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OUTER
HOUSE, COURT OF SESSION
[2007] CSOH 114
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A220/05
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OPINION OF LORD EMSLIE
in the cause
VIEWPOINT HOUSING ASSOCIATION LTD
Pursuer;
against
THE CITY OF
EDINBURGH COUNCIL
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Ellis QC; HBM Sayers
Defenders: McBrearty; Simpson and
Marwick
5 July
2007
Introduction
[1] The twin issues which have been
canvassed at a procedure roll debate before me are (i) whether the pursuers
have relevantly averred a case of negligence against the defenders at common
law in respect of the flooding of their property in Edinburgh in April 2000,
and (ii) whether the pursuers have relevantly pled a case of nuisance against
the defenders arising out of the same set of circumstances. The pursuers are the heritable proprietors of
a sheltered housing complex in Colinton Road, Edinburgh, some 700 metres distant
from the point at which the Braid Burn is culverted through an embankment
carrying Redford Road. The embankment and associated culverting
arrangements were constructed by the defenders' predecessors as roads authority
between 1957 and 1968, and since then the defenders and their predecessors have
not only been the relevant roads authority but also (by admission on record at
page 7B) the owners, possessors and controllers of the relevant works.
[2] On Record,
the pursuers aver a lengthy history of flooding in the area from 1984 onwards,
alleging that this was caused by the inadequate size of the culvert and by the
absence of ancillary protection in the form of screening to prevent blockage or
constriction by water-borne debris. They
also aver a series of reports obtained by the defenders between 1993 and 1996,
which inter alia highlighted the
inadequacy of the culverting arrangements and discussed remedial measures which
were never in fact undertaken. According
to the pursuers the applicable design and maintenance standards from 1975
onwards required that the culvert be of sufficient size and capacity to cope
with a 100 year return flood, with the embankment providing 20 per cent extra
protection against flooding at the locus.
Since what occurred in
April 2000 was a 100 year return flood, the pursuers' position is that properly
designed and maintained culverting arrangements would have avoided flooding and
property damage altogether or, failing that, materially reduced their extent
and duration.
Submissions
for the defenders
[3] In
seeking dismissal of the action, counsel for the defenders acknowledged that
the pursuers had sufficiently averred the forseeability of flooding and
consequent property damage in the event that culvert improvement works were not
undertaken. He contended, however, that
the pursuers had failed to bring themselves within the other two limbs of the
well-known tripartite test for liability in negligence at common law. In the leading case of Caparo Industries Plc v Dickman
& Others 1990 2 AC 605 Lord Bridge of Harwich at pages 617-618,
confirmed that forseeability of harm was not of itself sufficient to give rise
to a relevant duty of care, and that the existence of such a duty must also
depend on (i) proof of a relationship of proximity between the parties and (ii)
a judgment by the court that in all the circumstances the imposition of
liability would be fair, just and reasonable.
In a Scottish context, this tripartite test had been subsequently
affirmed in many cases, of which British
Telecommunications Plc v James Thomson
& Sons (Engineers) Ltd1999 SC HL 9, Gibson v Orr 1999 SC 420 and Bennett v J Lamont & Sons 2000 SLT 17 were
cited as examples. In the last-mentioned
case it was alleged that the duty of care owed by a roads authority to road users
extended to the maintenance of adjacent walls so as to prevent third parties'
cattle straying on to the carriageway.
Temporary Judge TG Coutts QC dismissed this claim, holding inter alia that the averments of
forseeability were inadequate, and also that it would not be fair, just and
reasonable to extend the responsibilities of a roads authority in the manner
alleged.
[4] Importantly,
their Lordships in Caparo pointed out
(a) that the three limbs of the tripartite test could not be defined with
precision, (b) that one might substantially overlap with another, such that
clear proof of forseeability of harm might often suffice to establish
proximity, (c) that the three limbs were no more than convenient indicators
against which the detailed facts and circumstances of a given case must be
judged, and (d) that the established categories of liability at common law should
not be extended except on an incremental and analogous basis.
