SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT STORNOWAY

A4/13                                                                                                          2015SCSTOR17

JUDGMENT

by

SHERIFF PRINCIPAL DEREK C W PYLE

in causa

IAIN SCOTT, residing at 34 Newmarket, Isle of Lewis HS2 0EB

Pursuer and Respondent

against

SCOTTISH WATER, a body corporate established under s.20 of the Water Industry (Scotland) Act 2002 with a principal place of business at Castle House, 6 Castle Drive, Dunfermline KY11 8GG

Defender and Appellant

Stornoway, 23^rd February 2015

The Sheriff Principal, having resumed consideration of the cause, Allows the appeal; Recalls the sheriff’s interlocutor of 10 October 2014; Repels the pursuer’s first plea in law; Allows parties, before answer, a proof on their averments; Remits the cause to the sheriff to proceed as accords; Certifies the appeal as suitable for the employment of senior counsel; Reserves in the meantime the question of expenses of the appeal and the debate before the sheriff.

Introduction

[1] This is an action in which the pursuer seeks reparation for damage caused to his cattle herd arising from the leakage of sewage onto his farm. The case came before the sheriff in debate on the pursuer’s preliminary plea in law. The sheriff sustained that plea and excluded from probation certain of the defender’s averments. The defender has appealed that decision.

[2] The defender has a statutory duty in terms of Section 2 of the Sewerage (Scotland) Act 1968 to inspect, maintain, repair, cleanse, empty, ventilate and where appropriate renew all sewers and other works vested in it by virtue of the Act or the Water Industry (Scotland) Act 2002. A sewer network so vested in it, and serving a variety of domestic and commercial premises in and around the Sandwick area on the Isle of Lewis, runs through land adjacent to Holm Farm, which the pursuer owns. That land, by means of natural and field drainage, drains into and through the pursuer’s land at Holm Farm.

[3] The pursuer avers that in early 2008 one of the sewers so vested in the defender blocked and leaked between Holm Road and Holm Farm Road on a number of occasions. A drainage ditch in a field at Stoneyfield Farm, over which the pursuer has a right to occupy and use, had received water sewage from the defender’s blocked and leaking sewer in the adjacent land. The pursuer goes on to narrate numerous attempts by the defender to identify and then deal with the cause of the leakage over several years, culminating in a resolution of the problem in the Spring of 2011.

[4] The pursuer avers that there were certain duties upon the defender, namely that in the execution of their above statutory duties it had to exercise reasonable skill and take reasonable care to see that its acts and omissions in the course of the execution of such duties did not cause harm to the person and property of others. In particular, it was the defender’s duty, having become aware or at least having received notice of the discharge of the raw sewage from one of its sewers onto the surface of the farm land, to determine the extent to which the resultant pollution might have entered watercourses, to ascertain the uses to which the land served by those watercourses, or through which they ran, was being put, and, having done so, to take such steps as were reasonably necessary (a) to prevent or mitigate loss or damage being caused by pollution having entered those watercourses and (b) to prevent further pollution entering those watercourses as soon and as effectively as was reasonably possible. The pursuer goes on to aver precisely what the defender did or did not do in support of an averment that it failed to discharge the above duties.

[5] The pursuer avers that by their failings the defender caused the death or injury of his cattle, and thereafter claims damages for the loss of his herd and various other consequential losses and expense.

[6] The defender avers in some detail the various steps which it took to resolve the problem. Indeed, on the face of it there is little, if any, difference between the parties on what those steps were. Nor is there any dispute that the problem was resolved and when that occurred. The defender admits the general statutory duties but avers that it fulfilled them. In Answer 4 it goes on to aver as follows:

