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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> WF Price Roofing Ltd v. Balfour Beatty Construction Ltd [2006] ScotSC 86 (04 August 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/86.html
Cite as: [2006] ScotSC 86
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(A988/05)
JUDGMENT OF
SHERIFF
PRINCIPAL EDWARD F BOWEN QC
in the appeal
in the cause
W F PRICE (ROOFING) LIMITED
Pursuers
and Appellants
against
BALFOUR BEATTY CONSTRUCTION LIMITED
Defenders
and Respondents
Act: Macfarlane, Solicitor, Semple Fraser
Alt: McLean, Solicitor, Tods Murray
The Sheriff
Principal, having resumed consideration of the cause, refuses the appeal and
adheres to the Sheriff's interlocutor complained of dated 21 September
2005; finds the pursuers and appellants
liable to the defenders and respondents in the expenses occasioned by the
appeal and remits the account thereof, when lodged, to the Auditor of Court to
tax and to report thereon.
(signed) EFB
NOTE:
1. In
this action the pursuers seek a declarator that "the conditions on the site at
Glen Turner Whisky, Starlaw Park, Livingston, West Lothian during the night
between 7 and 8 May 2003 fell within the definition of "storm" in the specified
perils clause (Clause 1.4) of contract conditions DOM/C/scot/CDP forming part
of building contract DOM/A/scot/CDP". As
the learned Sheriff has set out in the opening paragraph of his Note they aver
that they entered into a sub-contract with the defenders to install roof
cladding on a new building. On 7 May 2003
roof sheets had been lifted on to the roof steelworks. They were securely enveloped in packages of
about 40 to 50 sheets. The weight of
these packages varied from 1.2 to 1.5 tonnes.
The pursuers had unwrapped some of the packages to fix the sheets to the
roof. Before leaving the site they
secured the unwrapped sheets and the still wrapped packages to the roof purlins
with ropes. On the morning of 8 May they
discovered that there had been severe damage to the unfixed roof sheets
including packs which had not been opened.
2. The
form of sub-contract between the parties provides that the sub-contractor shall
be liable for the cost of restoration of sub-contract work lost or damaged and
replacement or repair of site materials for the sub-contract works except where
such loss is caused by inter alia
a specified peril. The definition of
specified peril includes "storm, tempest, flood". The present dispute between the parties
arises because the pursuers contend that the damage to the roof sheets was
caused by "storm". They have requested
the defenders to submit a claim to their insurers. The defenders have declined to do so,
maintaining that the weather conditions on the night of 7 and 8 May 2003 did
not constitute a "storm".
3. The
case came to debate before the Sheriff who dismissed it. In the first place he upheld arguments that
the action was incompetent and irrelevant because the sub-contract clause
founded on by the pursuers in the crave does not, in fact, contain a specified
perils clause. That is a matter of
formality. More critically from the point of view of the pursuers the Sheriff
upheld an argument that their pleadings were essentially lacking in
specification in relation to whether the weather conditions on the relevant
night constituted a "storm" as that term falls to be understood in law. He also upheld arguments that the pursuers
averments did not contain a link between the weather conditions and the damage,
and that their reference to a Met Office report was also irrelevant when that
report indicated that the wind strength on the Beaufort scale did not reach
storm force.
4. The
pursuers have effectively conceded that to a significant extent the Sheriff's
conclusions were well founded. They have
lodged two minutes of amendment prior to the matter coming to appeal. The first of these purports to deal with the
failure to specify the correct sub contract clause in the crave of the
writ. Whilst there remains some doubt as
to whether the pursuers averments about the contractual provision on which they
seek to rely are relevant to support the terms of the crave the issue in that
respect is, in substance, no longer a live one.
It may also be observed that there are now sufficient averments to
provide a causal link between the weather conditions and the damage to the
roofing sheets.
