Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL & FIFE AT DUNFERMLINE   Case Number:A/530/09
	Judgment by     JOHN K MUNDY, Esq. Advocate,   Sheriff of Tayside, Central & Fife     in the cause     SCOTLAND GAS NETWORKS PLC Pursuers   against   SCOTTISH WATER Defenders     ­­­­­­­­­­­­­­­­­________________

 

 

DUNFERMLINE, 13^th December 2011.

 

The Sheriff having resumed consideration of the cause

 

FINDS IN FACT:

 

1. The pursuers have statutory responsibility and ownership of the gas distribution network in Scotland.

 

2. The defenders have statutory responsibility for the public water supply throughout Scotland.

 

3. Between around 27 September and 3 October 2006, the pursuers' contractors Alfred McAlpine ("AM") carried out works involving the excavation of a trench, replacement of an existing cast iron gas main and the laying of a new polyethylene gas pipe ("the gas pipe") of 250mm diameter, running generally from west to east along the length of Kildonan Street, Coatbridge. The core of the pipe was polyethylene and it had a skin of polypropylene. The gas pipe was laid on around 27 September 2006.

 

4. The gas pipe passed underneath an existing water pipe belonging to the defenders ("the water pipe"). The water pipe was a branch pipe which ran generally from north to south, connecting a water main to a fire hydrant.

 

5. The gas pipe and water pipe intersected at or near to a point on the carriageway of Kildonan Street marked " 4" " on the plan forming 6/4 of process.

 

6. The water pipe was three inches in diameter. It was made of cast iron and was 30 to 50 years old.

 

7. On or about 27 September, the area where the pipes intersected was excavated by employees of AM, including John McLaughlin, Team Leader; Chris McMillan, a labourer; and another employee who operated a mechanical digger. A trench was dug along the line of the gas pipe which including the point of intersection. When the employees approached the level of the water pipe, they proceeded cautiously and dug by hand, using spades, around the water pipe and existing gas main.

 

8. When the gas pipe was laid, it was around 200mm from the water pipe.

 

9. Following the laying of the gas pipe, the trench was backfilled by the pursuer's contractors on around 28 September 2006.

 

10. The backfilling operation was carried out by employees of AM, including John McLaughlin and a Walter McKeown, a lorry driver, with the aid of a mechanical crane with bucket. They used sand and Type 1 aggregate as infill material, and who used hand tools to compact the infill material in the vicinity of the water pipe.

 

11. The infill material was adequately compacted in the course of the backfilling operation.

 

12. No escape of water was observed from the water pipe during the excavation, the laying of the gas pipe, or the subsequent backfilling of the trench.

 

13. Following the backfilling of the trench, at or shortly after 8 am on 3 October 2006, a reinstating team, also employed by the pursuers, laid a base layer over the infill material and a mechanical device, then either a pneumatic compacting device known as a "whacker plate" or a vibrating drum roller, was used to further compact the material in the trench in preparation for laying a new tarmac surface.

 

14. The use of that device resulted in forces being transmitted to the water pipe which led it to fail and a leak to develop on its underside.

 

15. A jet of water from the water pipe, containing grit from the infill material, struck the gas pipe and eroded a hole in it.

 

16. After around two or three hours, the water jet penetrated the gas pipe, causing gas to escape and the gas supply to be interrupted.

 

17. At around 8.50am on 3 October 2006, employees of AM observed water escaping from the excavation in the area where the water pipe crossed the gas pipe, and the team leader on site, John McLaughlin, reported the escape of water to his superior Colin Fyfe by telephone.

 

18. At around 9am that day, and again at around 11am, Colin Fyfe reported the escape of water to the defenders by telephoning their helpline.

 

19. At around 11.45am, the pursuers began to receive reports from customers of a loss of gas supply, resulting from the damage to the gas pipe.

 

20. At around midday, the employees of AM began to excavate the site with a view to discovering the cause of the water leak.

 

21. At around 1.30pm, John McLaughlin flagged down a van belonging to the defenders and alerted the driver to the escape of water in Kildonan Street, which the driver reported to the defenders. In response to that, the defender arranged for its employees to attend at Kildonan Street and cut off the water supply to the water pipe. Employees of the defenders arrived on site at around 2 to 2.30pm and the supply of water to the damaged pipe was disconnected by them at around 3.30 to 4pm.

 

22. After the water was switched off, and following excavation, the water pipe was inspected and was found to have a hole in the underside. The hole was large enough for a finger to be inserted.

 

23. The presence of such a hole is consistent with there being corrosion in the area of the water pipe where the hole developed.

 

24. Prior to the works, in around September 2006, Colin Fyfe, Team Manager with AM, attended a meeting with various agencies including representatives of the Roads Department of the local authority, North Lanarkshire Council, and was advised that the water pipes in the area were liable to burst and that there had been occasions when they had burst. Mr Fyfe then briefed Team Leader John McLaughlin. At the outset of the works in the locality, Mr McLaughlin who was also advised by officials from the local authority that water pipes had failed in the area.

 

25. The water pipe were replaced by the defenders with a new plastic water pipe prior to a joint inspection attended by Dr Simon Jones, the pursuers' expert and Mr Gordon Morris, the defenders' expert on 26 August 2010.

 

26. By the time of the commencement of the works in September 2006, the water pipe was in a poor condition and was corroded. It was near to or at the end of its useful service life.

 

27. The water pipe failed because it was in a corroded condition such that it failed under the additional forces applied by the compacting equipment used by the employees of AM in the proper exercise of their work.

 

FINDS IN FACT AND LAW

 

1. That it has not been proved that the damage to the pursuer's gas pipe was caused or materially contributed to by the misconduct or negligence of the pursuers or their contractors either because of a failure to provide protection between the water pipe and the gas pipe or because of their conduct of the works.

 

2. That it has not been proved that the damage to the pursuer's gas pipe was caused by the negligence of the defenders at common law in failing to respond promptly to notification of a water leak.

 

FINDS IN LAW

 

1. That the defenders are liable to compensate the pursuers in respect of any expense reasonably incurred in making good damage to the pursuers' gas pipe in terms of section 141(1) of the New Roads and Streets Act 1991.

 

2. That the defenders are not liable to make reparation to the pursuers at common law.

 

 

THEREFORE

 

Sustains the first pleas in law for the pursuers to the extent of finding the defenders liable to compensate the pursuers in respect of any expense reasonably incurred in making good the damage to the pursuers' gas pipe in terms of section 141(1) of the New Roads and Streets Act 1991; repels the second plea-in-law for the pursuers; repels the third and fourth pleas-in-law for the defenders; appoints the cause to a hearing to determine further procedure on a date to be afterwards fixed.

 

 

 

 

NOTE:

 

Introduction

 

[1] The pursuers have raised an action against the defenders for payment of £206,590.20. The claim arises out of events occurring between 27 September and 3 October 2006 during the replacement of a gas main by the contractors Alfred McApline ("AM") on behalf of the pursuers ("SGN") underneath the defenders' water pipe in Kildonan Street, Coatbridge. The gas pipe installed during the works was damaged by water emanating from a breach in the water pipe.

 

[2] The claim is firstly for compensation under section 141 of the New Roads and Street Works Act 1991 ("1991 Act") for the expense of making good the damage to the gas pipe and secondly at common law for loss and damage on the basis of negligence.

 

[3] The action was raised towards the end of 2009 and after sundry procedure came before me for proof on liability only. I heard evidence over four days - 23 May, 15, 16 and 17 August 2011 after which the notes were extended and submissions on the evidence made on 13 October 2011. Mr O'Brien, Advocate appeared for the pursuers and Mr Marney, Advocate appeared for the defenders.

