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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Johnston
Lady Paton
Lord Abernethy
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[2007] CSIH 76
A1599/02
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
RECLAIMING MOTION
in the cause
(FIRST) SOUTHESK TRUST COMPANY LIMITED and (SECOND)
ELSICK FARMS LIMITED
Pursuers and Reclaimers;
against
(FIRST) ANGUS
COUNCIL, (SECOND) NYNAS UK AB, (THIRD) HARRY LAWSON LIMITED and (FOURTH)
SCOTTISH WATER
Defenders and Respondents:
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Parties participating at this hearing:
Act: Clark Q.C.; Brodies (Pursuers and
Reclaimers)
Alt: Hofford; HMB Sayers (Third Defenders and Respondents):
Miss Haldane; Dundas & Wilson(Fourth Defenders and
Respondents)
Non-participating parties:
First Defenders: Agents: Simpson & Marwick
Second Defenders: Agents:
Brechin Tindal Oatts
30 October 2007
[1] This is an
action of reparation arising out a spillage of oil which was being delivered to
Brechin High School in June 1999. The oil initially escaped from the two tanks
into which it was being fed, into the drainage system which in turn, through a
blockage, led to a further escape which ultimately contaminated the property of
the first and second pursuers, namely a fish farm. They seek reparation in respect of that
incident.
[2] The first
defenders were the owners and occupiers of the school. The second defenders are no longer in the
action. The third defenders were the
contractors delivering the oil to the school at the material time and the
fourth defenders are the successors to the then water authority controlling the
relevant drainage system.
[3] The Lord
Ordinary heard a debate at the end of which he ordered a proof before answer
between the pursuers and the first defenders and dismissed the action against
the three other defenders. The second
defenders have not returned to the process.
Both the third and fourth defenders were represented before us.
[4] For reasons
which will become clear, the reasoning of the Lord Ordinary which led to the
dismissal of the action against the third and fourth defenders is no longer
relevant in this reclaiming motion.
[5] He held that
the terms of the averments of fault against both relevant defenders, having
regard particularly to the frequent use of the words "see to it", amounted to a
demand on behalf of the pursuers of an absolute duty in respect of the
obligations of the third and fourth defenders which, in the context of the law
of negligence, was irrelevant.
[6] It has to be
stated at once that before the start of proceedings before us the reclaimers
sought to make a small but vital amendment in respect of the case against the
fourth defenders which had the effect of altering the pleading to the extent of
averring, which was not denied, that a particular piece of equipment which
apparently featured in the ultimate escape of the oil from the drainage system
had been missing some time before the incident from its proper location, for
almost as much as a year, but that the fourth defenders had been told it had
been stolen.
[7] It has to be
said at once that that immediately avoided or overcame one of the difficulties
which the Lord Ordinary held to exist in relation to the case against the
fourth defenders and we take that matter no further, save in the context of the
remaining argument in the case against the fourth defenders.
[8] More
importantly, at the end of his submissions to us, counsel for the reclaimers,
having argued against the findings of the Lord Ordinary and in favour of
allowing a proof before answer against both the third and fourth defenders,
deleted in respect of both those defenders the offending averments as regards
the issue of absolute duty. The details
of this are recorded in the interlocutor issued by us at the close of the
hearing and need not be rehearsed here.
[9] In these
circumstances, in respect of the case against the third defenders set on
averment in the context of a duty to take reasonable care, the duty in question
was limited to the following:
"In the exercise of reasonable care
it was the duty of the third defenders to instruct Adam Finnie to take steps to
have the vent pipes checked to see whether oil was escaping such as by asking
the janitor to check the vent pipes. In
the exercise of reasonable care it was the duty of the third defenders to
instruct Adam Finnie to have regard to the gauges on the wall and to check
whether any tank was becoming full. Separatim, it was the duty of said Adam
Finnie to have regard to said gauges for said purpose".
[10] Equally, in
respect of the fourth defenders the case against them is now limited to the
following averment of duty:
"In the exercise of reasonable care
it was the duty of North of Scotland Water when it knew that a piece of
equipment which was liable to block a sewer had become dislodged from its
position to inspect as soon as reasonably possible of becoming aware of the
dislodgement, the sewage pipes by using rodding equipment, underwater video
cameras or other suitable devices in order to ascertain the position of the
dislodged equipment and to have it removed".
