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Cite as: [2005] CSOH 120, [2005] ScotCS CSOH_120, 2006 SLT 769

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Collins & Anor v. Scottish Homes & Anor [2005] ScotCS CSOH_120 (09 September 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 120

A727/03

OPINION OF LORD BRACADALE

in the cause

MARY COLLINS AND ANOTHER

Pursuers;

against

SCOTTISH HOMES AND ANOTHER

Defenders:

________________

Pursuers: Kelly; Drummond Miller, W.S.

First Defenders: Henderson; Gilfedder & McInnes

Second Defenders: Connal, Q.C.; McGrigors

9 September 2005

Introduction
[1] This case came before me for a discussion on the procedure roll on the first and second pleas-in-law for the first defenders and the first plea-in-law for the second defenders. Mr Connal, Q.C., on behalf of the second defenders, reserved his position in relation to the fifth plea-in-law for the second defenders.

[2] The first pursuer and the second pursuer, who is the son of the first pursuer and was born on 2 July 1989, lived in a house at 13 Burnside Road, Gorebridge, Midlothian. The first pursuer was the tenant of the house and between 1991 and 1995 the first defenders were her landlords. From 30 October 1995 onwards the second defenders were her landlords.

[3] The pursuers claim that through the fault of the defenders between 1991 and 2000 they suffered carbon monoxide poisoning from fumes from the gas fire in the living room of the house.

[4] Counsel for each of the defenders mounted a wide-ranging attack on the pursuers' pleadings. It is convenient to deal separately with the criticisms of the factual averments, the averments of fault, the averments of loss and the question of time-bar.

1. The Factual Averments: Articles 3 and 4 of Condescendence

[5] The first part of article 3 provides some historical background about the gas fire. The pursuers aver that from 1991 to 1993 the gas fire in the living room was the only source of heat in the house for the pursuers. The gas fire had been installed where a coal fire had been. The existing masonry flue had been reused. In about 1992 an engineer attended at the house in order to service the gas fire. The gas service engineer placed a safety notice on the gas fire. The engineer changed the gas fire for another one but did not undertake any work behind the fire where the gas supply was fitted to the fire. The replacement fire was a reconditioned one. The engineer would not disclose to the first pursuer the reason for imposing the safety notice and changing the gas fire, but simply assured her that there was nothing for her to worry about. In 1993 the first defenders installed a central heating system. All of the gas installations in the house were thereafter serviced together. It is averred that in cold weather the pursuers spent a great deal of time in the sitting room with the gas fire on. In relation to the second pursuer in particular it is averred that as a baby and until about the age of two years he was placed in front of the fire to keep warm and while being bathed.

[6] The averments then move on to deal with the production of carbon monoxide and the defects associated with the fire. It was to this part of article 3 and similar aspects of article 4 and other parts of the pleadings that the main thrust of the defenders' attack on the pursuers' pleadings was directed. It is averred that carbon monoxide is formed due to incomplete combustion. It is commonly caused by lack of oxygen. Lack of oxygen is caused by restrictions to the supply of air to the burner. The gas fire in the house and its fittings had defects which restricted the air supply and which prevented the carbon monoxide fumes from venting to the open air. Until 2000 the maintenance of the fire and its fittings did not remedy such defects. Throughout that period the catchment area was not sealed. The throat plate was in the closed position preventing fumes from entering the flue. The back boiler had not been removed. There was no permanent ventilation in the livingroom. The closure plate was never removed from the wall even during servicing.