 

[4] The witnesses for the pursuers were: (1) Colin Fyfe (2) John McLaughin (3) Michael McKeown (4) James Slaven - all employees or contractors of the pursuers - and (5) Dr Simon Jones, Chartered Mechanical Engineer, the pursuer's expert. Gordon Morris, Chartered Engineer, gave expert evidence for the defenders. A joint minute was lodged agreeing certain documents.

 

[5] Colin Fyfe was a Team Manager with AM at the material time based at Coatbridge. His job involved visiting sites, dealing with problems and liasing with the local authorities. He was involved in the work in question in a managerial capacity. He now works for SGN. John McLaughlin was at the time a Team Leader with AM. His manager was Colin Fyfe. He was directly involved with the works in question. He now works for SGN. Michael McKeown was a Team Leader with responsibility for dealing with gas escapes and became involved in the incident following reports of low gas pressure in the locality. James Slaven was a Performance Manager with the SGN based at their Coatbridge Depot who, like Mr McKeown, became involved following reports of loss of gas pressure. I found that these witnesses gave their evidence in a straight forward manner and had no reason to doubt that the evidence they gave was honestly given. It must be recognised however that the events in question occurred some five years ago and witnesses cannot be expected to remember the events with crystal clarity given the passage of time, particularly where there is little, if any, contemporaneous documentation to assist recollection. I found that the witnesses did the best they could to recollect what occurred and any discrepancies in detail were understandable.

 

[6] Dr Jones produced a report (5/11 of process) and a Supplementary Report (5/18). He accompanied the defenders' expert Mr Morris to a joint inspection of the locus on 26 August 2010 when the area was excavated and photographs taken. Earlier photographs had been taken after the incident once the water had been disconnected and a repair collar applied to the water pipe covering the area of damage. Mr Morris produced a report (6/11).

 

Background

 

[7] In the days prior to 3 October 2006, probably on 27 and 28 September, the pursuer's contractors AM carried out works, including excavation, to lay a gas pipe which passed underneath the defenders' water pipe - a 3 inch diameter cast iron pipe After the trench was filled and following compaction of the infill materials, a leak in the underside of the water pipe occurred causing a water escape under pressure which damaged the newly laid gas pipe underneath. The jet of water, combined with abrasive infill material - grit - caused a whole in the gas pipe and there was a consequent lack of gas pressure and a disruption of local supply. The leak became apparent on 3 October 2006. The water pipe in question was a branch pipe supplying a fire hydrant.

 

[8] The issue between the parties was the cause of the leak in the water pipe. One of the difficulties is that the pipe has not been preserved and there is no record of what happened to it.

 

Statutory Provisions

 

[9] Section 141 of the 1991 Act provides:

"Liability for damage or loss caused.S

(1)An undertaker shall compensate-

(a)the road works authority or any other relevant authority in respect of any damage or loss suffered by the authority in their capacity as such, and

(b)any other person having apparatus in the road in respect of any expense reasonably incurred in making good damage to that apparatus,

as a result of the execution by the undertaker of road works or any event of a kind mentioned in subsection (2) below.

(2)The events referred to in subsection (1) are any explosion, ignition, discharge or other event occurring to gas, electricity, water or other thing required for the purposes of a supply or service afforded by an undertaker which-

(a)at the time of or immediately before the event in question was in apparatus of the undertaker in the road, or

(b)had been in such apparatus before that event and had escaped therefrom in circumstances which contributed to its occurrence.

(3)The liability of an undertaker under this section arises-

(a)whether or not the damage or loss is attributable to negligence on his part or on the part of any person for whom he is responsible, and

(b)notwithstanding that he is acting in pursuance of a statutory duty.

(4)However, his liability under this section does not extend to damage or loss which is attributable to misconduct or negligence on the part of-

(a)the person suffering the damage or loss, or any person for whom he is responsible, or

(b)a third party, that is, a person for whom neither the undertaker nor the person suffering the damage or loss is responsible.

(5)For the purposes of this section the persons for whom a person is responsible are his contractors and any person in his employ or that of his contractors.

(6)Nothing in this section shall be taken as exonerating an undertaker from any liability to which he would otherwise be subject."

 

[10] It is not in issue that the defenders were "undertakers" for the purposes of the provisions nor that the pursuers, as those having apparatus in the road are in the category of those entitled to be compensated. Further, it is not disputed that the escape of water was "an event of the kind mentioned in subsection (2)". Accordingly, prima facie the pursuers satisfy the statutory criteria for compensation under the section 141(1)(b). However, it can be seen that there is a statutory defence under subsection (4) which provides that liabilty "does not extend to damage or loss which is attributable to misconduct or negligence on the part of - (a) the person suffering the damage or loss, or those for whom the he is responsible..." In terms of subsection (5) such a person includes employees and contractors and would include in this instance the employees of AM.

 

[11] It can be seen that the section imposes strict liability with no need therefore to establish fault on the part of the claimant. It was not disputed before me that the burden of proving the statutory defence lay with the defenders.

 

[12] There are three issues relating to the statute which can usefully be dealt with at the outset. The first is the meaning of "misconduct; the second is the meaning of "attributable"; and the third is whether the statute excludes claims at common law.

 

"Misconduct"

 

[13] There does not appear to be any definition of "misconduct" in the 1991 Act. I wasn't addressed in any detail in the course of submissions as to the meaning of the term. in the present context. It is relevant to consider whether it connotes any greater or lesser degree of culpability than negligence. In Roylance v General Medical Council (No.2) 1 AC 311, Lord Clyde considered the meaning of misconduct in the context of medical practitioners. He stated (at p330F-H):

 

"Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances."

 

The authorities in the area of health regulatory law suggest that mere negligence not amount to misconduct but that it may be demonstrated where there is serious negligence (McCandless v General Medical Council [1996] 1 WLR 167, PER Lord Hoffmann at p 169F; Preiss v General Dental Council [2001] 1 WLR 1926, PC, per Lord Cooke at para. 28; and Calhhaem v GMC [2007] EWHC 2606, per Jackson J at para. 39). It does not seem to me that a mere departure from rules or regulations is something which can necessarily be categorised as misconduct. The impression I get from the authorities, such as they are, is that misconduct is generally regarded as conduct which is more serious than negligence and involves a degree of wilful conduct. That impression is confirmed in the present context by the observations of the court of first instance in Telewest Ltd v Yorkshire Electricity Distribution plc [2006] EWCA Civ 1418. That was a case brought under the equivalent provisions of the 1991 Act applying to England. At paragraph 15, the judge is quoted by the Court of Appeal as observing under reference to published guidance:

 

"The significance of [published guidance] to these claims is that in some circumstances failure to follow the advice given within its pages is capable of amounting to negligence and, possibly, in a deliberate ignoring of the advice, misconduct. I prefer not to consider departures from recommended distances as 'breaches' of the guidance but just that-departures. Whether in each instance a departure amounts to negligence has to be a question of fact and degree, taking into account the general circumstances of the available space within the footway and, if necessary, consideration of whether the apparatus, in this case fibre optic cable ducting, should have been laid in the carriageway."

 

Accordingly, it appears to me that conduct short of negligence is unlikely to constitute misconduct for present purposes.

 

"Attributable"

 

[14] As to what is meant be "attributable", there is no definition in the 1991 Act. Mr O'Brien contended that, in this context, the test was whether the negligence or misconduct (if any) was a material cause of the damage (cf Glasgow Coal Co v Sneddon (1905) 7 F 485, at page 487). Mr Marney argued that it meant "capable of being attributed" (Smith v Central Asbestos Co Ltd [1973] AC 518, per Lord Reid at page 533) and that therefore while there had to be a causal connection, the connection did not require to be the sole, dominant, direct or proximate cause, a contributory causal connection being sufficient and the possibility of concurrent causes was not excluded (Wotherspoon v HMA JC 74; R v Monopolies and Mergers Commission ex parte NHBC [1995] ECC 89).

