Scottish Court of Session Decisions

Cause or causes of the surface water problems affecting the pitches

General

"... the basic problem with the surface is that the dynamic base has sealed and is impervious to water. ... The reason for this is that the clay content in the top regulating layer under the geotextile membrane is high and is forming a barrier to the passage of water into the Type 1 base. ... From inspection, we would also have reservations on the quality of the Type 1 material which also seems to be contaminated and resistant to the passage of water."

In February 1998, in dry conditions, the pursuers' architectural expert Gordon Gibb inspected the exposed top of the sub-base after lifting a corner of the "carpet" or artificial pitch surface. He found that this was damp, taking on the appearance of wet concrete, and furthermore that it had the consistency of fine sand with no aggregate visible. The material appeared waterlogged and did not look as if it had the characteristics of a good draining medium. In a letter to the pursuers dated 9 September 1998 (no.6/65 of process), ETC's operations director Mr Sheard drew attention to what he described as "discrepancies in the planarity" of the subjacent clay surface, and continued:-

"The depth of the sub-base also varies and is contaminated with clay and fines which decrease its porosity. The fine grade dynamic layer is also dense and is not as porous as we would prefer. ... The combined effect of the different situations described above is to produce a slow draining playing surface".

Mr Kidd's evidence

Pattern of ponding in 1995 and 1996

Permeability

Interim conclusion

External contamination theory - general

Site visit of 2 June 2005

Mr Tipp's conclusion

Discussion

(i) Mr Tipp's conclusions are based on extrapolation from a single trial pit dug on 2 June 2005 in the north-east corner of the development. As he accepted, this was not an ideal situation. Questions must inevitably arise as to whether the state of the sub-base at that point was typical of the remainder, or whether the observed water flow conditions were merely localised phenomena. I note that even after most of the surface water had drained away on 2 June 2005, Mr Tipp did not take the opportunity of digging further trial pits, nor did he return on any subsequent date to check whether his observations and conclusions could be maintained in drier conditions or at different parts of the pitch construction.

(ii) Mr Tipp was unable to explain the delayed appearance of discoloured water in the north-east corner of the development some thirty minutes after the trial pit was dug. At one stage it was suggested to him that this might have had something to do with the high-pressure jetting that was going on nearby, but in the end the matter remained unresolved.

(iii) As mentioned in paragraph [34] above, discoloured water at approximately the same location was evident on the video footage taken between March 1996 and March 1997. Since that water was visibly flowing towards the south-east corner of the pitches, in accordance with the drainage gradient, it is hard to see how it could possibly have contaminated pitches further west. To do that, it would have had to flow in the opposite direction from all other surface and sub-surface water.

(iv) If Mr Tipp's theory were correct, one would have expected to see evidence of discoloured water affecting the north and west sides of the pitches, where the surrounding ground was also elevated to some extent. However, there was no apparent sign of that on the video, nor was there evidence to suggest any particular contamination of the sub-base in these areas.

(v) To some degree, Mr Tipp sought support for his theory from the appearance of a progressive increase in the level of fines in the sub-base layers. I do not find that evidence compelling. It was based on a comparison of particle size distribution tests conducted five years apart and on samples taken from different locations. The two trial pit analyses from 2000 yielded different results, at least with respect to the content of larger-sized stone, suggesting that different batches of material used on site might vary to some degree. It is not surprising that a further single pit dug near the edge of the construction should have yielded a different result again. In addition, as Mr O'Donnell explained on Day 7 of the proof, all of the samples were small, and percentage results could easily be distorted by the presence or absence of a stone or two from the foundation layer.

(vi) While the synthetic carpet was clearly in a filthy and degraded condition by 2005, there was no evidence that it was materially contaminated by orange-coloured clay. Indeed Mr O'Donnell positively confirmed that the carpet and its sandfill were not contaminated with clay when he inspected them in 2000. Along with factors (iii) and (iv) above, I believe that this was a major reason why Mr Tipp found it necessary to depart from the confident assertion in his written report regarding contamination "... from the top downwards", and retreated to a position in which the principal contamination was seen as occurring from the sides and from below.