[7] It is further averred that the first part of any gas inspection carried out by the defenders or on their behalf ought to have been to remove the fire from the wall in order that the flue and catchment area could have been checked. Had the fire been so removed the defects would have been immediately apparent. The defenders continued to expose the pursuers to carbon monoxide poisoning from escaping gas until 2000. They changed their gas inspectors to McDougall & Partner, Charlotte Dundas House, Dalgrain Road, Grangemouth. On 28 June 2000 McDougall & Partner forthwith issued a warning notice stating that the Sea Fire 3 gas fire was unfit for use due to failure of the flue performance. They stated that the catchment area and the back boiler would have to be cleared out and the throat plate removed since it was preventing fumes from entering the flue. The catchment area contained debris and required to be dug out. The debris had been present throughout the period until 2000. The catchment area had to be enlarged. Prior to that time it provided insufficient space. The minimum safe void should have a volume of 12,000 cubic centimetres as provided in Corgi Essential Gas Safety, Chapter 13. The hole in the brick leading to the void was around 4 square inches which was insufficient to allow those servicing the fire to clean out the void and to provide access for maintaining the flue. The closure plate at the back of the fire was not adequately sealed so as to prevent air leakage. The said defects had been in place throughout the pursuers' occupancy of the property. A report by A Brock (Builders) instructed by the first pursuer reiterated said problems and stated that said faults should have been observed years earlier when the fire was serviced. A report was commissioned by the second defenders from MFH Service Quality Management Limited who carried out alterations on 25 October 2000. A 15mm copper piping supplying the three appliances was replaced with 22mm piping. The gas fire was changed from wall mounted to hearth standing. A new isolation box was installed below the fire. The fire closure plate was renewed. The original plate had two air relief holes, but ought to have had one 36mm square hole. This would have allowed leakage to occur and would have affected the flue's performance. The fire casing was substandard. The fire tap handle was loose and a spring clip inside the tap was missing. Shortly thereafter the second defenders put in an air vent. Subsequently the second defenders installed carbon monoxide detectors. Had there been an air vent in the premises it is likely that the pursuers' exposure to carbon monoxide poisoning from escaping gas would have been lessened. Had there been a carbon monoxide detector installed it is likely that the escape of gas would have been drawn to the attention of the pursuers.

[8] In article 4 it is averred that carbon monoxide is a colourless, odourless, tasteless and deadly gas. Three circumstances are identified in which carbon monoxide is produced: if oxygen is limited during combustion; if the burning process is disrupted; or if the venting process is impeded. Exposure to a low concentration of carbon monoxide over a long time results in similar blood levels to a high concentration for a short time. The flue fitted in the said property was inadequate and the throat plate resulted in the failure of the fumes to enter into the flue and to be vented to the outside. Whenever the sitting room fire was in use carbon monoxide was released into the premises and breathed in by those in the room. It is averred that the defenders could have reduced the risk to the pursuers from exposure to carbon monoxide by efficient servicing off the gas appliances, by inspection, repair and replacement as necessary of the vent system and by checking the house for a depressurisation leading to possible downdrafting.

[9] Reference is then made to BS5871: Part 1: 1991 "Installation for gas fires, convector heaters, fire/back boilers and decorative fuel effect gas appliances". Section 9.2 states that any chimney previously used for an appliance burning a fuel other than gas requires to be swept thoroughly before installing any gas appliance. It further states that the base of the flue requires to be clear of debris before installing an appliance. Section 10.3.2 states that the closure plate requires to be sealed to the fireplace wall of the fire surround in order to eliminate the entry of excess air into the flue. It further states that any modification to a closure plate requires to be in accordance with the manufacturer's instructions.

[10] Reference is made to BS 5440 - 2; 1998 "Installation of flues and ventilation for gas appliances". Section 4.3.1 states that where an open-flued appliance with a rated input exceeding 7kW is installed in a room or internal space a permanent opening requires to be provided. In domestic premises that opening requires to be an air vent. For fires with a rated input less than 7kW, which includes most domestic fires, the provision of such a vent was good practice.

[11] The Code of Practice to the Building Standards (Scotland) Regulations 1990, Part F, section F5.3 states that a room or space containing an appliance must have adequate permanent ventilation, either direct to the open air or to an adjoining space which is itself permanently ventilated to the open air. It is averred that since 1990 the defenders knew or ought to have known of the danger of having a gas fire in a home where the fire was not vented to the open air.