 

[15] Ultimately, I do not think there was a great deal of difference between counsel on this point. For the avoidance of doubt, I favour the test set forth by Lord McLaren in Glasgow Coal Co v Sneddon. That was a case under the Workmen's Compensation Act 1897 which provided in terms of section 1(2)(c):

 

"If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed."

 

At page 487, Lord McLaren stated:

 

"What is included under the word "attributable"? I think that under that word there must be some causal relation between the misconduct of a workman and the injury which he suffers. It would not do to say that he was carrying a naked light on his person at the time when the stone came down, because although that would be a very serious act of misconduct in a mine where naked lights are not permitted, it has nothing to do with the accident or the consequent injury. It does not follow, however, that we are to interpret the word "attributable" as meaning that misconduct is the sole and only cause of the man's death or injury. It is enough that it is a material cause that in some way contributes to the unfortunate result. Therefore, I think that the question to be considered under the word "attributable" is very much the same as we have to consider in cases at common law where there is fault on the part of the employer or his servant, and the meaning is that the injury was either caused solely by the workman's own fault, or was contributed to materially by his act or fault."

 

[16] Albeit in the context of different legislation, it seems to me that, there are similarities in purpose and language and that therefore the test so expressed represents the correct approach under the 1991 Act. The question is therefore, for the purposes of the statutory defence - did the pursuers, or those for whom they were responsible, cause or materially contribute towards the damage to their gas pipe?

 

Whether the statute excludes the claim at common law

 

[17] There was a consensus between the parties that the statute did not preclude the pursuers from bringing a common law case of negligence but that involved the submission that the Court of Appeal in England in the case of Telewest Ltd was wrong in expressing a contrary view under reference to the similar provision applying in England.

 

[18] Mr O'Brien submitted that nothing in section 141 explicitly excludes a claim under common law, and s.141(6) provides in terms that "Nothing in this section shall be taken as exonerating an undertaker from any liability to which he would otherwise be subject." Nor was there any Scottish authority indicating that a common law claim is implicitly excluded.

 

[19] However, in Telewest v Yorkshire Electricity [2006] EWCA Civ 1418, the Court of Appeal considered the equivalent English provisions, which are materially identical. At para 6, they stated, explicitly obiter, that section 82 formed "a complete code, excluding the operation of the common law". The reasons given for that view were:

 

"It would be very odd if Parliament had provided relief based on strict liability, but with a specific exemption, if it intended the common law of negligence nonetheless to continue in parallel with that scheme. That view is not displaced by section 82(6), providing that the section does not exonerate an undertaker 'from any liability to which he would otherwise be subject'. That saving ... is in the nature of the avoidance of doubt, and is directed at liability to third parties other than those listed as benefitting from the imposition of strict liability. If the draftsman had intended to say that the imposition of statutory liability between particular parties was without prejudice to rights of action at common law between those parties, he had at his disposal much clearer and more direct ways of expressing himself."

 

[20] However, submitted Mr O'Brien, a statutory scheme will implicitly exclude an existing common law remedy only where the statute is positively inconsistent with the continued availability of the common law remedy: HMRC v Total Network [2008] 1 AC 1174, para 130. This can occur where a statutory scheme limits liability in a way that would be pointless if an alternative remedy was available at common law: eg Monro v HMRC [2009] Ch 69, para 22. But there was no inconsistency in providing different defences for strict liability and fault-based liability, which is the effect of s.141. There is no reason why Parliament would have wished to absolve a negligent undertaker of liability merely because of another party's concurrent fault, and s.141(6) strongly indicated that Parliament did not intend to do so. In these circumstances, it was submitted that the obiter dicta in Telewest should not be followed.

 

[21] Alternatively, submitted Mr O'Brien, if Telewest is correct, the ouster of the common law should only extend to those claims falling within the scope of the statutory regime. Thus, it would not exclude a claim for damages in relation to a subsequent failure to deal with a water leak; the Court of Appeal cannot have contemplated that a water undertaker should have complete statutory immunity in relation to all their activities in connection with a water leak, merely because the leak was initially caused by somebody else's negligence. Nor would Telewest exclude a claim in relation to statutory compensation to customers if (as the defenders maintain) such a claim is outwith the ambit of the statutory scheme to begin with.

 

[22] Mr Marney did not demur and referred in particular to the terms of section 141(6).

 

[23] For the reasons advanced by counsel I consider that a claim based on negligence is not excluded by the statute. On the contrary, it seems to me to be plain from the terms of section 141(6) that the common law remedy is preserved. I can see no justification for restricting the effect of sub-section (6) in the way suggested by the court in Telewest.

 

The issues

 

[24] In this action the defenders have availed themselves of the statutory defence in the pleadings contending that the likely cause of failure in the water pipe was a void being left in the infill material under the water pipe leading to stress on the unsupported pipe when subject to loads from above. They contend separately that water pipe was damaged during the works by the SGN contractors. It is also averred that due to the proximity of the pipes the contractors should have installed protection to eliminate applied loads. It is said that the damage was caused by negligence or misconduct on the part of the pursuers' contractors. In response, the pursuers aver that they took all reasonable care in carrying out the works and that the leak would not have occurred had it not been for the fact that the pipe was corroded. The defenders deny that corrosion was the cause.

 

[25] Separately, the pursuers make a case of negligence on the part of the defenders on the single basis that the defenders did not respond promptly to notification of the leak. In response, the defenders deny any such failure and also contend that the pursuer could have turned off the water valve at the locus themselves. This forms the basis of a plea of contributory negligence although it became clear at the outset of submissions that the defenders were not insisting upon that argument.

 

[26] Broadly, the matters founded upon by the defenders in support of their statutory defence under the statute can conveniently be considered under two heads: (1) lack of pipe protection and (2) conduct of the works by the pursuers' contractors.

 

Pipe protection

 

[27] The defenders contend that due to the proximity of the gas pipe and water pipe, protection should have been inserted between them in the form of a concrete tile or sleeve or a section of steel. The defenders' averments refer to minimum distances of 200mm being required between services where they are parallel but possibly as low as 75mm for a square crossing (as was the case here) provided protection was provided. The pursuers contend that such protection was unnecessary in the circumstances. In making their submissions, counsel helpfully made reference to passages of evidence from the extended notes by reference to the date and page number. I have adopted that method in the course of this Note.

 

Submissions on behalf of the Pursuers

 

[28] Mr O'Brien submitted that there was conflicting evidence on the distance between the pipes at the time of the incident. Mr Morris measured the distance to be 120mm, but this was after the pipe had been replaced, and he accepted that the distance between the pipes in place on 3 October 2006 may have been greater (17 August, pp32-33). The witnesses who observed the pipes at the time estimated the distance variously as 100-200mm (Colin Fyfe, 23 May, pp21, 28), 250-300mm (John McLaughlin, 15 August, p7) and 150-200mm (Michael McKeown, 15 August, p59). The weight of evidence therefore suggests a distance in the region of 200mm. Thus, the defenders had not demonstrated that the gap between the pipes was such as to require any protection.

 

[29] It was argued by Mr O'Brien that in any event the material cited by Mr Morris in order to justify the provision of protection was not relevant. Mr Morris' expert report, section 5.5, refers to published guidelines in support of the proposition that a concrete or steel barrier should have been interposed between the two pipes. Three guidelines are specifically referred to: the NJUG (National Joint Utilities Group) Guidelines, and the British Gas guidelines from 1977 and 1981, but as Mr Morris accepted in cross-examination, the NJUG guidelines do not deal with crossing services at all; the 1977 guidelines say nothing about protection; and while the 1981 guidelines do mention protection, they say nothing about its nature or purpose: 17 August, pp33-35.

