Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL & FIFE AT FORFAR Case Number: A168/09
	Judgment by DEREK O'CARROLL, Esq. Advocate Sheriff of Tayside, Central & Fife   in the cause RICHARD IAN GLEN Pursuer against   (FIRST) ANGUS Council AND (SECOND) TAYSIDE CONTRACTS Defenders ­­­­­­­­­­­­­­­­­________________

Act: Ms Wali, Solicitor, Irwin Mitchell LLP

Alt: Mr McLaren, Solicitor, Ledingham Chalmers, (first named defender) and Ms Fraser, Solicitor, Simpson & Marwick (second named defender)

 

 

FORFAR, 7 January 2013

The Sheriff, having resumed consideration of the cause:

 

FINDS IN FACT

1. The pursuer is the owner of 1 Woodside Road, Liff, Angus ("the property"). The property on its west side bounds Church Road, Liff ("the road") which runs roughly north/south. On that boundary is a wall which pertains to that property ("the wall"). Liff is an historic area in that it contains many old buildings including the property.
2. At all material times, the first named defender ("AC") was the local authority for Angus with statutory responsibility for roads and drainage including the road.
3. In or around August 2008, AC prepared plans for road and drainage works on the road ("the works"). The works included excavation of the footway and carriageway, replacement and removal of gullies, installation of a drain and thereafter resurfacing of the footway, carriageway and kerbing.
4. In October 2008, AC instructed TC to carry out the works. At all material times, TC was the main contractor employed by AC to carry out the works. TC is wholly owned by three local authorities, including AC, and exists to carry out works instructed by those local authorities.
5. The works were commenced by TC on or about Monday 26 January 2009. Prior to the works commencing, AC closed the whole road and erected barriers so that only TC and its contractor had access to the road.
6. At all material times, the works were conducted under the supervision and direction of AC. TC was not entitled to carry out any works or modify any planned works otherwise than in accordance with the plans prepared by AC and under its supervision and direction.
7. The wall is about 250 to 300 years old. It originally formed the external western walls of three traditionally constructed buildings located within the curtilege of the property but at some time before 1970, those buildings had their roofs removed leaving those walls effectively as the single western boundary of the property.
8. The wall is made from flat, coursed sandstone having a rubble and clay core and lime mortar pointing. The rubble core is secured with clay, not mortar. It is effectively a dry stone construction. On the road side, the wall is nearly 8 feet high; on the garden side, about 5 feet. It is about 22 feet long. That difference in height did not cause the wall to be unstable.
9. One part of the wall leant out slightly towards the southern end towards the road. That fact did not affect the stability of the wall.
10. It is substantial in cross-section: 18 to 20 inches. It does not have formal coping; instead it has flat stones on top encased in modern mortar which adequately substitute for formal coping. That substitute was in good order. There are few through stones, though that fact did not make the wall weak. The wall is properly coursed and well-pinned.
11. The wall was originally soundly constructed and had been well-maintained throughout its existence. That maintenance included regular and adequate repointing, removal of excess vegetation and minor repairs.
12. As at the beginning of 27 January 2009, there was only nominal vegetation growing out of the faces and no significant water penetration through the wall from either the top or any other part. It was entirely stable at that time.
13. The distance from the wall to the carriageway of the road was short, being about 18 inches, formed by a rough grass verge. There was, as at 27 January 2009, no pathway or footpath on the east side of the road. The wall therefore had little protection against activities on the road.
14. The wall was vulnerable to disturbance since it had shallow foundations, the foundation stones were visible and liable to disturbance, because of its age, its type of construction and proximity to the road carriageway.
15. Prior to the works commencing, the road and adjacent properties were inspected by Mr Sandy Garden for AC and Mr Brian Johnston for TC. Mr Garden did not believe that the wall was potentially vulnerable to the proposed works. He was mistaken in that belief. He did not instruct a survey to be carried out by a structural engineer to assess the state of the wall and its potential vulnerability to the roadworks. He did not put in place any precautions to safeguard the wall.
16. Mr Johnston noted the age of the wall, that it had shallow foundations and exposed foundation stones and was close to the road on which works were due to take place. He considered that the wall might therefore be vulnerable to damage due to direct contact with the foundation stones or disturbance to them from the works. He transmitted that observation to AC before the works started.
17. It was the responsibility of AC to decide what steps should be taken in the light of that information and to instruct TC, through Mr Johnston, accordingly. No such instructions were given to TC by AC before the works started.
18. Given the vulnerability of the wall which was or should have been known to AC, it would have been sound, good practice for AC to have instructed a pre-dilapidation survey to be carried out by a structural engineer.
19. A pre-dilapidation survey, if reasonably competently carried out, would have confirmed the potential vulnerability of the wall to danger posed by the proposed work. It would then have been good sound practice for AC to have amended its plans and instructions to TC so as to require TC, and all those working for it to take care when working in the vicinity of the wall and to take steps to protect the wall against activities which might disturb the wall, including its foundations. No such action was taken by AC.
20. The works commenced at the south end of the road proceeding northwards towards the property and the wall. In addition, on 27 January 2009, works were being conducted at the north end of the road, directly outside the property, near to the wall.
21. Those additional works consisted of a JCB digger ("the JCB") conducting soil moving operations on the road near to the wall. That JCB was working under the direct control of TC.
22. Those operations involved the JCB repeatedly raising and lowering the digger bucket. The bucket weighs many tons. In lowering the bucket, the JCB operator repeatedly and heavily banged the bucket against the road. That caused loud noise and vibrations. Those operations continued for at least two hours on that morning.
23. Mid-morning on 27 January 2009, two parts of the garden side inner skin of the wall collapsed into the garden of the property. One collapse, the smaller one, was at the north end of the wall. The other collapse, somewhat larger in size, occurred towards the southern end of the wall.
24. The reason for collapses of the two parts of the wall was the activities of the JCB. The repeated banging of the heavy digger bucket near to the wall for at least two hours caused vibrations to be transmitted, along the road, up through the foundations and into the wall which eventually led to the partial collapse of the wall.
25. The effect was to make the wall dangerous. There was no alternative but for the affected parts of the wall to be partially demolished to make them safe before repair could be effected.
26. On 5 February 2009, AC served a Dangerous Buildings Notice on the Pursuer, in terms of sections 29 and 30 of the Building (Scotland) Act 2003 requiring the Pursuer to repair and rebuild the wall; the work to commence by 10 February and to be completed by 3 March 2009.
27. The pursuer himself partially demolished the affected part of the wall at the north end and did no more than was necessary to make it safe and ready for rebuilding. Before he could carry out the same work on the larger affected part of the wall towards the southern end, AC carried out that work on the authority of said Notice around 10 March 2009. The partial demolition work by AC was no more than was necessary to make the wall safe and ready for rebuilding.
28. As a result of the initial collapses and subsequent partial demolitions, the pursuer has suffered loss being the cost of rebuilding the wall reasonably estimated to be £16,495 and the cost of reinstating the damage to his garden caused by the collapses and demolitions, reasonably estimated to be £900, making a total of £17,395.
29. If the wall had not been damaged by the JCB, there is no reason to believe that it would not have been capable of standing for the foreseeable future.

 

 

FINDS IN LAW

1. That the loss suffered by the pursuer occasioned by the damage and subsequent partial demolition of the wall was caused by the fault of the first defender in that it failed to take reasonable care to see that the wall was adequately protected against the foreseeable risks posed by the works including those activities which did in fact cause the collapse and that failure caused the whole of the damage to the wall.
2. That the second defender was not at fault and did not cause or contribute to said loss by its actions.

 

 

THEREFORE : Sustains the Pursuer's first plea in law under deletion of the words "et separatim nuisance caused by"; Repels the Pursuer's second plea-in-law; Repels the first defender's pleas-in-law; Sustains the second defender's second plea-in-law and assoilzies the second defender; Finds the first defender liable to make payment to the Pursuer in the sum of £17,395 (SEVENTEEN THOUSAND THREE HUNDRED AND NINETY-FIVE POUNDS STERLING) together with interest from the date of decree until payment; Reserves meantime the question of expenses.

 

 

.

NOTE

Introduction

1. In this action, the Pursuer seeks payment of £20,000 from the defenders, jointly and severally, for their alleged negligence et separatim nuisance which led to damage to his wall. The wall in question, owned by the Pursuer, forms the western boundary to part of his garden. On the other side of the garden runs a road, parallel to the wall, called Church Road which is found in the small village of Liff, located just to the north-west of Dundee City. Church Road and the wall run roughly north/south. Put very short, the pursuer says that the first named Defender, Angus Council ("AC") decided to do road improvements in Church Road and instructed the second named defenders, Tayside Contracts ("TC") to do the work. TC is wholly owned by AC and two other local authorities and exists for the purpose of executing contracts for inter alia road works for which its owners have statutory responsibility.
2. The Pursuer says that while the work was being done, part of the wall was initially damaged and as a result, partial demolition of the wall was necessitated and that the original collapse of the wall was due to the negligence of, ­et separatim nuisance caused by, the defenders. The sum sued for is said to be the cost of reinstating the wall together with a sum for inconvenience. The defenders each deny liability and in any event claim that the sum sued for is excessive. Their principal position is that there were no works being carried on near to the wall when it collapsed and in any event, the wall was unstable and liable to collapse at any time. They each have the usual preliminary pleas.
3. The case has had a somewhat lengthy history, the events in question having occurred in 2009 and the action commenced the same year. It is not necessary to go into detail here by way of explanation for the delay save to say that the pleadings underwent a considerable amount of adjustment and amendment at various stages including shortly before the proof before answer. It suffices to note that on 11 April 2012, the Sheriff fixed a proof before answer to take place on 10 August 2012 when the cause called for the first time before me. For various reasons, little took place that day although evidence was commenced. I fixed a further diet of proof before answer to take place from 3 to 7 December 2012 when the proof concluded. I heard from the following witnesses called by the pursuer: himself, his wife, Elizabeth Glen, Graham Bruce, Chartered Civil Engineer and Daniel Gentles, Chartered Civil Engineer. AC led Sandy Garden, Senior Road Maintenance Engineer employed by AC and Dr Rajen Lavingia, Civil Engineer. TC led only Brian Johnston, Project Agent employed by them. The Pursuer lodged 6 inventories of productions, and AC lodged only the report of Dr Lavingia. There were no productions lodged by TC. The parties entered into a joint minute which I have incorporated into my findings in fact, where relevant. At my request, the parties drafted written submissions at the close of evidence and spoke to them. I then made avizandum.

