SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
A548/06
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INTERLOCUTOR
in causa
MR BRIAN CHALMERS, residing at West Wardmill Farm, Drumoak, Banchory, AB31 5AP.
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Pursuer
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against
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ABERDEENSHIRE COUNCIL, having its offices at Gordon House, Blackhall Road, Inverurie, AB51 3WA.
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Defenders
_________________________
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Act:
Summers, Counsel
Alt:
Waugh, Counsel
ABERDEEN, 28
November 2008.
The
sheriff, having resumed consideration of the cause, Repels the defenders' third
and fourth pleas-in-law; Continues the cause to the procedure roll on 17
December 2008 at 9.45 am for a proof before answer to be fixed; and fixes the
same date and time as a diet for a hearing on expenses.
NOTE:
Background
[1] In this case the pursuer seeks damages
following upon alleged negligence on the part of the defenders or separately
following from a nuisance created by the defenders. The subject of the dispute is a drainage
ditch at the side of a public road running adjacent to fields farmed by the
pursuer. It is alleged for reasons set
out in the action that the present form and construction of this ditch is
resulting in significant flooding of the pursuer's fields.
[2] The action called before me on 3 November
for debate. There were a number of
procedural matters which firstly required to be resolved and these are set out
in my interlocutor dated 3 November
2008. The debate hearing
then proceeded in respect of the defenders' third and fourth pleas-in-law.
Argument for defender
[3] Miss Waugh submitted that the court
should sustain the defenders' fourth plea-in-law in respect that she submitted
that certain passages set out in articles 5, 6 and 7 of condescendence ought to
be struck out and not admitted to probation.
She submitted that these averments were irrelevant as it was not
competent for the Sheriff Court to
adjudicate on the points raised by the averments. Her argument was set out in article 3 of the
Rule 18 Note for defenders, No. 32 of process.
[4] She firstly outlined the background to the
action. There was no dispute that the
defenders were the local authority responsible for the management and
maintenance of the relevant road and ditch, in terms of the Roads (Scotland) Act
1984. It was not in dispute that the
fields were owned by the pursuer and that they were liable to flooding. There was, however, a difference between the
parties as to the cause of that flooding.
The pursuer's approach to the action was to split the ditch into three
different sections and thereafter to aver criticism of the defenders in respect
of each section. There was no dispute
that there had been considerable correspondence and discussion between the
parties, as was reflected in the pleadings, and there was no dispute that the
defenders had undertaken certain works to the ditch at the request of the
pursuer, which works had been undertaken at cost to the defenders and thus the
public purse. There was disagreement
between the parties' respective expert engineers about the causes of the
flooding and steps which might be taken to improve the position.
[5] She confirmed that the case had a
lengthy history and that the record now appeared in a much streamlined form
with only two craves remaining. The action had started with fourteen
craves. These had included craves for
declarator and specific implement orders.
The defenders had taken issue with the competency of the majority of
these orders on the basis that their format appeared to amount to an action for
judicial review and that is not a form of procedure which can competently be
undertaken in the Sheriff Court. There had been amendment as a result of this
position but, in her submission the pursuer had re-introduced certain
averments, broadly those setting out the remedial works which the pursuer
claimed ought to be done. This, in effect, brought back the same issue of
judicial review by a different guise.
[6] In condescendence 3, the pursuer set out
the relevant terms of the Roads (Scotland) Act 1984
and no issue was taken therewith. It was
admitted that the defenders were responsible for the relevant ditch. On page 9, article 5 of condescendence the
pursuer set out the basis on which he claimed that flooding was caused by the
first section of the ditch. This was in
dispute. At line 24 of article 5 of
condescendence the pursuer averred as follows,
"In
particular and consistent with that duty the defender should regrade the open
ditch between a point 40 metres to the west of the junction of "Section 1" and
"Section 2" on the plan and a point 50 metres to the southeast of the junction
of "Section 3" and "Section 4" on the plan to create an adequate run. The defenders should form an adequate pipe
work connection at the junction of the points marked "Section 1" and "Section
2" to enable water to flow between those sections."
She sought to have these averments excluded
from probation.
[7] In article 6 of condescendence at line
15 a similar passage read,
"In
particular and consistent with those duties the defenders should kerb the
roadside verge at section 2. The
defenders should remove and dispose of the existing 22 metres of underground
perforated pipe. The defenders should replace
the existing 22 metres of underground perforated pipe with 22 metres of 160
millimetre outsize diameter Wavin Supersure MDPE Pipe. The defenders should supply and lay 22 metres
of precast concrete kerbs along the length of the roads edge. The defender should back fill the verge to
slope away from the kerb up to the dry stone dyke. The installation of kerbing at this area
would protect the road verge and prevent vehicles cutting the corner. It would prevent further subsidising of the
verge and potential damage to the pipe.
The use of kerbing would channel any water from the road to the grips
and prevent saturation of the verge. The
lack of kerbing contributes to saturation of the verge and prevents water from
properly draining into the grips. Saturation
of the verge contributes to the flooding.