[5] Against
that background, the main contentions advanced by counsel were as follows:-
(i)
As a matter of law, any duty of care incumbent on a roads
authority at common law was owed only to road users and in an operational
context. This proposition was said to be
vouched by a series of cases in which road users had been the pursuers:- Innes v Magistrates of Edinburgh 1798 M 13189; Laing
v Paull & Williamsons 1912 SC
196; McFee
v Broughty Ferry Police Commissioners 1898
1F 194; Barrie v Kilsyth Police
Commissioners 1890 17R 764; Mackie v Dumbartonshire Council 1927 SC HL 99; Smith v Middleton & Others 1971 SLT n.65; Syme v Scottish Borders Council 2003 SLT 601; Grant
v Lothian Regional Council 1988 SLT 533
and Gibson v Orr, supra. The pursuers' case based on negligence was
thus irrelevant because it involved a radical departure from this established
limitation on the common law liability of a roads authority, and because it could
not be said to be a modest or incremental development of the accepted scope of
the law. The pursuers were not road
users at all; they sued in the capacity of heritable proprietors; and their
property was situated some 700 metres distant from the relevant works. The demarcation line here was, according to
counsel, clear and immutable. In no
circumstances could any roads authority be said to owe a duty of care at common
law towards anyone other than a road user.
Thus (as counsel asserted during the debate) no common law liability
could be asserted against a roads authority by local residents poisoned by
fumes from road works, nor by the occupants of a train on to which a road
bridge collapsed, nor by members of the public suffering harm from flooding due
to road operations, whether by drowning or by property damage. The short point was that the common law
liability of a roads authority could not extend beyond harm to road users, and
the pursuers' case was thus fundamentally irrelevant because it sought to assert
the contrary. Wherever the boundary line
lay, the pursuers came nowhere near to bringing themselves within it.
(ii)
While acknowledging that forseeability and proximity might in
some circumstances be difficult to distinguish, the pursuers could not meet the
essential requirement of proximity in this case. Again the physical location of the pursuers'
property, and its relative remoteness from the embankment and culvert, were
important considerations, but as the debate progressed it became clear that the
want of legal proximity (on account
of the fact that the pursuers did not sue as road users) was counsel's primary
concern. Even if the pursuers' property
had been situated 7, rather than 700, metres from the locus, the claim would still have been irrelevant on proximity
grounds.
(iii)
Since the Roads (Scotland) Act 1984 imposed only limited
public law duties on roads authorities, coupled with largely discretionary
powers which could only be exercised with the concurrence of a third party,
namely the Secretary of State, it was clear that any purported imposition of
common law duties along the lines averred on Record would be neither fair, nor
just, nor reasonable. The defenders did
not (and could not) assert that the desiderated culvert enhancement would have
been de facto impossible, nor that
any statutory immunity could be prayed in aid.
Nevertheless, the court should be slow to impose wide-ranging common law
duties on a roads authority which might be thought to go beyond the ambit of
their statutory powers, and which might, at the instance of individual
claimants, prejudice the proper exercise of the defenders' statutory discretion
for the benefit of the community as a whole.
By statute it was the "bigger picture" which the defenders had to
consider; works and expenditure in one place might adversely affect the
situation elsewhere; and on no view could the defenders be expected to
undertake common law duties which went beyond the intended scope of their
statutory functions. According to
counsel, the defenders' powers and duties under the 1984 Act were exercisable
only in connection with the proper establishment, maintenance and management of
the roads system for which they had responsibility, and the imposition of a
common law duty to take different or more extensive measures for the benefit of
individual third parties would impact adversely on the statutory regime and on
the interests of the community which it was designed to serve. The same applied
to the defenders' statutory functions under the Flood Prevention (Scotland) Act 1961, as amended.
(iv)
Turning with a little less conviction to the case of nuisance
averred in condescendence 7, counsel maintained by reference to the decisions
in RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC HL 17
and Kennedy v Glenbelle Ltd 1996 SC 95 that some element of culpa was (with one possible exception which did not arise on the
present pleadings) an essential prerequisite of liability in nuisance. Since the pursuers sought to establish culpa by reference to the same
irrelevant averments of negligence as had already been discussed, the averments
here were again irrelevant to go to inquiry.
It might conceivably have been open to the pursuers to allege strict
liability where the natural flow of a stream or watercourse had been
artificially obstructed, but no fair notice of such a case had been given and
the pursuers' case in condescendence 7 was plainly based on allegations of
culpa.
