SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A600/06

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	DAVID STEWART AND DOREEN KENNEDY STEWART Residing at 57 High Street, Maybole, KA19 7AB
	Pursuers and Appellants
	against
	AFTAB AHMED MALIK, Who has a place of business at 63 High Street, Maybole, KA19 7AB
	Defender and Respondent

 

Act: Sanders, counsel, instructed by Messrs McLennan Adam Davis

Alt: Lynch, of Messrs McCluskey Browne

 

AYR: 29 April 2008

 

The Sheriff Principal, having resumed consideration of the appeal, (1) allows Minute of Amendment tendered on 2 April 2008 to be received and form no 19 of process; in respect that the defender and respondent does not require to answer, allows the Record to be opened up and amended in terms thereof; and of new closes the Record. (2) At the Bar allows the pursuers and appellants to amend further by inserting a new plea in law 2 in the following terms:

"The removal of a load bearing wall, being an inherently hazardous operation, in that the wall supported the pursuers' property, the defender is liable for the acts and omissions of his contractors and those instructed to carry out these works on his behalf"

and to renumber existing pleas in law for the pursuers and appellants 2, 3 and 4 as 3, 4, and 5. Quoad ultra, sustains the appeal and recalls the Sheriff's interlocutor of 19 February 2008 complained of; allows parties, before answer, a proof of their respect averments and remits the cause to the Sheriff to fix an appropriate diet; finds the pursuers and appellants liable to the defender and respondent in respect of the expenses of the debate before the Sheriff on 23 January 2008 and in respect of the subsequent amendment procedure; finds the defender and respondent liable to the pursuers and appellants in respect of the expenses of the appeal; sanctions the appeal as suitable for the employment of junior counsel; continues consideration of the application by solicitor for the defender and respondent for an uplift of fees for the appeal for further information to be provided.

 

 

NOTE:

 

Background to the appeal

 

1.             In this case the pursuers and appellants seek damages from the defender and respondent in respect of the cost of remedial works to their flat situated immediately above the defender and respondent's shop as a result of building alteration works carried out within that shop. The works involved the removal of a load bearing wall and the insertion in its place of steel support beams and a central supporting column. The pursuers and appellants claim that the works were not carried out in accordance with a building warrant in that there was a failure to construct the central support column, resulting in damage to their flat.

 

2.             The case proceeded to debate before the Sheriff. The issue at debate was whether the defender and respondent, by instructing independent contractors to carry out the works, had discharged his duty to the pursuers and appellants to take reasonable care to see that the works were carried out in such a way that damage was not likely to be occasioned to the pursuers and appellants' property.

 

3.             The Sheriff in his interlocutor of 19 February 2008 sustained the defender and respondent's plea in law to the effect that the pursuers and appellants' averments were irrelevant and dismissed the action. In the note attached to his interlocutor the Sheriff recorded that both parties were agreed that, for the pursuers and appellants' case to be relevant, given that the defender and respondent had instructed an independent contractor to carry out the works, the pursuers and appellants would need to aver that the works were inherently hazardous or particularly dangerous.

 

4.             The Sheriff thereafter stated:

"The pursuers aver that the works involved the removal of a load bearing wall and the insertion in its place of new steel support beams and a central supporting column. They aver that the load bearing wall was directly below and bore the weight of a wall in the pursuers' living room and an attic wall above. They aver that works were subject to a building warrant. They do not, however, aver that the works were inherently hazardous or particularly dangerous, or necessarily attended with risk. Neither in my view are there any averments from which such can be inferred. Mr Carruther's argument that work which involves the removal of a load bearing wall with the requirement that a supporting column should be erected is a plainly hazardous operation is in my view, only superficially attractive. Below the surface it is undermined by a failure on the part of the pursuers to aver that the works were inherently hazardous or necessarily attended by risk explaining what that risk was or to make such averments from which that can be necessarily inferred. In my view the situation here is different from that in GA Estates Ltd v Cavipan Trustees Ltd (No 1) 1993 SLT 1037 where there were detailed averments concerning an inherently hazardous operation. To that extent the present case can be likened to that of Noble's Trustees v Economic Forestry (Scotland) Ltd 1988 SLT 662 in which Lord Jauncey held that there were no averments that the operations in question were inherently dangerous or likely to be conducted in a dangerous way. I have reached the view that if the pursuers prove what they offer to do they will have no remedy in law against the defender. The pleadings are therefore irrelevant. I have accordingly found for the defender and sustained his preliminary plea thereby dismissing the action."

