Scottish Court of Session Decisions

LORD JAUNCEY'S OPINION.—On 13th September 1978 the respondents, as statutory Water Authority, decided at a meeting to co-operate with Health Boards in the progressive fluoridation of water supplies for which they were responsible. The decision was taken in good faith and after hearing expert views for and against fluoridation. The purpose of fluoridation is to reduce the incidence of dental caries which is prevalent in Strathclyde and indeed throughout Scotland. The petitioner seeks to interdict the respondents from implementing this decision on four grounds which may be broadly summarised as follows:—(1) that fluoridation of the water supplies for the above purpose would be ultra vires the respondents, (2) that it would be a nuisance inasmuch as fluoride being a known toxic substance may be harmful to consumers, particularly in relation to the causation and acceleration of cancer, (3) that inasmuch as fluoride is a known toxic substance the addition thereof to the water would constitute breaches of the statute which imposes upon the respondents the duty to provide a supply of wholesome water for domestic purposes, and (4) that fluoridation of the water supply would be unlawful inasmuch as the respondents would be supplying a medicinal product for a medicinal purpose without a statutory products licence. The petitioner is an elderly edentulous inhabitant of Hutchesontown in Glasgow to whom the respondents supply water from Loch Katrine for domestic purposes. She has been granted legal aid. The respondents' expenses of the action are being met by the Secretary of State and hence by central funds. The taxpayer is accordingly bearing the whole expenses of this proof which together with the hearing on evidence has lasted for 201 days. This must be by far the most expensive case which the legal aid fund has ever been called upon to support not only by reason of its length but because the petitioner's expert evidence has come mainly from abroad. Her principal scientific adviser has been an American biochemist Dr Yiamouyannis and she has been able to adduce the evidence of two other scientists from the United States and a dentist from Australia. Dr Yiamouyannis not only spent 23 days in the witness box but he also thereafter spent very many days in Court providing formidable assistance to counsel in the conduct of the case. This assistance was responsible for many days if not weeks of cross-examination. He must have flown the Atlantic many times for this purpose. In contrast to Dr Yiamouyannis the petitioner has been conspicuous by her absence. She gave evidence on the first day of the proof when she expressed herself as passionately opposed to the introduction of fluoride and so far as I can recollect she has only appeared briefly on one another occasion when she sought unsuccessfully to interdict the B.B.C. from presenting a television programme in which she was mentioned. It may be that her absence has been due to lack of funds. However others have attended Court with great regularity and it would be naïve to assume that the petitioner alone has an interest in the outcome of this action or indeed that her interest in the outcome is as great as that of others who have attended so regularly. Nevertheless having regard to the provisions of Regulation 6 (1) of the Legal Aid (Scotland) (General) Provisions 1960 it must be assumed that the Supreme Court Committee were not satisfied that the petitioner would not be seriously prejudiced in her own right if legal aid were not granted to her.

There can be no doubt that the petitioner, through the granting of legal aid, has been enabled to pursue a litigation of unprecedented length and expense which only an individual with unlimited means at his disposal could have afforded to pursue. Whether such an individual would have considered that expenditure on this action was the most cost-effective way of avoiding the effects of fluoridation must be open to question. The petitioner has thus been placed in a position far superior to that of a normal person litigating at his own expense, a result which it is extremely doubtful whether the legal aid legislation was designed to achieve. Indeed section 1 (6B) (a) of the Legal Aid (Scotland) Act 1967 provides that "A person may be refused legal aid if, in the particular circumstances of the case, it appears unreasonable that he should receive it". This provision no doubt had in mind situations where inter alia a litigant had a probabilis causa litigandi but the cost of vindicating a particular right might be out of all proportion to the value of that right. It must however again be assumed that the Supreme Court Committee having certiorated themselves of all the circumstances were satisfied that it was not unreasonable that the petitioner should receive legal aid on this enormous scale and that there was no good reason why she should not be placed in such an exceptionally if not uniquely privileged position at the expense of the taxpayer. The foregoing comments on the grant of legal aid to the petitioner have, of course, no bearing whatsoever upon the merits of her case.

The respondents are the water authority for the Strathclyde Region by virtue of section 3 (1) of the Water (Scotland) Act 1980. In terms of section 6 (1) of that Act it is their duty to provide a supply of wholesome water to every part of their limits of supply where a supply of water is required for domestic purposes and can be provided at a reasonable cost. In pursuance of this statutory duty they supply water to about 2,300,000 consumers from about 175 different sources of supply throughout the region. Water from the different sources of supply varies enormously in its quality and different sources of supply require different forms of treatment. The biggest source of supply is Loch Katrine which supplies about 100,000,000 gallons per day to about 920,000 consumers including the petitioner. Loch Katrine water is of an exceptionally high standard and requires to be treated with only two chemicals, namely chlorine and lime. It has a natural fluoride content of less than 0.01 parts per million (hereinafter referred to as "p.p.m.").