The water does not flow into the drainage channel. The water seeps under the channel and into
the pursuer's fields. The water seeping
into the pursuer's field causes damage to the foundations of the dry stone
dyke."
This
was the second passage of averments which the defenders sought to have excluded
from probation.
[8] In article 7 of condescendence at line
29 the pursuers aver,
"In
particular and consistent with these duties the defenders should remove 96
metres of PVC open channel and concrete cradle from the length of section
3. The defenders should replace the open
channel running through the length of section 3 with 96 metres of 160 mm
outside dia. Wavin Supersure MDPE pipe with a protective concrete haunch at a
gradient of 1:150 and back fill. The
defenders should install 96 metres of precast concrete road kerbs on a concrete
base along the entire length of section 3.
The defenders should install two standard road gulleys including
concrete surrounds and connections to the MDPE pipework."
This
is the third passage which the defenders sought to have excluded from
probation.
[9] She submitted that averments were very
similar to the terms of the specific implement initially sought by the pursuer
but were dressed in a different guise.
The pursuer was, in effect, seeking that the court make an order for
this work to be carried out. What the
pursuer sought to do was to have the court make findings that the defenders had
duties to carry out this work on a statutory basis and findings as to how the
work should be carried out. Whilst the
defenders accepted that no specific order was now sought in effect, by
presenting his case in this way, the pursuer raised the same issue. He was seeking a finding from the court that
the defenders should carry out this work in order to comply with their
statutory duties. Such averments were
more than was sufficient to support a common law case of nuisance. It was not for the Sheriff
Court to tell a local authority how to
comply with its statutory duties. Had
this been a case involving a private roadway the point would not have been
taken but here the defenders were a statutory body whose decisions and actings
could not be reviewed by a Sheriff
Court.
[10] She referred to the case of Brown v Hamilton District Council 1993 SC (HL) 1. This case referred to a
different statute namely the Housing Acts. There, after amendment, the pursuer
had sought a declarator and specific implement order
against the council. She referred
specifically to the passage set out at page 42 of the report where Lord Fraser
stated the position that only the Court of Session could exercise supervisory
jurisdiction in such circumstances and further at page 45 that the Sheriff
Court had a fundamental lack of
jurisdiction in this field.
[11] She referred further to Sheriff Court Practice, Macphail
(3rd edition) submitting that it was a question of
competency. The Sheriff
Court did not have the power to review
the decisions of a local authority or to instruct a local authority how to
carry out their statutory functions. She
accepted that the point was, as she described it, subtle and could not have
been taken had these proceedings run in the Court of Session given the powers
held by that court. Similarly an action
against a private company would fall to be treated differently. To establish a case of nuisance the pursuer
required to establish whether the drain for which the defenders was responsible
was leaking into the field and if, as a result of that leakage, flooding was
being caused.
[12] She asked that the defenders' fourth
plea-in-law be sustained and that the three passages which she had identified
be excluded as they were irrelevant to the pursuer's case. He invited the court to make findings on
issues in respect of which it was not competent for the court to make
findings. The passages were not
necessary in order for the pursuer to seek to establish his case.
[13] The defenders had considered why these
averments had been re-inserted and had come to the view that this was a "back
door" attempt to review the defenders' decision on how they should carry out
the functions of the authority. It was,
she submitted, a creative attempt to get round the problem facing the pursuer
namely that the Sheriff Court could not
exercise jurisdiction in this way. It
was not for the Sheriff Court to make
findings as to what the defenders should or ought to do or how they should
carry out their functions.
Argument for pursuer
[14] For the pursuer, Mr Summers submitted that
the case should be set out for a proof before answer and that no averments
should be removed or excluded from probation.
The pleadings which were subject to the attack had been inserted to
support the pursuer's case based in negligence.
Without these averments the pursuer's pleadings would be subject to the
criticism that they failed to give notice of how the defenders' duties should
have been fulfilled. The pursuer was
providing notice of what he said should have been done. The pursuer did not seek an order for
implement and accordingly the principles set out in the case of Brown v Hamilton District Council were not applicable. The pursuer had only pecuniary craves. The court was not being asked to make any
order of implement. It was commonly the
case in debates that pursuer's pleadings were criticised on the basis that,
when complaining of negligence, they declined to set out what ought to have
been done. In this case they set
out that there was a duty on the part of
the defenders and how that duty should have been fulfilled. It was entirely appropriate and a proper
exercise of pleading that this information be pleaded. The seeking of an order for specific
implement was completely different territory.
[15] He submitted that there were a number of
authorities in this area of law. He
referred to Clark and Lindsell on Torts
(19th edition) and the case of Lonrho Plc v Tebbit &
Anor [1991] 4 All E.R. 973. These
authorities supported the proposition that there was a distinction between a
failure of duty and a policy decision.