 

5.             Against that interlocutor the pursuers and appellants now appeal.

 

Amendment by the pursuers and appellants

 

6.             Counsel for the pursuers and appellants sought to meet the criticism of the pleadings made by the Sheriff by moving the court as follows:

a.              In terms of a Minute of Amendment tendered on 2 April 2008 by adding in condescendence 2, which dealt with the facts of the case, the following "The removal of a load bearing wall in this way was an inherently hazardous operation as the wall supported the weight of the structure above," and in condescendence 3, which contained averments of fault, the following "The removal of the load bearing wall was an inherently hazardous operation.".

b. At the bar during the course of the hearing of the appeal to further amend by adding a new plea in law 2 in the following terms: "The removal of a load bearing wall, being an inherently hazardous operation, in that the wall supported the pursuers' property, the defender is liable for the acts and omissions of his contractors and those instructed to carry out these works on his behalf" and to renumber the existing pleas in law 2, 3 and 4 as 3, 4 and 5.

Subject to further submission on the question of expenses, solicitor for the defender and respondent did not object to the amendments to the condescendence set out in the Minute of Amendment of which he had prior notice. He objected to the proposed amendment to add the new plea in law on the grounds that this came too late and that it appeared to him to introduce a new case.

 

7.             I took the view that the interests of justice demanded that the pursuers and appellants be allowed to add the additional plea in law. In my view the amendment merely gave effect to the amendments proposed to condescendences 2 and 3. Solicitor for the defender and respondent indicated that he did not require to answer the amendments. I reserved the question of expenses until the conclusion of the appeal hearing. An amended closed Record was made available.

 

Submissions for the pursuers and appellants

 

8.             Counsel for the pursuers and appellants submitted that there was no real dispute on the facts. Pursuers and appellants were the joint pro indiviso proprietors of the first floor flat known as 57 High Street, Maybole, Ayrshire. The flat comprised the first floor of the building it occupied and the attic above. The defender and respondent was the heritable proprietor of the shop at 63 High Street, Maybole, Ayrshire which was located directly below the pursuers and appellants' flat. The shop provided support for the flat. On or around June 2004 the defender and respondent or those acting on his instructions began alteration works to the shop. The works were subject to a building warrant which had been issued by South Ayrshire Council. The works involved the removal of a load bearing wall and the insertion in its place of new steel support beams and a central supporting column. The load bearing wall was directly below and bore the weight of the wall in the pursuers and appellants' living room and attic wall above. The work was not carried out in conformity with the building warrant drawings. The load bearing wall was removed without the construction of a central support column. The purpose of the central support column was to take the weight of the wall in the flat and attic above. The beams which had been inserted at the top of the new opening gave insufficient support to the walls above causing damage to the pursuers and appellants' property, which is the subject of this action. The simple situation which the pursuers and appellants offered to prove was that those instructed by the defender and respondent did not put the central support column in place, as they were required to do by the building warrant, and loss thereby was incurred by the pursuers and appellants.

 

9.             In his answers the defender and respondent effectively accepted what had taken place, but explained that the building warrant was obtained following an application made on the defender and respondent's behalf by Carrick Architects, 7 Alloway Place, Ayr. The works were carried out by independent contractors, Ober Limited, under the supervision of the Architects. It was said that none of the work was devised or executed by the defender and respondent himself. It was done by the independent contractors under the supervision of the Architects.

 

10.         It was submitted for the pursuers and appellants that the Sheriff criticism that there were no averments to the effect that this was an inherently hazardous operation had been met by amendment. Their primary submission was that the amendments made their position clear, namely that the operation which was to be carried out at the defender and respondent's premises was inherently hazardous, and in these circumstances the defence that the defender and respondent had instructed an independent contractor to carry out the work was not available to him.

