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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 147
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A682/05
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OPINION OF LORD MALCOLM
in the cause
WILLIAM W McDOUGAL-INGLIS
Pursuer;
against
SCOTTISH BORDERS COUNCIL
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Locke; Lindsays, W.S.
Defenders: J D M
H Mure; Simpson & Marwick
21 August 2007
[1] The
pursuer owns a house in Eyemouth. He obtains water from a series of wells and
sumps which are fed by the groundwater supply.
He avers that in or around October 2000 he became aware that the well in
his garden was dry;
that this alerted him to the possibility of a change in the
groundwater level in the vicinity of his property; and that he became alarmed about dehydration
of the soil. On 26 October 2000 the pursuer wrote to the
defenders seeking their opinion on the relation between roadworks
which they had carried out in the area in 1996 and the drop in the groundwater
level. The issue was of practical
importance because in 1998, after returning from two years abroad, the pursuer
noticed cracks in the walls of his house, which he now avers were caused by the
building subsiding on its foundations after a change in ground hydration
following the lowering in the groundwater level as a result of the said roadworks. The
pursuer pleads that he saw no requirement to investigate the cause of the
cracks at the time because he understood that his building insurance would
cover the repair costs. However his
insurance did not cover the full cost of reinstatement of the building. The pursuer wrote to the defenders on 25 March 2001 intimating that the
works carried out by the defenders had damaged his property. The defenders denied any liability. Since then further cracking and water ingress
has occurred and additional repairs have been required. It is claimed that all of this has been a
continuing manifestation of the original subsidence. The pursuer is anxious that there may be
further damage.
[2] The
present action was served on the defenders on 25 October 2005.
It includes a claim based on the alleged negligence of the defenders
when carrying out the said roadworks, and in
particular the breach of a duty of care to avoid foreseeable damage to the pursuer's
property through alteration to groundwater levels. At a procedure roll hearing, counsel for the
defenders, Mr Mure, invited me to hold that the above
claim prescribed before the action began by virtue of the operation of the five year
short negative prescriptive period under sections 6 and 11 of the Prescription
and Limitation (Scotland) Act 1973 (as amended). He noted that the roadworks
took place in 1996 and that the relevant damage had occurred by at least
1998. The summons was served on 25 October 2005. On the face of it the claim had prescribed
before then. It follows that the pursuer
must aver sufficient facts and circumstances which, if proven, would allow the
Court to hold that the prescriptive period began to run on a date less than five
years before 25 October 2005. Reference was made to sections 11(1)
and (3) of the 1973 Act which, so far as relevant, provide:
"(1) Subject to subsections (2) and (3) below,
any obligation .....to make reparation for loss, injury
or damage caused by an act, neglect or default shall be regarded for the
purposes of section 6 of this Act as having become enforceable on the date when
the loss, injury or damage occurred.
(3) In relation to a case where on the date
referred to in subsection (1) above ....the creditor was not aware, and
could not with reasonable diligence have been aware, that loss, injury or
damage caused as aforesaid had occurred, the said subsection (1) shall have
effect as if for the reference therein to that date there were substituted a reference
to the date when the creditor first became, or could with reasonable diligence
have become, so aware".
[3] Mr
Mure submitted that on a fair reading of the pursuer's
averments, and on the hypothesis of fact upon which they are based, it is clear
that by at least the end of September 2000 the pursuer was aware, or could
with reasonable diligence have become aware, that loss, injury or damage had
occurred which was caused by an act, neglect or default of the defenders. It is for the pursuer to explain on record
why, even with the exercise of reasonable diligence, he could not have become
aware that the subsidence was caused by the defenders' roadworks
until after 25 October 2000. Counsel considered the pursuer's pleadings as
a whole. He noted that the pursuer
claims that October 2000 was the earliest when he had knowledge that the
groundwater supply in the vicinity of his property had undergone a material
change, and that the lack of groundwater was the cause of the subsidence in his
property. This is based on the averments
that it was only then that the pursuer was aware that the well in his garden
had dried up completely;
that before then he was unaware of a change in the groundwater
level in the vicinity of his property;
and that until then he had no reason to associate the damage to his
house with a change in the local groundwater level. Mr Mure asked, what was done by the pursuer between 1998, when the
subsidence was noted, and October 2000?