5. One
further matter falls to be considered before proceeding to the substance of the
appeal. It was pointed out by the
solicitor for the defenders and respondents that the pursuers' crave merely
seeks declarator that the conditions on the night in question fell within the
definition of "storm" in the specified perils clause of the sub-contract, and would,
if granted, "take them nowhere". Whilst
tempted to the view that this is a bare declarator and as such is one which the
Court might not be disposed to pronounce I am prepared to accept the position
that what is sought to be declared does concern a real practical question
between the parties. Upon the view that
there is a material issue I am prepared to deal with it.
6. A
further question arose as to whether I should deal with the appeal at all
standing the fact that the pleadings are now extensively amended. In the normal course this might be a
situation for a remit to the Sheriff to consider the matter of new, but it
appeared to me to be in the interests of expeditious justice that I should give
a view on the issue as now presented. In
its essentials the issue now before the Court is not far removed from the
central issue with which the Sheriff had to deal and I am doubtful of the value
of remitting the case back to him.
7. The
words "storm, tempest, flood" are standard perils which frequently appear
together in policies of insurance against damaged property. The words have in consequence been given
judicial consideration on a number of occasions and the solicitor for the
defenders and respondents, in maintaining that the pursuers' case was still
irrelevant, commenced his submissions by referring to a number of English
cases, and two Scottish cases in which these terms or similar had been
considered. The English cases are Oddy v
8. From
these cases the solicitor for the defenders sought to derive the following
principles:
(1) What
constitutes a storm is a matter to be determined on the facts and circumstances
of each case.
(2) The
test to be applied in any case is whether or not a person of ordinary common
sense making the ordinary use of language who was in or around the area at the
period in question would have used the word "storm" to describe the weather
prevailing in that area (Glasgow
Training Group supra at page 37).
(3) It
followed that the pursuers required to make averments about facts and
circumstances which would entitle the ordinary man to conclude that there was a
"storm".
(4) Violent
weather of some kind was needed: Oddy (supra) at page 138
and averments of "adverse" weather are insufficient (Glasgow Training Group (supra)
at page 36/37.
(5) It
would be usual to have averments about the statistical probability of the type
of weather complained of: (see William Nimmo & Co Ltd (supra)
at page 1283).
(6) Some
averments would normally be required about effects on surrounding areas.
9. The
defenders' solicitor then turned to the pursuers' averments as they now
stood. He maintained that in essence
they were insufficient to support a conclusion that an ordinary man, present at
the time of the alleged damage and using the word "storm" in its ordinary sense
would be able to describe the conditions as meeting that description. There were general averments to the effect
that winds can become damaging when windward obstructions cause the currents to
become turbulent. There were averments
that the wind "was of such a violence that it moved the packs of sheets causing
them to oscillate". Apart from that
there were no averments about the weather conditions at all. There was nothing to suggest that there was
any sustained high wind, or averments of other damage. The only averments of damage related to some
caused by handrails damaged by flying sheets, that being in effect the same
damage as sustained by the pursuers. The
pursuers in their pleadings persisted in making reference to the Met Office
Report which showed wind speeds according to the Beaufort scale falling short
of storm force. There were no averments
showing that the wind was of a strength which was statistically unlikely; indeed when one read the pursuers' averments
as a whole it became clear that the reason for the damage was that winds below
"storm" level were rendered damaging because of the interference with their
flow by the partly constructed building.
Even if their averments were proved it could not be said that a person
of ordinary common sense would have used the word storm to describe the
conditions described.