Fluoride is a mineral occurring naturally as a trace element in almost all waters throughout the world as well as in many common foodstuffs and at high concentrations in tea. As a result of certain research in the United States into the causes of mottled teeth to which I shall refer in more detail later dental authorities in that country formed the view that the presence of fluoride in drinking water reduced the incidence of caries. The optimal level of fluoride in the water for that purpose was thought to be 1 p.p.m. In the mid-1940s the artificial addition of fluoride to water supplies in order to bring the fluoride content thereof up to 1 p.p.m. started experimentally in the United States. Those responsible for carrying out the experiments were satisfied that a substantial reduction in caries had been achieved and fluoridation of water supplies in many other places in the United States followed. In 1982 millions of people in the United States, Canada, Australia and New Zealand were drinking water fluoridated to about 1 p.p.m. In England and Wales, Birmingham, Newcastle upon Tyne, Watford, the whole of Anglesey and parts of Leeds are among the places receiving fluoridated water. In Scotland water is fluoridated only in parts of Wigtownshire although the Kilmarnock water supply was fluoridated for some 6½ years as I shall mention in more detail later. Fluoridation also took place in the Netherlands for a number of years but was stopped by the Dutch Parliament. The respondents' proposals would involve increasing the natural concentration of fluoride in their different water supplies to 1 p.p.m. by the addition of an appropriate fluoride compound.

The petitioner's attack on the respondents' proposals to fluoridate involved the leading of evidence on a number of separate, albeit not necessarily unrelated, topics. These may be summarised as follows:—

(1) Cancer Mortality. The petitioner sought to establish from statistics of cancer death rates in 20 United States cities of which 10 were fluoridated and 10 were not and from studies in Birmingham that after and as a result of fluoridation the cancer death rate increased.

(2) General Biochemistry. The petitioner sought to demonstrate that there were four biochemical mechanisms whereby fluoride could act on the human body in a manner which was likely to cause cancer or to accelerate the growth of existing cancers.

(3) Mutagenesis. The petitioner sought to establish that in certain circumstances fluoride might have mutagenic properties in relation to human cells and that cancer should result therefrom.

(4) Leucocytes. The petitioner sought to establish that water fluoridated to 1 p.p.m. was likely to have a harmful effect on human leucocytes.

(5) Kidneys. The petitioner sought to establish that water fluoridated to 1 p.p.m. was unsuitable for use in renal dialysis treatment without reverse osmosis and that such water was potentially harmful to patients with chronic renal failure who had not yet gone on to dialysis treatment. (6) Fluoride and Caries. The petitioner challenged the respondents' contention that fluoridated water reduced the incidence of caries and submitted that it had not been shown to be effective or that if it had any effect at all it was only to delay the onset of caries for an unspecified period.

I propose to deal with these topics in the following order, namely, Mutagenesis, General Biochemistry, Cancer Mortality Leucocytes, Kidneys, and Fluoride and Caries. I shall then deal with the question of Lack of Fluoride and Causation of Caries which was raised by the respondents. Thereafter I shall turn to consider the law as it falls to be applied in the light of the conclusions which I have reached on the above topics.

It is appropriate that I should at this stage refer to one of the major propositions which was advanced by the petitioner at the conclusion of the evidence and to which much reference was made in the submissions relating to the scientific evidence. This was proposition 12 which was in the following terms:

"The expression ‘wholesome water’ could not be regarded as meaning water which was otherwise wholesome to which there had been added a substance toxic in character which indisputably effected a physiological change in the consumer and as to which there was in the present state of scientific knowledge at least a possibility of damage to health and in any event a doubt as to the nature of the precise effect of that substance."

Counsel did not shrink from arguing that the petitioner was seeking to shift the normal onus of proof by reason of the toxic nature of fluoride.

[Having considered the evidence in detail, his Lordship then continued].

Summary

Before turning to consider the law it may be convenient to summarise my conclusions in relation to the general topics which were canvassed in evidence.

1. (1) Fluoride at a concentration of 1 p.p.m. is not mutagenic.

2. (2) No biochemical mechanism has been demonstrated whereby fluoride at a concentration of 1 p.p.m. is likely to cause cancer or accelerate existing cancerous growth.

3. (3) No association between fluoridation of water supplies and increased C.D.Rs. in the consumers has been demonstrated.

4. (4) There is no reason to anticipate that fluoride at a concentration of 1 p.p.m. is likely to have an adverse effect upon the migration of leucocytes in the consumer.

5. (5) There is no reasonable likelihood that C.R.F. patients drinking water fluoridated to 1 p.p.m. will suffer harm.

6. (6) Fluoridation of water supplies in Strathclyde would be likely to reduce considerably the incidence of caries.

7. (7) Such fluoridation would be likely to produce a very small increase in the prevalence of dental mottling which would only be noticeable at very close quarters and would be very unlikely to create any aesthetic problems.

8. (8) The present low levels of fluoride in the water supplies in Strathclyde do not cause caries.

In reaching the foregoing conclusions I have had no difficulty in rejecting the petitioner's argument based on her proposition 12 to which I referred at an early stage in this judgment.

Questions of Law

I propose to deal with the four main grounds upon which the petitioner relied in the order in which I set them out at the beginning of the judgment, namely, (1) ultra vires, (2) nuisance, (3) breach of the Water (Scotland) Act 1980, and (4) breach of the Medicines Act 1968.