(vii) Leaving aside the fact that this new position was not directly put to the pursuer's witnesses, I am not convinced that it can properly account for the historical development of the problems on site. These problems began almost as soon as the dynamic layer was laid on certain pitches in 1995, and it seems highly unlikely that sufficient lateral contamination could have occurred over the very short timescale involved. Moreover, given that the adjacent car park showed no sign of ponding, the evidence before me was conflicting, and ultimately inconclusive, as to whether there could have been sufficient rainfall prior to October 1995 to fill the reservoir capacity of the sub-base layers and cause water to lie on the pitch surfaces. In any event, even acknowledging that the downstream drainage remained unconnected until December 1995, it is hard to see how a gradual build-up of static water within the pitch construction could have created Mr Tipp's clay "soup" in the first place, far less raised it to the level of the dynamic layer and artificial surface of the various affected pitches seen on the video. By March 1997, when Weeks Technical Services examined the dynamic layer, its top surface plainly gave immediate cause for concern, and the same applied as at January and February 1998 when that top surface was seen and condemned by Messrs Kidd and Gibb respectively.

(viii) Even more significantly, when Mr O'Donnell carried out his initial investigations in 2000, he found a distinct interface between the sub-base layers and the subjacent clay formation, with no material sign of cross-contamination between them. The percentage of Mr O'Donnell's subjacent clay sample which had a particle size smaller than 0.06 mm was approximately five times greater than the equivalent percentage within either of the sub-base layers. More importantly, the sub-base samples which he took and tested were not contaminated with a high percentage of fine orange clay. According to him, any possible upward migration of clay was precluded by the well-graded foundation layer which presented no voids into which clay could penetrate. In any event, had such contamination from below occurred, it seems improbable that the layer to be worst affected should have been, not the foundation layer with which the clay formation was in direct contact, but the dynamic layer above which would not be reached unless, on occasion, any water trapped in the sub-base reservoir exceeded the depth of the foundation layer - between 120 and140 mm, according to the trial pit logs reproduced in Mr O'Donnell's report.

(ix) The pattern of scattered ponding across different pitch surfaces is, I think, very difficult to reconcile with the theory of widespread external contamination. Much more likely, in my view, is that the observed pattern principally reflects (a) some measure of variability within the disconform sub-base materials, and (b) the effect of compaction, first by construction activity and then by sports usage, rendering discrete areas relatively less permeable than the remainder. The problem was never one of total impermeability, but only of slow drainage in places, and it is in my view of some significance that when the outfall blockage was cleared in June 2005 the pitches actually drained fairly well over a period of some four hours, leaving only scattered areas where ponding persisted.

(x) Mr Atwal's evidence was that when the problems with surface water first arose, ETC told him to check the state of the drains and he did so. According to him, one of the first steps taken by ETC themselves was to rod the drains. Mr Kidd gave unchallenged evidence of having checked the manhole in the south-east corner of the site in January 1998, finding it dry with only a trickle of water running through. Both of the Atwal brothers described sweeping surface water into the same manhole from time to time, as a last resort. Furthermore, Mr O'Donnell appeared to find no material problem with the drains in 2000. If all of that evidence is correct, and I have no reason to hold otherwise, then it follows that the main drainage system could not have been non-operational over the whole period from 1995 to 2005, and the situation which Messrs Tipp and Pirie discovered in June 2005 could have no direct bearing on the state of the pitches more than nine years earlier.

(xi) It is clear that the serious flooding which Messrs Tipp and Pirie saw in June 2005, which according to Mr Tipp was 150 mm deep in places and covered the whole area of the pitches other than the north-east corner, was largely attributable to a downstream blockage in the drainage system. There can in my view be no other explanation for the fact that the flooding substantially disappeared, over a period of hours, when that blockage was cleared, although the extent of the blockage was called into question by Mr Pirie's photograph no. 11 showing water flowing into the top of a manhole before clearance works began. Significantly, however, as Mr Pirie conceded and Mr Atwal emphatically confirmed, some surface water still remained in scattered patches after the main flooding subsided. In all the circumstances I am unable to regard the 2005 blockage as providing a plausible explanation for the scattered ponding of water on different pitch surfaces at any date.

(xii) In addition, while accepting that the blockage of June 2005, whether total or partial, must have existed for some time, I cannot regard the amount of pitch debris in a single manhole as a reliable indicator of how long that might have been. Since much of the debris came from the surface of the synthetic carpet, and could not possibly have filtered through the sub-base layers to reach the drains, it follows that it must have entered the drainage system through the top of a manhole. That would, I think, be consistent with the evidence of the Atwal brothers to the effect that they sometimes swept away water from the pitch surfaces by that route.

