the plinth and over the kitchen floor area were such as to cause copious quantities of spillage. The pipes were disconnected from the cooker on day 1. They were, according to the defenders' employees, sealed at that time if left in place at the wall. Mrs Morton herself neither saw nor smelt anything amiss on day 1 after the AGA cooker had been removed. Had there been a gush of quantities of oil at that time I feel sure she would have seen it or at least smelt it given her olfactory sensitivity. More specifically, the fact that Mr Aitchison noted nothing when building a cupboard adjacent to the plinth means, in my view, that whatever may have happened subsequent to the removal of the pipe which caused the timber at the foot of his cupboard to become contaminated, it had nothing to do with the actual cutting of pipes. That is the only case made by the pursuers and it fails from want of proof.

Other matters
[22] While the above finding entitles the defenders to absolvitor it is appropriate that I should, in case matters go further, deal with the question of damages and personal injury.

(1) Damages for the first pursuers
[23] The pursuers were not allowed to amend to make averments about the costs of the 1998 works. That left claims for payments made to Equibuild UK Ltd, Carpetwise, William Young Kilmarnock Ltd and Russell Preservation. Claims were also made for enhanced heating costs and telephone bills but no attempt was made properly to assess what additional costs if any were incurred by the pursuers as a farming company as opposed to costs of personal use by the Morton family. There was no proof as to what extra heating costs which were not family expenses were incurred nor how any such alleged additional costs could be a company expense. Accordingly I would not have been satisfied, had the pursuers proved that they had sustained property damage because of an oil spillage in the kitchen area of the farmhouse as opposed to the porch, that anything was due to the company in that regard. There are similar difficulties in relation to the carpet and linoleum invoices. This was the Morton's dwellinghouse and each of these items cannot properly be at least wholly company costs. Had it been established that the carpet and linoleum were properly company property I would not have considered it appropriate to make any allowance for betterment. With regard to the other costs, the building costs to the various firms and to Russell Preservation in their attempts to rectify the situation would all in my view have been reasonably incurred and flow from the damage. On the other hand, since these are, on that basis, company costs and the company is registered for VAT which has doubtless either been reclaimed by the company or their insurers, the amounts that I would have found due would be: Equibuild, £743; Carpetwise, £1160.08 less VAT of £165.73; Russell Preservation, £510 less VAT of £75.96; and William Young Kilmarnock Ltd, £2198.02. Interest would be due on each of the said sums at the rate of 8 per centum per annum from the dates of payment disclosed in the joint minute of admissions.

Mrs Morton
[24] Mrs Morton claimed to have sustained injury by way of respiratory effects. She was referred to Crosshouse Hospital by her GP complaining of wheezing occurring when she went into the kitchen for a period of some six months. However, this was not her first attack of wheezing or chest problems, nor indeed was it her last because in 1999 she went to Crosshouse Hospital complaining of tightness in her throat "when the pressure cooker is on" (referring to the Stanley cooker from which, on one occasion, as was said, kerosene leaked). The defenders had her examined by Dr Graham Compton, a distinguished chest physician. His report commenced with the observation that he had difficulty obtaining a satisfactory history since the pursuer was initially reluctant to tell him about her respiratory symptoms. She told him that she had developed a mistrust of solicitors and doctors and did not want to provide him with any information because it might prejudice her case. With some reluctance she disclosed her medical history. She had had bronchitis as a child, severe asthma on holidays, sinus problems while at college and significant respiratory problems which were noted prior to December 1994 by which date she was 52 years of age. Dr Crompton's comment was that the history he was given was different from that contained in the hospital and general practitioner's records and in particular that there was evidence from the GP's records that she was being treated with an inhaler prior to December 1994. His view was that it was possible that exposure to kerosene fumes might have had a mild irritant effect but that her prolonged symptoms were not caused by continuing exposure to kerosene. I accept that report and its opinion and content which were confirmed by his evidence. Nothing Mrs Morton said in evidence would cause the court to take any different view and on the basis that there was a mild irritant effect in an already severely compromised respiratory system I would have assessed the damages due for the event in question at £1,000.

Ruth Morton
[25] Ruth Morton was referred to Crosshouse Hospital on 9 May 1995 with a four-month history of a cough. The medical report from that hospital to Dr Gold, the GP, following the reference, was that Dr McDonald felt that the cough she had was unlikely to be related to kerosene spillage. She did not have asthma because the tests which would have disclosed that had failed to do so. Dr Crompton's report (7/18) was to the same effect giving the opinion, on balance of probabilities, that Miss Morton developed a respiratory infection which caused the prolonged cough. He did not think that is was caused by kerosene since it spontaneously improved during a time when kerosene was still present in the farmhouse in which she lived. I accept Dr Crompton's report to which he spoke in evidence.

14. Accordingly, I would not have found that Miss Morton had proved that she had sustained any damage as a result of the spillage of kerosene and would have assoilzied the defenders from her claim, even if it had been proved that the spillage of kerosene was negligent.

Conclusion
[27] The pursuers having failed to establish that there was any spillage of kerosene of the quantity and in the manner averred are entitled to absolvitor. I shall accordingly repel the pursuers' pleas-in-law and sustain the fourth and fifth pleas-in-law for the defenders.