Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 84
A736/04	OPINION OF LORD EMSLIE in the cause MORRIS AMUSEMENTS LIMITED Pursuers; against GLASGOW CITY COUNCIL and OTHERS Defenders and Third Party: ­­­­­­­­­­­­­­­­­________________

Pursuers: Jones; Watson, solicitor advocates; Simpson & Marwick

First Defenders: Peoples Q.C.; O'Brien; Edinburgh City Council, Solicitors

Second Defenders: Ellis Q.C.; Sanders; DLA Piper Scotland LLP

Third Party: Young, Q.C.; Dundas & Wilson CS LLP

16 June 2009

INTRODUCTION
[1] In this action of damages, the pursuers sue as proprietors of most of a six-storey Victorian building in central Glasgow. Their complaint is that in November 1999 the gable wall of that building was significantly damaged in the course of demolition works which were in progress on an adjacent building. Some days earlier the latter had itself suffered severe fire damage, to the extent that it was in a structurally dangerous condition, and the decision to demolish it on public safety grounds was taken by Glasgow City Council - the first defenders - pursuant to section 13 of the Building (Scotland) Act 1959. The appropriateness of that decision is not challenged, but the pursuers advance cases in both negligence and nuisance against the Council relative to the manner in which the works were organised and carried out. On virtually identical grounds the pursuers also convene, as second defenders, the demolition contractors who were engaged by the Council to carry out the relevant works.

[2] The issue for determination in the debate which has now taken place before me is whether the pursuers have pled a relevant case for inquiry against either or both of the defenders. The latter maintain that the pursuers' pleadings disclose no relevant case of negligence or nuisance against either of them, and furthermore that the averments of alleged loss are so unacceptably lacking in specification that the claim should be dismissed on that ground also. If, however, a proof before answer were to be allowed on all or part of the pursuers' case, parties were agreed that proof would also be appropriate on (i) the cross-averments as between the two defenders inter se, and (ii) a dispute as to whether certain insurances arranged by the first defenders have or have not been validly repudiated by the third party as insurers.

[3] Much of the debate concerned the application and interaction of certain principles which were said to govern the potential liability of one party for damage attributable to the negligence of another. Where the negligent party is in the nature of a servant or employee, with the employer entitled to exercise personal direction and control over the manner in which works are performed, transferred liability is not usually in doubt. On the other hand an employer does not, as a rule, carry legal liability for the negligence of an independent contractor, and in that context the instruction of an apparently competent contractor will often be as far as the law expects a reasonably careful employer to go. Some operations have, however, been deemed so obviously hazardous as to require modification of this general rule, and in such situations the employer may be unable to relieve himself of a continuing personal duty to secure that all reasonable safety precautions are taken in the course of the works.

[4] As regards nuisance, the principal focus of discussion was on the need for averment and proof of culpa on the part of whoever was allegedly responsible. In the well known case of RHM Bakeries Limited v Strathclyde Regional Council 1985 SC HL 17, Lord Fraser of Tullybelton observed at p.45;

"(The fact that a defender is not liable in nuisance without proof of culpa)...does not by any means imply that, in a case such as this, a pursuer cannot succeed unless he avers the precise nature of the fault committed by the defender which caused the accident. It would be quite unreasonable to place such a burden on a pursuer, who in many cases will have no knowledge, and no means of obtaining knowledge, of the defender's fault. As a general rule it would, in my opinion, be relevant for a pursuer to make averments to the effect that his property has been damaged by a flood caused by an event on the defender's land, such as the collapse of a sewer which it was the defender's duty to maintain, that properly maintained sewers do not collapse; and that the collapse is evidence that the defender had failed in his duty to maintain the sewer. The onus will then be on the defender to explain the event in some way consistent with absence of fault on his part."

[5] There is no doubt that the pursuers' case here could have been more fully and convincingly pled. For example, no detail is given of the contractual arrangements under which the second defenders were engaged, nor of the circumstances in which the demolition method was apparently agreed between the defenders, nor of the degree and manner of supervision allegedly exercised by the first defenders as the works progressed. It is not said in terms that the vulnerability of the pursuers' gable was or should have been known to either of the defenders, nor that the second defenders were not competent contractors to instruct. No advantage is taken of the defenders' copious cross-averments against each other, and certain potentially consistent averments are formally denied. Without explanation, identical cases are made against the first and second defenders in connection with (a) failure to assess or inspect the condition of the affected gable prior to or at an early stage of the works; and (b) progressing the works without putting in place necessary shoring for the wall of the pursuers' building. In the nuisance case, moreover, culpa is apparently pled without reference to negligence, and as regards damages the claimed remedial costs, loss of use of the building, loss of profits and loss of rental income are asserted in the barest outline only.