In a different guise, the pursuers were simply trying to reassert
the breach of alleged common law duties of care towards them which the
defenders as roads authority did not owe.
[6] For
all of these reasons, counsel invited me to sustain the defenders' first plea-in-law
and dismiss the action. Failing that,
the purported case of negligence in condescendence 6 should be excluded
from probation, along with all other averments on Record which might suggest
that liability attached to the defenders qua
roads authority.
Submissions
for the pursuers
[7] In response, senior counsel for the
pursuers submitted that the pleadings on both limbs of his clients' claim were
relevant to go to inquiry and that a proof before answer should be
allowed. It was well settled that an
action could only be dismissed as irrelevant if, even assuming proof of all of
the averments made, it "...must (still) necessarily fail":- Jamieson v Jamieson 1952
SC HL 44, per Lord Normand at page 50. That test was not met in the present case,
where the pursuers sought to assert liability against the defenders along
familiar and well-established lines. The
defenders were sued as (or as now representing) the public body responsible for
creating, and then choosing to maintain in place, the artificial embankment and
culverting works which had brought about a series of floods culminating in the
flood of April 2000 by which the pursuers' property was damaged. In so doing, the defenders and their
predecessors had perpetuated arrangements which, by a substantial margin, failed
to meet the relevant engineering standards which had applied since 1975, and
they had done so in circumstances where repeated flooding and consequential
damage were obvious and foreseeable risks.
[8] Historically,
it was in the discharge of roads authority functions that the offending works
had been created and maintained in place, hence the multiple references to the
defenders and their predecessors as roads authority in condescendence 6
and elsewhere on Record, but in essence the defenders' liability arose from the
fact of their ownership, maintenance and control of the embankment and
culverting arrangements. In this action,
the pursuers were not attempting to impose positive duties on roads authorities
going beyond the scope of their statutory functions, nor did they assert any
common law duty in reliance on the existence of particular statutory
powers. On the contrary, the pursuers
simply asserted their right to recover damages along familiar and
well-established lines, where harm had resulted from the negligent exercise of
statutory functions by the defenders and their predecessors in the past.
[9] Nuisance
was a species of delictual liability which arose where interference with
neighbouring property rights was plus
quam tolerabile. On the same set of facts, however, cases
of nuisance and negligence might run side by side. As Lord President Hope explained in Kennedy, supra, at page 100,
"...liability for nuisance
(does) not arise merely ex dominio and
without fault. The essential requirement
is that fault or culpa must be
established. That may be done by
demonstrating negligence, in which case the ordinary principles of the law of
negligence will provide an equivalent remedy."
[10] As
regards the tripartite test affirmed in Caparo
and later cases, the element of forseeability was conceded by the defenders;
the element of proximity was readily satisfied by the parties' respective
status as neighbouring proprietors; and there was no sensible reason why
damages should not be recoverable in the circumstances of a case like
this. Success for the pursuers in this
action would leave the defenders' statutory functions, powers and duties as
roads authority unaffected. The essence
of the pusuers' complaint was that the defenders had dealt inadequately with
matters falling within the scope of their existing statutory responsibilities, and
that they should accordingly be held liable in damages for flooding which they
themselves had effectively brought about.
It could not possibly be the law, as counsel for the defenders
suggested, that the potential liability of a roads authority at common law was
limited to road users alone. None of the
authorities relied on had addressed that issue.
No doubt the pursuers in these cases happened to be road users, but that
in no way excluded the possibility of valid claims being maintained at the
instance of pursuers in a different capacity.
[11] In
support of these submissions, counsel drew my attention to the well known case
of Caledonian Railway v Greenock Corporation 1917 SC HL 56, in
which the House of Lords at various points appeared to indicate that
interference with the natural flow of a stream or watercourse might attract
strict liability for any flooding that ensued.
However, having regard to the doubts cast on such indications in RHM Bakeries, supra, and other cases, the pursuers had not perilled their claim on
an assertion of strict liability, but had averred culpa in accordance with the general requirements for a case of
nuisance.