 

11.         In condescendence 3 the pursuers and appellants' case was set out to the effect that the damage to their heritable property was caused:

"by the fault and negligence of the defender or those acting on his instructions and for whom he is liable ... The defender, or those acting on his behalf, should have inserted a central load bearing support column during the works. It was reasonably foreseeable that a failure to do so would result in damage. Had the defender or those acting on his behalf inserted the beam during the work the damage would not have occurred ... The removal of the load bearing wall was an inherently hazardous operation"

 

12.         The defender and respondent's position was set out in their note on basis of preliminary plea which provided:

"The pursuers in this case sue on the basis that property belonging to them was damaged as a result of building operations carried out by the defender. The defender in answer 2, responds by saying that the work was carried out on his behalf by an independent contractor, namely Ober Limited. This amounts to a complete defence. The pursuers aver that they believe it to be true that the works were carried out by independent contractors namely Ober Limited. In those circumstances the pursuers' case is irrelevant and is bound to fail."

 

13.         It was submitted that before the issue of relevancy could be determined, the issue of whether the works were "inherently hazardous" required to be proved. It was conceded that if the pursuers and appellants failed to prove that matter of fact, the defender and respondent would not be liable for the negligence of independent contractors. Counsel submitted there required to be a proof before answer on this matter. The court could not, without evidence, decide whether the operation was inherently hazardous or not. The court required evidence on which to consider making a finding in fact to the effect that this operation was inherently hazardous. I was referred to Walker on Delict second edition, page 154:

"If a person is employed under a contract locatio operis faciendi, "for services" rather than "of service", the law does not hold the employer vicariously liable for wrongs committed by the contractor in the course of the employment. Such a person is an independent contractor, and is personally liable only, not being subject to detailed direction or control from the employer in the manner of performing the work. His contract is not to serve, but to bring about a required result in his own way, and if, in so doing, he injures a third party, he alone is responsible -"

 

14.         Counsel submitted there were a number of well defined exceptions to that general rule, one of which was referred to at page 159 of Walker on Delict as follows:

"Where the contractor is carrying out an inherently hazardous operation. Where the operation instructed by the employer is one of a hazardous nature, with an obvious serious danger of considerable harm befalling if it is not carried through safely, the employer remains liable if that harm results, and cannot evade responsibility by having employed a competent contractor. "When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions" (a quotation from Romer LJ in Penny v Wimbledon Urban Council 1899 2QB 72) "In cases where the work is necessarily attended with risk, he (the employer) cannot free himself from liability by binding the contractor to take effectual precautions" (a quotation from Dalton v Angus (1881) 6 App Cas 740 per Lord Watson at 831)"

 

15.         I was also referred to the case of Duncan's Hotel (Glasgow) Ltd v J & A Ferguson Ltd 1972 SLT (Notes) 84. In that case the proprietors of hotel premises situated on the upper floors of a building in Glasgow raised an action claiming damages against the owners of premises on the ground floor in respect of damage to their premises by reconstruction work carried out on premises at ground floor level. The works were carried out by contractors instructed by the defenders through a firm of consulting engineers. The pursuers averred that the damage to their premises was caused by the contractor's negligence. Lord Stott stated:

"... suffice it to say that the pursuers have undertaken to prove that the operations involved hazardous work on private property which necessarily exposed the adjacent property of the pursuers to the risk of serious damage. It is plain from the authorities that the execution of work of that kind imposes some kind of personal obligation upon the building employer ... The duty should perhaps be treated as an obligation to carry out work properly, whether by one's own hand or by the hand of another, rather than a form of vicarious liability. .."

 

16.         I was also referred to, but did not find particularly helpful, the cases of Argyle & Clyde Board v Strathclyde Regional Council 1988 SLT 381, MTM Construction Ltd v William Reid Engineering Ltd 1998 SLT 211 and Viewpoint Housing Association v City of Edinburgh Council 2007 SLT 772.

