Scottish Sheriff Court Decisions

(A6013/05)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

 

in the appeal

in the cause

 

GUISEPPE CROLLA and DARIO CROLLA

Pursuers and Respondents

 

against

 

ASHIQ HUSSAIN AND Ascension CONSTRUCTION LIMITED

 

 

 

Act: McIlvride, Advocate - instructed by Gillespie Macandrew, WS

Alt: D Thomson, Advocate - instructed by Wilson Terris & Co, SSC

 

EDINBURGH, 8 October 2008

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; recalls the Sheriff's interlocutor of 31 December 2007 in so far as it purports to repel the first plea-in-law for the defender: adheres to the allowance of proof before answer as between the pursuers and defenders; reserves meantime all question of expenses: remits to the Sheriff to proceed as accords.

 

(signed) E Bowen

 

NOTE:

1. The pursuers in this action are heritable proprietors of a flat at 5/1 Merchiston Place, Edinburgh. The flat is situated on the first floor of a tenement building on the corner of Merchiston Place and Montpelier Park. The defender is proprietor of the subjects on the ground floor, from which he operates a post office and shop.

 

2. In March 2005 the pursuers were advised by tenants of the flat that there was serious cracking on the walls within it. The pursuers ascertained that building works had been carried out shortly before then in the defender's premises and on his instructions. The works had been carried out by Ascension Construction Limited who have been convened as third parties to the action. The pursuers aver, and there seems to be little real doubt about it, that these building works caused the cracking in their property.

 

3. In their pleadings the pursuers make detailed averments as to the cause of the cracking. They say that the building works instructed by the defender involved the removal of an internal load bearing wall and the replacement of it with a steel beam. The load bearing wall is described as an "inherently quite weak" since it contained several flues. It is said that in carrying out the works the third party was provided with drawings prepared by separate firms of structural and consulting engineers. The pursuers aver that the work involving removal of the loading bearing wall required to be done in various stages. The first stage required the insertion of a temporary support system. The nature of this is set out in the pleadings in some detail. The pursuers then go on to aver that the upper portion of the wall moved when the weight of the whole wall was transferred onto temporary supports and that it was this which caused the structural damage to their property.

 

4. The pursuers' case against the defender is focussed in two pleas in law. These are: "(1) the pursuers having suffered loss and damage through fault of the builder for whose negligent acts and omissions the defender is responsible are entitled to reparation from the defender; (2) the pursuers having suffered loss and damage through nuisance created by the defender are entitled to reparation from the defender".

 

5. The pursuers' averments in support of the case of nuisance are succinctly stated. These are to the effect that the damage to their flat was caused "by nuisance created by the defender". They state: "the defender instructed hazardous works within his premises. He did so in the knowledge that the works constituted an interference with the support enjoyed by the pursuers". They go on: "in the course of the works those instructed by the defender disturbed the support of the pursuers' flat and caused them damage. If the defender had not created the nuisance the flat would not have sustained damage".

 

6. The substance of the averments in support of the first plea in law is contained in the opening part of Article 3 of Condescendence. This is in the following terms: "The defender was subject to an obligation to provide support to the tenements on the upper floors. He was under a duty to take reasonable care not to damage them by removing support. Damage to the pursuers' flat was caused by the fault of the builder. The defender is liable for damage caused by the builders failure to take reasonable care. The operation which the defender had instructed was one necessarily attended by risk of damage to the upper flats in the event of negligent execution of work. The defender knew of the risk. It was obvious that removing the wall which bore a load would be attended by risk of damage to the upper flats". The pursuers' averments thereafter proceed to narrate that the defender had been told by a building control officer "that the works were attended by risk" and to make more detailed averments concerning the alleged negligence of the third party in removing the lower portion of the supporting wall.

 

7. It is a general rule of law that where an independent contractor is employed to provide services, the employer is not vicariously liable for wrongs committed by the contractor in the course of the employment: see Walker on Delict page 154 and the authorities cited therein, in particular Stephen v Thurso Police Commissioners 1876 3R 535 at 540. In the present case the pursuers found on what is not uncommonly referred to as "an exception" to the general rule, which is said to arise when the contractor is carrying out inherently hazardous operations. In the case of Southesk Trust Co Ltd v Elsick Farms Ltd v Angus Council and Others 2006 CSOH 006 Lord Macphail doubted whether Scots law recognised this exception. At debate the defenders and appellants attempted to persuade the Sheriff to go further and reject "the exception" as having any basis in Scots law; they further argued that, in any event, the pursuers had not relevantly pled a case within the exception and in consequence maintained that the action should be dismissed so far as directed against them. The Sheriff was not disposed to uphold either of these arguments and, although the interlocutor pronounced by him was not entirely comprehensible, in effect allowed a proof before answer. That decision gives rise to this appeal.