The potential insurance cover was no excuse for a failure to investigate
the cause of the cracks. The pursuer
would need to be able to plead that a reasonable man exercising reasonable
diligence could not have discovered the cause of the problem before
October 2000. The fundamental
problem is that the pursuer does not address this issue in his pleadings. Mr Mure referred to
Greater Glasgow Health Board v Baxter, Clark & Paul 1990
S.C.237: Glasper v Rodger (First Division) 1996 S.L.T.44: Beveridge & Kellas, WS v Abercromby (Extra Division) 1997 S.C.L.R.399: Agnew
v Scott Lithgow (Extra Division) 2003
S.C.L.R.426: and Adams v Thorntons, WS and
Others (Extra Division) 2005 S.C.30.
He submitted that these authorities demonstrate that a party who is
aware of loss is expected to take some steps to find out what has caused the
loss. Thus the discovery of the cracks
"triggered a need to investigate". It
follows that at the latest the five year short negative prescriptive period
expired in 2003, well before the action was raised. The absence of averments as to the state of
the water levels between 1996 and 2000, and as to what steps would or would not
have been taken by a reasonable man exercising reasonable diligence, means that
there is a failure to justify a commencement date for the negative prescriptive
period within five years of the service of the summons. The defenders' plea of prescription should be
sustained, failing which the claim should be dismissed.
[4] In
response Miss Locke for the pursuer observed that the cases relied upon by
Mr Mure all involved a pre-existing contractual
relationship between the parties. In the
present case there was no such prior connection between the pursuer and the
defenders. She explained that the
pursuer's case is that he believed the cracks to be caused by subsidence. He is a retired gentleman and he reasonably
believed that his insurance arrangements would cover the matter. He had no reason to incur potentially costly
investigations into the cause of the cracking.
It was in October 2000 that he suspected a link between the
cracking and the roadworks carried out by the
defenders, when he noticed that the well had run dry. He then considered that ground dehydration
might be the cause of the subsidence in his property. There was no reason why he should have
suspected this earlier. The roadworks were carried out at some considerable distance
from his house. Reference was made to
the cases of GGHB and Glasper cited
above.
[5] In
reply Mr Mure accepted that this was not a
contract case, but the damage alone put the pursuer "on inquiry". The pursuer's loss adjusters had been in
touch with the Council about the subsidence.
The case of fault includes the averment that an effect on groundwater
levels was a probable consequence of the roadworks.
Discussion
[6] My
task is to decide whether there are sufficient averments to allow the
prescription issue to go to proof before answer. The following general propositions can be
derived from the terms of the relevant statutory provisions and from the cases
cited to me.
1. When a pursuer relies upon section
11(3) of the 1973 Act to postpone the commencement of the running of the five
year prescriptive period, the onus is on him to plead a relevant and
sufficiently specific case thereunder.
2. If a pursuer claims a commencement date
which is substantially after the date when he was first aware that he had
sustained the relevant loss, injury or damage, he will require to explain how and why the reasonable diligence proviso is
to be satisfied.
3. The precise meaning to be given to the
words "reasonable diligence" in section 11(3) will vary with the particular
context in which they are to be applied, but in general the words assume the
taking of all ordinarily prudent steps in the circumstances of the case.
4. If the pursuer is aware of the loss but
not that it was caused by the defenders' negligence, he must show that
nonetheless no immediate investigatory steps would be taken by the ordinarily
prudent person, or that any steps which reasonable diligence would prompt would
not have revealed the cause of action more than five years before the service
of the summons.