The submissions on the factual averments
[12] The central criticism advanced by counsel for both defenders in relation to articles 3 and 4 was that there was no fair notice of what had caused the carbon monoxide to escape into the living room. It was not clear from the pleadings what the pursuers were claiming had caused the incomplete combustion. There were general comments about defects associated with the gas fire but no notice was given of the mechanism whereby carbon monoxide leaked into the room. Any number of theories might be advanced in proof. Mr Connal submitted that the pursuers' averments amounted to a list of items said to relate in some way to the gas fire or the chimney and flue construction. From this the court was expected to try to work out what these have to do with carbon monoxide. The pleadings produced a list of complaints which seemed to have something to do with a gas fire, but not to the complaint which was the cause of the action. In addition, both counsel criticised the reference to the second pursuer as a baby. He was in his second year when the initial lease was entered into.

[13] Mr Connal submitted that it would be difficult to extract individual elements that could be admitted to probation. The pleadings were so unsatisfactory that they should be refused probation in their entirety.

[14] Mr Connal criticised the pleadings for the failure to make any distinction between the two defenders. This was not just a technicality. For example, reference was made to duties with respect to installation, that is to say the original work. There was no suggestion that the second defenders had installed anything.

[15] In reply, Mr Kelly, on behalf of the pursuers, submitted that there was adequate notice as to how it was maintained that carbon monoxide was present. He submitted that if any of the defects pled were material and if they were matters which the defenders ought to have noted and rectified, then there was fault. It was not correct to say that there was a dominant cause. All that the pursuers needed to show was that one of these causes was material. There were defects which indicated that there was restriction of oxygen and defects which prevented or reduced the carbon monoxide from being vented. There was a general explanation given as to how carbon monoxide was formed. There were defects identified and it was clear on a fair reading that these were being expressed because they had a contributory effect. These were defects which could have been prevented if the defenders had properly maintained the property and steps had been taken with respect to venting air and providing gas detectors. While there was no legal requirement for these, if available and if they rendered the house safe and could reasonably have been carried out, then they were relevant.

[16] With respect to the criticisms of reference to the baby, Mr Kelly submitted that some latitude should be allowed as to what was described as a baby. The second pursuer's date of birth was July 1989. It was not clear when in 1991 the tenancy commenced, but the child would still have been very young. The general approach was that until about the age of 2 he was in front of the fire.

[17] Mr Kelly submitted that the references in article 4 to British Standards were relevant to the question as to what the defenders ought to have known at the time. This was background material which indicated what was known at the time in the industry with respect to such gas fires.

Discussion on the factual averments
[18] There is, in my opinion, much force in the general criticisms of the pleadings in articles 3 and 4 advanced by counsel for the defenders. I cannot agree with Mr Kelly's assertion that the pursuers have clearly set out their case. The factual averments are characterised by lack of order, confusion and a failure adequately to relate individual elements to the thread of the pursuers' account of what happened. In addition, there is a good deal of carelessness in the pleadings generally in differentiating between the responsibilities of each of the defenders.

[19] However, looking at the whole pleadings and reading the averments of fact in articles 3 and 4 in the light of the whole pleadings, and applying the test set out in the speech of Lord Normand Jamieson v Jamieson 1952 SC (HL) 44 at p. 50, namely, "that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved" I am unable to say at this stage that the factual basis of the case is entirely irrelevant. It seems to me that the pursuers have advanced a relevant case based on the existence of defects which restricted the air supply and prevented carbon monoxide from venting to the open air in the living room exposing the pursuers to inhalation of the poisonous gas. Most of the relevant specific averments appear to relate to the question of venting. With respect to some of the averments, though they seem to me to be of doubtful relevance, I am unable to form a conclusion as to their relevance without hearing evidence. However, there are several averments which, even on a generous reading of the pleadings, are not relevantly linked to the general proposition that carbon monoxide entered the living room because of restriction of the air supply and inadequate venting. For that reason I consider that the following averments should not be admitted to probation:

Article3:

p. 6D: "the back boiler had not been removed"

p. 6E: "and the back boiler"

p. 7A-B: "The hole in the brick leading to the void was around 4 square inches which was insufficient to allow those servicing the fire to clean out the void and to provide access for maintaining the flue."

p. 7B-C: "The 15mm copper piping supplying the three appliances was replaced with 22mm piping. The gas fire was changed from wall mounted to hearth standing. A new isolation box was installed below the fire."

p. 7C: "The fire casing was substandard. The fire tap handle was loose and a spring clip inside the tap was missing."