[6] Nevertheless, the pursuers in condescendence 2 detail the extent to which the structural stability of their building was dependent on the support afforded by the gable wall and in particular the outer leaf thereof. In condescendence 3 they aver circumstances suggesting that, although demolition of the fire-damaged building was not the subject of extreme urgency, the first defenders at once proceeded to take control of the site. In condescendence 4, it is further averred (i) that after a tendering process the first defenders appointed the second defenders to demolish the building; (ii) that the defenders between them agreed that this would be done by machine; (iii) that the second defenders undertook such works under the first defenders' supervision; (iv) (by unopposed amendment during the debate) that removal of part of the outer leaf of the pursuers' gable wall was an inherently hazardous operation; (v) that in consequence of such removal the stability and integrity of the gable wall were compromised; and (vi) that following inspection it was the first defenders who then suspended the works, advised on the appointment of engineers and identified necessary remedial measures. In addition, the pursuers expressly deny (at p.16A) the first defenders' response to the effect that

"The precise manner in which the demolition work was undertaken was, both in terms of the contract and in discussions between the first and second defenders, left to the discretion of the latter as competent demolition contractors. ... The mechanical demolition undertaken by the second defenders proceeded in accordance with the standards reasonably to be expected of an ordinarily competent demolition contractor."

A similar denial of averments along the same lines appears at p.30A.

[7] Condescendence 5 goes on to set out the pursuers' complaint regarding the absence of investigation of the construction and condition of the gable prior to the works being undertaken, and the absence of consideration by either of the defenders as to "... what effect the demolition works would have on the gable wall and on the pursuers' building." According to the pursuers, the gable wall did not have to be removed or disturbed in order to render the site safe. In addition, the British Standard Code of Practice for Demolition (BS 6187: 1982) provided in terms that demolition was "... a hazardous operation"; that precautionary measures (including the carrying out of an initial survey to identify inter alia any need for temporary support for adjacent buildings, and the possible employment of a competent engineer) were essential for the safety of the public and the protection of property likely to be affected; and that "If the structure abuts other buildings, the abutting buildings should be given such lateral support or shoring ... as is given by the structure to be demolished."

[8] In condescendences 6 and 7, the pursuers set out their case of fault against the respective defenders, founding again on the absence of any preliminary assessment or inspection and on the consequent failure to provide shoring for the affected gable before the works proceeded and damage was caused. Condescendence 8 alleges deliberate, which failing reckless, nuisance against both defenders in parallel, depending on whether they did or did not know that the outer gable leaf provided necessary support for the pursuers' building. At p.33E it is said that "The first defenders instructed the demolition works which included inter alia the removal of part of the gable wall", and a significant further averment (at p.34D/E) is to the effect that the demolition works "... were at all times under the control of the first defenders under and in terms of section 13 of the Building (Scotland) Act 1959 (as amended)."

Contentions for the first defenders
[9] In seeking dismissal of the action so far as laid against the first defenders, counsel reminded me of the statutory basis on which the works had been instructed and undertaken. Section 13 of the Building (Scotland) Act 1959 provided inter alia as follows:

"13 - Action to be taken in respect of buildings found to be dangerous

(1) If it appears to the Local Authority that any building is dangerous to persons inhabiting or frequenting it or adjacent buildings or places or to the public generally they shall forthwith -

(a) require any occupants of the building in question, and of any adjacent building, being persons whom they consider to be endangered by the state of the building in question, to remove immediately from those buildings;

(b) cause to be executed such operations (including, if necessary, demolition operations) as in their opinion are necessary for preventing access to the building and any adjacent parts of any road or public place which appear to them to be dangerous by reason of the state of the building and otherwise for the protection of the public and of persons and property on the land adjacent to the building; ..."

In the alternative, it would have been open to the first defenders (under paragraph (c) of the same sub section) to serve a statutory notice on the proprietors of the fire-damaged building to execute works themselves within a set timescale. However, since this would have involved considerable delay, and there was some degree of urgency, it was thought proper for the first defenders to proceed at their own hand under the final part of section 13(1)(b).

[10] Since there was no apparent challenge in these proceedings to the decision to demolish the building, nor indeed to the subsequent decision to appoint the second defenders as demolition contractors after a short tendering process, the court could and should infer that the second defenders were apparently competent contractors to instruct. Furthermore the pursuers' averments did not query or contradict the independent status of the second defenders in a question with the first. In such circumstances, the general rule absolved the first defenders of all legal responsibility for the actings of the second defenders as independent contractors, and the pursuers' case of fault in condescendence 6 was irrelevant. The general rule was well settled, and was an important protection for employers against any suggestion of a duty of insurance quoad the acts of third parties outwith their direct influence and control. In these respects particular reference was made to Stephen v Thurso Police Commissioners 1876 13 R 535, esp per the Lord Justice Clerk at 538-540, Lord Ormidale at 540 and Lord Gifford at 541-2; Haseldine v Daw 1941 2KB 343, esp per Scott LJ at 356 and Goddard LJ at 374; Ferguson v Welsh 1987 1WLR 1553, esp. the speech of Lord Keith at 1560; and D & F Estates Limited v Church Commissioners for England 1979 AC 177, esp. the speech of Lord Bridge at 208-9.

[11] Moreover, broad general assertions of "control" or "supervision", without further explanation, fell well short of what might be required to establish continuing personal responsibility on the part of the first defenders. The context here was also important: this was not a case of a proprietor choosing, for his own interest, to execute works on undamaged property. On the contrary, the first defenders here were exercising statutory powers, on public safety grounds, in dealing with a dangerously unstable fire-damaged building within their area of jurisdiction. In these circumstances what the pursuers described as their primary case, alleging personal liability against the first defenders, was fundamentally irrelevant and could not be remitted to probation.