5. If the known or admitted facts call out
for an explanation as to why the pursuer took no steps to ascertain the cause
of the damage, and there is no potentially satisfactory explanation in the
pursuer's pleadings, then he will have failed to make the averments necessary
to allow a proof on the issue of the extension of the prescriptive period under
section 11(3).
[7] In
essence the pursuer's position is that he was not on notice that there might be
a link between the roadworks and the subsidence
damage until he saw that the well in his garden was dry. It is not difficult to postulate cases where
it is obvious that the occurrence of damage will suggest third party responsibility
and demand inquiries into the issues of cause and fault. An example might be if a house burns down a
few hours after it has been rewired. However,
it is not so clear that, in themselves, the occurrence of subsidence and
associated cracking, especially in a house not said to be a new build, will
trigger similar concerns in the mind of the ordinarily prudent house
owner. It is a matter of common
experience that houses subside and crack for reasons wholly unconnected with
any human agency. However every case of
this nature must be considered in its own context. That context can only be derived from a
consideration of the pursuer's pleadings as a whole, which, at this stage, must
be taken as true. When the pursuer's
pleadings are considered in their totality, I am persuaded that Mr Mure's submissions should prevail. His submissions focus on the absence of any
satisfactory explanation on record for the attempt to postpone the commencement
of the prescriptive period until a date some 18 months after the admitted
discovery of the damage to the house. In
Glasper,
Lord President Hope, when delivering the Opinion of the Court, said that "a
party who is aware that he has sustained loss, injury or damage may reasonably
be expected to take some steps to find out what has caused the loss", and that
a failure to investigate will require to be explained. Miss Locke contended that no inquiries
were to be expected until the pursuer was aware of the well running dry. The problem for the pursuer is that his pleadings
include other factors which, to my mind, cast a different light on
matters. For example reference can be
made to the pursuer's letter of 25 March
2001 to the defenders, which has been incorporated into the
pursuer's pleadings. Amongst other
things it reveals the following:
1. The roadworks
took place on ground which had been the source of the groundwater flows through
the pursuer's property for several generations.
2. The pursuer contends that it was
inevitable that the lowering of the groundwater level to protect the road
formation would also draw down the hitherto natural groundwater flows across
the area and effectively cut off the established flow through his property.
3. That on noticing the cracking the
pursuer notified his insurers who appointed loss adjusters to deal with his
claim. They and an appointed expert
communicated with the defenders on the matter, albeit the pursuer "was not
privy to the correspondence or its conclusions".
4. That having been informed of the
absence of insurance cover for the majority of the damage, the pursuer
considered that "he must return to the original pattern of events and pursue my
case independently".
[8] It
is not without significance that the pursuer avers that the drainage for the roadworks interrupted the natural groundwater flow and that
the settlement of his house was caused by the consequential reduction in the flow
of water and the dehydration of the soil.
His pleadings continue as follows:
"The garden
within the boundaries of the pursuer's title was designed with various water
features including a well and pond stocked with fish and plants. Prior to the commencement and completion of
the drainage works the water features all functioned and greatly enhanced the
garden grounds. Those features are moribund
following the drainage works carried out by the defenders".
Thus the pursuer contends that the
drainage scheme associated with the roadworks had an
immediate impact on the water levels and flows on his land. In my view, in the light of all of this some
explanation is called for as to how or why the ordinarily prudent person
exercising reasonable diligence would not have instigated some inquiries into a
possible connection between these matters and the subsidence, and thus between the
subsidence and the roadworks. The pleadings have not addressed the
reasonable diligence proviso in section 11(3) with regard to the available
physical evidence and what an ordinarily prudent person would have done and discovered
before October 2000. In all the circumstances of the case, this
failure undermines the pursuer's response to the defenders' prescription plea
and renders his pleadings on this matter irrelevant. It would appear that the loss adjuster was
addressing the issue with the defenders in the period between March 1998
and October 2000, however that simply supports Mr Mure's
basic submission that this was an appropriate step to take. It does not allow the pursuer to extend the
prescriptive period by taking no steps himself.
