Scottish Sheriff Court Decisions

JAMES HAMILTON and MRS. ANNE HAMILTON v. MOHAMMED WAHLA and RYESIDE CONSTRUCTION LTD [1999] ScotSC 11 (28th April, 1999)

The Sheriff, having resumed consideration of the cause, Finds-in-Fact that:-

(1) The pursuers are husband and wife and are the joint proprietors of the first-floor flat occupied by them at 6 Kyle Square, Rutherglen, Glasgow. The first defender is the tenant of shop premises on the ground floor of the same building, namely two adjacent shops numbered 8 and 10 Kyle Square. The second defenders are a limited company owned by William Atherton and his wife who are the directors and secretary thereof. Mr Atherton is a chartered civil engineer; he practices as a consulting civil engineer and his company (the second defenders) undertake works of building and engineering construction.

(2) During the summer of 1995 the first defender instructed the execution of building works to alter the two shops tenanted by him and form a single shop of larger size. These works involved the taking down of certain walls which provided support to the flats directly above and their replacement by other means of support. In particular they involved the removal of the remainder of a "spine wall" running laterally across the shop at No 8 Kyle Square situated directly underneath and supportive of certain floors, walls and door apertures within the pursuers' flat and its replacement by a steel beam supported at one end by a steel column. In order to effect this substitution of a steel supporting beam for the spine wall it was necessary to provide temporary support for the pursuers' flat by means of acrow props inserted at appropriate points. Once the replacement steel beam had been erected it was necessary to place brickwork with mortar on top of it and to insert "infill packing" above the brickwork immediately beneath the pursuers' floor in order to support it before removing the acrow props.

(3) The said building works were commenced on the first defender's instructions during the last ten days of July 1995 and continued initially until about 22 August 1995 when they were stopped on the first defender's instructions on account of damage caused to the pursuers' flat. The said building works were executed by workmen employed by the first defender for the purpose, including in particular one John Ashe. The first defender and John Ashe were provided from time to time with advice and assistance on engineering matters by William Atherton but he was not employed to supervise the works. The said John Ashe was not employed by the second defenders. The second defenders were not engaged by the first defender to execute the said building works carried out during July and August 1995 despite an unsuccessful negotiation to that end which occurred on or about 22 July 1995 between William Atherton and the first defender.

(4) On 18 August 1995 there occurred minor damage to the pursuers' flat when John Ashe while inserting the acrow props as temporary support over-tightened some of them. The said damage consisted chiefly of a raising of the pursuers' floor with a consequent jamming of their living room door. The pursuers drew this damage to the attention of John Ashe who asked them to "bear with us". During the subsequent four days the spine wall in the first defender's shop at No 8 Kyle Square beneath the pursuers' hallway was taken down and replaced by a steel beam. A bricklayer placed bricks and mortar on top of the steel beam and inserted some "infill packing" on top of the said brickwork immediately under the pursuers' floor but failed properly to insert sufficient thereof and left some gaps. On 22 August 1995 John Ashe removed the acrow props before the mortar in the brickwork had sufficiently "cured" thus causing downward settlement of the pursuers' floors and walls and major damage to their flat. The said damage consisted of cracking of plaster, walls, surfaces and tiling; of displacement of floors and skirting boards; and of deformation of door apertures within the pursuers' flat. The pursuers protested to the first defender and obtained the assistance of a civil engineer by name of David Jeffrey. At a meeting held that day in the pursuers' flat attended by both pursuers, the first defender, William Atherton and John Ashe the first defender told the pursuers that he accepted responsibility for the said damage to their flat which he would see was "sorted out".

(5) The said damage to the pursuers' flat was caused by (first) the over-tightening of the acrow props by John Ashe on 18 August 1995; (second) the failure of the bricklayer to insert sufficient "infill packing" on top of the brickwork between 18 and 22 August 1995; and (third) the failure of John Ashe to allow sufficient time for the mortar in the brickwork to "cure" adequately before removing the said acrow props on 22 August 1995. It was foreseeable to John Ashe and the bricklayer that their said acts or omissions would cause such damage to the pursuers' flat above. Their said acts and omissions were each negligent.

(6) The building works instructed by the first defender involved the withdrawal of support from the pursuers' property above and as such constituted a hazardous operation likely to cause damage such as did occur if not properly executed.

(7) On or shortly after 22 August 1995 it was agreed by the first defender and William Atherton that the second defenders would complete the said building works in a proper fashion and they were engaged for that purpose. The second defenders commenced said further works in the latter part of September 1995 and completed them during the subsequent weeks.

(8) The cost of repairing the said damage to the pursuers' flat and redecorating same, if the pursuers move out to alternative accommodation for the period required, will be £13,114.73 plus VAT of £2,295.07. The cost of such alternative accommodation for the pursuers (on a bed and breakfast basis) for an expected period of six weeks will be £2,190.00 plus VAT of £383.25. The pursuers on account of said damage, which has not yet been repaired, suffered and continue to suffer considerable stress and inconvenience.