[12] Hanley v Magistrates of Edinburgh 1913 1 SLT 421 was a case in which
liability had been established in circumstances very similar to the
present. A market garden had been
flooded by sewage-laden water which escaped from an inadequately culverted
burn. It was the defenders as roads
authority who had permitted restriction of the culvert's capacity, and their
only defence was to suggest that any common law liability was excluded by
reason of the works having been carried out under statutory authority. It was held that this defence failed, there
being nothing in the relevant statutory provisions to show that third party
rights were taken away either expressly or by necessary implication. Moreover, the fact that the defenders there were
at the same time roads and sewerage authority could not avail them where, in
both capacities, they could and should have managed to avoid causing harm to
the pursuers. Speaking of common law
remedies for harm caused by nuisance, Lord Shaw of Dunfermline, at page 425, said:
"There is nothing peculiar
by the law of Scotland in the situation of a
corporation in this regard. They have no
power at common law to divert the course of a sewage drain so as to make it
overflow the property of any citizen.
These common law remedies remain both for the purposes of interdict and
reparation unless they be extended or impaired by statute."
Similarly, in the RHM
Bakeries case, the House of Lords clearly saw no reason in principle why
common law liability should not attach to a public authority, the collapse of whose
sewer caused the pursuers' bakery to be flooded. In that case, at page 45, Lord Fraser
stressed the need for the court to weigh up all of the detailed facts and
circumstances of a given case, with the result that a proof would normally be
essential before the requisite judgement could be made.
[13] Senior
counsel went on to submit that the only significance of a local authority
having acted in the exercise of statutory functions was that this might, in
certain circumstances, furnish them with a defence to liability at common law. Prima
facie a statutory authority had no right to act negligently, especially
where discretionary powers would have permitted the selection of a
non-negligent alternative: - Clerk & Lindsell on Tort, 19th ed,
paragraphs 3-129 and 3-131. Stovin v Wise 1966 AC 923 was a case in which the victim of a road traffic
accident sought to convene the roads authority as defendants on the basis that
they should have removed certain obstructions to view which were located on
adjacent land belonging to third parties.
In rejecting that claim on its particular facts, the House of Lords
confirmed that in the absence of express or implied statutory authority a
public body might be subject to liability at common law in the same way as a
private person. Allen v Gulf Oil Refining Ltd1981 AC 1001 and Metropolitan Asylum District v Hill 1891 6 App. Cas 193 were
further decisions in which statutory authority or immunity were confirmed as
possible defences to any common law liability in damages that would otherwise
arise. In the latter case, Lord Watson
again made it clear (at pages 212-213) that permissive powers must be exercised
in strict conformity with private rights and interests, and that public bodies
enjoyed no licence to commit a nuisance.
[14] Marcic v Thames Water
Utilities Ltd 2004 2 AC 42 concerned a situation in which old sewers inherited by the
defenders became inadequate due to increased use over which they had no
control. When flooding resulted they
were held not liable on the ground that they had neither created nor maintained
the true source of the problem.
Particular stress was laid on two passages in the speech of Lord
Hoffman. At paragraph 55, quoting Lord
Denning in Pride of Derby &
Derbyshire Angling Association Ltd v British
Celanese Ltd 1953 Ch. 149, his Lordship confirmed that plaintiffs:
"...have a perfectly good
cause of action for nuisance, if they can show that the defendants created or
continued the cause of the trouble: and
it must be remembered that a person may 'continue' a nuisance by adopting it,
or in some circumstances omitting to remedy it: see Sedleigh-Denfield v O'Callaghan
1940 AC 880."
Further, at paragraph 63, Lord Hoffman referred to the
usual function of the court in deciding what is reasonable as between the two
parties to the action. He then went on:
"But the exercise becomes
very different when one is dealing with the capital expenditure of a statutory
undertaking providing public utilities on a large scale. The matter is no longer confined to the
parties to the action. If one customer
is given a certain level of services, everyone in the same circumstances should
receive the same level of services. So
the effect of a decision about what it would be reasonable to expect a sewerage
undertaker to do for the plaintiff is extrapolated across the country. This is turn raises questions of public
interest. Capital expenditure on new
sewers has to be financed; interest must be paid on borrowings and privatised
undertakers must earn a reasonable return.
This expenditure can be met only by charges paid by consumers. Is it in the public interest that they should
have to pay more? And does expenditure on the particular improvements with
which the plaintiff is concerned represent the best order of priorities?"