[11] For
explanation purposes Adam Finnie was the driver of the lorry that was
delivering the fuel oil to the school and North of Scotland Water were the
fourth defenders' predecessors at the material time operating the drainage
system.
[12] At the opening
of his submissions before us, counsel for the reclaimers presented a number of
traditional and well-known authorities to us in respect of the framework
required in pleading when allegations of a failure to take reasonable care are
made in the context of a precaution being necessary to address a risk thus
identified.
[13] In this
respect we say no more than to re-affirm an unexceptionable and
long-established proposition that for there to be a failure to take reasonable
care in respect of a risk by desiderating precautions to be taken against it,
it is necessary that the alleged delinquent had the means of knowledge or the
actual knowledge that such a risk existed prior to the event which caused the
damage, in other words, foresight of the risk against which precautions have to
be taken.
[14] In addition
counsel relied upon the well-known case of Miller
v The South of Scotland Electricity
Board 1958 SC (HL) 20 which generally lays down the proposition that it is
only in very rare cases that averments alleging negligence should be struck out
at the relevancy stage.
[15] Both counsel
for the third and fourth defenders relied upon the proposition referred to in
paragraph [13] above which we have just laid out to attack the remaining averment
of duty in respect of each case against them on the basis that the averments
taken overall did not meet the proposition in question.
[16] As far as the
third defenders were concerned Mr. Hofford maintained that there was no basis
upon which either the driver or indeed the contractor itself should have any
means of anticipating that there was a risk of an overflow by reason of the
presence of the two tanks and the way the apparatus was constructed, which
therefore in itself did not give rise to a need for the ingress of oil to be
checked either visually or by the gauges.
In the absence of any averments, for example that the risk was obvious or
that an event similar to the event in question had already happened on another
occasion, there was no basis upon which the third defender should anticipate a
risk and take precautions against it by giving such instructions, as were
averred, to their driver, even more so in respect of the driver himself.
[17] Equally, as
far as the fourth defenders are concerned, although it is now accepted they had
knowledge prior to the event that the piece of equipment in question was
missing, they did not have on the averments any means of knowledge where it was
and particularly whether or not it was lodged down the drainage system. Miss Haldane's proposition was much the same
as Mr. Hofford's, namely, in the absence of any averments giving rise to
knowledge or means of knowledge on the part of the defenders in question that
the equipment was in fact liable to block and cause an overflow in the system,
the duty to inspect, particularly in the details that were averred, went far
beyond what was required in the circumstances and, in any event, was not
supported by any basis of fact which would make such an inspection necessary.
[18] Replying to
these arguments effectively for the first time Mr. Clark could do no more than
refer to Miller, and advance the
proposition that in respect of the third defenders it was obviously necessary
for the driver to check that the fuel was going in properly. As regards the fourth defenders he maintained
it was equally obviously necessary for some inspection to take place of the
pipes once the piece of equipment was known to be missing. Again he referred to Miller.
[19] We have no
hesitation in sustaining the arguments on behalf of each defender on the basis
of which they were presented in respect of the cases against them. In neither case are there any averments which
would support the general proposition of foresight of risk and therefore a
requirement to take some form of action in the case of the driver by keeping a
watch on the gauges, and in the case of the fourth defenders, by an extensive
system of inspection.
[20] In simple
terms the bald averments of duty which we have rehearsed are totally
unsupported by any relevant averments that would in turn support the need to
take the relevant action. Any attempt at
the proof to lead evidence beyond the actual averment of duty to support that lacuna
would be bound to be met with an irresistible objection and both cases would
therefore fail.
[21] For these
short reasons we are of the opinion that the Lord Ordinary reached the correct
conclusion in relation to the cases against the third and fourth defenders,
albeit in the developing circumstances of the appeal, for reasons different from
those held by him.
[22] In these
circumstances we shall refuse the reclaiming motion and adhere to the
interlocutor of the Lord Ordinary. The
result of that is that there will be proof before answer as between the pursuers
and the first defenders, there being no other parties at that stage in the
action.