Finds-in-Fact-and-Law that:-

(1) The acts and omissions of John Ashe and the bricklayer hereinbefore referred to while executing the building works instructed by the first defender created a nuisance whereby the pursuers' property was damaged.

(2) The acts and omissions of John Ashe hereinbefore referred to in the course of his employment by the first defender constituted negligence on his part whereby the pursuers sustained damage to their property.

(3) The sum of £6,000 represents a reasonable assessment of compensation due to the pursuers (£2,000 to the first pursuer and £4,000 to the second pursuer) for the stress and inconvenience suffered by them, whereof three-quarters should be apportioned to the past.

Finds-in-Law that:-

(1) The first defender as tenant in occupation of the ground floor premises at No 8 Kyle Square is liable to make reparation in the amount of £23,983.05 to the pursuers as proprietors of the upper flat at No 6 Kyle Square for the loss and damage sustained by them in consequence of the nuisance created by those executing the building works instructed by him there.

(2) The first defender is liable vicariously to make reparation in the amount of £23,983.05 to the pursuers for the loss and damage sustained by them on account of the fault and negligence of his employee John Ashe in the course of his employment by him.

Accordingly, Sustains the first and second pleas-in-law for the pursuers and also their fourth plea-in-law to the extent awarded and Repels their remaining pleas-in-law; Repels the whole pleas-in-law for the first defender; Sustains the third and fourth pleas-in-law for the second defenders and Repels their remaining pleas-in-law and Assoilzies the second defenders from the first crave of the writ; Grants decree in favour of the pursuers for payment to them by the first defender of the sum of TWENTY THREE THOUSAND NINE HUNDRED AND EIGHTY THREE POUNDS AND FIVE PENCE (£23,983.05) Sterling with interest on £4,500.00 thereof at the rate of four per centum per annum from 22 August 1995 to the date hereof and interest on the whole of said sum of £23,983.05 at the rate of eight per centum per annum from the date of decree herein until payment; and Decerns; on pursuers' unopposed motion Certifies Peter Carr and on second defenders' motion (the first defender opposing) Certifies David Cochrane as expert witnesses in the cause; Reserves meantime all questions of expenses and Appoints parties to be heard thereon at Sheriff Court, 1 Carlton Place, Glasgow on 21 May 1999 at 10.00 am.

NOTE:-

In this action the pursuers sue for payment to them of the costs of reinstating their flat which was damaged in consequence of operations carried out below to convert two ground floor shops into one. They sue two defenders, being (1st) the tenant occupier of the shop(s) below (Mr Wahla) whose alterations brought about the settlement and damage and (2nd) a construction company who (in the alternative) they say carried out the works on the first defender's behalf as his contractors. The full name of the construction company is Ryeside Construction Limited but they are hereinafter frequently referred to as "Ryeside" for brevity. The pursuers set forth four bases in law for recovery of the sum sued for from one or both defenders, namely (1) a case of nuisance against the first defender, (2) a case of inherently hazardous operation whereby the first defender would be liable to them for the negligence of the second defenders, (3) a case of negligence against the first defender's employees, (4) a case of negligence against the second defenders' employees. It is not disputed that damage occurred to the pursuers' property on account of the works and the manner in which they were carried out and the assessment of their loss and the quantification thereof is not seriously cavilled at save in respect of the pursuers' claim for a solatium payment to compensate them for stress and inconvenience suffered by them. Even this last element is not disputed in principle but only as to amount.

I turn now to consider the consequences for legal liability in the case to make reparation to the pursuers of the factual conclusions which I have reached above. As stated at the outset the pursuers on record set forth in articles 3 to 6 of the condescendence four legal bases on which one or both defenders should be found liable to make reparation to them. The second defenders having been found by me not to have been engaged to execute the works which caused damage to the pursuers' property, the cases pled in articles 4 and 6 of the condescendence fall away and I am left to consider those pled in articles 3 and 5 against the first defender.