 

17.         Counsel submitted that his case could be summarised briefly, namely that the work which had been undertaken on behalf of the defender and respondent was inherently dangerous. If the pursuers and appellants at proof were able to satisfy the court that this was the case, the defender and respondent was himself liable for the negligence of an independent contractor instructed by him.

 

18.         I was referred to the well known passage in Macphail at para 9.33:

"An action must not be dismissed as irrelevant unless it must necessarily fail even if all the pursuers' averments are proved."

I was also referred to the case of Jamison v Jamieson 1952 SC (HL) (44). It was submitted that, if at proof the pursuers and appellants were able to satisfy the court that the operation was an inherently hazardous one, the pursuers and appellants would be entitled to succeed in this action. It could not be said that, on the basis of the pursuers and appellants' case as amended, it would necessarily fail. I was asked to allow a proof before answer.

 

Submissions for defender and respondent

 

19.         Solicitor for the defender and respondent maintained the position set out in his note of basis of preliminary plea which I have recorded in full at para 12 hereof. Essentially, his case was that the work was carried out on behalf of the defender and respondent by an independent contractor, namely Ober Limited. That amounted to a complete defence. He confirmed that the Sheriff had correctly noted the defender and respondent's position at page 7 in his note:

"He argued that if the pursuers were to succeed in this case there should be averments in the pleadings to demonstrate that the works were particularly hazardous. If so this would bring it within one of the categories of special circumstances where an employer of an independent contractor may nevertheless be personally responsible for an injurious act committed by the contractor."

 

20.         He referred to the case of GA Estates Ltd v Caviapen Trustees Ltd (No 1) 1993 SLT 1037 at 1039 where Lord Coulsfield referred to the pleadings as follows:

"The pursuers and their agents in the design team ... were aware, as was obvious, that the site was low lying and sitting in, as it was, a saucer shaped depression ... They were aware of the need to take steps to protect the site from flooding, and they did take certain steps to that end, as herein set forth. Said steps, however , were not adequate to protect the site, which was exposed, as at practical completion, to the likelihood of frequent ingress of flood water with which said protective measures were unable to cope."

He contrasted those averments with those in article 2 page 2 of the Record in this case. He said it could be argued that the fact that a building warrant had been granted for the works meant they were not inherently hazardous. Although in their pleadings the pursuers and appellants' aver what the contractors did wrongly and the effect that had on the walls above, that was born out of hindsight and quite different from averments that this outcome should have been in the contemplation of the defender and respondent when he instructed the contractors to carry out the works. It was submitted that the works were not per se particularly dangerous or inherently hazardous. Rather they were operations which could have been carried out safely by competent contractors. They only became hazardous when they were not carried out properly. That remained his position.

 

21.         It was submitted that a distinction required to be made between, on the one hand, operations which were inherently hazardous or particularly dangerous and, on the other hand, operations which could be carried out safely by competent contractors which only became dangerous or hazardous if not carried out properly. If a situation involved the latter case, there was no personal liability on the employer for the improper execution of the works by the independent contractor. It was submitted that this case fell within the second category.

 

22.         As far as the two amendments contained in the Minute of Amendment were concerned, namely "the removal of the load bearing wall in this way was an inherently hazardous operation as the wall supported the weight of the structures above" and "the removal of the load bearing wall was an inherently hazardous operation", it was submitted that these, properly understood, were not averments of fact at all. Rather, they were expressions of opinion or assertions that the works described have a particular character. It was submitted the amendments did not introduce any new material into which the court could usefully conduct an inquiry into fact.

 

23.         It was conceded by the pursuers and appellants that, merely by attaching a particular label to the operation complained of they could not thereby cure what had been found by the Sheriff to be deficiencies in the pursuers and appellants' pleadings. For that reason, a new plea in law had been added at the bar. It was submitted that, when one looked at the pursuers and appellants' pleadings as a whole, the material was simply not there to justify an inquiry into the merits of the new plea in law.

 

24.         It was submitted that the case had moved from the position at the debate where the central criticism of the pursuers and appellants' pleadings was the absence of any pleadings which would bring the operation into the category of being inherently hazardous, into the position where the issue was whether there were special circumstances which gave rise to liability on the part of the defender and respondent.