 

8. In a persuasive argument counsel for the defenders and appellants took as his starting point the section in Delict (supra) where Professor Walker states: "When the operation instructed by the employer is one of a hazardous nature, with an obviously serious danger of considerable harm befalling if it is not carried through safely, the employer remains liable if that harm results, and cannot evade liability by having employed a competent contractor". Counsel drew attention to the fact that the authorities cited in support of this statement (of which the most notable is Dalton v Angus 1881 VI App Cas 740) were English. He then proceeded to examine the two Scottish cases cited by Professor Walker in which this rule, or exception to the general principle might be found.

 

9. Whilst Paterson v Lindsey (1885) 13R 261 was a case of liability for injury caused by hazardous operations (a gardener having been injured by a rock propelled by shot blasting in an adjoining property) it did not involve the employment of an independent contractor. The works which caused the harm were carried out by the defender or his servants. It was accordingly not authority for the existence of the exception. Sandison v The Commissioners of the Burgh of Paisley 1899 7SLT 255 was a brief report of an Outer House decision. It was held that there was a relevant case stated against proprietors of a bowling green who had instructed works which involved digging a trench in a street into which the pursuer fell. It was said that because the operation which they ordered was in its nature dangerous to the lieges unless proper precautions were taken, they could not relieve themselves of the duty of seeing that such precautions were taken by delegating the work to a contractor. This proposition, said counsel, was advanced without any reference to binding authority.

 

10. Counsel proceeded to consider certain other Scottish decisions. Cameron v Fraser 1881 9R 26 was a case where injury to a business was caused by dust and smoke emanating from building operations in an adjoining building. In upholding a decision in favour of the pursuer Lord Young said (at page 29): "This may be taken as a safe principle of law, that when a party executes operations on a property...however lawful and reasonable these operations may be, he must take care in conducting them to do as little damage as possible to his neighbour". The court appeared to have decided the cause without reference to the proposition that liability could be avoided by employment of an independent contractor. Miller v Renton & Ors 1885 13R 309 was a case which arose from structural operations carried out on the ground floor of a building in which the pursuer operated a hotel in the upper floors. The claim was one for damages for business disturbance. The pursuer, who was a tenant, raised the action against the proprietor of the building and independent contractors engaged by him to carry out the works. The case against the independent contractors was dismissed by the Lord Ordinary as irrelevant. The subsequent reclaiming motion, with which the report was concerned, was in consequence directed only to the relevancy of the averments against the contractors. The case was thus concerned neither with hazardous operations nor with the purported exception to the general rule that an employer is not liable for the actings of an independent contractor.

 

11. In the light of these decisions, counsel for the defenders and appellants maintained that it could not be said that any 19^th century authority pointed to the existence of the "exception" as part of the law of Scotland. Turning to more recent decisions in Anderson v Brady & Ross & Ors 1964 SLT (N) 11 there was a concession that where hazardous work was to be done by an employer he could not delegate his responsibility or his duties by employing an independent contractor. Counsel maintained that this concession was wrong. In McKenzie v Peter McAinsh Ltd & Ors 1975 SLT (N) 34 part of the Opinion of Lord Robertson was in the following terms: "In my opinion the law in this matter is well summarised in Sheriff McKechnie's article on reparation in Greens Encyclopaedia of the Laws of Scotland vol XII paras 1103 - 1106. The general rule is that an employer is not liable for the act of a contractor to whom he has delegated the execution of the work, or for his collateral negligence. It is the contractor himself who is liable. But an employer may not take the plea (1) when he retains control of the work; (2) when the work is necessarily of a hazardous character, although carefully carried out; and (3) when he owes a duty which cannot be delegated....In respect of (2) the article says "A person who undertakes an operation on property necessarily hazardous to his neighbours, does not escape liability for damage caused by employing a contractor to do the work. Since it is the operation which in itself is dangerous, and not the manner of doing it, the injurious act is regarded as the act of the employer." Whilst the Lord Ordinary had concurred in the view expressed by Sheriff McKechnie in the article quoted this was wholly unsupported by authority.