 

Summary of the Evidence

4. Elizabeth Glen. She is 68 and is a self-employed teacher of speech and drama. She is the wife of the pursuer. She and the Pursuer have lived together at 1 Woodside Road, Liff since 1970. The house, garden and outbuildings occupy the corner plot bounded by Woodside Road and Church Road. Church Road is sometimes used as a bus route and is regularly used by ordinary traffic. The wall in question forms the western boundary of the property. It runs roughly north/south as does Church Road. She identified the property and the wall in the photographs at 5/14 and 5/3. The wall is over 300 years old. It originally formed part of buildings, now de-roofed, leaving the wall as a boundary wall. The wall is about 8 feet high on the road side. It is shorter on the garden side because the garden height is higher than the road. She is 5 feet tall and could just see over the wall from the garden side. Part of the wall, roughly in the middle, had been repaired about 15 years ago. Apart from that, the wall was as it was when they moved into the house about 40 years ago. There was at that time, no footway or pavement on the road side of the wall, just a small grass verge. No footway was installed until after the events which are the subject matter of this action.
5. She and her husband had been notified by AC prior to the collapse of the wall that road works would be starting in Church Road. The wall collapse occurred on Tuesday 27 January 2009. For about two weeks before that date, the witness was aware of lorries using the road in connection with the road works.
6. On Tuesday 27 January 2009, sometime in the morning the witness was in her house at the rear in the garden room. She heard a lot of banging going on in the road on the other side of the wall. That banging had been going on for some time, for most of the morning. She saw a digger in the Church Road on the other side of the wall. She watched it from the garden side of the wall. She saw the "basket" of the digger being raised above the height of the wall and then being lowered again below the height of the wall immediately followed by repeated banging. The banging was metallic, the kind that occurs when metal is banged on stone. Although she could not see the lower part of the digger, she believed that the banging was caused by the basket being banged on the road on the other side of the wall. She remembered all this vividly.
7. Quite some time after she first began to hear the banging noise, she then heard a different sound, a sound like thunder. She looked out of the window and saw that two parts of the wall had fallen down. One part was at the northern part of the wall, close by the outbuilding she called the shed. The other, larger collapse, was further south where the inner leaf of the wall had fallen into the garden. She looked for the pursuer. She went out to the road. There she saw the digger in the middle of the road opposite the wall.
8. In photograph 5/3/9 [a photograph taken by Mr Bruce in February 2009], she can identify a line of soil in the middle of the road which was not there before the works started. In photograph 5/3/5 [ditto], she can identify digging works having been carried out on the west side of Church Road and bare soil in the grass verge which was not there before the road works started.
9. Richard Glen, the Pursuer. He is aged 69 and is a will writer. He has lived in the house with his wife for about 45 years. The wall was de-roofed and was now the boundary wall between his garden and Church Road. He had maintained the wall over the years. He had pointed the whole wall about three times in that time assisted by a neighbour who was a dry stone dyker by trade and another neighbour who was a handyman by trade. He had done the work whenever it needed to be done. About 15 years ago, part of the wall towards the northern end was repaired and strengthened with breeze block on the garden side. He removed vegetation as necessary. The wall was concreted and well-pointed. The concrete was on top of the wall which was complete and there was no evidence of water ingress through that part of the wall. He had checked that previously and no work needed to be done there. There was no inherent weakness in the wall. The garden layout had not changed since shortly after he moved into the house.
10. He was aware that AC intended to do work in Church Road. Works in Church Road had started some time before the collapse of the wall on Tuesday 27 January 2009. All of Church Road had been closed off with barriers which were sometimes removed to allow works vehicles entry to Church Road. There was no barrier against his wall though. On that date, he was in the house in a different part from his wife. He saw the arm of a JCB digger ("JCB") appearing periodically over the wall. The JCB was moving on the road outside the wall with its bucket visible over the wall before the bucket would be brought down. He heard banging as it did so. That was the first day he had seen the JCB in that area doing that kind of work. It went on for a couple of hours that morning before the next event occurred. He could not see what the digger was doing when the bucket was below the level of the wall on the road side.
11. He heard his wife call him. He saw two parts of the wall had partially collapsed. Stones were still falling as he looked. One part was to the north of the wall, the smaller collapse. The other part was further to the south. He went outside to the road. He saw that the JCB was emptying the bucket of debris on the roadside. He went to the driver of the JCB. He was moving earth from one side of Church Street to the other. He asked the driver to stop. The JCB was immediately outside his wall. Its wheels were in the middle of the road. It was facing the wall and had been doing work very close to the wall. He thought that the JCB had been removing earth from near the wall or putting it there. He thought that the grass verge immediately beside the wall had had more earth there before the works started and the JCB might have been removing it.
12. He asked the driver of the JCB to get someone to have a look at what had happened to his wall. He said he would speak to his supervisor and named Sandy Garden. There were two or three workmen near the JCB which was red and yellow. The JCB looked like the one in the photograph at page 34 of 6/1 [Dr Lavinga's report]. In his opinion, the collapse of the wall was due to the activities of the JCB. The wall had been well-maintained, had stood for over 300 years and had withstood other roadworks (resurfacing and installation of drainage channels) which took place in Church Street 10 years previously.
13. To his surprise, the works continued in that area that day and thereafter. He expected the head man or foreman to contact him but no-one did till the following Friday: 30 January 2009 when Mr Ritchie from the section of AC which dealt with dangerous buildings contacted him to say that a Dangerous Buildings Notice would be served on him soon because the wall was now unsafe. He told Mr Ritchie that the wall had partially collapsed due to the Council's road works and that he wanted the Council to reinstate the wall. Mr Ritchie told him that reinstatement and making safe the wall was the pursuer's responsibility.
14. A dangerous buildings notice was served on him by AC in terms of sections 29 and 30 of the Building (Scotland) Act 2003 on 5 February 2009 [5/6] requiring him to repair and rebuild the wall; the work to commence by 10 February 2009 and be completed by 3 March 2009. The notice advised him inter alia that if he did not do the work, AC might do so and charge him for it. The Pursuer could not afford to do so. He assumed that AC would do the work. He had email correspondence with AC's Mr Garden in which he told the Mr Garden that he held AC responsible for the collapse of the wall.
15. The Pursuer instructed solicitors sometime in February 2009 who in turn, instructed Mr Graeme Bruce, Chartered Surveyor and a partner with Fairhurst Partners to inspect the wall and report. This he did and his report dated 17 February 2009 is at 5/3 of process. The Pursuer sent this report to Mr Garden. Mr Garden visited his house, inspected the wall and told the Pursuer that the collapsed wall was holding up the roadworks and that if the Pursuer did not do the works specified in the notice, he would instruct the demolition of the affected parts of the wall the following week. That visit was around Friday 6 March, that is, following expiry of the notice. The Pursuer then enlisted his neighbour, the dry-stone dyker, to help him the following day to dismantle the smaller section of partially collapsed wall to the north, thus rendering it safe. The larger part of the partially collapsed wall to the south could not be done that weekend. He contacted his councillor and thought he had been given a stay of execution so as to enable him to complete the dismantling of the affected parts of the wall on the following Monday. He had been told also by a supervisor of TC that the notice would not be enforced till the Tuesday following.
16. However, on Monday 9 March, Mr Garden arrived on site, before the Pursuer could do the work himself. Mr Garden instructed and supervised the dismantling of the second affected part of the wall by means of the JCB. The result of these two works can be seen in 5/14(3) and 6/1/33. The Pursuer accepted that given the damage caused to the wall on 27 January 2009, partial demolition followed by rebuilding was inevitable.
17. As a result of the initial damage to the wall and the consequent partial demolition, he now needs to have the wall reinstated. Neither of the defenders will do it. In addition, the damage to the wall caused damage to his garden as a large amount of stone and debris fell or was knocked into his garden. He obtained estimates for the reinstatement of the wall and the garden work. At 5/18 is a quote for the cost of reinstating the wall from Mr Eddie Collier in the sum of £16,495. That quotation is on the basis that AC, who took away the stone following partial demolition, still has it and will return it. If it does not, the cost would be higher. At 5/17 is a quotation for the garden work in the sum of £900, making a total of £17,395. These works, if done, would put the wall and garden back into the same state as they were immediately before 27 January 2009.
18. Graeme Bruce. He is aged 46 and is a Chartered Civil Engineer. He has a BSc in civil engineering and is a member of the Institution of Civil Engineers. As regards his experience, he worked at Ove Arup and Partners, a firm of civil engineers both while at University and after leaving University in 1989. His work was then in Dundee and he specialised in old and traditional buildings. In 1995 he joined a specialist consultancy concerned with restoration of old buildings and was there for 51/2 years. He then joined Fairhurst Consulting and Civil Engineers 12 years ago as a technical director before becoming a partner of that firm 6 years ago. His work there has been mainly concerned with old buildings but he has also had experience there working on new buildings.
19. He has had some experience on works concerned with roads. In the early 1990s, he worked for 21/2 years on site with Borders Direct Labour Organisation doing road works as a resident engineer. The firm is a consultant to Dundee Council (one of the co-owners of TC) and some Fairhurst staff have been seconded there in connection with roads maintenance. He also has also during that time been engaged by the second defenders as a civil engineer in connection with roads in Dundee and the Tay Road Bridge. More recently, he has carried out site inspections in connection with road building and maintenance. In Easter 2012, through Fairhurst Partners, he was engaged to work with TC and Dundee Council in connection with roadworks (widening of the road and installation of new verge and footway) on the Dykes of Grey road which runs from the Swallow Hotel on the western outskirts of Dundee to Liff. He was personally engaged in supervising that work. He has never worked for a local authority, government department or TC as an employee.
20. His firm was instructed on 16 February 2009 to carry out an inspection of the wall. He did all the work personally. He carried out the inspection on 17 February 2009. He produced a report which is found at 5/3.
21. His opinion on the structure and condition of the wall is as follows. It is 250 to 300 years old. It originally formed part of the structure of outbuildings which were then de-roofed so that the wall then became the boundary wall for the property bounding Church Road. It functioned well as such. The wall must have been soundly constructed and maintained to have lasted as long as it did. The wall was sensibly vertical and no major defects were noted apart from exposed foundation stones on the road side of the wall. The foundations are therefore shallow and likely to be co-incident with modern day road levels. His sketch at page 14 of his report shows the position of the foundation stones. These are slightly above the road level. The foundation stones were visible through the grass verge.
22. The wall is made from flat, coursed sandstone with a rubble and clay core and lime mortar pointing. The rubble core is secured with clay and not mortar. On the road side, the wall is nearly 8 feet high; on the garden side, about 5 feet. It is about 22 feet long. It is substantial in cross-section, 18 to 20 inches. It does not have formal coping; instead it has flat stones on top encased in modern mortar. There was moss in top of the wall which was evidence that the substitute for the formal coping was performing adequately. There was little evidence of through stones. However, the wall was properly coursed and well pinned. The grass verge on the road side is about 18 inches wide. The wall appeared to be well maintained. The pointing was in fair order. The joints were tight and well-maintained. There was only nominal vegetation growing out of the faces, a sign of regular maintenance. There was distinct lack of plant growth in the collapsed core. There was no evidence of water penetration through the wall from the top or any other part. If there had been such water penetration, he would have expected to see evidence of that such as leaching through the lime mortar on the faces of the walls: there was none. However, he accepted that it was not inconceivable there was some internal dampness. It could not be ruled out completely. If there had been water penetration, it may have caused marginal swell and disruption of the wall which if so, would have affected the stability of the wall. However, in his opinion, if there was water penetration, that was not a substantial contributing factor, it would only have been minor. He noted that at the southern part of the wall, identified in photo 8 of Dr Lavingia's report, the wall appeared to be leaning slightly out of vertical. Nonetheless, he had no concern about the stability of the wall as a result since these types of old wall can lean quite significantly without danger due to their construction type
23. As regards the cause of the collapse, his opinion was as follows. Given that the wall had behaved normally for a long time, that it had been well-maintained, was not in disrepair, he concluded that the cause of the collapse was due to an external force. That external force could have been due to road works being carried on one side of the wall. That external force could have been an accidental hit to the wall. It was "definitely probable" that the external force was the banging of a digger bucket repeatedly on the road outside the wall. Banging of a digger bucket, if done close to the wall, would result in vibrations being transmitted along the ground to the foundation stones and up the wall. That was a much more likely cause than a bus or heavy lorry or vehicles since such vehicles had been using the road for many years without such a collapse of the wall. It was conceivable that something had happened which amounted to the straw that broke the camel's back, but that was unlikely. It was not inconceivable that construction traffic in general was the cause. In theory, the collapse could have been due to a combination of factors. However, in his view, unless there had been an external factor different from the usual, there was no reason why the wall would have collapsed.