 

25.         It was suggested that what the court had to do was look at whether the pleadings as now amended were adequate to allow the conclusion to be reached that the work was indeed inherently hazardous and whether there was sufficient now in the pursuers and appellants' pleadings to entitle them to an inquiry. It was suggested that the court required to look at condescendence 2 as amended. The solicitor for the defender and respondent read the early part of the pursuers and appellants' original pleadings which concluded:

"... the works were not carried out in conformity to the building warrant drawings. The load bearing wall was removed without the construction of the central support column. The purpose of the central support column was to take the weight of the wall in the flat and attic above. The beams which had been inserted at the top of the new opening gave insufficient support to the walls above causing damage to the pursuers' heritable property."

and thereafter there was inserted:

"The removal of a load bearing wall in this way was an inherently hazardous operation as the wall supported the weight of the structures above."

It was suggested that the pleadings as now amended allowed the conclusion that the "inherently hazardous operation" was in fact a reference to the negligent manner in which the defenders and respondents' contractors had carried out the work. It was not a reference to the work itself, viewed at the outset. There was a distinction between the work itself being inherently hazardous, as opposed to the negligent carrying out of the work being inherently hazardous. It was submitted that, for there to be a relevant case, the pleadings must be capable of the construction that the works, at the point they were instructed, were inherently hazardous. This was not what had been done in this case. It was suggested that it was not the pursuers and appellants' case on Record as now amended that the work, for which a building warrant had been granted, was inherently dangerous. Indeed, it was suggested on behalf of the defender and respondent that the admitted fact that a building warrant had been granted for the works meant that they were not in fact inherently hazardous.

 

26.         I was referred to the Building (Scotland) Act 1959. This was a piece of primary legislation. Warrants of the type issued in this case were granted by the local authority authorising work of certain types to be done. The local authority granted the warrants in terms of a statutory scheme which required work to be carried out according to certain standards known as "building standards". These standards were incorporated in Building Standards Regulations which had been promulgated in terms of section 3 of the 1959 Act. I was referred to section 3.2 which provided:

"The standards prescribed under the foregoing subsection shall be such as in the opinion of the Scottish Ministers can reasonably be expected to be attained in buildings of the classes to which they relate, having regard to the need for securing the health, safety, welfare and convenience of the persons who will inhabit or frequent such buildings and the safety of the public generally."

 

27.         It was submitted it was difficult to imagine how an operation which had been sanctioned under such a statutory scheme could be classified as "inherently hazardous". It was suggested that was why the pursuers and respondents refrained from offering to prove that the building operation as originally envisaged could ever have been described as being inherently hazardous.

 

28.         I was referred to the case of D & F Estates Ltd & Others v Church Commissioners for England & Others 1989 AC 177 where Lord Bridge stated:

"It is trite law that the employer of an independent contractor is, in general, not liable for the negligence of other torts committed by the contractor in the course of the execution of the work. To this general rule there are well established exceptions or apparent exceptions ... but it has been rightly said that the so called exceptions "are not true exceptions" (at least so far as the theoretical nature of the employers liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant."

 

29.         It was submitted that the speech of Lord Bridge represented a watershed in the law. It was necessary, in looking at decisions before then to disregard any which are inconsistent with Lord Bridge.

 

30.         I was also referred to the case of Ferguson v Welsh 1987 1WLR 1553 where Lord Keith of Kinkel stated:

"It would not normally be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor's activities in order to ensure that he was discharging his duty to his employers to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made."

I was also referred to the dicta of Lord Oliver of Aylmerton:

"... It is possible to envisage circumstances in which an occupier of property engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of the contractor who is injured as a result of the defective system of work adopted by the employer."