(1) Ultra Vires

The respondents are the regional council for the region of Strathclyde by virtue of section 2 of the Local Government (Scotland) Act 1973. In terms of section 148 (1) of that Act regional water boards which were established under the Water (Scotland) Act 1967 to take over the functions of local water authorities constituted by the Water (Scotland) Act 1946 were dissolved and in terms of section 148 (2) Regional and Islands Council became, with two exceptions which do not concern this case, the water authorities for their respective areas. Section 3 (1) of the Water (Scotland) Act 1980 re-enacted section 148 (2). The respondents are thus the water authority for the region of Strathclyde. The history of the provisions under which the respondents as water authority operate goes back to the Water (Scotland) Act 1946. Section 1 of that Act imposed a duty on the Secretary of State "to promote the conservation of the water resources of Scotland and the provision by local authorities of adequate water supplies throughout Scotland". Section 5 (1) of the 1946 Act provided that the local water authority for the purposes of the supply of water should be the county council in the case of a county and the town council in the case of a burgh. Section 5 (4) defined "local water authority" as the local authority providing or authorised to provide a supply of water under the Act. Section 8 (1) provided "It shall be the duty of every local authority to provide a supply of wholesome water in pipes to every part of their district where a supply of water is required for domestic purposes and can be provided at a reasonable cost". Section 10 provided "Every local water authority shall provide in their mains and communication pipes a supply of wholesome water sufficient for the domestic purposes of all owners and occupiers of premises within their districts of supply who are entitled to a supply for those purposes". Section 1 of the Water (Scotland) Act 1980 imposed on the Secretary of State a duty virtually identical to that imposed upon him by section 1 of the 1946 Act. Sections 6 (1) and 8 of the 1980 Act re-enacted sections 8 (1) and 10 of the 1946 Act with the substitution of "water authority" for "local water authority". Apart from the references to "wholesome water" there were no provisions in either Act which could reasonably be construed as relating to the advancement of the general health of consumers of water. Prior to the passing of the 1946 Act statutory water undertakers were required by section 35 of the Waterworks Clauses Act 1847 to provide a supply of "pure and wholesome water" for domestic use.

The respondents have many functions other than those of a water authority. They are, for example, by virtue of section 123 of the 1973 Act the Education Authority for the purposes of the Education (Scotland) Acts 1939 to 1973. The petitioner argued that the respondents owed their entire existence to section 5 (4) of the 1946 Act which created a local water authority distinct from a local authority and that since they were now performing the functions formerly perfomed by a local water authority they, as water authority under section 3 of the 1980 Act, were to be regarded as a separate statutory body distinct from the regional council who were now performing the functions formerly performed by the local authorities referred to in section 5 (1) of the 1946 Act. The petitioner sought to derive support for this argument from section 13 of the National Health Service (Scotland) Act 1978 which provided that Health Boards, local authorities and education authorities should co-operate with one another. This, it was said, suggested that the education authorities also fell to be treated as statutory bodies distinct from local authorities. Section 13 re-enacted section 20 of the National Health Services (Scotland) Act 1972 and no doubt had regard to the provisions of paragraph 3 of Schedule 2 of the Education (Scotland) Act 1969 which inter alia enjoined an education authority to co-operate with local authorities. There is nothing strange in the concept of a local authority which is an education authority owning property within the area of another local authority for such purposes as camping, adventure training and general outdoor recreation and I consider that the separate reference to education authority and local authority in Schedule 2 and in the National Health Service Acts does no more than recognise this fact. These provisions in my view provide no support for the view that a local authority and a local water authority as defined in section 5 of the 1946 Act fall to be treated as separate statutory bodies. The reason for distinguishing local authority from local water authority arises from the fact that whereas in terms of section 8 (1) a local authority had a duty to provide a supply of wholesome water to every part of their district where it was required for domestic purposes and could be provided at a reasonable cost, section 5 (2) authorised a local authority either to supply the water themselves or to secure the supply by another local authority. Thus while there could only be one local authority in a county there could be two local water authorities who were supplying water of the quality required by section 10. One of the local water authorities would also be the local authority in the county, the other would not. There would however be no question of the local water authority which was also the county council of the area of supply being a different statutory body from that county council. It follows that the respondents in performing their duties under the Water (Scotland) Act 1980 are performing them as regional council constituted by section 2 of the 1973 Act and not as a separate body deriving their existence solely from the Water Acts. As regional council they have power under section 69 (1) of the 1973 Act to do anything "which is calculated to facilitate or is conducive or incidental to, the discharge of any of their functions".

It is not disputed that the regional council as a statutory body have power only to do those things which are expressly authorised by statute or which are fairly and reasonably to be considered as incidental to or consequential upon those things which are expressly authorised. The issue therefore in this part of the case depends upon the proper construction of the words "wholesome water" in sections 6 and 8 of the 1980 Act. The Oxford English Dictionary defines wholesome water inter alia as:—

"promoting or conducive to health; favourable to or good for health; health-giving or health-preserving; salubrious".

It also defines it as "free from disease or taint; healthy". Is wholesome in relation to health to be restricted to health consequent upon contamination of water, that is to say, is wholesome water no more than that which is neither contaminated nor in any other way dangerous to health nor obnoxious to sight or smell? Alternatively is wholesome to be construed as embracing also a positive benefit to health so that not only the health of the consumer consequent upon drinking the water in its natural state can be looked at but also any possible benefit to his general health? The petitioner contends for the former construction and the respondents for the latter. The practical effect of these alternative constructions is that the petitioner maintained that the respondents have power only to treat the water in such a way that it will be free from contamination and safe and pleasant to drink whereas the respondents maintained that they have power to go further and in certain circumstances to treat the water in such a way as to confer a positive health benefit on the consumers or some of them.