24. As regards what steps he would have expected AC and TC to take in preparation for the roadworks his opinion was as follows. AC is the client and it would instruct TC to carry out the works. AC would prepare the works order and AC would carry it out. In preparation, TC would do its own survey of the works area and so would TC. AC would normally prepare a survey of the works area setting out the works to be done. Each party would also prepare a health and safety plan setting out any considerations to be taken into account before and during the works. That would be done in writing. TC would further develop the health and safety plan once it was received from AC. AC is the overall co-ordinator.
25. During the survey of the works area in this particular case, he would have expected AC and TC to understand that the village of Liff is a historic village, meaning that it has many old buildings and has a congested medieval roads layout. He would expect the survey to pay attention to buildings and structure close to the carriageway and look at any wall remnants and roofless buildings and check how close any adjacent walls were to the carriageway. He would have expected the survey to be in writing. He would have expected such a survey to recommend the installation of concrete protective measures to the footway to be installed to protect the wall. He would also have expected a recommendation to control the type of construction plant and construction operations near the wall.
26. Given the historic nature of this part of Liff, he would also have expected a dilapidation survey on properties adjoining the road on which the works are to proceed before the works start. Such surveys are done to record the condition of adjoining property with a view to protecting the client's interests against spurious claims which are sometimes made by adjoining proprietors. They are also done so that private property may be protected against harm from the works. A dilapidation survey would record the condition of properties bordering the road and footways and he would then expect action to be taken as regards anything noted in that survey. The proposed work may be modified to take account of the material in the survey. Such surveys are commonly done and it is good normal practice to do so. Such a survey would have involved looking at both sides of the wall. He had not seen any such survey having been done in this case. He would have expected an engineer from AC do walk the route doing that survey.
27. Such a survey would have noted the historic nature of the wall and therefore the need to take care. It would have noted the position of the foundation stones. It would have been sensible to protect them so as not to disturb them so as not to threaten the stability of the wall. The foundations were vulnerable and therefore could be damaged by the proposed works. Such a survey would not have noted the wall was disrepair since it was not so.
28. The proposed construction of the footway and drainage works next to the wall would have required certain preparation. He would expect a machine to clear a channel line and lower the existing verge removing excess soil. Then an edge would be cut for the carriageway by machine and also a trench before the installation of the pathway and kerbstones. Photograph 5 in his report appeared to show that soil had been dragged from the west side of Church Road to the east, by the wall.
29. He was taken to the report of Dr Lavingia at 6/1 of process and gave his view as follows. He did not agree with much of the report. He noted that Dr Lavingia had never inspected or examined the wall. Dr Lavingia was highly qualified but he questioned his lack of experience of vernacular building. At page 3, Dr Lavingia assumes that the wall was built with lime mortar. It was not: rather there was lime pointing on the edges of the wall which was built of stone and clay with lime mortar pointing and therefore substantially a dry stone wall construction. He disagreed with paragraph 4.1.1 that the inner skin of the wall lacked verticality. The witness saw the wall after the collapse, Dr Lavingia had not seen the wall at all and neither had seen that part of the wall before the collapse. The reference in that part to "good quality mortar" to bind the wall together is wrong since the wall was built without mortar to bind it together. The mortar in any stone wall of traditional construction acts as a filler, not a bonder: it stands by stone-to-stone action. The mortar is to protect against the weather.
30. As regards paragraph 4.1.3 with regard to water penetration, he saw no evidence of such and furthermore, the repeated reference to the effect on mortar of water is wrong in this case given what he has said about the construction of the wall. He accepted however that in general terms, what was set out there was a reasonable description of what might happen to some walls in general.
31. As regards Dr Lavingia's views at paragraph 4.3 and 5.3 regarding the general instability of the wall, he was very surprised since he had inspected the wall twice and saw no evidence of instability and Dr Lavingia had never visited it. He disagreed with Dr Lavingia's view that the wall would in any event have collapsed. In his opinion, it would still have been standing.
32. As regards paragraph 4.3 and Dr Lavingia's five factors which he said contributed to the lack of structural integrity and the instability of the wall, he disagreed with all five: in his view, having inspected the wall, none of the five factors set out there (general condition, lack of verticality, vegetation, water, unbalanced ground pressure) were a factor in the collapse of this wall. As regards lack of throughstones, while in general, a wall with throughstones will be stronger than one without, it does not follow that one without makes a wall weak. As regards photograph 1 at page 30 of Dr Lavingia's report, he accepted that it showed some grass roots hanging down into the void but could not say whether they had grown down or fallen down after the collapse. Photograph 2 looked as if it showed part of a tree sapling but it appeared to be at the southern end of the wall which he did not examine. He accepted that any vegetation growing through a wall would be detrimental. He accepted that at the time of his inspection, no pavement or kerbstones had been laid beside the wall. However, in his opinion, his photograph 2 of his report showed that work had occurred near the wall since it showed fresh soil which looked as though it had been scraped by a machine, perhaps to create a channel for rainwater.
33. Given that the wall had partially collapsed, the wall required to be taken down in the affected areas and then rebuilt by a stonemason. The wall was unstable following that partial collapse and the work needed to be done quickly. However, he thought that the timescale given in the Dangerous Buildings Notice was much too short.
34. Daniel Gentles. The witness is aged 55. He is a chartered civil engineer. He graduated from Glasgow University with a civil engineering qualification in 1979 and then began work with Ove Arup where he eventually became a partner. There he worked on a variety of construction types including new build and refurbishing of old buildings. He spent a period of work with the second defenders as project engineer from 1994 to 1996. That position was equivalent to that of the manager of TC in this case. He worked for 5 years as Network Team Leader for the Tay Premium Trunk Road Unit the function of which was to maintain roads. There he prepared contracts on roads and had those contracts carried out. Those duties included dealing with health and safety matters, preparation of the outline plan, supervision on site and sometimes control of labour. For 4 of the 5 years that he was in that position he was on site every day. He also worked as the Operations and Winder Maintenance Manager for the North East Trunk Road Unit. There he was involved in many road maintenance projects and worked with four local authorities in a consortium. He worked for two years in Bear Construction as Operations Manager dealing with roads matters. After a spell with a consultancy, Ellen Henderson, he joined Fairhurst and Partners and held the title Technical Director. There, he carried out a variety of work including work on Union Square in Dundee and work with Total, the oil company. That firm had been instructed by TC as regards roadworks in Perth Road, Dundee. He also had experience there of carrying out surveys before road construction works in major water board works in Broughty Ferry. Although at the time he was first involved in this case he worked for Fairhurst and Partners, he has since moved on and works for a consultancy, still practising as a civil engineer. He has 32 years experience in the construction industry.
35. Fairhurst and Partners was instructed to carry out a further inspection of the wall by agents for the pursuer following that carried out by Mr Bruce and to further report. That was done by him and he produced a further report dated 22 July 2011 which is found at 5/4 of process. He also inspected the wall again on 10 August 2012 before an earlier hearing in this case. He adopted the report as part of his evidence. He also had sight of the report by Mr Bruce, the contents of which he agreed with in full. His conclusions are however based on the material in his report and his own examination of the wall and his own professional knowledge and experience. His conclusions are given at page 2 and 3 of his report in paragraphs A to H. Those relevant to this case can be summarised as follows.
36. A responsible roads engineer, employed by AC, should carefully examine the extent of any proposed works as part of the design and definition of the works. Part of that process is to ascertain whether or not any adjacent property could be adversely affected by the works. The purpose is twofold: to protect the interests of the employer and contractor against spurious claims by adjacent landowners but also to see that measures are taken to see that the proposed works do not cause damage to adjacent property.
37. In this case, it was obvious that the boundary walls of 1 Woodside road, Liff, on the Church Road boundary, were old, that the foundation stones were visible at road level, that the verge was narrow and the wall therefore close to the wall and that the wall could reasonably have been expected to be vulnerable to vibration arising from normal roadworks. The wall should have been listed as a hazard so that measures could be put in place to avoid possible damage to the foundations or to the wall from it being struck. A roads engineer would not normally be expected to deal with fragile existing stone retaining walls and assistance would normally be sought from the in-house structural engineers of AC. If that assistance had been sought, it is reasonable to expect that the structural engineer would have carried out a pre-dilapidation survey, liaising with the property owner on control measures or advance strengthening works to the wall. The responsibility for preparing a pre-dilapidation survey is on the client, in this case, AC.
38. In any event, during the preparation of the pre-construction health and safety plan, which is a legal requirement, it would be reasonable to expect the condition of adjacent properties to be described and highlighted as a hazard if such exists. A competent main contractor would survey the works area before starting work and seek instruction from his client (in this case AC) should any previously unforeseen hazard come to light, such as a fragile retaining wall located close to the road on which works were to be carried out. That situation is not uncommon, as opposed to frequent. This wall should have been specified in the health and safety plan by AC for the benefit of all concerned by the proposed works.
39. Once the surveys have been done, the information in them should be passed from the client to the contractor and thence to those working on site, including "the man in the cab" so that all working on the project are aware of the results of the survey.
40. In this case, it can be seen from photograph 5 of the report by Mr Bruce that even five days after the partial collapse of the wall, no measures had been put in place to protect it.
41. In his view, neither AC nor TC recognised the wall as a hazard. The wall collapse was likely to have been the result of works nearby. The wall was not cordoned off, the works were done in the wrong place and the wrong manner. Although he felt strongly that the rights of the Pursuer had been ignored (including events subsequent to the collapse of the wall and the way in which the Dangerous Buildings Notice was implemented) that feeling had not interfered with his technical judgement.
42. As regards the cause of the collapse of the wall, he agreed with Mr Bruce as regards the condition of the wall at the time of collapse. In his view, given the condition of the wall, that it had stood for 250 to 300 years without collapse, and that there were works proceeding near the wall (as he understood the position to be) it was likely that those works were responsible for the partial collapse of the wall. However, he accepted that if, as each of the defenders claimed, there were no works in progress close to the wall at the time of the partial collapse and that the only works proceeding were being conducted some 60 to 80 metres away, those works could not have been responsible for the partial collapse.
43. Sandy Garden. The witness is aged 67 and retired in September 2009. He was employed as the senior roads maintenance engineer with AC. While employed at AC, his senior was the roads maintenance manager. He was four levels down in the hierarchy. He began work with AC in 1982 and was promoted to his position in 1999. Before 1982, he had 13 years experience as an engineer. He did not go to university but studied on day release obtaining a certificate in civil engineering at the institute of technology in 1970. His main experience since 1982 has been in civil engineering, particularly road works.
44. He was the roads maintenance manager responsible for the Church Street works. He identified the works to be done and appointed staff to design the work. He had the overall responsibility for supervision of the work. He was on site once or twice per week. He was assisted in the supervision of those works by a graduate engineer and a trainee. The works were resurfacing of the road, installation of a footway, and drainage improvements. The works were along the whole of Church Street from the top at the junction with Woodside Road to the bottom. Church Road is unclassified but is nonetheless an important thoroughfare with buses, commuter traffic and possibly agricultural machinery among the users. The road is relatively narrow so the whole road had to be closed from the Woodside Road junction to the bottom for the works to be done. It was closed for about a month.
45. AC instructed TC to do the works. AC had had hundreds of contracts with TC for such things. TC was originally a Direct Labour Organisation for the local authority. Before the works were instructed, it was necessary to inspect the whole road and drainage. That was done by him and other staff. It was also necessary to look at the adjacent properties and their condition to see whether they gave cause for concern. If any problem was identified, that would need to be flagged up. The purpose of such inspections was to protect AC against false claims and protect the safety of those on site.