Where any failure resulted from a policy decision no duty would be owed
but where a failure was operational in nature then a duty could be owed. He submitted that the court should hear
evidence before affirming or otherwise the existence of a duty. He submitted that both sides were prepared to
go to proof and there was really little issue between the parties. It was accepted that the local authority were
entitled to build a drain at this location.
The remedy sought here was for a breach of their duties of care. The pursuers did not know nor was it set out
in the pleadings whether any decision had in fact been taken by the local
authority. There was nothing set out in
the defenders' pleadings to indicate what positions had been taken either to do
or not to do certain works. The issue
was the manner in which they had performed their statutory duties. It was suggested by the defender that the
pursuer's approach was designed to undermine their discretionary decision but
that was not the case. The claim related
to an operational failure of the nature referred to in the case of Lonrho Plc v Tebbit. He referred also to Winfield & Jolowicz on Tort (17th
edition) at paragraphs 541 and 542.
He submitted that the Record required to be read objectively. It was inappropriate to colour the reading of
the Record by its former format. There
was now no crave for reduction. All that
the pursuer sought to do was to tell the defenders what it was that they claimed
should have been done. The defenders'
point was a short one, was over subtle and invalid.
Defenders' response
[16] In response to the pursuer's submission,
Miss Waugh accepted that this was something of a grey area but submitted that
what was being attacked in these averments was not an operational matter but a
policy decision. She referred in
particular to averments set out in answer 3 of condescendence which stated that
it was a matter for the defenders to decide how to carry out their duties under
the relevant statute.
My decision
[17] In this action the pursuer seeks damages
for alleged negligence on the part of the defenders and, separately, damages
for alleged nuisance. The defenders at
debate seek exclusion of three passages from the record each of which are in
similar terms and are included by the pursuer for the same purpose.
[18] In my respectful view in any action for
negligence it is appropriate for a pursuer to set out the duty or duties which
he claims to be incumbent upon the defender and the manner in which he claims
those duties have been breached. As part
of that latter exercise it is appropriate for the pursuer to include averments
setting out how the defender ought to have carried out the duties incumbent
upon him. It is the passages of averment
setting out the pursuer's position on what ought to have been done which are
attacked by the defender. It is
certainly unusual at debate to have a complaint from a defender that the
pursuer is averring more information and providing greater specification than
is required or appropriate.
[19] There is undoubtedly a greater subtlety in
a case such as this which involves a public law element. I can understand why the defenders consider
it inappropriate for a court which does not have the power to review decisions
of the defenders, to make findings about what the defenders ought to do in any
particular circumstances. It does,
however, seem to me that this argument would apply in any negligence action
taken against a local authority in the Sheriff
Court as in all such actions the court
requires to consider whether there has been a breach of duty. This cannot be
properly considered in a vacuum without regard to the steps which ought
properly to have been taken. Were these
averments to be excluded from probation then, at proof, the pursuer would not
be able to lead evidence about what he claims ought to have been done and would
then be left with averments and proof that what had been done was inadequate
without reference to the steps which could or ought to have been taken to deal
adequately with the situation.
[20] Further the defenders do not plead any
suggestion that their approach to the dispute, as a matter of fact, involved a
policy decision to proceed or not to proceed in any particular way. There is, at answer 3, some mention of
factors which the defenders would take into account when planning and providing
for works and a general suggestion that the defenders have exercised a
discretion in their exercise or non exercise of certain discretionary
powers. In my opinion the defence which
is pleaded in this action is not a defence that the defenders have taken a
decision not to proceed in the manner specified by the pursuer but rather that
they have complied with all duties incumbent upon them, in the manner in which
they plead, and that they have not acted negligently. At no point in the defences is it suggested
that the defenders have considered the proposals set out in the passages
complained of and chosen to reject these for policy or other reasons. Had they, for example, pleaded that such a
decision had been made by them, as the statutory local authority, then it would
be beyond the power of this court to review that decision. In short, however, no such decision is
averred and the court is not being asked to review any such decision.
[21] It seems to me that for the defenders to
have properly founded this argument they would have required to approach this
element on the basis that they had come to a decision that, although they did
not accept there to be any necessity to carry out the suggested works nor that
the suggested works were appropriate, if it were to be deemed an appropriate
procedure they would not carry out the works for monetary or policy
reasons. Had such a decision been made
and pleaded then this court could not review that decision.
[22] On the pleadings as they presently stand
it is my respectful opinion that the averments complained of are relevant and
indeed that it is appropriate that the pursuer gives to the defenders full and
proper notice of the steps which he claims could or should be taken to resolve
the problem of which he complains.
[23] Accordingly, I reject the submission made on
behalf of the defenders and repel defenders' pleas No. 3 and 4. The cause can now be sent to proof before
answer reserving the pursuer's second plea-in-law.
Expenses
[24] I was not addressed on expenses and I have
accordingly set out the cause for a hearing thereon.
Sheriff of
Grampian, Highland and Islands at Aberdeen.
28 November 2008.