“The [defender] attended to clear blockages and/or surcharges in [its] sewer as and when they were reported to [it]. Following the report by SEPA in October 2012 [it] carried out surveys of the sewer and cleared it of debris and carried out repairs to prevent further surcharges. The [defender] did not routinely inspect said sewer. [Its] policy was to respond to any reports of blockages or discharges and to carry out any necessary work to clear any blockages as and when they arose. The [defender] own[s] in excess of 60,000 km of sewers in Scotland. [It undertakes] a tiered approach to maintenance and repair in line with [its] guaranteed standards. [Its] rates of sewer replacement are limited by [its] scheme of customer charges. Sewer renewal rates, in line with other water companies in the UK, are in excess of 150 years. Proactive maintenance is focused on [its] high consequence sewers, e.g. large diameter sewers under main road junctions, under railways and in front of buildings such as hospitals, schools, fire stations and police offices. High consequence sewers are CCTV surveyed on approximately ten year cycles. Some sewers are classified as critical sewers and a small sample of these are periodically CCTV surveyed to access deterioration rates. The sewer running through land adjacent to Holm Farm was classified as non-critical sewer. The [defender] has a reactive system of attending to such sewers, as and when defects were reported. A very small percentage of the [defender’s] non critical sewers are also inspected by CCTV every five years. The whole operation of the [defender’s] sewer network system including repairs and replacement is funded by its customers. Service levels are agreed with its regulatory bodies (the Scottish Environmental Protection Agency, the Customer Forum, the Water Industry Commission and the Scottish Government) and reflect the customer charges and business outputs directed by Scottish Ministers.”

[7] The pursuer successfully persuaded the sheriff to have these averments excluded from probation. The sheriff considered that these averments, even if proved, would not answer the pursuer’s claim of a breach of duty based on negligence. Indeed, the sheriff went further and opined that the real point at issue in this case is causation. Before me, senior counsel for both parties agreed that on the latter point the sheriff had gone too far. In any event, as counsel for the pursuer observed, the sheriff’s view is not reflected in his interlocutor.

[8] Thus, the short point of the appeal was whether the sheriff was right to exclude the above averments.

Defender’s Submissions

[9] Counsel for the defender summarised the pursuer’s averments of duty which fell upon the defender as follows:

            1. To an unreasonable extent the defender was too slow to respond to the leaks;

            2. To an unreasonable extent the defender deployed inadequate resources;

            3. To an unreasonable extent the defender took too long to carry out the works;

4. The defender’s precautions taken to protect the livestock while carrying out the works were inadequate.

He submitted that the averments in answer had a bearing on these issues, because they go to the unreasonableness or otherwise of when and how the defender responded to the leakage reports. In assessing reasonableness the law required that there should be a balancing of costs and benefits: whether it was reasonable for the defender to bear the cost of a particular form of precautionary conduct in the light of the level of protection and benefit it will confer on the pursuer and others. The court will also be influenced by the evidence of common practice of those engaged in the activity in question, but this has to be sometimes balanced against what are conceived to be the reasonable expectations of those who may be affected by the activity. (Clerk and Tindsell on Torts (2014 edition) para 8-145) On the first point, the court will assess the benefit of a particular precaution by considering the likelihood that the harm will occur but for the precaution and the severity of that harm. On the cost side of the equation, the expense of the precaution and the general utility of the activity which may be lost if precautions have to be taken both need to be considered. (op cit, para 8-157) The defender avers that the sewer was a non-critical one in a remote location. It would be different if it had been a main sewer in a built up area. The defender is responsible for a vast length of sewers. There is a cost element in the precautions which it decides to take. (op cit, paras 14-65-67; 8-162-163; 8-165;) The defender is not saying that lack of resources is a complete defence to any claim, but the resources available to it are relevant in deciding whether the steps it took or did not take were reasonable. Common practices and expectations were also relevant. (op cit, para 8.177)

Pursuer’s Submissions

[10] Counsel for the pursuer submitted that the objectionable averments were at such a high level of generality that even if proved they would not assist the defender. The balancing of costs and benefits is an exercise required of cases where there is averred to be a failure in precautionary measures. This was not such a case. The defender, for example, does not aver that it did not spend money on the pursuer’s problem because it was spending money on something more important. Nor does it aver how it assesses serious potential harm and deals with it; nor that if it spent money on one precaution it could not be reasonably expected to spend it on the matter which otherwise caused the damage to the pursuer; nor that if it had dealt with the pursuer’s problems in a different and more expensive manner it would have been unable to spend on something else more important. Again, the defender avers in a loose manner a code of practice but fails to aver what that code is.