[12] As regards the pursuers' secondary position, there was no room for modification of the general rule in this case. The potential for a modified approach was frequently ascribed to the decision of the House of Lords in Dalton v Angus 1881 LR 6 App.Cas 740. In that case Lord Blackburn (at p.829) said:

"Ever since Quarman v Burnett it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it".

In the same case Lord Watson (at p.831-2) said

"The operations...were obviously attended with danger to the building in question; but these appellants seek to shelter themselves from responsibility by proving that they took their contractor bound to adopt all measures necessary for ensuring the safety of the building. When 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, as 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."

Significantly, according to counsel, Lord Dervaird in Borders Regional Council v Roxburgh District Council 1989 SLT 837 had identified two key features of Lord Watson's speech in Dalton, namely (i) that the modified rule applied only where the defender was a landowner subject to a non-delegable obligation of support for neighbouring property; and (ii) that the person instructing the work "...must know or at least ought to know that the work which he is instructing is necessarily attended with risk". In the absence of averments on both key features, the pursuers' case there was dismissed as irrelevant.

[13] As developed by senior counsel, the argument came to be more extreme, namely that in the law of Scotland there was no place for the arbitrary categorisation of activities as "inherently hazardous", with something akin to absolute liability as a consequence. Any activity could be described as risky if appropriate precautions were not taken, and the court should be slow to impose liability on statutory authorities along such lines. As was clear from the speech of Lord Macmillan in Read v J Lyons & Co Ltd 1947 AC 156, at 172-3, it was hard to devise any satisfactory basis for such characterisation, and injustice could readily result. His Lordship's words of caution had recently been relied on by the Court of Appeal in Biffa Waste Services Ltd & Others 2009 BLR 1, where the issue was whether expressly non-negligent main contractors ("OT") should nevertheless be held vicariously liable for the negligence of arc welders who started a fire. The sole ground advanced for such liability was that arc welding was "inherently dangerous", and that in instructing the welders OT had acted at their peril. However, the Court of Appeal held this to be an inadequate foundation for legal liability. Admittedly that case involved express findings, after trial, that OT were not personally negligent in any way, and that "...supervision was not control", but it was still instructive to note how the Court of Appeal had (i) questioned the validity of trying to stamp activities as "inherently hazardous" in the absence of any recognised focus for legal liability; (ii) cast severe doubt on the earlier case of Honeywill & Stein Ltd v Larkin Brothers Ltd 1933 1 KB 191 where that course had apparently been followed; and (iii) described Dalton as "...a case of property damage caused by withdrawal of support from an adjacent building". Along comparable lines, in Stewart v Malik 2009 SLT 205, the First Division had entertained a lengthy argument as to whether the decision in Dalton properly formed part of the law of Scotland. In allowing a proof before answer on amended pleadings, however, the court had reserved its opinion on the issue, while at the same time basing its decision on narrow grounds concerning the law of the tenement. The pursuers' case of negligence was thus fundamentally defective. It was the second defenders' work which caused damage to the pursuers' gable wall, and the pursuers had failed to aver any basis on which the first defenders could legitimately be held liable.

[14] Accordingly, if the Dalton exception applied at all, it should be limited to situations (a) where a landowner owed an obligation of support towards neighbouring subjects; and (b) by reference to Biffa at para.78, where activities were "....exceptionally dangerous whatever precautions are taken". In the present case, it was said, the pursuers had made no relevant case along such lines. The first defenders were not proprietors of the fire-damaged subjects; the demolition works could not be described as "inherently hazardous" where, on the pursuers' averments, ordinary shoring would have allowed them to be conducted in safety; the apparent competency of the second defenders as contractors was not truly in issue; and having instructed them the first defenders should be relieved of liability in the ordinary way.

[15] Over and above that, by reference to the decision of Lord Macfadyen in Allison v Isleburn Limited and Another 1997 SCLR 791, the pursuers' identical cases of fault against the two defenders should be seen as mutually inconsistent and thereby incapable of running together. Admittedly Allison had concerned alleged duties to provide and maintain a safe system of work, which arguably might not be incumbent on two parties at the same time, and perhaps arbitrarily the action had been dismissed quoad the only defender who chose to argue the point at debate. Nevertheless, it was said, the same principle should apply here where duties of consideration, inspection and shoring were in issue.

[16] On the issue of nuisance, the pursuers again illegitimately sought to plead identical cases against the two defenders. More importantly, condescendence 8 contained no relevant averment of culpa. The pursuers had chosen to peril this aspect of their claim on conduct alleged to be "deliberate" or "reckless", but had failed to aver either alternative as defined by the Lord President in Kennedy. For "deliberate" nuisance, there had to be an offer to prove actual knowledge that interference with the outer leaf of the gable would remove support from the pursuers' building. For "reckless" nuisance, the likelihood of such removal would have to be pled. The pursuers had failed to plead the necessary state of mind against either defender on either alternative, and for some reason did not seek to rely on common law negligence for culpa purposes. In any event, if the case of negligence pled against the first defenders in condescendence 6 was irrelevant then nothing from that source could be prayed in aid for nuisance purposes. In the whole circumstances, the case of nuisance should also be dismissed as irrelevant.