Article 4:

p. 10A: "and by checking the house for a depressurisation leading to possible downdrafting."

2. The Averments of Fault: Articles 5 & 6 of Condescendence

Submissions and discussion
[20] In article 5 the pursuers aver that their condition was caused by a breach of the contractual duties of each of the defenders under their respective tenancy agreements. The pursuers have produced the tenancy agreement between the second defenders and the first pursuer and incorporated it in article 2. It is averred in article 5 that the first defenders had given the pursuers an assured tenancy in similar terms to that between the second defenders and the pursuers. Mr Kelly explained that the first defenders had undertaken certain researches and confirmed that there were no records because these would have been passed to the second defenders. An attempt had been made to see if the second defenders held these. A specification had been lodged seeking to recover the Agreement but there had been no response.

[21] Mr Henderson criticised the failure of the pursuers to produce the agreement between the pursuers and the first defenders. It was not good enough for the pursuers to rely on the fact that the contract with the second defenders had been produced. It was necessary to be able to have regard to the terms of the contract between the pursuer and the first defenders. The scope of duties might well have changed from time to time. In addition, Mr Henderson submitted that there was a lack of specification in Article 5.

[22] In the circumstances I am not impressed by Mr Henderson's submission. It seems to me that a public body such as the first defenders whose function was to provide homes for letting must have known the terms of their tenancy agreements. In McDonald v Glasgow Western Hospital 1954 S.C. 453 at p.465 Lord Cooper said:

"I pause to deal with a point of pleading taken by the Board, viz., that the pursuer's averments are lacking in specification in respect that full particulars are not stated as to the precise terms of the house surgeon's contract and the extent of the control and authority enjoyed by the Board over him. This objection seems to me to come with an ill grace from a state authority to the representatives of a patient under the state scheme. The plea of lack of specification finds its proper application in a case where a defender does not know the case to be made against him and objects to being taken by surprise at the proof. In this instance the Board and their house surgeon know perfectly well what their contract was and how it operated, and the pursuer cannot know these things except by obtaining information from the defenders. I am unimpressed by this objection and am surprised that it was taken."

[23] Mr Connal submitted that, as the tenancy agreement was with the first pursuer, a breach of the agreement would be irrelevant to the claim of the second pursuer. Not only was this point not raised in the pleadings it was not foreshadowed in the Note of Arguments. I do not consider it to be well founded.

[24] In relation to article 6 Mr Henderson pointed out that the Gas Safety (Installation and Use) Regulations 1994 Regulation 26(9) came into force on 31 October 1994, by which time the first defenders had ceased to be landlords. Further, there was nothing in the pleadings to show that civil liability was imposed by these regulations. It is necessary to have coherent averments as to why someone suffered as a result of a breach of statutory duty. Both counsel submitted that there was a lack of specification as to the responsibilities of the defenders.

[25] While I consider that the averments in article 6 reflect the observation that I made earlier about the carelessness in the pursuers' pleadings in differentiating between the responsibilities of each of the defenders, I am of the view that, when this article is read in conjunction with the pleadings as a whole, each of the defenders is given sufficient notice of the respective statutory cases of fault against them. In the light of the conclusions to which I have come in relation to the averments of fact, I am unable to hold at this stage that the averments of fault are irrelevant.

3. The Averments of Loss: Article 7 of Condescendence

Submissions and discussion
[26] Both counsel advanced criticisms of the averments of loss in article 7. There was a lack of specification as to what had been suffered by the pursuers. There was an absence of fixing the time when events happened. It was not a relevant approach to list medical complaints, take an arithmetical tally of every attendance at the doctor and then say that about a third of them were due to carbon monoxide. There was an absence of specification with respect to depression. There was a lack of specification as to wage loss.