 

12. Counsel observed that if the passage cited with approval by Lord Robertson contained an accurate statement of the rule upon which the pursuer founded in the present case his pleadings did not bring him within it because it was averred not that the works were inherently hazardous but that they were negligently executed. The absence of averments of "inherent danger" had been regarded as fatal in the case of Noble's Trustees v Economic Forestry (Scotland) Ltd & Ors 1988 SLT 662. The existence of the exception was apparently accepted by Lord Dervaird in Borders Regional Council v Roxburgh District Council 1989 SLT 837 (at 839G) without reference to binding Scottish authority, but on the basis that it applied to work which is "necessarily attended with risk".

 

13. The law had been considered by Lord Stott in the case of Duncan's Hotel (Glasgow) Ltd v J & A Ferguson Ltd 1974 SC 191, a case in which piling work in the foundations of a building had caused damage to the upper floors. At page 196 Lord Stott said: "As Lord Kissen pointed out in Anderson v Brady & Ross Ltd...there is ample authority for the proposition that an employer is liable for the negligence of an independent contractor in carrying out hazardous operations. Where hazardous work is to be done an employer cannot "delegate his responsibility or his duty by employing an independent contractor". The rule, which applies equally in the law of nuisance, is supported by a line of English authority....It is wholly in accord with the ratio of contemporaneous Scottish decisions which in affirming responsibility in such circumstances for damage to adjacent property draws no distinction between work done by the proprietor himself and work done for him by an independent contractor...Some criticism of this doctrine was put forward by counsel for Fergusons with reference to the difficulty of defining what is meant by hazardous work. Does the rule apply only in circumstances where danger is certain to arise in the absence of precautions or does it apply when all that can be said is that danger might arise? Some of the work commissioned by any particular employer may involve a special hazard, some may not. Is the employer to be liable for damage occasioned by any of the work or only by that part of it which a reasonably prudent employer would consider to be hazardous? These are problems which might possibly arise in relation to a borderline case, but in my opinion they have no relevance here. Prima facie it is difficult to conceive of any work which is more likely to be hazardous than the removal of the existing foundations of an old four storey building and their replacement by new foundations while the building is to be kept entire". Counsel observed that it was difficult to adopt the position that "the exception" applied in Scots law but might not in borderline cases. That appeared to be the position Lord Stott was adopting. If the law imposed an obligation on an employer it ought to do so with a degree of certainty.

 

14. In that situation Lord Macphail was correct to cast doubts on the existence of "the exception" in the Southesk Trust case (paragraph 20) although it was accepted that his remarks were obiter (see paragraph 21). Indeed examination of the authorities showed that the exception did not exist and in that situation one was driven back to the clear statement of law that an employer is not liable for the negligence of a contractor. On that basis the appeal should be allowed and the action so far as directed against the defender dismissed.

 

15. Alternatively if the exception was recognised in Scots law the pursuers had not pled a relevant case within the ambit of it. One might take as the statement of principle the concluding part of the speech of Lord Watson in Dalton v Angus (supra) at page 831: "Where an employer contracts for the performance of work, which properly conducted can occasion no risk to his neighbour's house which he is under obligation to support, he is not liable for damage arising from the negligence of the contractor. But in cases where the work is necessarily attended with risk, he cannot free himself from liability by binding the contractor to take effectual precautions. He is bound, as in a question with the party injured, to see that the contract is performed, and is therefore liable, as well as the contractor, to repair any damage which may be done". In Article 3 of Condescendence the pursuers averred that "the operation which the defender had instructed was one necessarily attended by risk of damage to the upper flats in the event of negligent execution of work". The addition of the words "in the event of negligent execution of work" was significant. It was only in that event that it could be said that there was an attendance of risk. On that averment the case did not fall within the second part of Lord Watson's statement of principle.

 

16. The distinction between the hazard of an operation itself and the manner in which it was carried out had been acknowledged by Lord Robertson in McKenzie v Peter McAinsh Ltd (supra). Accordingly if the "exception" were to be applied in accordance with the principle upon which it was said to be founded this ought to have led to dismissal of the action.