[17] Finally, turning to the averments of loss in condescendence 9, counsel observed how sparse they were notwithstanding the incorporation of an appendix comprising production 6/1. That appendix contained no substantive detail as to the nature of the remedial works, either external or internal, and essentially went no further than a summary breakdown, floor by floor, together with some numbers and dates. This gross failure of specification and fair notice was highly significant, given (a) the size of the claim and (b) the background of the second defenders' averments to the effect that the pursuers' wall and premises were already in a state which would have required a great deal of remedial attention. No fair notice was given of the causal link between any alleged default and the claimed loss.

[18] Similarly, the averments in condescendence 9 failed to give fair notice of any loss sustained by the pursuers during the 31/2 years for which they were allegedly excluded from their property. Over such a long period some explanation was called for, but this was entirely lacking. As regards the alleged loss of profits totalling £965,000, there was no attempt to explain how this was calculated or to relate it to the pursuers' business either before or after 1999. In same vein, the basis for the alleged loss of rent amounting to £128,500 was left wholly unexplained. In these circumstances, the pursuers' averments of loss were so wholly lacking in specification as to render the claim irrelevant. The incident had occurred nearly ten years ago; the action had now been in court for five years; and the pursuers had had every opportunity, in the face of known criticisms, to plead a relevant case.

[19] For all of these reasons, the first defenders invited the court to dismiss the action so far as directed against them, failing which to exclude from probation such parts of the case as were unfit to go to inquiry.

Second defenders' contentions
[20] As regards the case of common law fault in condescendence 7, the second defenders challenged its relevancy on one ground only, namely that it was identical to the case pled against the first defenders and thus purported to allege duties to be performed by two parties at the same time. Lord Macfadyen in Allison had held this to be illegitimate, albeit there in connection with positive duties to devise and maintain a safe system of work. The averments directed against separate sets of defenders ought to be different whatever the circumstances, and the pursuers here could not simultaneously ride the same horse in two directions at once. Quoad ultra, counsel very fairly accepted that the case of fault in condescendence 7 could be regarded as relevant to go to inquiry.

[21] The second defenders were, however, at pains to point out that in their view the pursuers' case of negligence against the first defenders was relevantly and sufficiently pled. Explicit averments of control of the site and works could be found in condescendences 3 and 8, and further averments of instruction and involvement in the demolition works appeared in condescendences 4, 5 and 6. The case of Stephen underlined the importance of control in a situation of this kind, and cases such as Dalton, Stewart, Hughes v Percival 1883 8 AC 443 and Thomson v St Cuthbert's Co-operative Association Ltd 1958 SC 380 all illustrated how a non-delegable duty could arise where a party set in train works of an inherently hazardous character. It was, incidentally, instructive to note (from p.15 of the Record) that when difficulties arose it was the first defenders who inspected the gable wall, suspended the works, gave advice about engineers, and identified appropriate remedial measures. All of this confirmed the degree of the first defenders' active participation and control from the outset. This was not a case where the works had simply been handed over to the second defenders. Moreover, contrary to the first defenders' assertions, the pursuers' claim was plainly based on the removal of support from their building. Not only the proprietor, but any occupier of servient land might be subject to duties of reasonable care in that connection, and it was important to recognise that common law negligence rather than any landownership obligation was alleged by the pursuers in this case. That was a matter of fact and degree which could only be resolved after inquiry, and accordingly if a proof before answer was to be allowed against the second defenders, it should be allowed against the first defenders also.

[22] As regards nuisance, criticism was focused on the alternative formulations in condescendence 8 whereby nuisance was described as (first) "deliberate" and (second) "reckless". By reference to Haigh & Ringrose v Barrhead 1981 SLT 157, the contention was that these formulations must be tested by the weaker alternative, namely recklessness for which there were no supporting averments. As the Lord President pointed out in Kennedy p.100 I, a deliberate act constituting culpa would require to involve knowledge of the consequences. Similarly, recklessness had to involve the absence of regard for the consequences of actions likely to cause harm. These tests had been adopted by the Lord Ordinary in GB & AM Anderson v White 2000 SLT 37. The pursuers did not offer to prove either alternative in preference to the other, and in the whole circumstances the case of nuisance in condescendence 8 should be dismissed. In that context, the pursuers could take no comfort from their averments of negligence in condescendence 7, since the nuisance case was predicated on deliberate or reckless conduct.

[23] Turning finally to the averments of loss, the first defenders' criticisms were adopted. With such a large sum sued for, a casual attitude to pleadings was not appropriate. Article 9 contained only a bare specification of the main heads of claim, and even the incorporated appendix failed to disclose in any material detail the true nature of the pursuers' alleged losses. The concern here was one of fair notice, ten years having passed since the incident, and there was no excuse for the absence of averment as to what works were carried out, how these related to the alleged demolition damage, and how the latter could be blamed for substantial internal works at every level of the building. It was not good enough to say that the defenders might in due course recover relevant documents. Even if voluminous records were obtained, these would not disclose what the pursuers were actually offering to prove, nor could they impose any limitation on the evidence which the pursuers might choose to lead at a proof.