At the moment the water supply for the respondents, and particularly that from Loch Katrine, is wholesome in the sense that it is neither contaminated nor in any other way dangerous to health. If it were fluoridated in accordance with the respondents' proposals it would still be wholesome in this sense. There are some 18 different chemicals which are added to different supplies in Strathclyde and whose purpose is to achieve purity (7847). The decision to increase the fluoride content of the water supplies to 1 p.p.m. was taken at the instigation of various Health Boards who approached the respondents (7848). In the event of the respodents proceeding to fluoridate water supplies the decision as to the appropriate fluoride compound and as to which supplies to fluoridate would be made by the appropriate health board which would pay for the cost thereof (7858, 61). The decisions as to the addition of the other 18 chemicals were taken by the respondents and not by the Health Boards (7860). Fluoride would thus be in a unique position in that it would be the only chemical added to the water by the Water Authority in respect of which they had not taken the decision to add. It would also be unique, argued the petitioner, in that the purpose of its addition would be to treat a limited number of consumers of the water rather than the water itself. The respondents however replied that what they were proposing was to adjust the concentration of a naturally occurring ingredient for the purpose of making good a deficiency which causes caries. I prefer the petitioner's approach to the matter to that of the respondents since I have already concluded that the present concentration in the water of Strathclyde does not cause caries. The various chemicals used by the respondents have four main objects, namely, disinfection which is effected by chlorine, removal of colour and turbidity which is effected by aluminium sulphate, the raising of the pH or the concentration of hydrogen ions to reduce the amount of lead dissolved from the pipes by the water as it passes through (plumbosolvency) which is effected by lime in the case of Loch Katrine and by sulphuric or hydrochloric acid where aluminium sulphate is also used, and the control of algae which is effected by copper sulphate. Each of these chemicals is intended to produce the desired reaction or prevent the undesirable reaction (plumbosolvency) before the water leaves the tap of the consumer and enters his body. Fluoride is intended to produce a positive effect on the body of the consumer after ingestion. Thus the water instead of being the object of treatment becomes the means whereby fluoride is carried into the consumer's body to effect a result which could also be achieved by the consumption of fluoride pills or of food and drink containing high levels of fluoride.

The petitioner advanced a number of reasons why wholesome should be construed not as giving the respondents a discretion to decide how to benefit the health of a community but as meaning the promoting of the consumers health by achieving lack of contamination in the water supply. Some of these appeared to me to be little more than different ways of putting the same point. In determining whether the proposed actings of the respondents would be ultra vires they should be looked at objectively to see whether they could fairly be regarded as conducive or incidental to the purposes authorised by the statute and subjectively to see whether they were in fact directed to an ulterior purpose not authorised by the statute. I do not consider that this argument assists the petitioner. If the statute authorises the respondents to supply water which has been treated in such a way as to confer a positive health benefit on the consumer then the addition of fluoride would be in implement of the respondents' primary purpose and not merely an action conducive or incidental thereto. If on the other hand the statute merely empowers the respondents to supply water which has been treated so that it is neither contaminated, discoloured nor liable to dissolve lead from pipes then the addition of fluoride will achieve none of these objects and could not be conducive or incidental thereto. Equally the subjective test would not arise because the supply of water treated with fluoride would either be for a purpose authorised by the statute or one which was not. Standing the role which fluoride plays I do not see how there could be an authorised use thereof for an unauthorised purpose.

A more formidable reason for construing "wholesome" as the petitioner contends is that it is prima facie unlikely that Parliament in 1946 would, in a Water Act, have conferred upon a local water authority a power to supply water which had been treated in such a way as not only to render it safe and pleasant to drink but also to serve as a convenient means of achieving a beneficial effect on the health of consumers generally. When the relevant provisions of the 1946 Act were re-enacted in 1980 Parliament must have been aware of the passing of the National Health Service (Scotland) Act 1947 and subsequent National Health Service Acts which set up Health Boards charged with the duty of advancing general health. Furthermore since fluoride would involve an encroachment on individual rights to the extent that persons would be forced to drink water containing a substance, fluoride, which they did not wish to drink, a liberal construction which permitted such a result should not be adopted.

Authority bearing on the subject is sparse. In Milnes v. The Mayor etc of Huddersfield (1886) 11 App. Cas. 511 it was held that the undertakers' obligation under section 35 of the Waterworks Clauses Act 1847 to provide a supply of pure and wholesome water extended only to their mains and not to lead service pipes connected thereto. The Earl of Selborne at p. 522 said "To be fit for drinking the water must be wholesome and not poisonous to those who drink it". This was said in the context of a claim for damages due to lead poisoning and Lord Selborne was considering "wholesome" in its negative aspect of not causing harm rather than in its aspect of being positively beneficial. I do not therefore think that the case affords assistance in the determination of the present issue. Section 35 was again considered in the context of very similar facts in Barnes v. Irwell Valley Water Board [1939] 1 K.B. 21 when Milnes (supra) was followed. In Read v. Croydon Corporation [1938] 4 All E.R. 631 an infant plaintiff alleged a breach of section 35 whereby she contracted typhoid from contaminated drinking water. The case was again concerned with the negative aspect of wholesome but at p. 651 Stable J. said "The particular section in question does not indicate the means by which provision of a pure and wholesome supply of water is to be maintained. It directs the end to be achieved". This observation is of course equally applicable to sections 6 and 8 of the 1980 Act. I was referred to no other English or Scottish authorities on the 1847 Act or later Acts but the question of a water authority's power to fluoridate has been considered in a Canadian case and a New Zealand Privy Council case to which I shall refer in some detail.