[27] Mr Kelly submitted that the averments of medical symptoms were clearly set out and that collectively they described a classic account of carbon monoxide poisoning. The general practitioner would be in the best position to give an account and explain the various attendances. So far as lack of specification of wage loss was concerned the pursuer required to take a general approach. Attempts had been made to obtain more specific information but records had been destroyed in a fire.

[28] I am satisfied that the pursuers have set out adequate averments of loss. They seem to me to give the defenders sufficient notice of the loss claimed by the pursuers.

4. Time-bar

Submissions
[29] The summons was served in March 2003. Mr Henderson submitted that so far as the first pursuer was concerned the action against the first defenders was time-barred by virtue of section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). Mr Henderson submitted that the right of the first pursuer to sue the first defenders ceased in 1995. In the light of the symptoms which she claimed to have suffered and the safety notice put on the fire in 1992 the first pursuer knew or ought to have known that there was an escape of carbon monoxide and that her symptoms were caused by exposure to carbon monoxide gas. No reason was advanced by the first pursuer as to why the first safety notice should not have made the pursuer aware of the problem. So far as the application of section 19A of the 1973 Act was concerned Mr Henderson submitted that that section was typically available in cases where the time-bar had just been missed. It would not apply in a case where a party had ceased to be the landlord in 1995 and was to be exposed to a claim in an action commenced in 2003.

[30] In reply Mr Kelly referred to the first pursuer's averments that it was not until McDougall & Partner issued a warning notice on 28 June 2000 that the first pursuer was aware of a defective gas installation in the property. In 1992 the engineer had assured her that there was nothing to worry about. Carbon monoxide is a colourless odourless gas. The symptoms experienced from exposure to carbon monoxide poisoning such as lethargy, fatigue and nausea did not immediately direct the sufferer to the cause. As the pursuers could not smell the gas they did not know that they were being exposed to it. After the warning notice of 28 June 2000 the first pursuer considered whether the exposure to carbon monoxide poisoning from escaping gas could have caused the pursuers' symptoms. On 17 August 2000 she consulted her doctor who considered it to be a possibility. She consulted solicitors. It was not until 30 November 2001 that a report was compiled by biochemical and engineering consultants advising that both pursuers had classic symptoms of carbon monoxide poisoning. Therefore until 30 November 2001 the first pursuer was unaware that her condition was attributable to the first defenders' acts or omissions.

[31] Mr Kelly further submitted that, if the case was time-barred under section 17 of the 1973 Act, the equitable jurisdiction under section 19A of the 1973 Act should be exercised. The only change in relation to the defenders was in relation to the second defenders taking over the housing stock of the first defenders. The first pursuer would be prejudiced if the action was dismissed. She would lose her right to compensation from those responsible for her loss, injury and damage. The defenders would not be prejudiced by allowing the action to proceed. The condition of the property remained the same until 2000. As the second pursuer is entitled to raise an action at any time until 2 July 2008 the defenders would require to investigate the circumstances of his claim and would not be prejudiced by having to investigate the related claim of the first pursuer.

Discussion

[32] Section 17 of the 1973 Act provides:

"(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after--

(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or

(b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts--

(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;

(ii) that the injuries were attributable in whole or in part to an act or omission; and

(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind."

[33] I am unable at this stage to conclude that the first pursuer's claim is time barred under section 17. The pursuer's averments as to the history of events seems to me to set out a relevant basis upon which she can claim that it was not until 31 November 2001 that the injuries were attributable in whole or in part to an act or omission of the first defenders (section 17(2)(b)(ii) and (iii)). I am of the opinion that the question as to whether the first pursuer's claim is time barred under section 17 cannot be answered until evidence of that history of events has been led in a proof before answer.

[34] As to the possible application of section 19A I note that the second defenders took over the function and housing stock of the first defenders. I note also that the second pursuer's claim is clearly not time barred and will consequently require to be investigated by the first defenders. In these circumstances I am of the view that, in any event, it would be appropriate to exercise the equitable provision of section 19A.