Conclusion on cause

"But in general it can be said that the Bolam test is typically appropriate where the neglect is said to lie in a conscious choice of available courses made by a trained professional, and that it is typically inappropriate where it is in an oversight that the neglect is said to lie."

For present purposes, it is perhaps sufficient for me to indicate general agreement with the approach of the Court of Appeal in Michael Hyde, without necessarily accepting that that decision exhaustively identified the circumstances in which a finding of professional negligence might be made notwithstanding the existence of expert evidence supportive of the defender.

The critical issue
[42] As the proof proceeded, the critical issue between the parties on this aspect of the case became fairly narrowly defined. Although Mr Gordon, somewhat surprisingly, had no knowledge of the nature and composition of ETC's proprietary Dri Pla mix which was specified for the dynamic layer, and had never seen the bill of quantities in which the intended foundation layer was identified as "Type 1X sub-base lightly compacted", he was on his own admission aware from the start that both of the sub-base layers had to be free-draining if the pitches were to perform satisfactorily. In his evidence-in-chief, he was inclined to skirt round this a little, maintaining that he had no knowledge of the weather conditions in which the pitches were supposed to be playable. However, under cross-examination, he conceded knowledge that the pitches were intended to be free-draining and available for use, day and night, in virtually all weathers. Mr Gordon was also aware, again on his own admission, that by mid-October 1995 surface water could be seen ponding on various pitches where Dri Pla had been laid. Further, he realised that this was a matter of potential significance, causing him concern as to whether the sub-base fulfilled the free-draining requirements of the contract. In that state of affairs, however, his only response was to invite Mr Travers, Europa's contracts manager, to comment in the course of a walk round the site. When the latter advised him that the downstream drainage was yet to be connected, Mr Gordon simply assumed that this accounted for the appearance of surface water and took no further action. He did not ask ETC, the pitch specialists, for their observations on the state of their partially-completed works, nor did he do anything to check Mr Travers' advice by looking at the actual state of the drains or of the pitch construction. The key question for determination in these proceedings is thus relatively straightforward and non-technical, namely whether a competent and careful architect, having become aware of surface ponding and realised its potential significance, should have done more than Mr Gordon did to ensure the proper protection of the pursuers' interests. Apart from his brief conversation with Mr Travers, Mr Gordon essentially did nothing at all. Was this truly acceptable for an architect of ordinary competence, exercising reasonable care and skill, or was it not?

Discussion
[45] In the foregoing circumstances, I have serious doubts as to the credibility and reliability of Mr Gordon's stated recollection of (a) the extent and distribution of the surface water which he saw on the pitches in October 1995; (b) the date or dates on which such observations were made; and (c) the date and circumstances in which the matter was allegedly raised with Mr Travers. The video footage presents a fairly consistent picture on 17 and 31 October, and if surface ponding had been a cause for concern on the earlier date, it seems inevitable that Mr Gordon must again have been very conscious of its presence a fortnight later. Moreover, his account of a conversation with Mr Travers on 31 October was not supported from any source; it is hard to believe that such an important conversation regarding both drainage and pitches would not have been recorded in any site minute; no reference to it appeared in the defender's pleadings; Mr Tipp does not seem to have known about it; paragraph 5.16 of Mr Pirie's report is inconsistent with it; and it was never put to any of the pursuers' witnesses in cross-examination. I acknowledge that these matters were only faintly raised, if at all, with Mr Gordon in cross-examination, and it is also true that his evidence concerned events which occurred nearly 10 years ago. However, given the highly unsatisfactory circumstances in which the claimed conversation was first raised, the unexplained discrepancies in the available evidence, and the absence of support from Mr Travers or from any other source, I am not willing to accept Mr Gordon's unvouched and unsupported testimony on a matter which has become crucial to his defence to the allegations against him. I have the clear impression that in the witness box he was concerned, not only to minimise the extent of the surface water problem of which he was aware, but also to maximise the steps which he took in that regard and the speed with which he took them. He also sought to volunteer implausible excuses for the inaction alleged against him. At one point, for example, he attempted to maintain that, since their Mr Waddington did not happen to be present on site on 31 October 1995, he had no opportunity to raise his concerns with ETC. At another, notwithstanding his claimed reliance on Mr Travers' advice, he maintained that there was no possible way in which the true state of the drainage system could have been ascertained at that time.