46. He recalled looking at property at 1 Woodside Road. There was nothing there that gave him any cause for concern. The wall bordering Church Street looked sound. There were also photographs taken at the time by someone from TC. It had the role of photographing anything like that. TC "is an arm of the Council". Anything which indicated a potential problem would be written down, but not otherwise. A pre-dilapidation survey involves having a look at buildings adjacent to the site and picking up anything that may cause concern. It is usually done by TC. It is standard procedure to take photos of walls adjacent to the site and check for things like cracks. AC would take photographs of anything we thought relevant and TC would do a more specific set of photographs of boundary walls and that sort of thing. He did not see a problem with the foundation stones. If TC had noted a problem with the wall, he would not expect that they would alter the work programme without telling him first. The work programme was his responsibility. The foundation stones were not relevant to any potential problems on site in his view.
47. The order to do the work was given to TC in the usual way, by an order with a bill of quantities. Once the contract was given to TC, his job was to supervise TC even though TC is separate from AC and has its own management structure. TC drafts a programme of works which AC checks and then gives authorisation to TC to proceed. Church Road was closed from January onwards. From that time, only authorised works vehicles were permitted on the road which would be AC's vehicles or its contractors.
48. He first became aware of the collapse of the wall when he received a phone call to tell him. He then instructed his graduate engineer to find out what had happened. He spoke directly to the Pursuer and met him on site on the following Monday [2 February 2009]. He viewed the wall. There was nothing visible from the road side of the wall. Referring to the plan at page 28 of Dr Lavingia's report, 6/1, he disagreed with what it showed. There were two sections of the wall that fell, not one and the collapse was further south. The main section of collapse was several metres long.
49. The wall on inspection was different on each side. The road side had been pointed more recently than the garden side. There were not many tie stones. The road side was faced with cement mortar which was impervious. The wall did not have capping so rain water could get in and no exit on the roadside leading to greater deterioration. There were plants on top penetrating the wall to a considerable distance. There was vegetation, being roots, in the part of the wall that had collapsed.
50. He arranged the wall to be inspected by colleagues in AC as the wall was in his view now dangerous. He sought service of a dangerous buildings notice which was done in early February. As a minimum, given the partial collapse of the wall, it needed to be taken down and stones removed from site. He wanted the minimum amount of wall to be taken down to make safe. But nothing was done by the Pursuer following service of the Notice. He had phone and email contact with the Pursuer during this time. He offered on the part of the AC to take down and make safe the wall and to remove and store the stones. The Pursuer refused that offer. Following expiry of the notice, he arranged for TC to partially demolish the affected parts of the wall.
51. He attended personally on the Monday and he personally gave the instructions to TC workers to take down part of the wall, being the minimum necessary to make it safe. He directed which parts of the wall were to be taken down and those parts were only the parts of the wall affected by the initial partial collapse. The part of the wall which was demolished was the larger part at the southern end of the wall. 6/1 of process at page 33 shows the part of the wall that he instructed to be demolished after demolition. He agreed with the recommendation of Mr Bruce as regards the rebuilding of the wall by a stone mason. His role however was only to make safe.
52. As regards the work that was ongoing on 27 January 2009, he was not on site at all that day. However, he could say from his knowledge of the way that the work was progressing that the works were proceeding northwards up Church Street and had not yet reached that part of Church Street adjoining the wall. The works were about 40 metres from that point. The works that were planned to be done adjacent to the wall was to bring surface drainage up to the Glen property on the other side, installation of kerb stones and resurfacing on the carriageway. There was no work carried out at the grass verge. The bare ground on the verge was probably caused by vehicles driving past.
53. Surplus soil generated by digging of trenches would normally be taken off site. But some might be stockpiled temporarily on-site. It is possible that occurred on this site. The movement of the soil would be done by a JCB.
54. Brian Johnston is a TC employee with a supervisory function. He did not remember any discussion with Mr Johnston about the wall before the works started although he accepted that there may have been with either him or his assistants who had more day-to-day contact with Mr Johnston.
55. As regards Mr Gentles report, he agreed with what Mr Gentles said there as regards the duty of a responsible roads engineer to inspect. He said that that was done. However, he did not see the need for a structural engineer to have been employed to do that survey. AC does employ such people. AC's policy is that if the garden ground was higher than the road side, the wall is the sole responsibility of the proprietor. He agreed with paragraph C of that report as regards the need to identify any potential hazards: however, there were none at the time of the survey as regards the wall in his view. The collapse did not happen as a result of the roadworks. He accepted that it was quite possible that as the Glens said, there was a JCB outside their wall on Church Street at the time of the collapse. However, in his view, there were no works going on at that point at that time. He was not on site at that time.
56. As regards Dr Lavingia's report, photograph 1 at page 30 shows the wall following partial demolition. It shows that bushes or vegetation have seeded themselves in the wall with roots of one metre. He did not take the photograph or any of them in that report. In photograph 8 can be seen a JCB and van belonging to Delson, the sub-contractors. That is possibly the JCB referred to by the Glens. His reference to soil and the JCB is possibly a reference to excess soil having been taken from the trench. As regards paragraph 4.3 of the report (causes of collapse) he agreed: that there was vegetation on the wall and that there should have been a capping stone to prevent water ingress. However, contrary to Dr Lavingia's report, the fact that the garden side was higher than the roadside would not have caused a problem: that was not a factor in the collapse. Furthermore, the fact that part of the wall was out-of-true would not have caused a problem
57. Brian Johnston. The witness is aged 62. He was the project agent, or site manager, on the Church Road site. He left school in 1968, joined a firm of contractors and attended college on day release in Dundee. He has passed the Building Technicians Course. He worked for Crudens, Taylor Woodrow and Balfour Beatty of a range of major building contracts. He worked for Tayside Region from 1982 to 1988. He joined TC in either 1989 or 1992 and works for them still. He reports to the East Works Manager who reports to the Director of Construction at TC. His building experience includes working on motorways, footways, drainage and anything required to maintain the roads network, mainly in Angus.
58. The contract at Church Street was awarded to TC. AC has overall control of the works from start to finish. It provides all drawings and instruction, supervises and controls TC. Graeme Garden and one of his two young assistants are his main points of contact with TC. There was no clerk of works from AC on site. Instead, Mr Garden's assistants were there. He was on site every day.
59. Before work started on the Church Street contract, he met with Mr Garden and they walked the site looking at traffic and access problems. After that, he again walked the site looking at things adjacent to the site. He looked for damage to adjacent buildings "because people are always trying it on". He has heard of pre-dilapidation surveys but has never seen one being done and had never been required by AC to do one: that would not be within the remit of TC. He agreed with paragraph D of the Gentles report [contractor to survey and notify client of hazards].
60. He noticed the Pursuer's wall had no coping and had vegetation on it. The road side was well pointed and had been done 2 or 3 times over the years to maintain its integrity. It was definitely old and had once been a gable end. It was leaning out a bit, perhaps 100mm. It had no cracks or fissures on the road side face. Overall the wall looked in decent shape. He had at that point no reservations about the wall.
61. But he noted also that the wall was not built on foundations but had only foundations stones. They posed a danger since if the foundation stones were caught, it might bring the whole wall down. Therefore he thought it better to put the kerb out at that point to avoid that danger. He saw that there was a risk in working too close to the wall. The risk was both that of physically moving, or otherwise disturbing, the foundation stones. He notified AC of this observation so it could decide what to do. It may have been one of the young assistants he notified. However, he heard nothing further from AC about this observation before the wall collapsed. AC had had plenty of time to get back to him about this. Following the collapse of the wall, the line of the kerb stones and track was altered to run further away from the wall, on his recommendation.
62. He was not on site at the time that the wall collapsed. However, his view was that there were no works being carried out close to the wall before it collapsed. He arrived later that day. The foreman, Jim McVey, told him about it and said that a guy had come down the road to say that the wall had collapsed. The area where the works were being carried out was 60 to 80 metres away from the wall at the time of the collapse.
63. As regards photograph 8 of Dr Lavingia's report, that shows the left side of the wall. It also shows "our plant digging the road". The tyre tracks in the mud are probably from vehicles trying to get past "our plant". That plant (a van and the JCB) was owned by Delson, their sub-contractor. He did not take the photograph but thinks it was taken the day after the collapse. The bare soil on the grass verge by the wall was probably caused by passing vehicles.
64. Following the collapse, all action thereafter was the responsibility of AC, such as demolition of the wall. TC just took instructions from AC.
65. He accepted that a JCB would be used to move soil. JCBs are standard kit for this kind of work. He accepted also that if soil stuck in the bucket, it would require extra force to dislodge it. That would be done by extra force, by striking the ground, but all that would cause was a noise, a clang. The buckets are very heavy, they weigh quite a few tons. You would not want to use much force, you would not want to wreck the bucket. In his view, the JCB banging its bucket on the road surface would not have caused the wall collapse. The JCB shown at page 34 of 6/1 was the only JCB on site. It was Delson plant, which was under the control of TC.
66. Dr Rajen Lavinga. He is aged 38 and is employed by Cadogan International, based in Glasgow as a civil engineer. He produced a report dated August 2001 on the wall which is found at 6/1 of process. Appendix A contains his curriculum vitae. Summarised, it show that his doctorate is in philosophy. He has engineering qualifications from American and Indian universities. He is a member of the Institution of Civil Engineers. His employment record dates back to 1998 when he was employed as a structural engineer in USA, from 2000 as a project support consultant in USA, from 2002 as a senior structural engineer in India, from 2006 as a research assistant in the concrete technology unit at Dundee University, from 2009 as senior engineer, (then team leader in the civil and structural division), with Cadogan International. He has no experience or knowledge of Scottish vernacular building although he has some knowledge of traditional Indian building techniques.
67. He was first instructed by Ledingham Chalmers in November 2010. He did not inspect or examine the wall before he prepared his report ten months later in August 2011. The day before he gave evidence, he made a detour to visit the wall in the mid-afternoon, "out of curiosity". He did a walk past the wall a few times on the street side on that occasion. Instead of an inspection and making his own investigations, he relied in the preparation of his report on Mr Bruce's report, photographs supplied to him by the defenders (who jointly instructed him), the Record as it stood on 7 June 2010, a statement by the witness Brian Johnston and an undated photograph taken from Google Maps. His report is also predicated on a number of assumptions set out in paragraph 2.2 of the report. The second assumption is that the type of mortar used in the construction of the wall was a lime mortar. His oral evidence confirmed that that was his assumption and that by that, he assumed that when constructed, lime mortar was used to bind the whole of the wall, including the inner core, together so as to make a single unit.
68. At paragraph 4.1 he sets out his review of the report by Mr Bruce. As he understood it, there was no coping which would therefore allow water penetration into the wall and subsequent deterioration leading to destabilisation. The lack of tie stones was important. The differing level of ground on either side of the wall was destabilising adding pressure to the wall. He criticised Dr Bruce for only noting the existence of visible foundation stones but not investigating the depth of the foundations. As regards vibrations, he accepted that vibrations close to the wall could bring it down, but only if it was unstable to begin with. A sound wall would not react that way. Vibrations 80 metres away could have no effect.
69. At paragraph 4.2 he sets out what in his view were the possible causes for the initial collapse of the wall. In his view, any one of the following, or any combination, could have led to the collapse. He was quite unable to apportion blame between the possible causes in percentage terms. Those possible causes were: (1) the wall being unstable; (2) vegetation growth; (3) water ingress; (4) unbalanced ground pressure; (5) the weather; (6) roadside disturbance. These findings derive from the material he was provided and the deductions he drew from that material.
70. At paragraph 4.3 he considers the question as to whether the wall would have required rebuilding or substantial repair in the future. Referring to factors (1) to (5) above, he concludes that regardless of the road works, the wall would have required such work within a few months in any event. He adhered to that view when giving his evidence.
71. At Appendix B, he added a diagram showing inter alia that he believed that the section of the wall that had collapsed was at the northern end, by the roofed structure (or barn) with a separate section, to the south which had been dismantled by AC. He adhered to that view in evidence.
72. Some photographs were provided by the defenders. He did not know who took them or exactly when. Others were taken from Mr Bruce's report. The captions are his. He disagreed with Mr Bruce's view that the wall was generally sound before the collapse.