In Municipality of Metropolitan Toronto v. Village of Forest Hill (1957) 9 DLR (2 d) 113 the Supreme Court of Canada by a majority of 5 to 2 held that the Municipality of Toronto Act 1953 which authorised the passing of by-laws "for regulating the time, manner, extent and nature of the supply of water in order to secure a continued and abundant supply of pure and wholesome water" did not empower the Municipality to provide for the fluoridation of the existing water supply since it did not involve a water purpose but rather a medicinal purpose. In delivering the leading judgement Rand J. said this at p. 118

"But it is not to promote the ordinary use of water as a physical requisite for the body that fluoridation is proposed. That process has a distinct and different purpose; it is not a means to an end of wholesome water for water's function but to an end of a special health purpose for which the water supply is made use of as a means."

Cartwright J. in agreeing with Rand J. opined that the proposal of the Council could not be regarded as action to provide a supply of pure and wholesome water. He said this at p. 124

"Its purpose and effect are to cause the inhabitants of the metropolitan area, whether or not they wish to do so, to ingest daily small quantities of fluoride, in the expectation which appears to be supported by the evidence that this will render great numbers of them less susceptible to tooth decay. The water supply is made use of as a convenient means of effecting this purpose. In pith and substance the by-law relates not to the provision of a water supply but to the compulsory preventive medication of the inhabitants of the area. In my opinion the words of the statutory provisions on which the appellant relies do not confer upon the council the power to make by-laws in relation to matters of this sort."

Curwin C.J.C. who dissented considered that the evidence indicated

"that certainly water is rendered more wholesome through the addition of fluoride in the proportion named and, always presuming that the council acts in good faith, I cannot read section 41 of the Act in such a way as to declare that in enacting By-law 278 the council of the appellant exceeded its authority".

The evidence to which the Chief Justice referred was contained in two affidavits which stated inter alia (a) that water containing fluoride in concentrations of up to 2 or 3 p.p.m., which occured naturally in many parts of North America, was not considered impure because of the presence of fluoride, and (b) that increasing the fluoride concentration of water to 1 p.p.m. rendered the water more wholesome as it was effective in reducing tooth decay. Locke J. who also dissented said this at p. 122

"With respect for differing opinions, I consider that the appellant in discharging its duty to supply water that is wholesome may treat the water with chlorine, lime or other substances to render it sterile and less likely to cause typhoid or with fluoride to render it less likely to be injurious to the health by contributing to tooth decay.

It is in my opinion a necessary inference from the evidence that the water supply in the metropolitan district of Toronto whatever it may be, is in its natural state lacking in the element fluoride and thus less wholesome than it would be if it were added to the extent mentioned."

In the foregoing passage Locke J. appears to have been equiparating water containing a very small amount of fluoride to water containing typhoid bacilli in as much as both were likely to produce injury to health. I could not come to such a conclusion on the evidence in this case.

Although this decision appears to be favourable to the petitioner's argument the Privy Council were unable to agree with it preferring the dissenting judgments of the Chief Justice of Canada and Locke J. (Attorney General of New Zealand v. Lower Hutt Corporation [1964] AC 1469 (hereinafter referred to as "the Lower Hutt case")).

In the Lower Hutt case two ratepayers sought to obtain an injunction restraining the defendant corporation from adding fluoride to the domestic water. The powers of the corporation in relation to the supply of water were contained in section 240 of the Municipal Corporations Act 1954. The section which appeared in Part 17 of the Act entitled "Waterworks" was in the following terms:—

"(1) The council may construct waterworks for the supply of pure water for the use of the inhabitants of the district, or of the shipping in any harbour adjoining, and may keep the same in good repair, and may from time to time do all things necessary thereto, and in particular may. …"

In the Court of First Instance M'Gregor J. held that fluoridated water was still pure water but that it would be straining the language of the Act to hold that by implication the legislature had empowered the corporation to add fluoride to its water supply. He refused on other grounds to grant the injunction. The Court of Appeal affirmed the judgment of M'Gregor J. but held by a majority that section 240 empowered the defendant corporation to fluoridate the water. North P. in the context of the word "pure" said

"I see no reason why a local body, so long as it acts in good faith, should not be entitled to take any reasonable steps it may think proper to improve the quality of its available water supply as water. I agree that it must not attempt to introduce a substance which is foreign to the nature of water for medicinal or other purposes, for this would render the water ‘impure’."

Later he said "In taking this step the respondent was doing no more than rectifying a deficiency in the water which was available to it and was acting reasonably on expert advice which had satisfied it that this step was desirable in the public interest". In dismissing the appeal the Privy Council agreed with a majority of the Court of Appeal that fluoridation was empowered by section 240. The critical part of the judgment relating to section 240 is in the following terms:

"Their Lordships are of opinion that an Act empowering local authorities to supply ‘pure water’ should receive a ‘fair, large and liberal’ construction as provided by section 5, paragraph (j), of the Acts Interpretation Act 1924. They are of opinion that as a matter of common sense there is but little difference for the relative purpose between the adjectives ‘pure’ and ‘wholesome’. Their Lordships think it is an unnecessarily restrictive construction to hold (as did McGregor J.) that because the supply of water was already pure that there is no power to add to its constitutents merely to provide medicated pure water, i.e., water to which an addition is made solely for the health of the consumers. The water of Lower Hutt is no doubt pure in its natural state, but it is very deficient in one of the natural constituents normally to be found in water in most parts of the world. The addition of fluoride adds no impurity and the water remains not only water but pure water, and it becomes a greatly improved and still natural water containing no foreign elements. Their Lordships can feel no doubt that power to do this is necessarily implicit in the terms of section 240 and that the respondent corporation is thereby empowered to make this addition and they agree with the observations of North P. and McCarthy J. already quoted. They think, too, that it is material to note that, while their Lordships do not rely on section 288, nevertheless that section makes it clear that the respondent corporation is the health authority for the area

and section 240 must be construed in the light of that fact; that is an additional reason for giving a liberal construction to the section.