"Q. In the course of most probably the site inspection on 17 October, you discovered and saw ponding of water on certainly one and perhaps two pitches?

A. Yes

Q. Ponding of water, as an architect exercising ordinary competence and ordinary care, you would have realised was of potential significance because the pitches were intended to be free draining?

A. Correct.

Q. But that on seeing that ponding you simply spoke to the person with whom you were at the time, namely the site manager of the main contractor Europa Construction?

A. Yes.

Q. Though he was a civil engineer as you have said in chief in fact Europa Construction had no involvement in respect of the pitches?

***

A. They were not taking under any of the work but they did have a responsibility with regards to and looking after managing the nominated subcontractor.

Q. And so far as Europa Construction then is concerned, they had no expertise in respect of the installation of artificial football pitches?

A. Not that I am aware of.

Q. That based upon your conversation with Mr Travers, you made an assumption that the problem was attributable to backing up of drains?

A. Yes.

Q. In fact, an architect of ordinary competence exercising reasonable care, knowing the potential significance of water standing on what should otherwise be a free draining surface would have gone further and would have carried out some form of investigation. Do you accept that or not?

A. Eh, no.

Q. That an architect exercising that legal duty of care would at the very least have asked the specialist subcontractor En Tout Cas to comment?

A. Yes.

Q. And you did not do so?

A. No, because the problem as I saw it was something that Europa Construction were responsible for.

Q. But that is assuming your deduction that the problem was the drains to be correct.

A. Yes.

Q. What I am suggesting to you is that an architect of ordinary competence exercising reasonable care on a matter of importance like this the performance of a free draining structure, would not have rested on an assumption. He would in fact have asked the specialist subcontractor at the very least to confirm that his assumption was correct?

A. Yes.

Q. But you did not do so?

A. No.

***

Q. Perhaps I will just leave it at this, that by failing to carry out in fact any investigation in relation to the acceptability of the assumption that you made that the source of this problem was the drains, you fell below the standard that in law is required of an architect exercising reasonable skill and care. Do you accept that?

A. Eh no.

Q. Why don't you accept that, if you accept that an architect exercising reasonable skill and care would at the very least inquire of the subcontractor specialist what the problem was?

A. The specialist subcontractor I don't think was there at that particular time, and we were strongly of the opinion it was because the drains were not connected.

Q. Sorry, who was strongly of the opinion?

A. Myself and Jim Travers of Europa Construction.

***

Q. But surely an architect exercising reasonable skill and care who sees something that is potentially a very significant problem doesn't get deflected by the fact that the man who may have the answer is to his side or at the end of a phone?

A. Yes. Correct.

Q. This is why I want to press you: if you accept that an architect exercising reasonable skill and care would have followed up this concern with the specialist, i.e. En Tout Cas, does that not have the result that you accept that by having failed to do so in this case you fell below the standard being expected of an architect of ordinary competence exercising skill and care?

A. With inspections perhaps, yes."

In theory, more than one of these heads of loss might be appropriate in the circumstances of a given case, but at the end of the proof counsel for the pursuers invited me to grant decree in his clients' favour for £585,000, which failing £355,000, which failing £221,000, in that order. The primary claim for loss of profits alone appeared to depend largely on the concession that, if the pitches had been free of defects, then out of their operating profits the pursuers would have had to meet all capital costs such as the (now urgent) cost of renewing the pitches at the expiry of their natural life. On this basis it was suggested that if an award for loss of profits were to be made, no additional claim for rectification costs, or for diminution in value, would be appropriate.

Diminution in market value
[63] Turning to diminution in market value, Mr Ounsley's calculation started with the figure which a purchaser might reasonably be expected to pay for the facility, as a going concern, in the event of its being in perfect condition. In accordance with normal practice, this calculation started with a notional profit figure reflecting the apparent potential of the development in 2003 (the last year for which accounts were available), and went on to apply a multiplier before bringing out a total of £785,000. As against that, the market value of the subjects with defects was assessed by taking the same figure of £785,000, and deducting from it (a) the rectification cost of £221,000, and (b) further sums to represent re-launch costs and diminished business over the first two years. This brought out a total of £430,000, and the difference between the values with and without defects was accordingly £355,000. In Mr Ounsley's view, it was not realistic to attempt any more sophisticated calculation on the basis of the pursuers' actual profitability, or lack of it, at any relevant date.