Submissions

73. I asked the parties to provide me with written submissions on the evidence and the law and to speak to them when the time came for submissions. I must record my thanks to each of the three agents for their having done so, and quite fully, within a very short period. Given that the submissions were reduced to writing, and copies passed to all concerned and lodged with the process, I hope I will be forgiven if I decline at this stage to record them in any detail. I see no need to do more for the purpose of this judgment than to note the principal contentions of each party.
74. First however, I should also say that I was referred to a considerable quantity of case law by the parties most of which is referred to in their submissions. I have considered all those authorities, copies of which were also kindly supplied to me by agents and I am obliged to them for their industry. However, in the event, I have found it unnecessary to make reference to the case law to which I was referred in this judgment since in the event nearly all of the disputed matters turned on an examination of the Record and the evidence and once the facts were established, in my view, no unusual, no unusual points of law arose of the type dealt with in most of the cases to which I was referred.
75. Pursuer's submissions. On the facts, the defenders owed a duty of care to the pursuer to take reasonable care to see that his wall was not damaged by their works. The defenders were jointly and severally liable in negligence through, failure to properly survey the area before carrying out the works and taking measures to avoid reasonably foreseeable harm to the Pursuer's property. If the planning and survey work had been properly done, the risk would have been noted and steps taken to avoid that risk, such as by not working too close to the wall. The damage that occurred was reasonably foreseeable. The subsequent partial demolition was a foreseeable consequence of the initial fault and the loss caused by that event flowed naturally from the initial fault. Furthermore, the action of the second defenders in knocking down the wall in the way they did was nuisance and plus quam tolerable. On a balance of probabilities, the cause of the initial collapse was the vibrations caused by the JCB banging its bucket. In any event, res ipsa loquitor. The damage was foreseeable. But for the failure of the defenders to properly survey and take appropriate action, the damage would not have occurred. The loss is adequately brought out in the estimates spoke to by the Pursuer and are up to date. No claim for inconvenience is made. Interest should be awarded from the date of decree. I should sustain the Pursuer's first plea-in-law, repel those of the defenders and grant decree in the sum of £17,395.
76. First defender's submissions. The evidence of the defenders' witnesses should be preferred to that of the Pursuer's witnesses. The Pursuer's case on record against the first defenders alleges a duty to take care as regards works near the wall which goes too far. In any event, the evidence does not support such a duty. Further, the evidence was that physical disturbance of the foundation stones rather than vibration would have been the danger. The duty to carry out a pre-dilapidation survey on Record is said to be a duty on the second defenders but now the Pursuer argues that such a duty was on the first defender also, for which there is no Record (although Mr McLaren accepted candidly that there had been a considerable amount of evidence on just this point, unobjected to by anyone). In any event, such a survey was done and the wall was assessed as sound which was a fair finding. The evidence showed that duty to assess which parts of the wall required subsequent demolition and only demolish those parts was fulfilled. There was no nuisance and res ipsa loquitor had no application on the facts here. The collapse of the wall could not have been attributable to the works since at most they occurred 40 metres away and all agreed that at that distance, no collapse of the wall could have occurred. Rather, Dr Lavingia's report showed that there were many other reasons why the wall could have collapsed without fault on the part of either defender. As regards quantum, there was no sufficient evidence. The makers of the invoices had no been produced. The invoices on the face of them were lacking in specification. I should repel the Pursuer's pleas-in-law, sustain the first defender's pleas-in-law and grant decree of Absolvitor in favour of the first defender with expenses, and certify Dr Lavingia as an expert witness.
77. Submissions for the second defender. The duty alleged against the second defenders to follow normal and accepted practice as regards banging and scraping of the JCB bucket is irrelevant. The averments regarding the pre-dilapidation survey lack specification. In any event, the Pursuer fails to establish on the evidence any breach of these duties. Moreover, the evidence shows that the man in the JCB was a Delton employee, not an employee of the second Defender (although it was accepted that there was no case on Record to that effect). As regards the pre-dilapidation survey issue, there was a difference in view between the witnesses as to what that was and whether one should have been instructed. Given that difference in view, one could not conclude it was a standard practice. There was room for genuine differences in practice and absence of such a survey was not necessarily negligent. In any event, failure to follow normal practice is not in itself negligent, only evidence from which negligence may be inferred. The Pursuer's expert witnesses were not suitably qualified to speak on the practice of preparing such surveys in the context of the roadworks in question. In any event, the evidence showed that had such a survey been carried out, it would have made no difference.
78. As regards causation, Dr Lavingia's evidence shows that in any event, the wall would soon have fallen anyway: there is either no loss or the loss is minimal. The Pursuer failed to mitigate his losses after the initial collapse and in any event, the further damage caused to the wall after the initial collapse was too remote from the initial cause. As regards quantum, the evidence was insufficient to enable accurate assessment of any loss. Finally, even if there was negligence arising from the negligent banging of the JCB bucket causing loss, that was done by Delson, subcontractor of the second defender, for whose negligence the second defenders are not liable.