Decision

[11] The short answer to this appeal is that the sheriff has, as both parties acknowledge, fallen into error in concluding that the real, and by implication the only, point at issue was causation. It is no answer to point out, admittedly correctly, that this conclusion is not reflected in the sheriff’s interlocutor. The problem is that the sheriff has given the above conclusion as his reason for finding the defender’s averments to be irrelevant. The matter is therefore at large for me.

[12] It is a welcome change in the manner in which litigation is conducted that the modern approach is increasingly involving judicial case management and, where appropriate, judicial intervention to ensure that the real issues of dispute are identified at an early stage so that they, and they alone, are subject to scrutiny at proof. That is in the interests of economy and indeed in the interests of justice. A consequence has been that it has become uncommon for there to be debates, never mind appeals, on issues of relevancy and specification other than where a successful plea would result in the action coming to an end. But it is the other side of the same coin that prior to proof issues which are irrelevant to the real dispute should be excluded from probation. That is an important element in reducing the length of the proof with a saving in court time not just for the benefit of the parties but also for the benefit of the general administration of justice. Nevertheless, it is, in my view, always unfortunate that a debate on the relevancy or specification of pleadings, whether the pursuer’s or the defender’s, ends up being an exercise in semantics when, with a little more care (and in certain forms of cause, such as commercial ones, often after judicial intervention) the position of both parties, and what each offers to prove, can easily be expressed – and expressed in such a manner that the real issues between the parties are clear and that the position of each party on each issue is sufficiently transparent that the other party has adequate notice of the arguments against him.

[13] In my opinion, there are two ways of looking at the defender’s averments. The first is that they are habile only for a case, such as the traditional pavement cases, where an accident occurs and it is unreasonable to expect a local authority to have known that there was a defect in the pavement, under reference to its general regime for inspection and maintenance. If that was the position in this case, it might be relatively easy to conclude that the averments were irrelevant given that it is not the pursuer’s case that the defender was negligent before the first leakage occurred. But the second possibility is that the defender’s averments are in response to the pursuer’s averment that from at least early 2008 the defender knew that the sewer was apt regularly to discharge raw sewage but did not thereafter establish a regime for routine inspection. Superficially, it might be thought to be surprising that it would be sufficient for a water authority, having identified a problem, merely to react to further complaints and not to establish a mechanism to ensure that whatever works of repair had been carried out were successful. But at this stage it seems to me to be premature to decide that point without allowing the defender the opportunity to lead evidence in support of it. If I am correct in that analysis, the defender really has only itself to blame for not making the position clear in its answers. But despite that criticism I have come to the conclusion that the averments are capable of being the source of evidence relevant to the proper issues before the court at a proof.

[14] On the issue of a code of conduct, all that the defender avers is that it has service levels agreed with various bodies. As a general averment that is unobjectionable but, as the sheriff will doubtless be careful to note at proof, it will be unlikely to be sufficient notice to allow the defender to introduce evidence which considers in detail what level of service is required of it in the circumstances of the leakage in this case. Indeed, all of the objectionable averments, except the first three sentences, are quite general in nature. Despite the pursuer’s submissions, I do not regard them as so lacking in specification as not to be allowed to go to proof, but their nature will restrict their usefulness to the defender, a point of which I assume it and its advisors are well aware.

[15] For the foregoing reasons, this appeal falls to be granted. Parties were agreed that I should reserve expenses, but for the appeal I should sanction the employment of senior counsel, which I do. It was agreed that to avoid unnecessary expense it should be possible to conduct a hearing on expenses by video or telephone conference.