[24] For all of these reasons, the action so far as directed against the second defenders should be dismissed.

Third party's contentions
[25] While accepting that the stated duties of care might, in appropriate circumstances, be pleadable against a buildings authority in the first defenders' position, counsel submitted that the pursuers had failed to aver any proper basis on which responsibility for preparation and planning of the demolition works was said to attach to the first defenders here. There was no necessary factual underpinning for the duties of care alleged. There was no indication as to whether responsibility for planning and preparation was contractual, or based on practice, or had casually evolved. Similarly, the bare averment of "supervision" was unexplained. Was this contractual or de facto? Did it involve engineers or unskilled personnel? Was it regular, constant or intermittent? Such questions were unanswered, and this was sufficient to render the case against the first defenders irrelevant. The first defenders had, after all, employed specialist demolition contractors for the work, and it was not unreasonable for them to assume that all necessary investigations would be properly carried out.

[26] Furthermore, the exception regarding "inherently hazardous" operations had generally been applied in cases founded on breach of an obligation of support. Dalton was such a case, as was Bower v Peate 1876 LR 1 QBD 321, and in Hughes, Penny and Salsbury the court had confirmed the narrow scope of the exception. The present case fell outwith the permitted categories and was thus irrelevant. As regards nuisance, moreover, there was again no relevant factual underpinning. Without details of contractual and site arrangements, the nuisance case was irrelevant and should be excluded from probation. As regards quantum, the defenders' criticisms of condescendence 9 were adopted.

The pursuers' response
[27] Starting with the first defenders' reliance on the status of the second defenders as independent contractors, the pursuers maintained that this was misconceived. Far from alleging vicarious liability for the second defenders' fault, the pursuers' primary focus was on breach by the first defenders of duties of care which were personally incumbent on them. On the pleadings, such duties arose from control of the site and works (condescendences 3 and 8); appointment of the second defenders as contractors following a tender process, agreeing the mode of demolition and supervision of the works (condescendence 4); and the telling absence of reliance on the second defenders, when things went wrong, for any of the steps averred on record at p.15A/C. The overall picture was one of direct involvement in the operation from the outset. A tendering process implied some specification of the works; supervision denoted superintendence or oversight; and on the whole matter it could not be said that the averments in question failed to provide a sufficient basis for the duties of care alleged. Beyond asserting both defenders' failure to consider or investigate the gable position before demolition works commenced, condescendence 5 (coupled with back-references in articles 6 and 7) was significant in confirming the pursuers' reliance on the applicable British Standard Code of Practice. That Code formed the basis for what the pursuers said ought to have been done, especially with regard to the provision of compensating lateral support for adjacent properties. It also confirmed that demolition was a hazardous operation. Article 6 went on to aver duties against the first defenders in their capacity as buildings authority, and condescendence 8 further included an offer to prove that the "first defenders instructed the demolition works which included inter alia removal of part of the gable wall".

[28] Fairly considered, the pursuers' averments of negligence were directed against the first defenders personally on account of their instigation, direction, control and supervision of the works. Contrary to the contentions of the first defenders, this was not a case in which the works had been wholly contracted out to others, and it was perhaps that misconception which underlay the first defenders' fallacious approach.

[29] In support of these submissions, reliance was placed on the speech of Lord Jauncey in X (Minors) at p.728-9 to the following effect:

"Where a statute authorises that to be done which will necessarily cause injury to someone no action will lie if the act is performed with reasonable care. If, on the other hand, the authorised act is performed carelessly whereby unnecessary damage is caused a common law action will lie. This is because the act would, but for the statute, be actionable at common law and the defence which the statute provides extends only to the careful performance of the act. The statute only authorises invasion of private rights to the extent that the statutory powers are exercised with reasonable and proper regard for the holders of such rights. Thus careless performance of an authorised act rather than amounting to breach of a new duty simply removes a defence to a common law right of action".

The pursuers offered to prove that the works were done carelessly, and this was sufficient to preclude any defence based on the first defenders' statutory authority under section 13 of the 1959 Act. In terms of the British Standard Code of Practice the first defenders ought to have been assessing and investigating the likely risk to the pursuers' gable in advance, and the duties of care arising in that connection were and remained personal to them.

[30] As was clear from Thurso, Dalton and other cases, the onus was on the first defenders, if they could, to aver and prove discharge of their common law duty of care by means of the engagement of a competent independent contractor. For present purposes it could not be said that the first defenders had achieved this, not merely because the pursuers pled a clear case of negligence against the second defenders as contractors, but also because the pursuers denied all averments (at pp.17B/D and 30B/C) regarding the second defenders' alleged competence.