Their Lordships think it right to add that had the natural water of Lower Huttbeen found to be impure it would, of course, have been the duty of the respondent corporation to add such substances as were necessary to remove or neutralise those impurities, but that water having been made pure they can see no reason why fluoride should not be added to the water so purified in order to improve the dental health of the inhabitants."

Section 5, paragraph (j) of the Acts Interpretation Act 1924 provided

"Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit:."

In relation to the Forest Hill case and another Canadian case to which I have not thought it necessary to refer the judgement proceeded:—

"While there are many points of distinction between those cases and the present case (which their Lordships do not think it necessary to enumerate) which may have influenced those decisions, yet basically those cases did decide that a local authority had no power to add fluoride to the water solely for the purpose of improving the dental health of the consumers but limited their powers to the removal of impurities. Unless these cases can be distinguished their Lordships regret that they cannot agree with them."

The foregoing judgment while not binding upon me is nevertheless of persuasive authority and important and I would not feel justified in coming to a different conclusion on the power of a local authority to fluoridate unless I were satisfied that there were present circumstances materially different to those which obtained in the Lower Hutt case. The observations in relation to the two Canadian cases might be read as suggesting that all water authorities had power to add fluoride to the water for the purpose of improving the dental health of the consumers but I do not think that their Lordships can have intended to formulate a proposition of such general application without regard to the relevant evidence or to the terms of the particular empowering statute. I therefore turn to consider the differences between the circumstances obtaining in the Lower Hutt case and in the present case.

In the first place there is no statutory provision which requires that the Water (Scotland) Acts should receive a large and liberal construction. In the second place neither in 1946 nor in 1980 was the water authority also the health authority in Scotland. In 1946 the first of the National Health Service Acts had not been passed and by 1980 Health Boards, charged with the duty of securing and advancing the health of the people and different in composition to water authorities had been set up under the National Health Service (Scotland) Acts 1972 and 1978. As I have already remarked there were no provisions in either the 1946 or the 1980 Acts, other than the reference to "wholesome water", which could reasonably be construed as relating to the advancement of general health. In the third place fluoridation of water would inevitably involve the ingestion of the added fluoride by many persons to whom such ingestion would be of no benefit, either because they were edentulous or being dentate had reached an age when the fluoride would no longer perform its preventive role in relation to caries, and also by persons upon whom fluoride might confer a benefit but who were unwilling for personal reasons to ingest it in the quantities proposed. Such a situation would necessarily involve a restriction on the freedom of choice of the individual who would have little alternative but to consume the fluoridated water whether he liked it or not. This matter does not appear to have been raised in the Lower Hutt case possibly because of the provisions of the Acts Interpretation Act 1924, but I consider that there is some force in the petitioner's argument that if two possible constructions of the statute are available that construction should be preferred which encroaches to the minimum on the personal rights of the individual. To put the matter in another way the individual's right to choose how to care for his own body should only be encroached upon by statutory provisions in clear and unambiguous language. In the fourthplace there is no evidence that water with a natural fluoride content of 1 p.p.m. is normal by world standards although it lies within the normal range of 0.25 to 2 p.p.m. (7676). It is certainly virtually unknown in Scotland and is rare in England, to the extent that less than half-a-million people drink it. Water having this natural fluoride content tends to come from subterranean sources (5856) with the result that it also contains traces of minerals such as calcium dissolved from the ground on its journey which are not present to the same extent in surface water which is the source of most, if not all, of the supplies in Strathclyde. Thus to suggest as do the respondents that they are merely replicating nature by increasing the fluoride content of surface water is inaccurate since water naturally containing such a concentration would normally contain other constituents which are not present to the same degree in surface water. There is thus an element of artificiality about the end product of fluoridated surface water. In the fifth place the New Zealand statute used only the word "pure" whereas the Scottish Acts use only the word "wholesome". Although the opinion was expressed by the Privy Council in the Lower Hutt case that there was but little difference for the relative purpose between the adjectives "pure" and "wholesome" I must respectfully doubt whether this is always the case. In the Court of Appeal, North P. expressed the view on two occasions that to introduce a substance which was foreign to the nature of water for medicinal or other purposes would render the water impure. Counsel for the respondents clearly had these views in mind when he submitted that adding to water fluoride which was already a natural constituent thereof for the general benefit to health was within the respondents' powers which would not be the case if the chemical being added did not naturally occur. I confess to having considerable difficulty in seeing the logic of this distinction. There was no evidence that chlorine which is regularly added to water supplies to kill bacteria, or some of the other regularly added chemicals, occur naturally in water but no one has suggested, nor I imagine would suggest, that water treated with chlorine was not pure. I should have thought that the proper approach was to ask whether the liquid which emerged from the suppliers' mains and pipes could properly be described as water and if so whether it was pure. This would no doubt be a matter of degree depending upon the extent to which the natural water had been treated but there would appear to be no reason why that liquid should not be pure water notwithstanding the fact that it contained in solution small amounts of foreign substances which contributed to its ultimate condition. If pure water can contain a foreign substance rendering it safe to drink and a naturally occuring substance tending to improve health why should it not also contain a foreign substance for the latter purpose? However even if I am wrong in my approach to "pure water" the observation of North P. would have far less relevance to "wholesome water". If water was "impure" because it contained a substance foreign to its nature it could still be wholesome if the substance contributed to the health of the consumer. To this extent therefore I consider that "wholesome" could have a wider meaning than "pure". Thus if the duty to supply wholesome water were to be construed as empowering the respondents to supply water which had been treated for the purpose of improving the general health of the consumers there would be no reason why they should not add thereto any substance which they had genuine reasons for believing was likely to improve the health of some or all of the consumers provided that the ultimate liquid could properly be described as water and that it was wholesome. It is this possible result which has occasioned me considerable anxiety, a result which clearly neither the New Zealand Court of Appeal nor the Privy Council considered could arise from their interpretation of the New Zealand statute. The question is a narrow and difficult one but I consider that there are material differences between the circumstances in the Lower Hutt case and the present and I do not consider that Parliament in 1946 and 1980 intended that water authorities should be clothed with power to treat the water which they supplied for such general health improvement purposes as they might from time to time think appropriate—using water as a means of passing into consumers' bodies substances which could be obtained aliune. In my view the word "wholesome" falls properly to be construed in the more restricted sense advocated by the petitioner as relating to water which was free from contamination and pleasant to drink. It follows that fluoridation which in no way facilitates nor is incidental to the supply of such water is outwith the powers of the respondents. The petitioner therefore succeeds on this branch of her case.