 

17. Counsel contrasted the decision of Sheriff Principal Lockhart in the unreported case of Stewart v Malik (Ayr 29 April 2008). That was a withdrawal of support case. It had been argued on behalf of the defenders that a distinction required to be made between operations which were inherently hazardous or particularly dangerous and on the other hand operations which could be carried out safely by competent contractors which only became dangerous or hazardous if not carried out properly. The Sheriff Principal accepted a submission that the pleadings (following amendment), when read as a whole, alleged an operation which was in itself inherently hazardous. On that basis a proof before answer had been allowed, correctly if the exception did form part of the law of Scotland. The present case was not one, however, where the pursuer had relevantly pled that the operation was necessarily hazardous and dismissal ought to have followed.

 

18. In response Counsel for the pursuers and respondents contended that, in general terms, the Sheriff was entitled to hold that where a heritable proprietor instructs works on his own property which are necessarily attended with risk of damage to neighbouring property, he will remain personally liable for such damage resulting from a negligent execution of these works, even if carried out by an independent contractor engaged by him. That form of liability, he maintained, was not an exception to the general rule in the sense that it was being contended that the employer was liable for the negligence of his contractor; rather that the employer himself is under a duty of care and he remains subject to it even if he chooses to delegate execution of the works. That distinction had been recognised by the Lord Justice Clerk in Stephen v Thurso Police Commissioners (supra) at 538. It was also recognised in the judgment of Cockburn CJ in Bower v Peate 1871 1 QBD 321 at 326 which decision was approved in Dalton v Angus (supra). At page 829 of the report in that case Lord Blackburn observed that it was "settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor". Liability based on this principle was not vicarious liability.

 

19. The position was recognised in a series of Scottish decisions and was consistent with the law of Scotland. It was consistent with the passage in Lord Young's Opinion in Cameron v Fraser which made it clear that the duty was on the employer instructing operations on a property whether or not he delegated the work. Miller v Renton provided a further illustration of the principle. The concession in Anderson v Brady & Ross was in accordance with it. Lord Stott had noted and accepted Lord Blackburn's statement of principle in Duncan's Hotel (see page 198). Counsel drew attention a to passage in the speech of Lord Bridge in D & F Estates Ltd v Church Commissioners for England 1989 AC 177 at 208E where his Lordship observed that there are certain well established exceptions "or apparent exceptions" to the general rule that an employer of an independent contractor is not liable for the negligence of that contractor. He went on to state that it had been rightly said that the so called exceptions "are not true exceptions...for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff", a quotation from Clerk & Lindsell on Torts 15^th Edition 1982 para 3-37.

 

20. The principle indicated in Dalton v Angus had been accepted by Lord Dervaird in Borders Regional Council v Roxburgh District Council. The reasoning in Bower v Peate had been implicitly accepted by Lord Jauncey in Noble's Trustees. Lord Coulsfield had followed these decisions in G A Estates Ltd v Caviapen Trustees Ltd 1993 SLT 1037. Whilst none of these cases were binding on the Court they did indicate a long standing recognition of "the exception" to the general rule if that is what it truly was. The absence of Inner House authority indicated that these decisions had been accepted as correct.

 

21. The only case in which a different line had been taken was Southesk Trustees in which the dicta were obiter and the Lord Ordinary did not have the benefit of full argument. It could not, however, be said that Lord Macphail had gone the length of stating that the exception was not recognised in Scots law. It should also be borne in mind that Southesk Trustees was a case involving damage caused by the spillage of oil when a tank was being filled. It was not a case in which there was any question of liability flowing from ownership of heritable property and the removal of support to adjoining premises. It should not be treated as a suitable case for reaching the view in the present circumstances that there was no exception to the general principle such as would entitle the pursuers to succeed.

 

22. Turning to the question of whether there were sufficient averments for proof counsel contended that it was not a fair reading of the pursuers' averments, taken as a whole, to say that risk only arose in the event of negligent execution of the works. It was specifically averred that "It was obvious that removing the wall which bore a load would be attended by risk of damage to the upper flats". It followed that the work was hazardous even without negligent execution. The Court should take a broad view of the pursuers' averments as had been taken in Stewart v Malik. In consequence the Sheriff was correct, in substance, to have allowed a proof before answer.

 

Decision

23. In my view the principle which comes under discussion in this case does not fall to be regarded as an exceptional example of vicarious liability for the negligence of an independent contractor. It does, nevertheless, fall to be regarded as an exception to the general rule that there is no liability on the employer for the fault of an independent contractor. In the light of this distinction it follows that there is a need to be clear about the basis upon which such exceptional liability arises.