[31] In any event, since the pursuers offered to prove that these were inherently hazardous works, it was not open to the first defenders to relieve themselves of their own personal liability in that way. In this connection, further reference was made to Penny v Wimbledon District Council 1899 2QB 72, esp. per Romer LJ at 78; Salsbury v Woodland and Others 1970 1 QB 324, per Lord Widgery CJ at 337-8; and Duncan's Hotel (Glasgow) Limited v J & A Ferguson Limited 1972 SLT notes 84. In the latter case, the Lord Ordinary had in a Scottish context relied on Penny and Dalton, and the same English decisions were the subject of Scottish textbook authority as noted by the Lord President at paragraph 15 of his opinion in Stewart. Properly understood, neither Dalton nor any of the other cases depended critically on the existence of some obligation of support arising under the law of landownership. As confirmed by the speeches of Lord Blackburn in both Hughes and Dalton, the duties which mattered were those arising from the institution of inherently hazardous works, although in Dalton (but not in Hughes) Lord Watson had referred to the factual background of a support obligation acquired by prescription. In the present case, quantum valeat, the pursuers' building plainly enjoyed a right of support from its fire-damaged neighbour, but what really mattered was the damage caused to the pursuers' wall by the demolition works. The basis of the pursuers' claim would have been unchanged if such damage had occurred at roof level, and the fact that the damaged wall afforded structural support to other parts of the building should not be seen as weakening the pursuers' case.

[32] Since there was no question of the pursuers contending for absolute liability here, as opposed to a duty to see that reasonable precautions were taken, the criticisms levelled at the "inherently hazardous" exception in Read, Biffa and other cases were not in point. Honeywill in particular had attracted criticism because absolute liability appeared to be in issue, but under both English and Scots law an obligation of support involved no more than the taking of all reasonable and proper precautions. There was, moreover, no reason not to apply the exception where a local authority was subject to common law duties of care, and it would be strange if local authorities were free of liability where works seriously endangered life and property. The "inherently hazardous" nature of the works had been plainly averred in this case, and as the Inner House had held in Stewart at para.26 this was not contradicted by the identification of precautions which might have been taken. These were, it was said, matters of fact and degree on which proof would be required.

[33] Furthermore, the recent decision of the Inner House in Stewart made it impossible for the court at this stage to sustain the first defenders' radical argument to the effect that the Dalton exception had no place in the law of Scotland. In allowing a proof before answer on amended pleadings, the Inner House had reserved its opinion on that issue, although noting inter alia the long tradition of both judicial and textbook acceptance of Dalton in this jurisdiction. As confirmed by Brett L.J. in the Court of Appeal in Dalton, and by Lord Blackburn in the House of Lords, Bower v Peate gave a claim against both employer and contractor whether that was based on negligence or on breach of an obligation of support.

[34] Turning to the second defenders' argument regarding the parallel cases of fault in articles 6 and 7 of condescendence, the pursuers did not accept that these were in any way inconsistent. Whatever might be said of the positive duties considered in Allison, the pursuers were entitled to blame both defenders for the omissions alleged against them at the preparation and planning stage of the work. The problem was that neither the first nor the second defenders had given any thought to the security of the pursuers' gable; neither had carried out any inspection; and neither had thought to provide any physical support before the demolition proceeded. Significantly, the duties were alleged against the respective defenders in different capacities - the first defenders as buildings authority, and the second as demolition contractors - and these did not necessarily arise at the same point in time. Prima facie the first defenders' duties arose from the moment the works were instructed, whereas the second defenders' duties might be thought to arise at and after the stage when site preparations began. Allison could therefore be distinguished on its facts but, if not, the decision was unsatisfactory and should not be followed. It was not in any event authority for dismissing parallel claims against two defenders at the same time.

[35] As regards the case of nuisance in condescendence 8, culpa had been properly pled against each defender. The case of Kennedy illustrated the wide potential scope for culpa, by reference to examples of negligent, deliberate, malicious or reckless conduct, but in the end the critical requirement went no further than "...some degree of personal responsibility" as affirmed by the House of Lords in RHM. Since both defenders were blamed for failures of consideration and inspection, the pursuers were not in a position to aver specific knowledge on their part regarding the importance of the gable to the support of the pursuers' building. It was therefore reasonable for the case to be pled on two possible alternatives, either of which would lead to legal liability, namely (i) knowledge or (ii) ignorance of the support situation. In such circumstances, there was no "weaker alternative" to be tested, since culpa and consequent legal liability would be established in either case.

[36] As further developed by senior counsel, the pursuers' argument was that even if the labels "deliberate" and "reckless" were both misplaced, the pursuers were still entitled to succeed if, after proof, some degree of personal responsibility was evident. It was not necessary to prove any actual state of knowledge, but only surrounding facts and circumstances from which the necessary degree of personal responsibility could be inferred. The cases of negligence pled in condescendences 6 and 7 were all part of the wider picture; condescendence 8 did not stand alone, and was not hermetically sealed; and after proof the court would be entitled to look to the whole facts and circumstances to see whether the essential element of culpa had been proved.

[37] As regards loss, the pursuers formally submitted that the defenders were sufficiently put on notice as to the damage caused, the works undertaken and the resulting losses. It would not, however, be wholly surprising if the defenders' criticisms found favour with the court, and in that event the proper course would be to put the case out By Order to enable the pursuers to consider a Minute of Amendment giving further specification of their claim.