10. The
solicitor for the pursuers and the appellants did not challenge to any material
extent, the principles which the defenders' solicitor sought to extract from
the cases referred to. He observed that
wind could be constituted by one weather element. He accepted that whether the conditions could
be described as a "storm" was essentially a jury question, that is to say
whether the conditions were such that they would be recognised by an ordinary
or reasonable man as a storm. It did not
depend on a technical measurement such as the use of the Beaufort scale, and it
was accordingly his position that a storm could exist notwithstanding a record
of winds below the speed on that scale which constituted storm conditions. The pursuers' approach was that you could
look at what happened and ask "did a storm cause that?" The averments in the present situation
supported the view that damage could only have been caused by a violent
wind. The averments about the nature of
the structure and the effect of the wind on it were simply there to link the
damage caused with the wind itself. It
was not possible to aver that there was damage to other buildings because no
other buildings were in the vicinity. In
these circumstances the pursuers were entitled to a proof of their averments
about the damage from which it might reasonably be inferred that the cause was
"a storm".
DECISION
11. The
first issue with which I can deal relatively briefly is simply whether high
wind alone can constitute a storm. In
his decision the Sheriff noted that in none of the cases to which he had
referred had wind alone qualified as a storm, and said that a storm is "usually
rain or snow plus high wind". The first
part of these observations is correct, and the second is derived from the
shorter Oxford English Dictionary definition of storm namely "a violent
disturbance of the atmosphere, manifested by high winds, often accompanied by
heavy falls of rain, hail or snow, by thunder and lightening". What falls to be noted is that the dictionary
definition does not exclude the possibility of a storm constituted by high wind
alone and, as a matter of experience, it is not impossible to envisage a "wind
only" storm. This was conceded by the
solicitor for the defenders. Although it
is not a direct authority the case of William
Nimmo & Co Ltd bears the strongest implication that a single
element - in that case heavy rain - can constitute a "storm". I do not think that the Sheriff went so far as
to suggest that the pursuers' averments were irrelevant because they failed to
suggest that some other factor such as rain, snow, hail or sleet was present, but
for the avoidance of doubt I hold that averments of high wind alone would be
sufficient for the pursuers' purposes provided they were otherwise relevant.
12. A
further matter relates to the relevance of the Met Office Report and the
Beaufort scale. In Glasgow Training Group (supra)
it was accept by eminent counsel on both sides that the word "storm" should not
be given the particular technical significance which it has in the Beaufort
scale. Standing the law as to how the
term "storm" falls to be construed it is not hard to see why that concession
was made. In the context of this case
all that one could say is that the fact that wind speeds on the night in
question did not reach storm force levels on the Beaufort scale is a factor to
be taken into account, perhaps in the context of "statistical likelihood". It is a fact which favours the defenders more
than the pursuers. As the pleadings
formally stood it did tend to point to a want of relevancy on the part of the
pursuers' pleadings, but for the purposes of determining the relevancy of the
present pleadings the fact that the Met Office Report is referred to by both
parties is to my mind inconsequential.
13. Next, I
reject the contention advanced on behalf of the pursuers and appellants that
the existence of a "storm" can be determined by reference to the damage which
it caused. Such an approach would not
meet the test of the observations of the ordinary man in the vicinity, that
being now well established by a line of decided cases. Whilst it might be possible to look at
anything blown over or damaged by wind and describe it as "storm damage" such
an approach would not be correct. The
issue is whether the weather conditions constituted one of the specified perils,
and the word storm has to be interpreted in the context in which it appears,
namely alongside the words "tempest" and "flood". These are all examples of exceptional weather
conditions and it is for that reason that the Courts in general (and indeed the
Sheriff in this case) apply the interpretation that a "storm" requires
atmospheric violence of an extreme or at least unusual condition. I do not consider that one could reach that
conclusion simply from examination of a single item, or indeed confined area,
of damage.
14. When
one takes the pursuers' averments as a whole I feel bound to agree with the
submission on behalf of the defenders and appellants that the case which these
set out is that the wind became damaging because of the site and situation of
the building. Thus they say for example,
"wind flows passing through lattice like structures, for example partly constructed
buildings, can cause damaging eddy currents".
They go on to say "the site is south facing in a open exposed
location. The site is a
15. In all
the circumstances it follows that the appeal should be refused and the
Sheriff's interlocutor adhered to. The
pursuers must bear the expenses of the appeal.