With regard to the latter passage, the present case
was readily distinguishable because of the limited and local nature of the
remedial works required, and because of the fact that the defenders and their
predecessors (unlike the defendants in Marcic)
had both created and maintained the cause of the problem through the negligent
exercise of their statutory functions. Moreover,
as was admitted in answer 7, the defenders in fact carried out the necessary
remedial works within a short time after the flooding in April 2000. There was thus no reason to regard this case
as in any way interfering with the proper exercise of the defenders' wider
statutory responsibilities, and it was significant that the defenders
themselves made no averment along such lines.
They were clearly empowered to carry out the works in question, whether
under the Roads (Scotland) Act 1984, as amended, or under the Flood Protection
(Scotland) Act 1961, as amended, or by virtue of the wide ancillary powers
conferred on all local authorities under Section 69 of the Local Government
(Scotland) Act 1973.
[15] For
these reasons senior counsel renewed his motion for the allowance of a proof
before answer on the whole case.
However, in the event of the case of negligence in condescendence 6
being struck out by the court, the pursuers' remaining averments should be left
as they stood. Historically, the role of
the defenders and their predecessors as roads authority could not simply be
ignored, and the excision of such averments from the Record would not be
justified.
Discussion
[16] Having taken time to consider the parties'
competing submissions, I am not persuaded that the defenders' challenge to the
relevancy of the pursuers' averments should be upheld at this stage. It is well settled that before dismissing a
claim as irrelevant the court must be satisfied that, even if the pursuers were
to prove all of their averments, they would still be bound to fail: Jamieson,
supra, per Lord Normand at page
50. In my opinion that test is not met in
the present case. In reaching this
conclusion I am conscious of their Lordships' guidance in Caparo and other cases to the effect (i) that the three limbs of
the tripartite test for common law liability are not susceptible of precise
definition, (ii) that in certain circumstances forseeability and proximity may
overlap and be almost indistinguishable from one another, and (iii) that the court's
judgment on what may be difficult and delicate issues must depend upon a
careful assessment of the detailed facts and circumstances of a given case:-
see the speeches of Lords Bridge, Roskill and Oliver in Caparo, supra, at pages 618, 628 and 633 respectively.
In British Telecommunications Plc,
supra, Lord Mackay of Clashfern made similar observations based on earlier
cases as follows:
"...the three so-called
requirements for a duty of care are not to be treated as wholly separate and
distinct requirements, but rather as convenient and helpful approaches to the
pragmatic question whether a duty should be imposed in any given case. In the end whether the law does impose a duty
in any particular circumstances depends upon those circumstances".
With such guidance in mind, it seems to me that it
would only be in an extreme case that the court could properly proceed to
judgement on a consideration of pleadings alone, and without the benefit of a
proof by which these pleadings might legitimately be "fleshed out".
[17] In the
present case there are, I think, many potentially important matters which might
be expected to emerge in evidence in the course of a proof. These would include the dimensions and
duration of the 100 year return flood which allegedly occurred in April 2000;
the local topography, with particular reference to the likely path of any floodwaters
emanating from the area of the culvert; the nature and extent of the debris
which such floodwaters might contain; the nature and extent of the damage
caused when a 50 year return flood occurred in 1993; the foreseeable propensity
for a 100 year return flood to cause greater damage over a wider area; the
nature and extent of the remedial works actually carried out by the defenders
shortly after the flood of April 2000; the statutory or other powers which they
exercised in that connection; and the presence or absence of any practical
reason why similar works, pursuant to similar powers, could not have been
undertaken at an earlier date.
[18] With
these preliminary considerations in mind, I can deal quite briefly with the
principal arguments which were addressed to me in the course of the
debate. Most importantly, perhaps, I am
unable to accept the defenders' general proposition that a roads authority can
in no circumstances incur liability at common law to anyone other than a road
user. There are doubtless many cases in
which road users have successfully claimed damages from roads authorities, but
in my opinion these do not show that road users are the only parties who can
competently assert liability against roads authorities at common law. Of rather more assistance, as I see it, are
the cases cited by senior counsel for the pursuers in which public bodies,
including roads authorities, have been held liable to neighbouring proprietors suffering
harm as a result of nuisance, or of negligence in the past discharge of
statutory functions. The approach taken
by the House of Lords in Caledonian
Railway, Hanley, Allen, Metropolitan Asylum and Marcic is in my view difficult or impossible to reconcile with the
defenders' primary argument, and their Lordships' decision in RHM Bakeries, supra, cited by counsel
for the defenders, seems to me to point in the same direction. I am therefore not persuaded that, in
appropriate circumstances, a claim of damages at common law may not
legitimately be maintained against a roads authority by neighbouring
proprietors on the ground of nuisance and/or negligence.