Discussion

[38] This debate has thrown up a number of interesting and difficult issues of law, some of which are still to be authoritatively resolved. For instance, as the recent decisions in Biffa and Stewart make clear, there remains scope for argument as to the relevance and effect of "inherently hazardous" operations in determining the legal liability of a party instructing independent contractors. The debate has also identified many areas of the parties' factual dispute on which detailed exploration and development in evidence might well be of considerable assistance. These include inter alia the precise condition of the fire-damaged building to be demolished; the apparent state of the gable wall arrangements on the pursuers' side; the circumstances in which the demolition works commenced on site; the precise mode and sequence in which these works proceeded; the status and qualifications of the first defenders' personnel on site at different stages; the situation regarding supervision and control of the works; and the manner in which damage occurred. Evidence on all of these matters could, I think, legitimately be led within the scope of the present Record and, quantum valeat, the second defenders' averments would, if proved, tend to confirm that the first defenders' direct involvement in the conduct of the works on site was far from minimal.

[39] Having taken time to consider the parties' competing contentions, I have come to the view that the pursuers' averments on the merits of their claim against both defenders are at least adequate to justify allowance of a proof before answer. In particular, applying the well-known test of relevancy affirmed in Jamieson v Jamieson 1952 SC HL 44, I am not persuaded that if all of these averments were to be proved the pursuers' case against either of the defenders would necessarily be bound to fail. Subject only to what I say later on the specification of the damages claim, I would therefore consider it appropriate to allow to parties a proof before answer reserving all preliminary pleas. My main reasons for reaching this conclusion are set out in the paragraphs which follow.

The pursuers' primary case alleging personal negligence against the first defenders

[40] In my opinion the pursuers' averments on this issue cannot be held irrelevant at this stage. Far from this being a case in which the first defenders simply handed over the demolition works to the second defenders as specialist contractors, the pursuers offer to prove that the latter were instructed after a tendering process (implying some degree of specification of the works by the first defenders in advance); that the first defenders took control of the site; that they were involved in agreeing the method of demolition; that the works were thereafter carried out under the first defenders' control and supervision; that the works instructed by the first defenders included inter alia the demolition of the pursuers' gable; and that when things went wrong it was the first defenders who suspended the works, carried out an inspection, advised on the appointment of engineers, and identified remedial measures. For present purposes, I must of course ignore the second defenders' averments of substantial involvement on the part of the first defenders - averments which the pursuers contrive to deny - but even taking the pursuers' own averments in isolation I am not persuaded that their allegations of direct negligence against the first defenders are necessarily bound to be rejected after proof.

[41] In that connection, I am not convinced by the defenders' arguments based on alleged inconsistency between condescendences 6 and 7. To my mind the case of Allison is distinguishable on its facts, involving positive duties in connection with the establishment of a safe system of work, but in any event I am inclined to regard the result in that case as somewhat unsatisfactory insofar as the action was dismissed quoad one defender alone. Here, it seems to me that the duties alleged against the defenders in their different capacities, and potentially arising at different times, are perfectly capable of co-existing side by side. The pursuers' complaint, in essence, is that neither of the defenders took any precautions for the safety and security of their building.

The case of fault directed against the second defenders as contractors

[42] Counsel for the second defenders conceded that the averments in condescendence 7, had they stood alone, would have been relevant to go to inquiry, but sought to have them excluded from probation on the basis that the pursuers could not legitimately plead identical cases of fault against both defenders at the same time. As indicated above, however, there is in my view no reason in principle why parallel defaults should not be pled against two sets of defenders in circumstances where both are alleged to have been directly and actively involved in the performance of the same works. This conclusion is, I think, all the more readily reached where the negligence alleged against the defenders is in the nature of omissions at the "planning and preparation" stage of the works several days after the fire. At that point, there being no suggestion of extreme urgency, both sets of defenders might have been expected to give some attention to the safety of persons and property liable to be adversely affected, and as a matter of relevancy I am not persuaded that the pursuers' parallel attack should be dismissed at this stage and without evidence being heard.

The pursuers' secondary case against the first defenders

[43] For well over a century the "inherently hazardous" nature of operations has been thought sufficient to deprive the responsible landowner or employer of the protection of the ordinary rule relieving him of liability in law for the acts or omissions of an apparently competent independent contractor. The protection of the ordinary rule is equally unavailable where the contractor instructed is not competent, and in the present case it may be noted (a) that the pursuers deny all averments regarding the alleged competence of the second defenders, and (b) plead cases of negligence and nuisance against them. In such circumstances, it may turn out to be academic whether the demolition works fall to be classed as "inherently hazardous" or not.

[44] On that latter issue, I acknowledge that it may not always be easy to determine on which side of the line particular operations should be held to fall. This difficulty is judicially acknowledged in cases such as Read and Biffa, but (as the pursuers here pointed out) the court's real concern in these cases was with apparently absolute duties founded upon such a test. Be that as it may, I am not persuaded in the present case either (i) that the demolition works must necessarily be treated as non-hazardous, or (ii) that (as the first defenders maintained) the "inherently hazardous" exception should not be held applicable in the law of Scotland at all. On the first of these matters, the pursuers by amendment offer to prove in terms that "....removal of part of the outer leaf of the southern gable wall was an inherently hazardous operation", and in addition condescendence 5 incorporates the British Standard Code of Practice which inter alia declares demolition to be a hazardous operation, stressing in that context the potential need for specialist advice and precautions where buildings to be demolished abut other properties. Here the buildings in question were more than 140 years old, forming part of a terrace in central Glasgow; the pursuers' building was six storeys in height including the basement; and in the whole circumstances I am unable to hold at this stage that the works could not, after proof, be classified as "inherently hazardous" for the purposes of the relevant exception. The mere fact that appropriate precautions might (as averred) have been identifiable cannot in my view automatically take the works out of the "inherently hazardous" category. Otherwise, as it seems to me, the exception could only apply to works so dangerous that they should never be attempted at all, and I do not believe that the true scope of the exception has ever been defined in such a restricted way. Like the pursuers in the recent case of Stewart, I consider that the pursuers here must be allowed the opportunity to prove the specific averments which they make in this connection.