In article 3 of the condescendence the pursuers aver against the first defender a case of nuisance and in this connection I was referred by agents to a number of decisions but chiefly to that of Kennedy and Others v Glenbelle Ltd and Others, reported variously in 1996 SC 95, 1996 SLT 1186 and 1996 SCLR 411, as being the most recent authoritative statement of the law on this topic. The agents undertook a close analysis of the utterances of Lord President Hope in that case in combination with a close analysis (on the first defender's behalf) of the pursuers' averments on record in the present case. For the first defender a number of submissions were made, the chief of which was that for the necessary element of culpa to be inferred with the necessary degree of personal responsibility on his part it had to be shown that his conduct involved some active participation in and not mere instruction of the works that brought about the damage to the pursuers' property, such as a "hands on" involvement in for instance directing what should be done and how and not a mere ordering that works to achieve a certain overall result should be executed on his behalf; for this it had to be shown moreover that his "occupation" (as it was put) or possession of the premises where the nuisance was created was more than merely transient or fleeting, meaning thereby that it was not sufficient that he was the tenant thereof if he had in effect ceded possession of the premises for the time being to the contractors or workmen executing the works on his behalf and himself merely put his nose through the doorway from time to time to see what was the state of progress: there required to be something more constant or permanent about this "occupation" in fact as seen on the ground such as might be expected of a person actively involved in the direction of the operations being carried out. These necessary features of his conduct and occupation had been, it was submitted, neither averred nor proved and accordingly the first defender could not be found liable to the pursuers on the ground of nuisance created by any independent contractors employed by him to execute the works. As has been seen above my assessment of the evidence does not lead me to think that the first defender's presence in No. 8 Kyle Square during the period of the works until 22 August 1995 was so transient or fleeting as his agent suggested, but even if that were so as matter of fact I would still consider for the reasons given in the succeeding paragraph that the first defender is here liable to the pursuers for a nuisance created by his contractors or workmen.

The case of Kennedy v Glenbelle cited above was a decision of the Inner House on a reclaiming motion taken from the judgment of a Lord Ordinary after debate as to the relevancy of cases averred by pursuers there against a second defender who were a firm of consultant civil engineers directing an operation which went wrong in the basement beneath the properties owned by the pursuers. The authors of that operation, ie the instructors of it and the "ultimate employer" for whose benefit it was being carried out, were the first defenders who did not appear and were not represented at the hearing of the reclaiming motion and who accepted apparently that the cases averred against them by the pursuers were appropriate for inquiry by way of proof before answer. They were the tenants of the basement premises and the operation involved interference with a load-bearing wall there which afforded support to the premises above owned or leased by the various pursuers; the second defenders as the engineers in charge of the operation were apparently averred to have been in occupation of the basement premises at the material time. It appears to me that this decision may have extended somewhat the range of potential defenders against whom a case of nuisance may relevantly be pled beyond those who were previously or traditionally understood to fall within its ambit. The law of nuisance as I had understood it was viewed as part of the law of neighbourhood regulating the obligations existing between persons having a proprietorial or other substantive interest in adjacent or nearby heritable subjects and more transient people such as contractors or professional engineers, although capable of creating a nuisance for which others might be held liable in damages to their neighbours, were generally not regarded as having a sufficient interest in the heritage to be themselves obligated on this ground (ie without proof of negligence) to adjoining proprietors. It appears however that the averments made against the civil engineers in Kennedy v Glenbelle as to their occupancy of the basement premises were sufficient to satisfy the First Division that they might after proof be held liable to the upper proprietors for a nuisance created by the execution of works directed by them. In adjudicating on the legal relations existing between the aggrieved upper proprietors and the civil engineers in the basement Lord President Hope took the opportunity to reaffirm that culpa was an essential basis for liability to make reparation for nuisance caused (as earlier declared or re-stated by Lord Fraser of Tullybelton in RCM Bakeries v SRC 1985 SC (HL) 17) and went on to set forth the categories of conduct which in his opinion were capable if held established of inferring the necessary element of culpa and thus bringing home to the defender the required degree of personal responsibility. Instructive as all of this may be it is I think important always to bear in mind that the Lord President's observations were made in the context of an argument between upper proprietors claiming to have suffered damage and the civil engineers brought onto the site by the lower tenants, not an argument between the upper proprietors and those lower tenants themselves. In that context it is perhaps natural enough to think of the conduct of the engineers inferring culpa on their part as consisting of things that they did by way of active supervision and direction of the works in some detail. In submissions before me the pursuers' agent founded on Lord President Hope's final category of conduct as fitting closely the actings of the first defender in the present case ("indulged in conduct which gives rise to a special risk of abnormal damage") but it was maintained on the first defender's behalf that there had to be evidence of active participation by him in regulating or controlling the operation in No. 8

From the foregoing paragraph it will be seen that I consider the first defender to be liable on the ground of nuisance as pled in article 3 of the condescendence to make reparation to the pursuers for the actings of Mr Ashe (and for that matter the bricklayer) which caused the damage whether or not Mr Ashe (or the bricklayer) is held to have been in the direct employment of the first defender. The case pled on the pursuers' behalf in article 5 of the condescendence is one of vicarious liability on the part of the first defender for the negligent actings of his employees and for the reasons given above I hold Mr Ashe to have been in the first defender's employment and sufficiently controlled by him so as to render the first defender vicariously liable for the injurious actings of Mr Ashe which caused the damage to the pursuers' property. I therefore hold this ground of liability to be well-founded and hold the first defender liable to make reparation to the pursuers on this basis also.