 

[30] Counsel pointed out that the 1977 guidelines however make clear that the purpose of prescribing a preferred minimum distance between services was "to facilitate future repair, maintenance or extension work": 6/14, para 9.5. Nothing in the 1981 guidelines indicated that anything else was in mind. Both guidelines deal with minimum distances in the context of guidance primarily concerned with services running in parallel, where transmitted loads could not be a concern.

 

[31] It was contended that Mr Morris' reasoning depended on the proposition that the "protection" was intended to include protection against transmitted loads: 6/11, para 5.5.5. However, there was nothing in any of the documents to indicate that they were directed at this concern. Mr Morris accepted in cross-examination that the guidelines applied regardless of the nature of the services, and were thus equally applicable to distances between pipes and cables. Ultimately he accepted that any transmitted loads would be dissipated by the soil and that the risk he referred to arose only if there was inadequate support: 17 August, pp42-43. Indeed, he described the risk in a typical case as "very remote": 17 August, p44F. The very low degree of risk is not however apparent from his expert report, nor from his explanation of the issue in evidence in chief: 16 August pp96-97. Indeed, the pursuers' expert witness Dr Jones was cross-examined on the basis that Mr Morris' view was that depth of soil was not sufficient to dissipate transmitted loads: 16 August 2011 pp41-42.

 

[32] Dr Jones explained why he did not share Mr Morris' view as to the purpose of the protection. Although he was able to identify one other piece of published guidance referring to "protection", namely the IGEM (Institute of Gas Engineers & Managers) guidelines, that document refers to protection only in the context of interference damage and impact protection: 5/24, paras 5.7.4, 5.9. There was no reference to transmitted loads. Moreover, the IGEM guidelines indicated that marker tape would be sufficient protection: para 5.7.4. The guidelines plainly did not contemplate the routine use of steel or concrete in this context. The pursuers' own current internal guidance is also consistent with Dr Jones' understanding of what was intended by references "protection".

 

[33] Counsel referred to Mr Morris' evidence when under cross examination he accepted that his requirement for protection in the form of a steel or concrete barrier could not be derived from any of the published documents, and was instead something that he based on his own experience of laying services to buildings: 17 August, p36B-D. However, services laid to buildings would have been at a shallower depth than mains laying under a street, in which different considerations would arise.

 

[34] Further, if Mr Morris' view was correct, then steel or concrete protection should have been in use since at least 1981. Yet none of the witnesses, despite years of practical experience, said they would expect (or had even encountered) such protection in this context: Colin Fyfe, 23 May, pp22,52; John McLaughlin, 15 August, pp17C-D, 20B; James Slaven, 15 August, p70. Nor did the defenders lead any of their own staff or contractors to speak to having encountered such protection.

 

[35] In these circumstances, submitted Mr O'Brien, the defenders had failed to establish that there was any industry guideline or practice that required protection of a sort that would have prevented the damage to the gas pipe (or that the gap between the pipes was such as to render any such guideline or practice applicable). The defenders had failed to establish that the absence of such protection amounted to misconduct or negligence for the purposes of section 141. Any obligation to install protection could have been satisfied simply by laying marker tape (which, in the view of Dr Jones, did not even need to pass between the pipes: 16 August, p8D). The absence of such protection would have made no difference to the course of events and so, even if marker tape was omitted, the pursuers' loss and damage would not be attributable to that.

 

Submissions for the defenders

 

[36] Mr Marney submitted that as a matter of fact, SGN did not install protection between the gas pipe and the water pipe. Indeed there is no evidence that they ever actually applied their mind to whether that would be appropriate. He referred to the various published guidance:

 

[37] The 1981 guidance [6/15 of process] at page 3 indicated 200mm separation or 75mm for a square crossing if protection is provided. Properly construed, [as spoken to by Mr. Morris] this meant (1) under no circumstances should the gap between services be less than 75mm and (2) protection should be provided where separation was liable to be in the range 200mm - 75mm. On the evidence in this case, the proximity was less than 200mm. Mr. Fyfe accepted that it was in the range 100mm to 200mm. Mr. McLaughlin, under cross examination, indicated that the gap may have been of the order of 100mm [page 26; 15 August]

 

[38] The Management Procedures Document (6/17) was spoken to in evidence by Mr. Slaven [page 77/78, 80; 15 August] and Mr. McLaughlin [page 18; 15 August]. Page 25 of the document provides for a minimum clearance of 250mm

 

"...between gas pipes, fittings and the known position of other utilities' plant, see Figure B6. This distance is for plant running in parallel. For plant crossing the mains this distance, may be reduced, as long as protection is provided in the form of concrete tiles, concrete sleeves or heavy duty marker tape."

 

[39] Mr Marney submitted that the direction here resonated with the 1981 Guidance. Protection, it is directed, should be by way of concrete tiles, concrete sleeves or heavy duty marker tape. In terms of those documents the gas main should not have been laid at less than 250mm proximity to the water pipe. If SGN, or their contractors, elected to place the gas main in close proximity then protection should have been inserted. He said that the notion of protection came as something of a surprise to Mr. McLaughlin and to Mr Slaven. Mr. McLaughlin thought that "heavy duty marker tape" would only be used in connection with electrical cables." [page 19; 15 August] He was not accustomed to putting in protection. [page 20]. He was not accustomed to using concrete tiles or sleeves. [page 20]. Mr. Slaven eventually accepted, under cross examination, that 250mm was the modern standard of separation. If separation was less than that then there was a requirement to install protection. [p79]. He had given evidence in chief that he had "never used" protection and in a long answer clearly inferred that it just wasn't used in SGN.

 

[40] Mr Marney submitted that the overall tenor of the evidence from SGN and their contractors was that it just never occurred to them that they should be considering protection. There was no evidence that any employee of SGB or their contractor ever applied their mind to the need for protection notwithstanding the new gas main crossing in very close proximity to the water pipe. On an ad hoc, retrospective assessment, spoken to in evidence from the witness box, Dr. Jones maintained, that if protection was required it would simply amount to "heavy duty marker tape".

 

[41] If part of the purpose of "protection" was to prevent impact on the service below, it would, as he had suggested, make little sense to place the protection above and along the length of the water pipe when the gas main is running perpendicular and below it. In addition, Mr.Slaven suggested that if tape was used it would be placed, "6 inches on top of the pipe." [p85; 15 August] That would be just over 152 mm. Given a proximity of between 100 and 200 mm, the use of that tape may not have served any practical purpose at all. In any event, tape did not in fact serve as protection but as a warning.

 

[42] In addition leaving aside any considerations of caution or prudence, the pursuers now maintained that they would opt for the least level of protection.

 

[43] Mr Marney submitted that it was clear from the document that protection was to include physical protection by way of barrier. Concrete tiles or sleeves would form such a barrier.

 

[44] He referred to the evidence of Mr. Morris who indicated that if the use of concrete was not practicable then the appropriate course would be the installation of a steel, "top hat" section. If due consideration had been given to the matter by an appropriately qualified person, that was the logical and compelling protection to install. Mr. McLaughlin indicated in evidence that, had he been accustomed to the idea of protection, he would have consulted and sought direction from an engineer or similar. [page 20; 15 August]

 

[45] The "Work Procedure for PE Pipe System Construction" [6/18 of process] was also referred to. Mr Marney suggested that Mr. Slaven ultimately conceded that although this was not precisely the correct document for the works that were being undertaken 250mm would still be the required amount of clearance at the crossing. It was stated at page 69 of the document:

 

"A. Pipe & fittings preparation

...f. Ensure a minimum distance of 200mm is maintained from exiting fittings/joints and allow 250mm clearance from other utilities plant."