It can be noted that this case is yet another demonstration of the risks
involved in waiting until the last conceivable moment before raising an action.
[9] Although
neither counsel referred me to it, I wish to record my view that the above
decision is broadly consistent with the approach taken by the House of Lords in
the recent case of Haward
v Fawcetts
[2006] U.K.H.L.9. While the wording of
the legislation considered by their Lordships differs from the 1973 Act, both
jurisdictions have grappled with the same question, namely, in the balancing of
the competing interests of pursuers keen to prosecute actions and defenders
anxious not to defend stale claims, what must a pursuer know, or be deemed to
know, in order to start the prescriptive clock?
In Haward
Lord Nicholls of Birkenhead said that time runs
once he knows enough for it to be reasonable to undertake preliminary
investigations into the possibility that the known damage was caused by the
alleged negligence (para.20). Thus, as
Lord Mance confirmed, it is enough that the damage
might be attributable to the conduct of the defender (para.122). In England
and Wales the
concept of constructive knowledge appears to operate in a similar manner to the
reasonable diligence proviso in section 11(3) of the 1973 Act. Therefore it is of interest to note
Lord Mance's comments regarding the equivalent
English legislation at para.126:
"The language of
section 14A (of the Limitation Act 1980) thus recognises a range of different
states of mind: (a) actual knowledge of
material facts about the damage and other facts relevant to the action
(including therefore knowledge that the loss was capable of being attributed to
an act or omission alleged to constitute negligence); (b) knowledge that a claimant might
reasonably have been expected to acquire (from facts observable by himself or
ascertainable by him or with the help of appropriate expert advice which it
would have been reasonable for him to seek);
and (c) ignorance. Actual
knowledge within (a) involves knowing enough to make it reasonable to
investigate whether or not there is a claim against a particular potential
defendant: see para.112 above. Constructive knowledge within (b) involves a
situation where, although the claimant does not yet know sufficient for (a) to
apply, he knows sufficient to make it reasonable for him (by himself or with
advice) to acquire further knowledge which would satisfy (a)".
While again acknowledging that the
English legislation differs from that which I must apply, there is sufficient
similarity to allow me to say that, in the circumstances of this case, my
decision that the pursuer's averments are deficient could be justified under
head (a) of Lord Mance's analysis, which failing
under head (b).
[10] Mr Mure developed two subsidiary arguments
on the prescription of the negligence claim.
One related to the time bar of new averments of duty added for the first
time in 2007. In the result I need not
address this issue. Had I required to do so I consider it likely that I would have concluded
that the new averments are sufficiently connected to the original case to allow
them to go to probation. Mr Mure also observed that the pursuer's pleadings are too
vague in relation to specific dates in October 2000. Given that the date of the service of the
summons was 25 October 2005,
this is a matter of significance and requires more specific pleading. Miss Locke indicated that she could deal with
this point by amendment, and, had it arisen, I would have allowed time for this
to occur. As it is, the matter is
superseded. In his Revised Note of Argument
Mr Mure makes various criticisms as to lack of
specification in the pursuer's case of fault.
Time constraints on the day prevented this matter from being addressed
by counsel, but again these issues are superseded by my decision on
prescription.
[11] The summons also seeks various remedies relating to periods of
flooding of the pursuer's property, which are said to have been caused by
landscape bunds associated with the roadworks. However, after hearing Mr Mure's submissions on this aspect of the case, Miss Locke
indicated that she was not insisting upon the claim based upon flooding. The one remaining chapter of the action
relates to an attempt by the pursuer to obtain interdict against construction
works at a nearby school. As mentioned
above there were time constraints on the procedure roll debate, and although
Mr Mure's Note of Argument seeks dismissal of
the action, neither counsel discussed the interdict claim. There has been no interlocutor pronouncing
interim interdict, and it may be that the passage of time has allowed the works
to be completed. In order that the
parties' position on interdict can be clarified, I shall put the case out By
Order to hear parties before pronouncing a substantive interlocutor reflecting
the above decision.