Discussion

79. The witnesses. As regards the pursuer and his wife, Mrs Glen, I find that they gave their evidence in a manifestly open and honest way. Their evidence was lucid. I had no difficulty in accepting their evidence as being wholly reliable and credible.
80. As regards Mr Graeme Bruce, I found him an impressive witness. He is a well-qualified civil engineer. He has experience in working as a consultant to the defenders and a variety of other bodies. His evidence was given in a clear, precise and calm manner. He spoke with authority on the matters put to him. He was not prone to exaggeration but instead provided the Court with his views in a measured way taking proper account of what was put to him in cross-examination and carefully dealing with such matters. His evidence took about a day and he was subjected to detailed cross-examination without any significant denting of his expert opinion. He has a considerable expertise and experience as regards old buildings generally and was by far the most expert in that area of those who gave evidence. I give great weight to his views in that area especially. I also find that he has considerable expertise in other areas of civil engineering including experience in matters associated with road maintenance. I give his views on that subject considerable weight.
81. As for Mr Danny Gentles, he was the most experienced of the three expert witnesses who gave evidence. He is professionally qualified. He has a considerable amount of professional experience in a wide range of civil engineering matters including, but not limited to road building. He has had experience working directly with the defenders but also a wide range of other bodies. As such, I consider that I should give great weight to his views on normal and good practice in the construction industry as far as road building is concerned. He has rather less experience than Mr Bruce as regards old buildings and if there had been a difference between them on that subject, I would have preferred that of Mr Bruce. But there was no conflict between them and Mr Gentles endorsed Mr Bruce's views on that subject, indeed on all matters.
82. It is true that both Mr Gentles and Mr Bruce were once employed in the same firm and I considered whether that fact should temper my views of their evidence. However, I saw no need to do so. That is because it was evident to me that both were giving their own professional opinions based only on their independent view of the matter and I saw no evidence of collusion of anything of that sort. Moreover, by the time that they gave evidence, Mr Gentles was no longer employed at Fairhurst and Partners. I noted also that neither of the defender's agents ventured any criticism of their evidence on that score. I considered also whether the way in which Mr Gentles expressed his views at some points as regards his criticism of the defenders should cause me to regard his evidence with a certain amount of circumspection. It was put to him in cross-examination at one point that the manner in which he had expressed himself on occasion was (I paraphrase) not entirely compatible with his role as an independent expert witness. He accepted that he believed strongly that the Pursuer had been badly treated by the defenders but was insistent that that view was not one that affected his opinion on technical matters. After carefully reviewing his report and evidence, I agree with that insistence.
83. As regards the evidence of Mr Sandy Garden, he was of course a witness to fact. I find that he was doing his best to tell the truth openly and honestly. He was not called as a witness to common or usual practice in the road maintenance industry and his experience was almost entirely limited to employment with the first defenders. Unfortunately, he had retired since the incident had occurred nearly four years previously and he had trouble at points, quite understandably, in recalling accurately all that had occurred. I therefore was unable to regard all his evidence as entirely reliable (which observation is not intended in any way as a criticism of him). In particular, where his evidence as to the state of the wall following collapse differs from that of Mr Bruce and the pursuer, I prefer their evidence rather than his.
84. As regards Brian Johnston, I regarded him as generally credible and reliable. He gave his evidence in an enthusiastic and determined manner. I did consider however that in his enthusiasm, he was inclined to gild the lily at points in his evidence and I was not convinced by some aspects of his evidence, such as his having seen vegetation on the wall. On the state of the wall at the time of collapse and soon thereafter, I prefer the evidence of Mr Bruce being an independent expert witness, and that of the pursuer, to that of Mr Johnston where there is a conflict of evidence between them.
85. As regards Dr Lavingia, I find that he is a professionally qualified civil engineer with a certain level of experience concerning a range of civil engineering projects (though rather less in total than either Mr Gentles or Mr Bruce). I note also that his doctorate has nothing to do with engineering. That in itself would not lead me to prefer their evidence to his, although it is a relevant consideration. However, his report and evidence suffered from a number of significant shortcomings in my view. These are as follows.
86. He never inspected the very wall on which he was asked to give an opinion. That I found quite surprising in a case in which the very state and construction of the wall was a major issue in this case. Although he visited the wall the day before he gave evidence, that was merely "out of curiosity" and he did not claim even then to have inspected the wall. That factor alone would have given me substantial cause to doubt his opinion.
87. Instead, he relied not on his own investigations and data, but those produced by others. In doing so, it is evident that in some respects at least, he badly misunderstood what he was given. For example, despite referring extensively to Mr Bruce's report, which made clear the construction of the wall that he had inspected, Dr Lavingia concluded that the wall had no coping at all and therefore was liable to water penetration from the top of the wall. However, what Mr Bruce said in the report was that while the wall had no "formal coping", it had "topmost coursed flat stones being encased in modern mortar" and gave evidence that that substitute was intact and effective. Even more seriously, Dr Lavingia in his report, and oral evidence, was under the impression that the method of construction of the wall was stone and mortar with the mortar binding the whole of the wall, including the inner core. That view was quite wrong according to the unchallenged evidence of Mr Bruce who explained clearly that the wall was essentially a dry-stone construction with mortar used for pointing the faces and modern concrete mortar on top, the purpose of both of which was to protect the wall against water ingress. Dr Lavingia's complete misunderstanding of the nature of the construction of the very object which collapsed, the cause of whose collapse was central to this action, in my view tends to vitiate his opinion on the technical matters put to him.
88. I also noted that his diagram in his report explaining where the collapse took place was inaccurate. In addition, he seemed content to reply on photographs produced by others without having any clear idea of who took them, when and under what circumstances or what the taker of the photographs did and saw. He also relied on a copy of the Record prepared some two years before he gave evidence, a Record that had been significantly amended on various occasions including shortly before the proof.
89. Furthermore, and importantly, Dr Lavingia has no knowledge or experience of Scottish vernacular building, unsurprising perhaps given most of his experience has been in USA and India. Furthermore, he had no experience in road maintenance in Scotland, nor did he claim any.
90. All in all, on the important technical matters in this case, for all these reasons, I could give very little if any weight to his opinion. It follows that on matters of professional opinion as to the state of the wall prior to and after the collapse, the likely causes of the collapse, whether the wall would have collapsed soon in any event, the usual practices incumbent on those carrying out road works as regards pre-work surveys and all associated matters, I accept the professional opinions of Mr Bruce and Mr Gentles, there being no significant divergence between them and prefer their opinions to that of Dr Lavingia wherever they diverge.
91. Before I leave the subject of witnesses, I should also record that the Court did not hear any evidence from Mr Jim McVey who, according to Mr Johnston, was the foreman on the site at the time of the collapse and who reported the incident to Mr Johnston. (Mr Johnston was not on site at that time). Mr McVey was on the witness list of the second defenders. No explanation was given for failing to call him. That surprised me given it is an important plank of the defenders defence that at the time of the collapse, no works closer than 40 to 80 metres were taking place. If that contention be right, then one might have expected him to have been called. Neither was the driver of the JCB called. Be that as it may, the state of the evidence is such that the only eye witnesses to give evidence as to what happened on the morning of 27 January 2009 are the pursuer and his wife: and I believe them.
92. The state of the wall. It follows from what I say above about the witnesses' credibility and reliability that I accept the evidence of the pursuer that the wall was well and regularly maintained. I accept Mr Bruce's evidence as to the condition of the wall. It was in good condition with no obvious defects and well-maintained. I accept their evidence that there was no significant vegetation growth on the wall and prefer their evidence to that of Mr Johnston in that regard. I do not believe that the pursuer, an intelligent man who took care to regularly maintain his wall with regular advice and help from his neighbours (one of whom was a dry stone dyker) would have ignored the presence of any significant vegetation growing from the wall. The two photographs purporting to show vegetation found in the wall following partial demolition are in my view of very limited evidential value given that they are undated, the maker of the photographs was not produced as a witness, nor anyone who had properly examined the wall at the point the photographs were taken. I find too that the wall was properly protected against the elements, on the evidence of the Pursuer and Mr Bruce, that the difference in ground height caused no instability (on the evidence of Mr Bruce and Mr Garden) and that the slight leaning of the wall caused no instability (on the evidence of Mr Bruce and Mr Johnston). The wall was sound at the time of the collapse. There is no good reason why, had this centuries-old wall not partially collapsed on 27 January 2009, it would not have continued standing for the foreseeable future if proper maintenance continued, which at least under its current ownership, would probably have occurred.
93. Cause of the initial collapse. As I have said, I accept entirely the evidence of the pursuer and his wife as to what they heard and saw on the day of the initial collapse. There were no other eyewitnesses produced. The JCB was part of the plant used in the road works: there is no other reasonable explanation given that the whole part of that road had already been closed for the works and the JCB was in Church Road as part of the standard kit according to Mr Johnston. The JCB was doing work outside the wall, as vividly described by Mrs Glen. It therefore follows that the principal plank of the defenders' defence (viz. there were no works going on within less than 40 to 80 metres from the wall) is simply wrong.