 

 

However, Mr Marney did recognise that in so far as dealt with clearance (minimum 250mm) the document did not advise what to do if the clearance was less than that.

 

[46] The Institution of Gas Engineers document [5/24 of process] provided at 5.7.4:

 

"If necessary the risk of interference damage should be reduced by one or more of the following.

 

...additional protection, for example

·        Concrete slabs

·        Steel plates or sleaving

·        Marker tape

·        Plastic tiles..."

 

Mr Marney submitted that it was noteworthy that steel plates or sleeving were referred to there as forms of protection.

 

[47] He submitted that the short clearance in this case raised issues of whether SGN or their contractors could go ahead at all and if so, whether additional precautions were necessary - particularly protection.The failure to (a) consider the issue at all and (b) recognise the need for protection, in itself, it was submitted, would amount to misconduct, in the sense of "improper or wrong behaviour".

 

[48] Had the matter been considered by someone appropriately skilled and qualified, such as Mr. Morris, who not only had theoretical knowledge, but also practical experience in this field, then the logical and obvious conclusion would have been to put in place physical protection over the pipe, of the type suggested by Mr. Morris, or something similar. Had that been in place the soft plastic material of the gas pipe would not have been penetrated. Mr Marney submitted that both experts ultimately expressed that view - Mr. Morris in evidence in chief and Dr. Jones in cross examination.

 

Discussion on the issue of pipe protection

 

[49] As can seen, the evidence of the distance between the pipes was not uniform. Colin Fyfe estimated this at between 100 and 200mm. John McLaughlin estimated it at between 250 and 300mm. Michael McKeown estimated the distance at between 150 and 200mm. Those are the only witnesses who actually saw the pipes at first hand. It was accepted that it was not possible to estimate the distance with any degree of accuracy from the photographs taken after the event or indeed the photographs taken at the joint inspection.

 

[50]. Mr Morris's evidence was that the distance between the new water pipe and gas pipe at the time of the joint inspection with Dr Jones on 26 August 2010 was 120mm (100mm to the collar). The difficulty is that it is not known if the new pipe was placed in the same position as the old pipe and Mr Morris accepted in evidence that the distance may have been greater in 2006. Mr McLaughlin's evidence that the distance at the time may have been as little as 100mm was given when being examined under reference to the later photographs when the cast iron water pipe had been replaced.

 

[51] On this point I agree with Mr O'Brien that the weight of evidence suggests a gap of around 200mm. On that basis, no protection was necessary on the defender's averments.

 

[52] Had I found the distance to be less than 200mm, the question of protection would have been pertinent and I propose to deal with that issue for the sake of completeness. The basis for protection is to be found in the evidence of Mr Morris. He refers in his report at 5.5 to various published guidelines: (1) the National Joint Utilities Group Guidelines - there were documents dated 1979, 1986 and 2009 lodged in process (2) the British Gas Standard: Code of Practice for Distribution dated February 1977 and (3) the British Gas Engineering Standard: Code of Practice for Distribution dated April 1981. The NJUG guidance deals with services running parallel to each other and Mr Morris accepted that they did not deal with crossing services. The 1977 Code prescribes a separation distance between utilities of 150mm but it appears that the purpose is to allow safe maintenance and repair. The 1981 Code prescribes separation of 200mm but does not state what the purpose of protection is. In addition Mr Morris referred to two additional documents in evidence - (1) the Institute of Gas Engineers document and (2) the Management Procedures document (originally produced by Transco). Mr Morris sought to establish that the purpose of protection was not only to avoid interference damage for the purposes of maintenance and repair but also protection against loads transmitted from above. Dr Jones disagreed arguing that the purpose of such protection did not extend that far.

 

[53] I preferred the evidence of Dr Jones on this topic. It seems clear to me for the reasons put forward by Dr Jones that the documents relied upon are not concerned with protection against transmitted loads from above. Rather they are concerned primarily with protection against interference damage. Mr Morris conceded that his argument was not founded upon the published guidance so much as his own experience (17 August p36B-D). In this regard, while I recognise that Mr Morris has a great deal of experience in various areas, he has no personal experience of in connection with the laying of mains pipes (p29; 17 August). I was fortified in my conclusion by the evidence of the witnesses on the ground, who were unaware of this sort of protection in their experience. The evidence of Mr Slaven relied upon by Mr Marney under reference to the Management Procedures document suggesting minimum clearance of 250mm (for parallel plant) was in my view no more than an acknowledgement of the information in the document rather than an acceptance of such a requirement in practice. There was no evidence led from any employee or contractor supporting the proposition that protection in the form suggested against transmitted loads would have been required in the circumstances.

 

[54] It is noteworthy that when the defenders later replaced the water pipe with a new one, they thought it appropriate to install it approximately 100mm from the gas pipe.

[55] I have accordingly concluded on the evidence that protection of the sort put forward by the defenders was not necessary in the circumstances. Accordingly, even if the gap between the gas pipe and water pipe was less than 200mm, there would be no basis for either misconduct or negligence on this ground.

 

Conduct of the works

 

[56] The issues relate firstly as to whether there was any contact by the contractors during the works which caused the damage to the water pipe and secondly whether there was adequate compaction of materials around the water pipe. Lack of compaction, it was argued for the defenders would leave the water pipe unsupported and liable to damage from transmitted loads from above. Adequate compaction would also have prevented damage to the gas pipe as the water emanating from the water pipe would have dissipated in the soil. This line was founded principally on the evidence of Mr Morris. Dr Jones on the other hand contended that corrosion was the likely cause of the fracture in the water pipe.

 

Submissions on behalf of the pursuers

 

[57] Mr O'Brien referred to the defenders criticism of the backfilling of the trench by the pursuers' contractors. It was suggested that this had provided insufficient support to the water pipe, so that it fractured upon the application of subsequent loads when "whacker plates" or similar devices were used. The use of such devices was not criticised. Although there was some uncertainty as to precisely what device had been used or when, neither expert suggested that anything turned on those matters.

 

[58] Mr Morris' report also suggested that the water pipe may have been damaged by contact during the works. No evidence was elicited to support such a finding. On the contrary, the witnesses were clear that caution would have been used in relation to the water pipe, and that hand tools would have been used in its vicinity: Colin Fyfe, 23 May, pp12-13; John McLaughlin, 15 August, pp9-11. In any event, Mr Morris's evidence was that even if such damage had occurred, a lack of backfilling would also be required in order to cause the damage seen: 5/11, para 5.7.1(ii). Thus, the "contact damage" theory added nothing to the defenders' case.

 

[59] There was no direct evidence to support the proposition that the trench had been improperly backfilled. On the contrary, John McLaughlin maintained that the backfilling had been carried out correctly: 15 August, pp28-30. This aspect of the defenders' case therefore depended entirely on inference.

 

[60] Mr O'Brien submitted that there were two strands to Mr Morris' reasoning. First, he rejected corrosion as a possible explanation: 5/11, para 5.2.2. Second, he contended that if the backfill had been fully compacted, then the escaping water would have been harmlessly dissipated, so that the damage to the gas pipe could not have occurred: 5/11, para 5.6.1(i). On both of these points, Dr Jones disagreed with him.