(2) Nuisance

The petitioner averred that fluoride would constitute a danger to her health if it was introduced into her drinking water and would thus constitute a nuisance. Since I have reached the conclusion that there is no evidence to suggest that fluoride at the proposed concentration would have an adverse effect upon health it follows that the petitioner's case on nuisance as pleaded fails. She also argued that as a potential user of a kidney dialysis machine she was entitled to complain of anticipated nuisance. This argument is in my view unfounded since the evidence demonstrated clearly that there is no reasonable likelihood of a dialysis patient who receives a supply of fluoridated water requiring to use such-water in the dialysis machine without prior treatment thereof by deionisation or reverse osmosis.

(3) Breach of Section 8 of the Water (Scotland) Act 1980

As I have already remarked the water which the respondents presently supply is wholesome. Therefore a breach of statute would only occur if the water supplied by the respondents in their mains and communication pipes were rendered unwholesome by the addition of fluoride. Since I have concluded that fluoridation would not have an adverse effect upon health it follows that fluoridation of water which was already wholesome would not render that water unwholesome rather would it render it more beneficial or more wholesome in the wider sense to some of the consumers. Thus fluoridation would not give rise to a breach of the duty imposed upon the respondents by section 8. In reaching this conclusion I have not overlooked the fact that fluoridation may produce a very small increase in the prevalence of dental mottling nor that fluoridated water without treatment would be unsuitable for use in kidney dialysis machines. So far as mottling is concerned any adverse effects are likely to be so slight and any benefit from fluoridation so substantial that I do not consider that such minor adverse effects, which would in any event have no effect upon the petitioner, would render the water unwholesome. So far as dialysis is concerned the matter is almost entirely academic but in any event I do not consider that section 8 of the 1980 Act requires a water authority to supply water to all consumers which is of a quality suitable for use in kidney dialysis machines. "Domestic purposes" must be construed by reference to the requirements of a normal household and not by reference to any and every abstruse and specialised purpose to which a householder may choose to put his supply of water.

(4) Medicines Act 1968

In her pleadings the petitioner averred that the addition of fluoride to the water supply would be for the express purpose of preventing dental caries and that thereby the respondents would be supplying a "medicinal product" for a "medicinal purpose" in terms of the Medicines Act 1968. Since the respondents had no "products licence" under the Act the supply of fluoride to water consumers would be unlawful. In argument the petitioner also founded strongly on the terms of the Medicines Act as demonstrating that Parliament having made specific provision for the supply of medicines for the purpose of curing and preventing disease by those qualified and licensed to supply them, cannot have intended such supply to have been effected by water authorities. It is with the argument directly related to the pleadings that I am presently concerned.

In terms of section 7 (2) (a) no person shall in the course of a business carried on by him supply any medicinal product except in accordance with a products licence granted under the Act. Section 7 (5) provides that the circumstances in which section 7 (2) (a)applies to a non-imported medicinal product are those in which the person supplying the product is responsible for the composition thereof. In terms of sub-section (6) (a) a person is to be taken to be responsible for the composition of a medicinal product if (but only if) in the course of a business carried on by him "he procures the manufacture of the product to his order by another person where the order specifies, or incorporates by reference to some other document, particulars of the composition of the product ordered, whether those particulars amount to a complete specification or not". In the case of an imported medicinal product section 7 (2) (a) applies to circumstances in which the person supplying it has himself imported the product or procured its importation. Section 130 defines "medicinal product" and I am satisfied that fluoride in whatever form it is ultimately purchased by the respondents falls within the definition. However it is the supplier of a medicinal product and not the purchaser thereof who requires to be licensed.