 

24. Reference has been made, on frequent occasions and with due deference, to Lord Watson's statement in Dalton v Angus (at page 831) where he states: "When an employer contracts for the performance of work, which properly conducted can occasion no risk to his neighbour's house which he is under obligation to support, he is not liable for damage arising from the negligence of the contractor. But in cases where the work is necessarily attended with risk, he cannot free himself from liability by binding the contractor to take effectual precautions" (see for example Lord Dervaird in Borders Regional Council (at page 829); Lord Coulsfield in G A Estates (at page 1042)). It is difficult to avoid the conclusion that this proposition - which on the face of it is arguably confined to cases involving withdrawal of support - forms part of the law of Scotland.

 

25. It is, in my view, based on principles with which the law of Scotland is familiar. In Dalton Lord Blackburn stated (at page 829): "A person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor". A more specific statement of the law is to be found in the judgment of Lord Jauncey in Noble's Trustees (at page 664A) where it is stated: "A landowner will be liable to his neighbour if he carries out operations on his land which will or are likely to cause damage to his neighbour's land however much care is exercised. Similarly will a landowner be liable in respect of carrying out operations, either at his own hand or at the hand of the contractor, if it is necessary to take steps in the carrying out of those operations to prevent damage to a neighbour, and he, the landowner, does not take or instruct those steps. In the former case the landowner's culpa lies in the actual carrying out of his operations in the knowledge actual or implied of their likely consequences. In the latter case culpa lies in not taking steps to avoid consequences which he should have foreseen would likely to flow from one method of carrying out the operations". That is the clearest of indications that liability arises from culpa; in my respectful opinion that passage sets out the law of Scotland.

 

26. The present case is one of withdrawal of support and I have little hesitation in holding the dictum of Lord Watson in Dalton v Angus to be applicable to it. That is sufficient for disposal of the first part of the defenders' argument. The decision which I reach is in line with the view of Lord Stott in Duncan's Hotel and that of Lord Coulsfield in G A Estates Ltd which, although not involving withdrawal of support as such, concerned interference with the course of a stream resulting in fundamental property damage. I can understand the concerns of Lord Macphail in the Southesk Trust case as to the validity of the "exception" in Scots law in the light of the circumstances of that case and the nature of the argument which was advanced to him. It appears to me, however, that the danger of unfairness to landowners which might arise from a willingness to apply the exception in situations far beyond those involving withdrawal of support has been avoided by the courts taking a firm, if not strict line in confining the application of the exception to cases where it is the nature of the operation itself which is hazardous rather than the means of carrying it out. No finding of liability was attributed to the landowners in McKenzie v Peter McAinsh, Noble's Trustees, or Borders Regional Council v Roxburgh Regional Council. I entertain some doubts as to whether Sanderson v Commissioners of Paisley was properly decided and I consider that there was some substance in counsel for the defenders' contention that the concession in Anderson v Brady & Ross was correct, at least in the general terms in which it appears to have been stated.

 

27. Counsel for the defenders and appellants alternative submission causes me greater difficulty. On a strict reading the terms of Article 3 of Condescendence appear to set out a case of vicarious liability for the fault of the third party. As I have indicated that is not the true basis for seeking to attach liability to a landowner who instructs operations involving a withdrawal of support. I am however, persuaded that a proof before answer should be allowed for two reasons. Firstly, the averments in Article 3 appear to confine the pursuers' case to a rather more restricted one than it need have been. I consider that there would be a degree of unfairness in refusing to admit them to probation because of that. Moreover, there is the general averment that "It was obvious that removing the wall which bore a load would be attended by risk of damage to the upper flats", an averment which, if established, in isolation would be sufficient to bring into operation the principle of law which I accept as being correct. Secondly, as I have already noted the case of nuisance is simply pled on the basis that "the defender instructed hazardous works within his premises. He did so in the knowledge that the works constituted an interference with the support enjoyed by the pursuers". It was accepted by counsel that the case of nuisance and the case based on negligence raised no separate issues in the context of the present proceedings. In my view the pursuers would be entitled to rely on the case of nuisance regardless of doubts over the relevancy of the case based on negligence.

 

28. In the whole circumstances subject to clarifying that the defenders' first plea in law still stands I shall affirm the Sheriff's interlocutor of 31 December. All questions of expenses are reserved.