94. What work was it doing? The Glens described repeated loud metallic banging associated with repeated raising and lowering of the JCB bucket. I accept her inference that the metallic banging was caused by the JCB driver banging the bucket on the ground on the road and that this operation was repeated frequently and, according to their evidence, for much of the morning. Why was it doing that? I conclude that on the balance of probabilities, it was engaged in soil-moving operations outside the wall. It was probably moving soil around the road outside the wall. The soil may have been the excess soil that Mr Johnston described was sometimes temporarily stored on site prior to eventual removal from the site. It was winter. The soil may have been sticky and required some force to release it, as Mr Johnston accepted might sometimes be done by the JCB driver. That operation would dislodge the adhering soil and result in a noise caused by the bucket striking the ground. The soil may have come from elsewhere. But wherever the soil came from, the digger in my opinion was moving it and dislodging it by banging on the ground and it did so on a large number of occasions not far from the wall, over the course of some hours that morning. According to Mr Johnston, the digger bucket weighs some tons. It is inevitable therefore that a metal object of such weight being struck with some force against the ground to dislodge soil would produce vibrations of some strength. While Mr Johnston was of the view that when such an operation was carried out, the force would not be excessive, so as not to damage the plant, he was not present that morning when that plant was being used and so he is unable to say what degree of force was used. And Mr McVey, who was apparently there, was not called to give evidence.
95. There is no other evidence of any other activities on either side of the wall that morning. If one then considers the nature of the wall as described by Mr Bruce, one sees that while the wall was sound, it was very old and essentially a dry-stone construction. Importantly, it had exposed foundation stones and the foundation was close to the road level. The verge was narrow and was all that separated the road from the wall. Mr Bruce described a mechanism whereby heavy vibration on the road might be transmitted up through the foundation stones into the wall which could damage the wall. He went further and said that it was "definitely probable" that if there was such vibration, that would have been the cause of the collapse of the wall. Mr Gentles agreed that heavy vibration could have caused the initial collapse. Mr Bruce understands well the nature of the construction of the wall as a civil engineer with a great experience of old buildings. He can be expected to well understand the ability of that wall to withstand unusual forces acting on the wall including those that I find occurred that day and the effect of such forces. There is little doubt in my view that the cause of the initial collapse on 27 January 2009 was those activities of the JCB.
96. Duties on the first defender. The road works were ordered by AC, directed and controlled by them on roads which were its responsibility. Those works took place on the road beside the Pursuer's property including the wall. There is no doubt that in general terms, it owed a duty to the pursuer to take reasonable care to avoid acts or omissions which could reasonably be foreseen would be likely to damage the Pursuer's property. It was not argued otherwise.
97. The more specific duty derived from this general duty on Record is "a duty to instruct the second defenders to proceed with caution taking account of the age and condition of the wall of the subjects and to take proper and effective steps to protect the integrity of the wall by avoiding the use of heavy and vibrating plant and machinery near it". It is also averred, as part of the expression of this specific duty that "it is common practice for local authorities [that is, the first defenders] to instruct their contractor [that is, the second defenders] to obtain a pre-dilapidation survey prior to carrying out works of this nature". As regards this second averment, AC argued in their submissions that as the evidence developed and at the close of evidence, the Pursuer sought to extend that duty to the first defender itself as well as or instead of the second defender but that there is no Record for such an extended duty. AC is correct as regards the absence of an explicitly pled duty of this type incumbent on AC. However, much of the evidence concerned questions directed to just such a duty. Questions were put to various witnesses about just such a duty by all parties and no objection was taken to such questions by anyone. The whole matter of surveys (whatever their type) prior to works commencing was at all times a live issue between the parties. In any event, a duty to conduct such a survey incumbent on the first defender might fairly be regarded simply as a reasonable variation, development or modification of the first of these specific duties: the need to carry out some type of investigation is implicit in that duty, else how could it be fulfilled? I should add that I think that it is implicit in the duty that the survey is reasonably competently carried out.
98. On the evidence, in my view, it was clear that there was a duty of this type incumbent on the first defender, as expressed in the first of these excerpts above, and that that duty extended to themselves carrying out a survey of the areas surrounding the proposed works, taking account of such information as could reasonably be derived from such a survey and from any other information within its possession relating to risks reasonably foreseeable to adjacent property and then to give appropriate instructions to the second defenders in the light of the information thus acquired.
99. I base that view on the following evidence. First, that of Mr Bruce who said that he would have expected there to have been a dilapidation survey to have been carried out one purpose of which would have been to enable private property to be protected against harm from the works. He would have expected that survey to have been done by a structural engineer. He did not think such a survey had been carried out. If it had been carried out, the survey would have noted the historic nature of the wall, the exposed foundation stones which were vulnerable, that the works could damage them and therefore threaten the stability of the wall and that it would have been sensible to protect them. Mr Gentles said that AC should have carefully examined the extent of the works and examine whether adjacent property could be adversely affected by the works. In this case, it would have been obvious that the wall would be vulnerable to vibration from roadworks. The wall should have been listed as a hazard so that measures could be put in place to avoid possible damage to the foundations or to protect it from being struck. Assistance should have been sought from the in-house structural engineers of AC (which Mr Garden confirmed were employed by AC). In addition, he would have expected the required health and safety pre-works inspection to have been specified in the plan. Further, the hazards found should have been identified and communicated to the contractor (that is TC) so that all working on the site would be aware. The wall was not however cordoned off and the works were done in the wrong place and wrong way.
100. Although it may have been that even if a pre-dilapidation survey had been carried out, the survey might not have specifically noted a particular risk occasioned by the banging of a JCB bucket repeatedly near the wall, which I find was the actual causes of the collapse, that cause was well encompassed by the general nature of the hazard offered by the works to the wall, that of disturbance to the foundations or directly to the wall itself. If precautions had been taken to protect the wall from works close by the wall, when that part of the road was being used for works purposes, the JCB driver would have likely known about the general risk as would those supervising the driver. The workforce would have been vigilant to avoid risk. In my view, had those working near to the wall been advised and warned of the general risk, it is obvious that repeated banging of a heavy metal JCB bucket near the wall would have been seen to present a possible particular risk and steps would have been taken to avoid that risk.
101. There was some support for the evidence of the two expert witnesses as to normal inspection practices from the evidence of employees of the defenders. Mr Garden readily accepted that prior to the start of the works, an inspection of the works area and adjacent properties would take place. Part of the purpose was to check the condition of adjacent properties and flag up potential problems. However, so far as he was concerned there were no apparent problems with the wall. He did not regard the exposed foundation stones as a problem. In his view, a pre-dilapidation survey was the responsibility of TC, who would then have to inform AC of any problems. He agreed with Mr Gentles that there was a duty on a roads engineer to inspect although he did not see the need for a structural engineer to do so. Mr Johnston also accepted that there was a duty on both AC and TC to inspect, one of the purposes being to check for any problems in adjacent properties. TC would never do a pre-dilapidation survey however. He agreed with Mr Gentles that there was a duty on the contractor to survey and notify the client, in this case AC, about such hazards.
102. Moreover, he said that he did carry out a survey, he did notice a risk to the wall arising from the construction of the wall, specifically the exposed foundation stones and he concluded that there was therefore a risk in working too close to the wall. The risk was both in moving or disturbing the stones. Importantly, he says that he notified AC of this risk before the works started. But nothing was done. Equally importantly, there was no challenge whatsoever to that aspect of Mr Johnston's evidence by agents for AC. According to both him and Mr Garden, AC was in charge of the works, AC issued instructions and TC followed instructions. TC had no autonomous entitlement to alter the works or to take action independent of AC as regards protection of the wall. TC was expected to survey the area and to pass findings to AC and await instructions. That is what its employee did.
103. Accordingly, all witnesses on this point agreed that there was a duty to inspect the wall before works. In fact that was done. Whether there should in addition have been a pre-dilapidation survey carried out by a structural engineer is in the circumstances perhaps not as important as it might have been since on the evidence which I accept, the survey which was done by Mr Johnston did identify the vulnerability of the wall and the potential risk due to the proposed works. Nonetheless, I do accept the evidence of Mr Gentles and Mr Bruce that AC ought to have carried out such a survey and prefer their evidence to that of Mr Johnston and Mr Garden in that regard. If such a survey had been carried out, it too would have revealed the vulnerability of the wall and the risk to it from roadworks and would have recommended that steps be taken to protect the wall from the works. The result of such a survey should then have been communicated by AC to TC and thence to all working on the site, down to the "man in the cab" so all were aware of its vulnerability and the need to avoid working in such a way as might pose a risk.
104. Whether duty breached. The duty was breached in that no pre-dilapidation survey was carried out by AC. Further, AC failed to act on the information it was given by TC to it prior to the works starting. Mr Garden saw no danger himself. He was in error. He was further in error in not taking action once in receipt of the information provided to him by Mr Johnston. He was in charge of the works. He ought to have taken steps to see that the wall was not endangered by works on the site. Those steps as a minimum would have included reconsidering the planned works and giving instructions to TC to take care when working in the vicinity of the wall including avoiding any activities which might disturb the foundation stones. Such care included not only avoiding direct physical contact with the wall and foundations but also any other activity which might reasonably have the effect of disturbing the wall and foundation stones, such as causing heavy vibrations near to the wall. I see no reason why that could not have been done and there was no evidence which countered the possibility of such steps being taken. Quite simply, AC failed properly to assess the vulnerability of the wall at all and therefore failed to consider what steps should have been taken to deal with that vulnerability.