 

31.         I was also referred to the case of K 2 Restaurants Ltd v Glasgow City Council & Others a decision of Lord Wheatley dated 2 February 2007 reported only on the Scottish Courts' website. I was referred to para 6:

"Counsel for the first defenders ... submitted that the pursuers' complaints concerned the way in which the works were carried out, but these works were carried out by the second defenders and the first defenders only instructed the second defenders to do the work. He submitted that it was settled law that instructing employers in these circumstances are not liable for incompetent building works by independent contractors. It is not suggested in the present case that the second defenders were not competent. If the first defenders had engaged competent independent contractors, they were entitled to rely on them. (Ferguson v Welsh 1987 1WLR 1553 per Lord Keith of Kinkel at page 1560G-H). In the present case there are no special circumstances averred why the Council should be liable for the acts of the second defenders."

 

32.         It was submitted that the case of Ferguson v Welsh was regarded as the leading authority and I should have regard to it.

 

33.         It was the position of the defender and respondent that the section to which I have referred in Macphail in para 9.33:

"An action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuers' averments are proved, was applicable in this case."

applied in this case. The pursuers and appellants accepted that the work was carried out by an independent contractor. They were unable to offer to prove special circumstances in respect of the operation as original contemplated. It was suggested that even if the pursuers and appellants proved everything they offered to prove, they were bound to fail. It was submitted that there position could not be cured by saying that the operation as originally contemplated was inherently hazardous. It could not be cured by attempting to attach that label as the surrounding facts and circumstances as disclosed in the pursuers and appellants' averments did not permit of that construction.

 

34.         It was submitted that almost any building operation was attended by danger if not carried out properly. But not every building operation was inherently hazardous. There required to be identified in advance some particular out of the ordinary aspect of the work which was difficult or impossible to guard against. It was submitted there required to be some aspect that created danger which was not capable of being readily dealt with. It was submitted that, if one did not apply a test of that order, then every ordinary every day operation such as the extraction of a tooth, changing of an electric plug, fuse or light bulb could be capable of being characterised as inherently dangerous.

 

35.         I was referred to Noble's Trustees v Economic Forestry (Scotland) Ltd 1988 SLT 662. There was a distinction between an operation which is, on the one hand, inherently dangerous, and others which can be carried out safely, but become hazardous because of the manner of their execution. It was submitted that the exception only applied to the first category. I was referred to page 664 where Lord Jauncey said:

"A landowner will be liable to his neighbour if he carries out operations on his land which will or are likely to cause damage to his neighbour's land however much care is exercised. Similarly will a landowner be liable in respect of carrying out operations, either at his own hand or at the hand of the contractor, if it is necessary to take steps in the carrying out of those operations to prevent damage to a neighbour and he, the landowner does not take or instruct these steps."

 

36.         In this case the building warrant required there to be a central support beam. The defender and respondent assumed the contractor would carry out the work in accordance with the warrant. What the pursuers and appellants had set out here was a case of casual negligence of an independent contractor, which was quite different from an inherently hazardous operation. It was accordingly the position that the pursuers and appellants' case was bound to fail and should be dismissed.

 

37.         As far as expenses were concerned, it was submitted that I should not disturb the Sheriff's finding in respect of the expenses of the debate. In view of the fact that amendment was at the instance only of the pursuers and appellants, the expenses incurred by the defender and respondent, if any, should be awarded against the pursuers and appellant. The expenses of the appeal should follow success.

 

Further submissions on behalf of pursuers and appellants

 

38.         It was submitted that, while the pleadings could perhaps have been more happily drafted, looking at the pleadings as a whole, the pursuers and appellants' case was clearly that the works themselves were inherently dangerous. The action concerned the part of the works that involved the taking away of the load bearing wall and the insertion of a central support column. The purpose of the central support column was to support the walls above. I was referred to Walker on Delict page 159:

"Thus an employer has been held liable ... where a contractor employed to alter a house withdrew support from an adjoining building and caused its collapse ..."

This was a reference to the case of Dalton v Angus supra where Lord Watson said at 831:

"Where an employer contracts for the performance of work, which properly conducted can occasion no risk to his neighbour's house which he is under obligation to support, he is not liable for damage arising from the negligence of the contractor. But in cases where the work is necessarily attended with risk, he cannot free himself from liability by binding the contractor to take effectual precautions. He is bound, in a question with the party injured, to see that the contract is performed, and is therefore liable, as well as the contractor, to repair any damage which may be done."