 

[61] So far as corrosion is concerned, Mr Morris' report explained that he ruled out internal corrosion because the water in the pipe would have been still, so that the oxygen would not be replenished: 5/11, para 5.2.2. As Dr Jones pointed out, this is not necessarily the case: 5/18, para 3.2.4. Mr Morris accepted this point in cross-examination: 17 August p48D. But Mr Morris' report did not address the possibility of external corrosion. Dr Jones explained, by reference to published research, why external corrosion was a real concern: 5/18, para 3.2.4, Appx 1. Indeed, Mr Morris said that the water pipe was "possibly some 30 or more years old" old and that corrosion could have occurred over that period of time: 16 August, pp84-85. Under cross-examination he accepted that the water pipe could well have been 50 years old and approaching the end of its working life: 17 August, p49C-F. He further accepted that reports of other water pipe failures in the area (Colin Fyfe, 23 May, pp8-9; John McLaughlin, 15 August, p8D-E) tended to suggest that the pipes might be approaching the end of their working life: 17 August, p50C-E. He also accepted that corrosion could have led the pipe to fail under the loads applied during properly conducted works, and that the pipe could have failed through a combination of corrosion and the forces applied in the course of backfilling: 17 August, pp54D-55E.

 

[62] Further, witnesses present on 3 October 2006 gave evidence of a hole in the water pipe: John McLaughlin, 15 August, pp15-16; Michael McKeown, 15 August, pp55-56. Both experts agreed that a hole (whether or not accompanied by a crack) indicated corrosion: Dr Jones, 15 August, pp 104, 107, 16 August p30D, 48E; Mr Morris, 17 August, pp52-54. Although Mr Morris' report suggested that the damage to the gas pipe indicated a fan of water from a crack, rather than a jet from a hole, this view was not shared by Dr Jones: 15 August, p100A-C. The focussed damage visible on the photographs was more consistent with a defined jet, and Mr Morris' suggestion that some unusual action would be required to bring about the damage is not borne out by a comparison of the relative position of the pipes: see 6/12, in particular photos 5 and 8. Indeed, under cross-examination he accepted, in the light of the photographs, that a jet of water could have struck the damaged area without much difficulty: 17 August p64B-C.

 

[63] In the whole circumstances, therefore, Mr Morris had not given persuasive reasons for rejecting corrosion as a cause.

 

[64] The other aspect of Mr Morris' argument was that, had the trench been properly backfilled, the damage could not have occurred. Under cross-examination, he explained that this was because a properly backfilled trench would have been so thoroughly compressed as to leave no possibility for soil to be displaced under the force of escaping water, and it would take some time to find voids within which soil material could move: 17 August, p58. However, even in his evidence in chief he merely asserted that, without voids, the possibility for damage to occur was "probably limited": 17 August, p5A-B. Under cross-examination he accepted that voids were not necessary but that their absence made matters "a lot more difficult": 17 August p58E. He also accepted that where the pipes were closer, voids were not required to generate the sort of damage seen: 17 August p60D-F.

 

[65] Dr Jones did not accept Mr Morris' analysis; in his view, it would be possible for escaping water to cause erosion, as he illustrated by the test described in his supplementary report: 5/18, section 2. At any rate, no evidence was produced to support Mr Morris' contention that such a degree of compression either could or should have been achieved.

 

[66] Although John McLaughlin accepted in cross-examination, 15 August 2011 pp41-42, that there should not have been any voids in the fill material, that is not the same thing as accepting that the material should have been compacted to the degree suggested by Mr Morris. In re-examination, at p48, he clearly considered that the adequacy of backfilling could be assessed visually. Dr Jones, on 16 August at p20, also clearly considered that "voids" meant gaps, rather than merely the potential for further compaction. Nor was it put to Dr Jones in cross-examination that the fill should have been compacted to such a degree as to prevent any possible displacement of particles. (He was asked on 16 August, p53D whether his test had failed to take account of "surcharge pressure from materials above", but the position ultimately adopted by Mr Morris was not put to him.) Indeed, in cross examination, even Mr Morris accepted the distinction: 17 August, pp56-57. His position in evidence thus marked a departure from his expert report, which refers to voids without indicating that the term is used in an expansive way: 5/11 para 5.6.1(i)-(ii), 5.7.1(i)-(ii).

 

[67] No publications or any other evidence for that matter were produced in support of the proposition that the damage could only have occurred if the trench was inadequately filled (and it may be noted that on other matters where he did identify supporting documents, Mr Morris' analysis of those documents was challenged under cross-examination as described above). Dr Jones did not accept the proposition, and it is submitted that his view is inherently the more plausible. At any rate there is no basis on which the court should prefer the views of Mr Morris to those of Dr Jones on this point. In these circumstances, the defenders have failed to establish that there was any failure of backfilling (or, at least, any failure such as would amount to misconduct or negligence within the meaning of s.141).

 

Submissions on behalf of the defenders

 

[68] Mr Marney referred to Dr. Jones' report 5/11 of process in which he states, "The documents are silent on the nature of the packing between the pipes and the distance between the pipes."[2.3]. On the evidence Mr. Colin Fyfe simply described a process whereby backfill was tipped in to the excavation. [page 32; 23 May]. He was a manager, yet didn't appear to be aware of the need for any special precautions to be taken in relation to the backfilling. In terms of the expert evidence, the intersection of these two pipes, in fact, would require special precautions to be taken and particular care would have to be taken to ensure that the water pipe was properly supported.

 

[69] Mr. McLaughlin claimed to have taken particular care. It was submitted that his evidence, in that regard, should not be accepted. In particular it is submitted that his evidence on this matter was reliable and uncorroborated.

 

[70] Both experts indicated that the likelihood of a fracture is increased if the water pipe is not supported. A fracture occurred, therefore raising the inference, said Mr Marney, of a lack of support.

 

[71] Mr. Fyfe gave an instruction to excavate the trench after becoming aware of the appearance of water. [Page 41; 23 May] McLaughlin states that he made that decision. [page 34; 15 August]. That was before there had been any complaints about the interruption or interference with gas supply. It was submitted that the reasonable inference that arises from that is that AM were aware that their works had caused a problem with the water pipe. They did not take the view then that this was simply a problem for the defenders and leave it to them.

 

[72] On the evidence it was submitted by Mr Marney that it is proved that the SGN works, undertaken on their behalf by AM, caused the fracture. The evidence in this case was: the pipe was sound; that is water tight, prior to the execution of the works to replace the gas main; the pipe was sound, that is water tight, during the execution of the works to replace the gas main: the pipe was sound, in that sense, during the re-instatement works; this is a pipe which contained water which was under pressure; yet the excavation is back filled - the description of that [Fyfe] is of backfill material simply being tipped into the excavation; a whacker plate was then used to compact that material [Fyfe & McLaughlin]; the whacker plate was liable to have been used several times in the compacting process [McLaughlin page 30, 31; 15 August]; the whacker plate applies a compressive force; its use included use at the crossing of the two services;.a vibrating compacting roller may also have been used [McLaughlin page 31; 15 August]. In terms of the forces involved, the experts did would not draw any real distinction between the whacker plate and the compacting roller.

 

[73] On the face of it Mr Marney submitted that there is a clear causal connection between the works that were undertaken and the breach of the integrity of the pipe.

In any event, that was also the opinion advanced by Mr. Morris. The leak could only have appeared because the pipe had fractured [in the sense of "ceased to be intact"]

 

[74] He submitted that in fact a fracture has appeared on the underside of the pipe. [McLaughlin page 36; 15 August]. The fracture is liable to have occurred as a result of downward [compressive] forces. Such forces could be found in - the weight of infill material placed on top of the pipe; any compacting activity undertaken above the pipe; any rolling machinery or vibrating equipment used above the pipe as part of the reinstatement works. The pipe must have been bent downwards in order to fracture.

 

[75] A fracture of this nature would be likely to occur in the event that the pipe was not properly and adequately supported as part of the re-instatement works. Such matters are spoken to in the expert opinion of Mr. Morris. Yet Dr. Jones sought to maintain that the pipe simply failed at that time as a consequence of corrosion.