105. Consequence of breach of duty. Had the vulnerability been considered, and had adequate preventative measures been instructed by AC and followed, the wall in all probability would have remained standing. As I say, I give little weight to the view expressed by Dr Lavingia that the wall would in any event have collapsed later that year.
106. In the event, the actions of the JCB caused the inner skin of the wall to collapse in two parts: I accept the Pursuer's evidence on that aspect which was not seriously challenged. As a result of that, all the witnesses who spoke on the subject were agreed that the inevitable consequence of that was that the wall, at the two affected parts, would require urgently to be partially demolished, to make the wall safe and as a precursor to rebuilding. Therefore, the Pursuer himself carried out that work on the northernmost part of the partially collapsed wall and then covered the affected part of the wall with tarpaulin. Before he was able to do the same on the much larger southernmost affected part of the wall, AC did that for him relying on the authority of the statutory dangerous buildings notice. The fact that the work was done on that statutory basis matters not in my view. That work had to be done one way or another and it had to be done swiftly. I accept Mr Garden's evidence that when he instructed TC to do that work, which he supervised, he did so ensuring that the minimum necessary part of the wall was brought down. Therefore, no more was done than had to be done. The partial demolition of the two parts of the wall following the partial collapse of the wall was a necessity which flowed directly and naturally from the initial collapse and caused further loss.
107. Nuisance. Article 5 of Condescendence avers that the manner in which the works were carried out by the second defender, TC, on the instructions and supervision of the first defenders, AC, constituted a nuisance. There is then imported a reference to article 4. In addition, there is a single sentence "works alongside walls which are conducted without fault do not result in collapses thereof", which may be an attempt to make reference to the concept of res ipsa loquitor. I regret to say that I find the whole of this article of condescendence quite opaque. In my view, there is no relevant case of nuisance pled against either defender. Neither is there a relevant plea of res ipsa loquitor averred against either defender.
108. Duty on the second defender. So far as the averments on Record are concerned, it is not entirely clear quite what duties are alleged to be incumbent on TC as opposed to AC. In article 4 of Condescendence, which in the main is directed against AC, there is some reference made to TC and "usual practice" and other matters. It is difficult to be sure just what is being said here as regards duties on TC as opposed to AC. Neither, I regret, is this directly addressed in the Pursuer's submissions. In my view, there is no relevant duty effectively averred against the second defender in article 4 or article 5.
109. In article 6 of condescendence, the duties pled against the second defenders (in short) are (1) a duty to take reasonable care for the safety of property in the vicinity of the works, (2) a duty to carry out the works with the skill and care of competent contractors and (3) a duty to "follow normal and accepted practice ....to protect the wall by not banging and scraping the diggers bucket in the vicinity of the wall." which I take to be a particularisation of duties (1) and (2). There can be little doubt that in general terms, the first and second duties were incumbent on the second defenders. As regards duty (3) however, there was no evidence of such "normal and accepted practice" whatsoever. The evidence led in a different direction, that is, a survey would have shown in the case of this particular wall (and in fact did show) that precautions were required to be taken to protect the wall and that instructions ought to have been given, in this case, by AC to TC to take precautions. In other words, there was no evidence of what was the "normal and accepted practice" as regards banging and scraping of digger buckets etc. It follows that the duty cast in these terms was not incumbent on the second defenders.
110. As regards duties (1) and (2), the content of the duty in the circumstances of this case, in my view, was to report to AC the results of the inspection carried out by Mr Johnston and then to follow any and all reasonable and lawful instructions given to them by AC. The evidence clearly showed the very close relationship between the two parties. The second defenders were not independent of the first defenders: they were partially owned by them. They had hundreds of contracts with one another. Indeed, Mr Garden regarded the second defenders as "an arm of the Council". He also made clear that he was in charge and that TC were not entitled to do anything different from that specified in the plans without his say so. He was on site at least once per week and his junior assistants also were on site frequently to exercise supervision. Mr Johnston echoed Mr Garden's view of relationship between AC and TC. The activities of TC for this contract were wholly under the control of AC. On the evidence, both AC and TC accepted that TC should report to AC anything of note seen or discovered on site and AC was to decide what, if anything was to be done. The unchallenged evidence of Mr Johnston was that he did just that. Equally, the unchallenged evidence was that no precautionary measures were taken by AC in response to what it was told. In my view, TC fulfilled its duty (though of course, such a duty was not pled). It therefore follows that the second defender was not in breach of its duties to the Pursuer.
111. The Delson point. During the course of the proof, it emerged that it was possible that the JCB which caused the wall to collapse was the property of a contractor called Delson. It appeared that this came as something of a surprise to all concerned. There was no mention of this on Record and in particular, no attempt by either defender to deny liability by attributing the damage to the wall to this contractor. The parties nonetheless attempted in evidence to explore this aspect of the evidence but without establishing in much detail what Delson was or its precise relationship to the first and second defenders. Nor did the evidence establish the identity of the person operating the JCB on 27 January 2009, or who his or her employer was. Neither did any party make any attempt to seek amendment of the Record in any way.
112. However, it seems to me that in the final result, the Delson point is unimportant. That is because Mr Johnston made it quite clear in his evidence, on more than one occasion, that the vehicles owned by Delson were "our plant" and that the activities of that plant was wholly under his control and direction, that is, under the control and direction of TC. Therefore, had I attributed any fault to the second defenders, that fault would have encompassed anything done by Delson plant. Moreover, given that I have found that AC ought to have given instructions to TC as to precautionary measures to be taken to protect the wall, those measures would necessarily have applied to TC and any person employed by it working on the site as well as any person working directly under the control and supervision of TC, including any plant owned by Delson and controlled and directed by TC.
113. Quantum. The loss said to have been suffered by the pursuer falls into three parts. The first is the damage caused by the initial collapse on 27 January 2009. Second, the further damage to the wall caused by the partial demolition of the wall by both the Pursuer and AC in March 2009. Third, the damage to his garden caused by the initial collapse and then partial demolition. I am satisfied, as I have set out above, that the losses under the first head were caused by the fault of AC. For the reasons I have explained above, I am satisfied that the further losses resulting from the partial demolition were a natural consequence of the initial collapse and are also recoverable. Furthermore, the damage to the Pursuer's garden was a nigh inevitable result of the collapse and partial demolition of the wall and in my view, those losses were also foreseeable and are recoverable.
114. The evidence on quantum was very brief comprising as it did the Pursuer speaking to two quotations for the work done. The writers of the quotations were not called. However, I am satisfied that that evidence was sufficient evidence of the losses suffered by the Pursuer under these three headings. The Pursuer said that he had obtained an estimate from Mr Collier as regards the costs of rebuilding the wall. It was implicit in his evidence that the estimate he asked for was the cost of making the wall good again. That estimate was obtained in July 2012 and is therefore a reasonably up-to-date estimate of the current cost of repair. The evidence was that there had been little significant change to the state of the wall since the partial demolition in March 2009. The estimate produced in July 2012 is therefore a reasonably good source for assessment of the damage caused in 2009. That estimate necessarily of course is the cost of putting the wall right following both the initial collapse and the subsequent partial demolition. Similarly, as regards the cost of garden work, the Pursuer's evidence was that the garden was damaged and the estimate from Mr Thomas Dover represented the cost of putting that damage right.
115. Although the evidence as to loss was very brief, there was very little attempt made in cross-examination to challenge the accuracy of the quotations. Neither did either defender take the opportunity to lead their own evidence as to repair and reinstatement costs. In my view, given that relative absence of challenge and standing the Pursuer's clear evidence on the matter, the Pursuer has sufficiently established by evidence the extent of his loss. This was not in my view a case like Duncan v Gumleys 1987 SLT 729 where the only evidence there as to loss was inadequate for the purpose of establishing the true extent of the loss and where the Lord Ordinary did not have any proper basis on which to calculate the loss. Here, the evidence as to loss is a clear estimate of the whole damage that I have found was due to the fault of AC. Of course, if I had decided this case differently, for example had I decided that AC was liable only for the initial collapse but not for the partial demolition, then ascertaining the loss would have been a much more difficult exercise on the evidence. But that is not the position as I have found it.
116. I should also note that the quotation of Mr Collier proceeds on the assumption that the original stone forming part of the wall which was demolished and which stone was removed and stored by AC will be made available to enable the work to be done. I heard evidence from Mr Garden and the Pursuer that AC did indeed remove the stone and store it. I assume therefore that as a responsible local authority, AC will now make arrangements for that stone, the property of the Pursuer, to be returned to the Pursuer at the expense of AC without undue delay so that the wall, so long in disrepair, may be rebuilt relatively soon.
117. Although on Record, the Pursuer sought an award in respect of inconvenience, and although it appeared to me that the Pursuer must have suffered a considerable amount of inconvenience, no direct evidence was led on this. Further, in submissions, the Pursuer's solicitor expressly disavowed any claim for inconvenience. I therefore make no award under this heading.

Conclusions

118. The result therefore is contained in the interlocutor disposing of the subject matter of the action.
119. As regards expenses, although I was addressed on expenses in submissions, no submissions were made to me as regards how expenses should be awarded in the event that I found against only one of the defenders. I therefore reserve expenses meantime until the parties have the opportunity to address me on that matter at a hearing which will be fixed in due course. However, if the parties can agree the expenses question between themselves without the need for a hearing, they should advise my clerk in writing and I will consider making a final interlocutor dealing with that question in the manner agreed.