 

39.         The pursuers and appellants' case was that it was inherently dangerous to remove a load bearing wall and replace it by the insertion of new steel support beams and a central supporting column. That is what they wished to prove. If it was proved that the work was inherently dangerous, and the contractors instructed by the owner to carry out the work did not do it properly, then the owner was liable. There was enough for a proof before answer.

 

Decision

 

40.         I understand the submission for the defender and respondent that condescendence 2, as now amended, is capable of the interpretation that "inherently dangerous operation" refers to the negligent manner in which the contractors are said to have carried out the work. The pleadings could perhaps have been framed with greater care. However, I accept the submission made by counsel for the pursuers and appellants that it is clear, reading the pursuers and appellants' case as a whole, and in particular having regard to the new plea in law 2 which has been added by amendment, that the case advanced on behalf of the pursuers and appellants' is that the operation for which a building warrant was obtained, namely the removal of a load bearing wall and in insertion in its place of new support beams and a central supporting column, was in itself an inherently hazardous operation. Taking the pleadings as a whole, I do not construe them narrowly, as has been suggested on behalf of the defender and respondent, to the effect that the operation only became hazardous when not carried out properly.

 

41.         I accept the submission that there is enough on Record, supported by plea in law 2, to allow the court to conclude that it is the pursuers and appellants' case that the original operation as envisaged, and for which a building warrant was obtained, was inherently hazardous. That is what they offer to prove.

 

42.         In my opinion the law to which I have been referred, and which I have set out in full, allows a remedy to a party whose property is damaged by an independent contractor instructed by another if the operation can be described as inherently hazardous. I refer in particular to the quotations to which I was referred in Walker on Delict at pages 154 and 159 which I have set out in paras 13, 14 and 37 hereof, the dicta of Lord Stott in Duncan's Hotel (Glasgow) Ltd v J & A Ferguson Limited which I set out in para 15 hereof, and the dicta of Lord Watson in Dalton v Angus which I set out in para 37 hereof.

 

43.         What is "inherently hazardous" is a question of fact. While it is attractive to consider the submission that, if a building warrant was obtained, the local authority did not consider the operation inherently hazardous, that in my opinion is not determinative of the issue. In my opinion there requires to be evidence before, as a matter of fact, the court can conclude whether the detailed operation envisaged, and for which a building warrant was obtained, was indeed inherently hazardous.

 

44.         If the pursuers and appellants are able to persuade the court of first instance that this was indeed an inherently hazardous operation, in my view it is no defence on the part of the defender and respondent in this case to say that he instructed an independent contractor to carry out the work. As Lord Stott put it in Duncan's Hotel (Glasgow) Ltd v J & A Ferguson Limited supra:

"... It is plain from the authorities that the execution of work of that kind imposes some kind of personal obligation upon the building employer ... The duty should perhaps be treated as an obligation to carry out work properly, whether by one's own hand or by the hand of another, rather than a form of vicarious liability ..."

 

45.         In these circumstances I take the view that the pursuers and appellants are entitled, having amended, to a proof before answer.

 

46.         As far as expenses are concerned, I consider that the pursuers and appellants should bear the expenses of the debate before the Sheriff. Similarly, they should bear any expenses incurred by the defender and respondent in respect of the Minute of Amendment which was tendered on 2 July 2008 to which, at the appeal hearing, they did not object. Solicitor for the defender and respondent indicated that he did not require any determination of the expenses in respect of adding the additional plea in law. Parties were agreed that, as the position of the defender and respondent, after amendment, was that the pleadings were still irrelevant, expenses in respect of the appeal should follow success. I have accordingly awarded the expenses of the appeal to the pursuers and appellants.

 

47.         I was asked to certify the appeal as suitable for the employment of counsel and I am prepared to do so. Solicitor for the defender and respondent indicated that he would lodge detailed information in support of his motion, made at the bar, for an increase in fees for the appeal in view of the importance and difficulty of this case. I am prepared to consider this in due course.