[19] In that
connection, moreover, it is not in my view self-evident that a finding of
common law liability, based on breach of the duties of care alleged against the
defenders in this case, would impact adversely on the present or future
discharge of their statutory functions. Admittedly
third parties such as the pursuers might have no right to insist ab ante on the execution of particular
works which they conceived to be necessary for their own protection. A roads authority might in such circumstances
be faced with multiple conflicting demands, or alternatively with demands from
individual sources which, in the proper exercise of their wider statutory
discretion and in the public interest, they would be entitled if not bound to
deny. In my opinion, however, there is a
material difference between, on the one hand, the position of a public body
seeking to resist or restrain inappropriate demands ad factum praestandum and, on the other, that of an authority which
merely faces allegations of nuisance and/or negligence relative to the
purported discharge of its statutory functions in the past. In the latter situation only damages are
truly at stake, and the proceedings involve no attempt to enforce performance
of any alleged duty to act, nor a
fortiori the exercise of permissive powers in any given manner. This may, I think, be a distinction of real
importance in a case of this kind where, as illustrated by the Marcic decision, the court must inter alia consider what significance to
attach to the statutory regime under which a public body operates.
[20] In my view
the position of the pursuers in the present case is further assisted by the
fact that, in constructing the embankment and relative culverting arrangements,
the defenders' predecessors were artificially interfering with the natural flow
of the Braid Burn. Having thus created a
serious potential for flooding within the neighbouring area, they thereafter
maintained that state of affairs over many years when (on the pursuers'
averments) they knew that repeated flooding and property damage had occurred,
and when they were in possession of reports in which the grossly inadequate
capacity of the culvert was made clear. As
averred by the pursuers, the culvert as it stood could only cope with a 25
year, as opposed to a 100 year, return flood.
In this context I also attach significance to the defenders' admission
in answer 7 that in April 2000 they were not merely the roads authority,
but also had ownership, possession and control of the works at Redford Road.
[21] With all
of these considerations in mind, it cannot in my judgement be said at this
stage that the pursuers' claim in this action is bound to fail, either on the
ground of nuisance or on the ground of negligence where that is the form of culpa on which the nuisance claim is
based. I therefore consider that a proof
before answer must be allowed on the whole of the case as currently pled,
thereby leaving the parties free, if so advised, to renew their submissions in
light of the whole facts and circumstances as ultimately disclosed in
evidence.
[22] For the
avoidance of doubt, however, and for the parties' assistance, I would make two
further observations at this stage. First, I do not accept the contention by
senior counsel for the pursuers that a case based on strict liability would be
open to his clients on their current pleadings if, at a proof, the averments of
culpa in condescendence 7 were
not proved. In my view the defenders
have no fair notice of any such case, which for all I know may raise new and
difficult issues for investigation, and I would not like it to be thought that,
in allowing a proof before answer, I was accepting that strict liability would
be an available fallback position for the pursuers within the scope of their
existing averments. Accordingly, if the
pursuers wished to maintain such a fallback argument in the end of the day, an
appropriate minute of amendment would in my view be required. Second,
I am conscious that the defenders currently have no averments on Record
regarding constraints inherent in the statutory regime under which they
operate, nor as to any practical or economic considerations which might
militate against some or all of the duties of care which the pursuers allege
against them. For the purposes of this
debate I have (with the parties' consent) looked at a variety of statutory
provisions which are said to be in point, and have also taken account of the
"bigger picture" approach which, according to the defenders' counsel, his
clients require to follow in exercising their statutory functions. At a proof, however, the same degree of latitude
may not be available, and in particular I do not see how evidence could
properly be led on such matters without fair notice first being given in the
defenders' pleadings.
Disposal
[23] In the result, a proof before answer on
the whole case will now be allowed, reserving in the meantime the defenders'
first plea-in-law.