[45] On the second matter, the Inner House in Stewart found it unnecessary to decide whether, notwithstanding a long tradition of acceptance, the Dalton exception properly forms part of the law of Scotland. However, the court there allowed a proof before answer on amended pleadings asserting that the removal of a load-bearing wall was "inherently hazardous", and taking account of that decision and of the textbook and judicial authority which preceded it I am not persuaded that I ought to take a different view here. To my mind, it is at least arguably a question of fact and degree, in the circumstances of an individual case, whether operations contracted out by an employer should be deemed so "inherently hazardous" as to import a continuing non-delegable duty of reasonable care. In the past, excavating close to the foundations of neighbouring buildings has been held to fall within that category, and in the present case there is in my view no basis on which it could properly be concluded, without proof, that demolition of a fire-damaged Victorian building in a confined space between other multi-storey Victorian properties must necessarily fall outwith the "inherently hazardous" category.

Nuisance

[46] Had condescendence 8 stood alone, with nuisance pled as the sole ground of liability against the defenders, it might have been appropriate to look strictly at the pursuers' averments seeking to establish "deliberate" or "reckless" conduct in that connection. As explained by the Lord President in Kennedy, each of these alternatives requires proof of a specific state of knowledge on the defenders' part, and on a strict technical approach it might be said that the pursuers' pleadings fall somewhat short of that requirement.

[47] Having said that, however, I am conscious that in RHM it was emphasised that "some degree of personal responsibility" would be sufficient proof of culpa; that the Lord President's observations in Kennedy were by way of example only, and cannot have been intended as exhaustive; and furthermore that condescendence 8 does not stand alone in this case but follows articles 6 and 7 in which cases of negligence are pled against both defenders. In my view these are factors of considerable importance here. The pursuers' omission to mention negligence as a form of culpa for the purposes of their case in nuisance is perhaps hard to understand, but even so I think that it would be altogether too technical to ignore the situation which would arise if, after proof, the pursuers' allegations of negligence were held established. In that situation, the element of culpa would not be in doubt, and with or without amendment it is surely on the cards that the case of nuisance would be sustained as well. Moreover, as regards the allegations of "deliberate" and "reckless" conduct, I am not persuaded that either can be criticised by reference to the "weaker alternative" rule. That rule only prohibits the pleading of alternatives where one or more of them would not lead to legal liability, and in present circumstances it seems to me that either alternative would, if proved, be sufficient for that purpose.

Overall conclusion on the merits

[48] For all of these reasons, I do not consider that the defenders' and third party's arguments in favour of dismissal are well-founded vis-à-vis any aspect of the merits of the claim. In that context, therefore, a proof before answer would in my view be the appropriate way forward.

The pursuers' averments of loss

[49] In my opinion, however, the averments in condescendence 9 are so grossly lacking in specification that they give no fair notice to the defenders of the nature and breakdown of the pursuers' claim. The averments of damage appear in the barest outline only, and even with the assistance of the appendix (6/1 of process) it is impossible to say how the works are supposed to relate to the damage caused, or conversely how the initial damage (at whatever level of the building) can possibly have warranted expensive remedial measures on every floor from basement to roof. As regards the loss of profit claim totalling nearly £1,000,000, the pleadings contain no worthwhile explanation of the manner in which that loss was incurred. It is said that the pursuers were excluded from the building for 31/2 years, but no detail is given of what they were doing instead. Were they doing nothing? Were they attempting to trade elsewhere? If so, was their business unchanged or were they trying something different? All of these questions remain unanswered, and with a claim so large and a period so long I do not regard this as acceptable. The claim is not related in any intelligible way to the pursuers' business either before or after the incident in 1999. Similarly, the basis of the averred loss of rental is wholly unexplained. No detail is given of the tenancies concerned, nor of the reason why the lessees were allegedly unable to occupy their respective parts of the building, nor of how the claimed sum of £128,500 is made up.

[50] For these reasons, I am unable to regard the pursuers' current averments of loss as sufficiently relevant and specific to go to inquiry along with the merits of the claim. It would, however, be unduly harsh to dismiss the whole action on that account without affording the pursuers an opportunity, if so advised, to remedy the situation. Very fairly, the defenders and third party did not take serious issue with the pursuers' suggestion of a By Order hearing in this connection, at least so long as all parties would have an opportunity to be heard. In my opinion, that is indeed the appropriate course to take in present circumstances.

Disposal

[51] I shall therefore appoint this case to call By Order, at a date to be afterwards fixed, so that (i) the averments of loss and, more broadly, (ii) future procedure in this litigation may be the subject of further discussion in light of the conclusions and findings set out in this opinion.