 

[76] In Dr. Jones' original report he stated that there was nothing to show whether or not there was significant internal corrosion. [3.2]; the condition of the pipe is not clear in the photographs. [3.2]; the failure point in the water pipe is not captured in the photographs. [3.2]. However, in evidence he sought to suggest that the cause of the failure of the pipe was corrosion.

 

[77] It was accepted that the pipe was corroded. Mr. Morris indicated that this was to be expected of a water pipe that had been in the ground for decades. However, it is uncontroversial that the pipe is a spur to a fire hydrant. As such the inference arises, which was spoken to by Mr. Morris, that it is unlikely to have been in regular use. Mr. Morris also gave evidence that in order for there to be internal corrosion there requires to be a renewed supply of oxygen; that is most unlikely where the water in the pipe is liable to be static; corrosion stops when the oxygen runs out; there was no evidence at all of any ongoing leak from the fire hydrant (and therefore continuing renewal of the oxygen supply). Photographs of external corrosion did not disclose any significant problem. [No more than surface pitting]

 

[78] Dr. Jones conceded, in cross examination, that on the evidence, all he could say was that the pipe was corroded. He could not say to what extent.

 

[79] It was submitted that, on the evidence, corrosion could be disregarded as the cause of failure. It was also submitted that it would be a remarkable co-incidence if this pipe were to fail as a result of corrosion just as contractors were finishing works at the site, especially if those contractors noticed nothing untoward as they were undertaking the works.

 

[80] The evidence here, submitted Mr Marney, was entirely consistent with a load on top of the pipe causing a tensile failure below, the mechanism has been a downward compressive force either by sheer weight of materials placed on top it or by the addition of a compacting or vibrating roller. It was possible that a small crack was caused then and that may or may not have developed into a larger crack over time. However, it was entirely possible that damage to the gas pipe was caused over days rather than hours. That was spoken to in evidence by Mr. Morris. [page 24/25;17 August].

 

 

Discussion on conduct of works

 

[81] John McLaughlin gave evidence that the excavation, compacting and backfilling was carried out carefully. I accepted that evidence. Accordingly, I do not consider it is established that there was any direct contact damage by those carrying out the excavation and backfilling works.

 

[82] It was central to Mr Morris's position that the likely cause of the water pipe failure was the presence of a void due to inadequate backfilling and/or compacting. On the other hand Dr Jones came to the conclusion that the likely cause was corrosion of the water pipe.

 

[83] There appears to be a consensus that the water pipe developed a leak as a consequence of the forces applied from above during compaction using machinery, either a "whacker plate" or vibrating drum roller and it seems that ultimately, there was no practical distinction between the two for present purposes. The timing of the use of that machinery is not entirely clear from the evidence but I have come to the view, in line with the assumption of Dr Jones (4.7 of his report; p 105;15 August), that this is likely to have been on the morning of 3 October by which time the reinstating team were involved in putting down the base layer preparatory to laying asphalt. The critical issue is whether it has been established that the breach in the pipe was caused as a result of a void or voids in the infill material (as a result of inadequate compaction) resulting in a lack of support for the pipe, and leading to an inference of negligence or misconduct or whether there is another plausible explanation - the one put forward by the pursuers being corrosion - which would tend to negate negligence or misconduct on their part.

 

[84] I am not persuaded on the evidence that the defender's case for lack of support of the water pipe is made out. I accept the evidence of John McLaughlin that the backfilling of the trench and compaction of materials around the pipe was carefully undertaken and that the materials were adequately compacted. He was firmly of the view that thee were no voids (p29/30; 15 August). I reject the inference drawn by Mr Morris of inadequate compaction for the purposes of support from the fact that the jet of water from the leak was able to penetrate infill material and damage the gas pipe. I accept the evidence of Dr Jones that it would be possible for escaping water to cause the damage to the gas pipe in properly compacted materials. Further, there is no case laid on record by the defenders that materials ought to be compacted to such a degree as to avoid the risk of such occurring. The averments are on the footing of lack of support.

 

[85] I consider that the more likely explanation for the leak in the pipe is corrosion. The issue was focussed on whether the breach in the pipe was in the nature of a hole, possibly indicating the escape was from a corrosion plug or whether it was in the form of a crack, possibly indicating a breach caused by forces from above indicating a lack of support for the pipe as a result of a void in the material.

 

[86] We are of course at a considerable disadvantage as the water pipe was not preserved and has therefore not been examined by the experts. The only examination at the time was cursory, following the incident, and that was after the water had been turned off and before a repair collar had been attached. Mr McLaughlin felt underneath the water pipe and described a hole (which you could put your finger in) on the underside of the water pipe directly above the gas pipe. He said (at page 16; 15 August): "It was fractured and a small half moon piece out of it." In cross examination, he stated (page36; 15 August): "Q. And what you think you are feeling is some sort of hole and a fracture, is that right, and a fracture being a crack in the pipe? A.Yes." Mr McKeown, who arrived on site after the incident, spoke of a hole because his colleague John O'Hanlon put his hand round the bottom of the pipe and described a hole about the size of a ten pence piece (page 56; 15 August). The hole on the pipe was in the area covered by the repair collar. It was not suggested to Mr McKeown in cross examination that there might have been a crack rather than a hole. Dr Jones doubted that it was a crack having heard that evidence.

 

[87] Mr Morris said that a crack was indicated by the nature of the damage to the gas pipe which suggested a fan of water rather than a jet. Dr Jones was clearly of the opinion that the damage to the gas pipe was more consistent with there being a defined jet of water. I consider that, given the evidence of the damage in the photographs showing a clearly defined hole in the gas pipe, that Dr Jones explanation is more plausible. Both experts accepted that a hole was indicative of corrosion, although Mr Morris's point was that in this case a crack may have formed in a sound part of the pipe and proceeded to a point where corrosion existed thus forming a hole at the point of least resistance. I am not attracted by that theory as firstly it involves a fair degree of speculation and secondly I consider, as Dr Jones did, that what the witnesses were truly describing when they felt the pipe was a hole rather than a crack leading to a hole.

 

[88] A further indicator that corrosion was the more likely cause is the evidence of

Colin Fyfe who gave evidence that in around September 2006 he attended a meeting with various agencies including representatives of the Roads Department of the local authority and was advised that the water pipes in the area were liable to burst and that there had been occasions when they had burst. Mr Fyfe then briefed Team Leader John McLaughlin (pages 8/9; 15 August). Mr McLaughlin confirmed that he was met by council officials on the first morning on site who pointed out various points where the water mains had been known to "pop" (i.e. fail) (page 8; 15 August).

 

[89] Generally, it was accepted that the pipe in question showed areas of corrosion. In particular, Mr McKeown described the hole as corroded and old looking (p56; 15 August). Also, the pipe was between 30 and 50 years old. Mr Morris conceded that the pipe could have been approaching 50 years old (page 49; 17 August). It was replaced by 2010. I am inclined to infer, as did Dr Jones, that it was at the end or nearing the end of its useful service life (page 106; 15 August).

 

[90] It may be that, as Mr Morris suggested, the opportunity for internal corrosion was limited where, as a branch to a fire hydrant, there was comparatively stagnant water with little or no oxygen content, but I accept the evidence of Dr Jones that external corrosion was a recognised risk (3.2.4 of his Supplementary Report).

 

[91] On the evidence therefore I do not consider that it has been proved on the balance of probabilities that inadequate backfilling or compacting was a material cause of the failure of the water pipe. I think it more likely than not that the failure was due to corrosion in the water pipe, probably external corrosion. It follows that the defenders have not discharged the burden of establishing negligence or misconduct. That being so, the pursuers succeed in establishing liability under the statute.