The petitioner submitted that if the respondents proceeded with their proposals they would be supplying to her and other consumers fluoride as a medicinal product independent of the water in which it was dissolved. The validity of this argument depends upon the respondents being responsible for the composition of the fluoride compound. Only if such responsibility rested upon them by virtue of section 7 (6) (a)would they be making a supply which required a products licence in terms of section 7 (2) (a). No decision has yet been taken as to which fluoride compound is to be used but it is likely to be fluorosilicic acid or sodium fluorosilicate with the former being the more probable (7793). Florosilicic acid is a by-product of the phosphate or fertilizer industry which is available in this country for purchase (7615, 7621). Water authorities who use the acid simply place an order therefor with Fisons who have a virtual monopoly of supply thereof for waterworks and it is then delivered in a tanker (7619, 7691, 7690). Sodium fluorsilicate is imported from Europe or elsewhere abroad (7618). The petitioner's argument was directed to a non-imported medicinal product and was to the effect that by ordering the named fluoride compound from the seller the respondents would be specifying particulars of the composition thereof. However, specification of the particulars of the composition per se is not enough to render a person responsible for the composition of the product. Such person must also have procured the manufacture thereof to his order. Thus, if the respondents were to order from Fisons a tanker load of fluorosilicic acid which was supplied from stock there could be no question of their having procured the manufacture of that acid. As I understand section 7 (6) (a) the situation designed to be covered is one where a medicinal product is specially manufactured to meet an order or series of orders which provide details of the composition. It is not intended to cover a situation where an order is placed with a manufacturer for a product which he manufactures and sells to purchasers in the normal course of his business. Indeed it would be a curious result if A whose order was met from existing stock were not responsible for the composition of the product but B whose order was met from stock manufactured thereafter were, although in neither case might A or B know whether the product was manufactured before or after receipt of their order.

There is in the case no evidence from which I can infer that as matter of probability any orders for fluorosilicic acid by the respondents would be orders to which section 7 (6) (a) would apply. Equally there is no evidence from which I could infer that if the respondents were to use sodium fluorosilicate they would import it or procure its importation within the meaning of section 7 (4). It may be that it can be purchased in Britain from stock after importation by another. It follows that the petitioner has failed to establish that any supply by the respondents of fluoride in the drinking water would be a supply to which section 7 (2) (a) applies. Any such supply without a products licence would not therefore be in breach of the Act. In reaching this conclusion I have not found it necessary to determine whether a supply of drinking water fluoridated to 1 p.p.m. would otherwise be a supply of a medicinal product, namely fluoride, within the meaning of section 7 (2) (a).

The petitioner argued that the above lack of evidence was due to the failure of the respondents in their pleadings to make specific reference to subsections (5) and (6) of section 7 and that in the absence of such averments they were not entitled to rely on the two subsections. In support of this submission the petitioner referred to M'Naught v. British Railways Board 1979 S.L.T. (Notes) 99. In that cause a breach of section 60 of the Railway Clauses Consolidation (Scotland) Act 1845 was averred by the pursuer and in answer the defenders averred that they had performed all statutory duties incumbent upon them. The pleadings nowhere suggested that the Act did not apply to the railway in question although counsel for the defender sought to make this point at the conclusion of the proof. The Lord Ordinary held that on a reasonable reading of the defenders' averments they must be held to have accepted the applicability of the statutory provisions pleaded against them. No such acceptance of the applicability of sections 7 and 130 of the Medicines Act 1948 can be found in the respondents' pleadings and it is therefore for the petitioner to establish that the respondents' proposed actings would fall within the ambit of the statutory provisions upon which she relies and not for the respondents to establish the converse.

The respondents advanced a further argument to the effect that having regard to the provisions of sections 109 (1) and 133 (2) the petitioner was not entitled to found on any breach of the Act by the respondents. Section 109 (1) imposes the duty of enforcing the Act in Scotland upon the Secretary of State and section 133 (2) (a) provides that "the provisions of this Act shall not be construed as (a)conferring a right of action in any civil proceedings … in respect of any contravention of this Act. …" The petitioner argued (1) that in the absence of a plea of no title to sue the argument was not open to the respondents and (2) that in any event "contravention" referred only to a past contravention and not to an apprehended one, relying upon the presumption against exclusion of the Court's jurisdiction in cases of ambiguity. I do not consider that there is substance in the petitioner's first argument. It is for her to satisfy the court that the statute upon which she founds provides her with a remedy. If it is apparent from the express terms of the statute that it confers no remedy upon her then it matters not whether the respondents have specifically raised the matter in their pleadings or whether they have merely by their pleadings put the petitioner to her proof. In either event the Court's consideration of the express terms of the statute cannot be excluded. If the second argument were correct the result would be curious indeed in as much as a person could interdict an anticipated breach of the Act but could do nothing about a breach which had taken place. I very much doubt whether so bizarre a result can have been intended particularly having regard to the provisions of section 109 (1). The presumption relied upon by the petitioner does not seem to me to have application when the jurisdiction which the Court is alleged to have only arises by virtue of the statute which is said to be excluding it. It follows that if I had reached the conclusion that section 7 (2) (a) would apply to the supply of fluoridated drinking water by the respondents I should nevertheless have held that the petitioner had no right to obtain interdict in respect of an anticipated breach of that subsection.

I shall therefore repel the first and third pleas-in-law for the petitioner, sustain her second plea-in-law and grant interdict.