|
OUTER HOUSE, COURT OF SESSION
[2007] CSOH 11
|
|
A1062/01
|
OPINION OF LORD MCEWAN
in the cause
MARY McGREGOR
(A.P.) AND OTHERS
Pursuers;
against
SCOTTISH WATER
Defenders:
ญญญญญญญญญญญญญญญญญ________________
|
Pursuer:
Di Rollo, Q.C., Barne; Drummond Miller
Defenders: Clarke;
Simpson & Marwick
25 January 2007
[1] The
pursuer is a tenant of a house in the Pollok area of Glasgow. She lives there with her children. Her house is low lying and is near to the
Levern Water. The drainage of water from
that area is achieved by a system of pipes.
It joins with drainage from other nearby areas, and at times of high
flow will discharge from a sewer into the Levern Water. It is said that the sewer was built in
1932. Flooding in the area occurred in
1985 and 1992. The then responsible
authority (now the present defenders) obtained an engineers report which said
that the capacity of the system should be augmented. Nothing was done and in December 1994
after rainfall the system could not cope and the pursuer's home was
flooded. Much of her property, furniture
and carpets were ruined and she was put out of her home for a year.
[2] In
the action now before me the pursuer specifies what caused the flooding. She says it was caused by two matters, the
first being the presence of new developments in the nearby area and the second
a specific fault in an overflow valve (known as L2). What had occurred at the valve was this. The overflow pipes at L2 discharged into the
Levern Water. However, if the water
level there was too high water would flow back into the pipe the "wrong"
way. At L2 there was a flapvalve designed
to prevent this. It is said, however,
that the valve was of poor design and lacked screening (ie a grid to prevent
silt blocking the valve). As a result
the flapvalve was silted up in the open position and could not prevent the
overflow surcharging eventually towards the pursuer's house.
[3] Mr Clarke
appeared for the defenders and moved me to dismiss the action for one simple
reason. He said that both parties were
in agreement as to what duties were relevant, and a number of matters were
either agreed or conceded on matters of pure law. He said, however, that the pursuer had plead
alternative cases and, as the case based on overdevelopment was irrelevant the
whole case was irrelevant on the "weaker alternative" argument. If he is correct about that, then I agree the
whole case falls. He referred me to both
written notes of arguments but without elaboration. He said that a fair reading of what the
pursuer avers at pages 9 to 10 disclosed an alternative case; and the pursuer was saying that the cause was
overprovision, or L2 problems. It could
not be said that any duty was owed to the pursuer on first point. That related to allocation of the defender's
budget and the proper use of monies.
Counsel did accept that the case made about L2 was relevant.
[4] Mr Di Rollo
asked me to send the case to proof before answer. He stressed the common agreement that the case
about the L2 valve was plainly relevant.
He went on to argue two other basic points. He said that, looked at properly, the matter
of "overprovision" was not really an alternative case; and even if it was it was in any event
relevant. He pointed to page 20 where
this duty was admitted. What the pursuer
was saying, was that (generally) but for the capacity problem there would have
been no flood and (particularly) but for the defects at L2 there would
have been no flood (my emphasis). Both materially
contributed and each impacted on the other and the incapacity was seen to be
worse at a defective L2. Subsequently
simple measures were taken and the problem was fixed.
[5] The
incapacity case was reinforced by the averment of prior floods, the adverse
report and the easy solution found. It
was not necessary to say what other local authorities would do. It was enough to say that capacity could be
and was solved at reasonable cost. The case
about L2 was about poor design and lack of maintenance. The pursuer was offering to show fault and
this was the relevant test both at common law and under the Sewerage (Scotland)
Act 1968, section 1. Counsel agreed
that the parties were not in dispute about the law and although he, like his
opponent, mentioned some well known cases, he did not canvass them in
detail.
[6] I
will take note of the cases referred to later out of deference to counsel
although none of them was referred to in any detail. Since I am going to allow a proof before
answer the less I say here about the facts the better. In my opinion the pursuer has not plead her case
in the alternative. A fair reading of
Article 3 of the condescendence shows that the cases are cumulative and in
the area challenged the case is about capacity then existing and is not
concerned with provision. Read as a
whole the record shows an admitted clear need to have proper capacity. It would thus be quite wrong to dismiss the
case at this stage, the more so when supercharging is admitted (page 17).
[7] That
leaves only a need to notice the concessions in law. Both parties agreed that at common law, nuisance
and under the 1968 Act there was no absolute duty, but the pursuer had to show
fault. In my view that is a concession
correctly made. The authority for it is R H M Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17 Lord Fraser at 41/3; Argyll & Clyde Health Board v Strathclyde
Regional Council 1988 SLT 381 at
382. Noble's
Trustees v Economic Forestry (Scotland) Ltd 1988 SLT 662 at 663.
[8] Porter v Strathclyde Regional Council 1991 SLT 446 was mentioned. That case was quite different to the present
facts. It was decided after proof. It concerned the application of the wrong
test to causation and it was never suggested here that any incorrect test had
been averred. Hand v North of Scotland
Water Authority 2002 SLT 798 was a claim by the tenant of a public house
for flooding allegedly due to the defenders' fault when others were undertaking
work on a nearby road and properties.
The Lord Ordinary allowed proof before answer and the case is of
interest only here where it dealt with the duties of the defenders as
contrasted with the pursuer's landlord. Kennedy v Glenbelle Ltd 1996 SC 95 concerned alterations to a load bearing
wall. It confirmed that it is necessary
to aver and prove culpa in nuisance
claims. McGuiness v Endeva Service Ltd [2006] CSOH 41was a case
decided after proof. The pursuer was a television
engineer. He was sent on a repair to an
area of Glasgow which had a high
incidence of crime. He was seriously
assaulted. It is not clear to me what relevance
this case has to the one before me. In McGuiness there was mention of foreseeability
but that is not an issue here where flooding had occurred in the past and the
defenders had a report on improvements.
Finally, I was asked to look at Marcic
v Thames Water Utilities Ltd [2003] 3 WLR 1603. That case may yet hold some
uncomfortable words for the pursuer once the facts are known but for present
purposes it is not in point. The
plaintiff had a low lying garden in his home at Stanmore near Harrow
in London. Flooding occurred. Under the Water Industry Act 1991 there was a
Statutory enforcement code to deal with such problems. It involved complaining to a director general
who had wide powers. It illustrates the
problem where sewerage undertakings are privatised and the operator has to
secure a return on its capital. The
plaintiff chose not to use the statutory remedy and the court declined to do
the task assigned by statute to the director (see Lord Hoffman paragraphs
63/4 and the problems faced by the judge in the Technology and Construction
Court paragraphs 68 to 70).
[9] As
I have already said in my view this is not an alternative case but one where it
is said there was negligence in failing to deal with the capacity and the
maintenance of L2. Both materially
contributed to the flooding and the pursuer is entitled to go to proof leaving
all pleas standing.