 

The common law case

 

[92] The pursuers also maintain a case based on negligence at common law, relying on the defenders' delay in attending at the site. The defenders say that negligence is not established on this basis and in any event no causal link has been established. They also plead contributory negligence.

 

Submissions for pursuers

 

[93] Mr O'Brien submitted that the common law is potentially relevant for two reasons. Firstly, the defenders contend that one of the heads of loss (statutory compensation paid to the pursuers' customers for the interruption of gas supply) is not recoverable under the statutory scheme. Secondly, if (contrary to the above submissions) the loss and damage sued for was caused in part by the misconduct and/or negligence of the pursuers or their contractors, that would provide a complete defence to the statutory claim, but not necessarily to a claim at common law. He explained the basis of liability at common law.

 

[94] The escape of water was discovered at some point between 8.30 and 9am on 3 October 2006: Colin Fyfe, 23 May, p14; John McLaughin, 15 August, pp11-12. Colin Fyfe stated that he reported the escape of water to the defenders at around 9am by telephoning their helpline, and called again at around 11am: 23 May, pp16,18. The defenders did not respond to these calls. The first reports of loss of gas supply were at around 11.45am: Michael McKeown, 15 August, pp51-52; James Slaven, 15 August, pp66-67, 81.

 

[95] At around 1.15pm, with the defenders not having responded, the pursuers' contractors flagged down a passing Scottish Water van, which reported the leak: Colin Fyfe, 23 May, p18,45; the time is confirmed by production 6/16. In response to this, the defenders finally attended on site and shut off the water at some point in the early afternoon.

 

[96] Mr Fyfe firmly rejected the suggestion that he was mistaken about having telephoned the defenders: Colin Fyfe, 23 May, pp45-46. It makes sense that those witnesses would have wanted to alert the defenders as quickly as possible to what was plainly a significant leak of water, particularly as the incident took place right outside the offices of the local roads department. It was the pursuers' policy to do so: James Slaven, 15 August, p68. There is no plausible reason why they would not have done so. No evidence was led by the defenders to explain the delay in attendance. In these circumstances, it is submitted that the evidence of the pursuers' witnesses should be accepted.

 

[97] There was a delay of several hours before the defenders took any steps to respond to the report of an escape of water, despite a significant window of opportunity in which the water could have been shut off prior to the loss of supply in the gas pipe: Dr Jones, 15 August, pp105-106. It was obviously foreseeable that such water, escaping under pressure, could cause damage to adjoining services, as it in fact did. The defenders admit that they were under a duty to take care not to harm the pursuers' pipework: Answer 4. Having been alerted to the fact of an escape of water, the defenders were under a duty to respond to deal with it. Even Mr Morris accepted that, once the defenders had been alerted, there would be "a reasonable expectation of attendance": 17 August, p31C. In these circumstances, the defenders failed in their duty to respond to the pursuers' call, thus allowing the water to continue escaping and damage to be caused to the pursuers' pipe. The defenders were, submitted Mr O'Brien, therefore liable in damages at common law as well as under statute.

 

 

Submissions on behalf of the defenders

 

[98] Mr Marney accepted that Mr. Fyffe made a phone call to the defenders in the morning of 3^rd October 2006. It was also accepted that the defenders would have been told that there was a leak from an excavation at the locus in question. The issues then are (a) whether the time taken to arrive on site and set to work was negligent (b) whether damage occurred as a result of the delay, if properly characterised as such, in arrival.

 

[99] As regards the time taken to arrive on site, there were different ways of categorising this. Those might be (1) what the defenders might aim for as a response time (2) what one might reasonably expect in light thereof (3) what, if the defenders failed to achieve, would be regarded as negligent. There was no relevant opinion evidence on these matters (for what it might be worth). There was no evidence of any guidelines or standards. The only evidence on the matter, for what its worth, was from Mr. McLaughlin, [p13; 15 August] that he would expect the defenders to take, "quite a long time" to respond to a burst water main. There was no evidence of practice elsewhere. Thus, it was submitted, there was no evidential basis upon which the court would be able to conclude that the time taken to respond was negligent.

 

 

[100] It was submitted by Mr Marney that, in any event, both experts were agreed that it was impossible to say how long it had taken for the fracture of the water pipe to lead to penetration of the gas main. Mr. Morris dealt with the matter (at pages 24 and 25; 17 August). Accordingly, even if there was excessive delay, amounting to negligence, it had not been proved that this caused loss or damage.

 

[101] As a matter of logic, it was submitted, if there has been fault on the part of the pursuers they are not entitled to succeed in their statutory case. If, however, the court found for the pursuers on their common law case, Mr Marney submitted that the court would need to consider the issue of contributory fault. In that event, for the reasons stated in submissions, the court was invited to make such a finding. I took that to mean the reasons put forward in support of the statutory defence. It was indicated that the proportion of contribution was a matter for the court, as a jury question, and Mr O'Brien agreed.

 

Discussion of common law case

 

[102] It is accepted in the pleadings that the defenders owed a duty of care to the pursuers to take reasonable care not to harm their pipework. There was a delay of several hours before any steps were taken by the defenders to respond. It would appear that the first reports to the defenders were made at around 9pm. The defenders arrived on site at around 2 to 2.30pm (Colin Fyfe p38; 23 May; John McLaughlin p36; 15 August). There was a gas leak by 11.45am. There was according to Dr Jones a window of opportunity of some two hours in order to stop the water damaging the gas pipe. Mr Morris spoke of an expectation of attendance but beyond that there was no evidence from which I could derive a particular duty as regards response time. No evidence was lead of guidance or practice from other public bodies or utilities. On the evidence, there were no indicators or parameters to guide me on what could reasonably be expected in this regard. There is no material upon which I can make valid assessment of whether or not there has been a breach of duty to take reasonable care. Accordingly, I have concluded that negligence is not established.

 

[103] If I am wrong to conclude that negligence is not established, there is the question of causation. My findings would appear to indicate that it took around two or perhaps three hours for the water to penetrate the gas pipe causing a hole and a fall in gas pressure but I am unable to judge whether the damage was caused by excessive delay. As noted, the defenders arrived around 2-2.30pm. The water supply to the affected area was apparently not disconnected until around 3.30-4pm (Colin Fyfe p 38; 23May; and Report Dr Jones 2.6). The reason for any delay was not explored. Had the defenders responded promptly (whatever that implies here) the question arises as to whether that would have prevented in whole or in part the damage caused. I am quite unable to answer that question on the evidence.

 

[104] I have concluded therefore that the common law case fails.

 

[105] Had I found the defenders liable at common law, I would not have upheld the defenders plea of contributory negligence. Having regard to the terms of the averments, I understood the argument upon which the plea was based was not to be insisted upon. That argument was that the pursuers could themselves have turned off the water. It was indicated at the outset of submissions that that argument was not insisted upon. As noted above the plea was then argued on different grounds - essentially the same fault ground put up in support of the statutory defence. I do not consider that such an argument is open, standing the pleadings. In any event, the arguments of negligence or misconduct on the part of the pursuers having failed, any plea of contributory negligence would also fail. This logically follows from my findings in relation to the statutory case.

 

Conclusion

 

[106] It follows that I have decided that the pursuer's statutory case succeeds on the question of liability but that their common law case fails. The interlocutor reflects this.

 

[107] I will appoint the cause to a hearing with a view to determining further procedure on the remaining issue of quantum of damages in relation to the statutory claim.

 

 

 

 

 

 

13 December 2011

John K Mundy, Esq, Advocate

Sheriff of Tayside, Central & Fife