Brownlie & Son v Magistrates Barrhead
| Jurisdiction | Scotland |
| Judgment Date | 14 July 1923 |
| Docket Number | No. 101. |
| Date | 14 July 1923 |
| Court | Court of Session |
Ld. Ashmore, Lord President (Clyde), Lord Skerrington, Lord Cullen, Lord Sands.
Limitation of ActionsTime limitPublic Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1Reparation for floodingContinuance of injury or damagePeriod from which time limit runs.
By the Public Authorities Protection Act, 1893, sec. 1, an action against any person in respect of any act or default in the execution of any public duty must be commenced within six months after the act or default complained of, or, in the case of a continuance of injury or damage, within six months next after the ceasing thereof.
An action was brought against the magistrates of a burgh, as the local authority responsible for the draining of the burgh, in respect of damage by flooding alleged to have been caused to the pursuers' premises in 1917, in February 1920, and in August 1920, owing to the failure of the defenders to provide for the effective draining of the burgh. The action was commenced within six months of the flooding of August 1920, but more than six months after the previous floodings. The pursuers averred that the damage occasioned by each of the floodings was of a permanent and increasing nature, and they contended that there was, accordingly, a continuance of injury or damage which entitled them to maintain the action in respect not only of the damage caused by the flooding in August 1920, but also of that caused by the earlier floodings.
Held that the six months time limit for commencing proceedings imposed by the statute runs, in the ordinary case, from the date when the cause of action arises, and that a continuance of injury or damage, in the sense of the statute, refers to the case of an act, neglect, or default which is in itself continuous and inflicts continuous loss or damage; and that in such a case the six months run from the date when the injuria and damnum giving rise to the cause of action cease to concur.
Held accordingly that, as the injuri causing the earlier floodings occurred more than six months prior to the bringing of the action, although the damnum might still persist, the pursuers' claims for injury due to these floodings were excluded by the Act.
BurghDrainageResponsibility of burgh authorityReparation for flooding from sewerSeparate drainage systems for sewage and surface waterSurface water allowed to drain into sewerInadequacy of sewer to carry off surface waterBurgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55), sec. 219.
ReparationNegligenceFloodingNegligence contributing to floodFlood partly due to natural causesApportionment of liability.
ReparationNegligenceContributory negligenceMitigation of damages.
The Burgh Police (Scotland) Act, 1892, enacts:Sec. 219. The Commissioners shall from time to time cause to be made, under the streets, or elsewhere, such main and other sewers as shall be necessary for the effectual draining of the burgh
The local authority of a burgh adopted a dual system of drainage, whereby sewage and roof water was carried by the sewers, and surface water by separate lines of pipes. In the case of certain premises in the burgh, however, the surface water was, with the authority's acquiescence, discharged partly into one of the public sewers. Owing to heavy rainfall the sewer became surcharged, with the result that an accumulation of water, due in part to surface water which the sewer was unable to carry off and in part to an actual overflow from the sewer, collected in the courtyards at these premises, and the flood so formed, augmented later by water from an adjacent stream which overflowed its banks, penetrated the premises, and flooded them to a considerable depth.
In an action of damages by the owners of the premises against the burgh authority,
Held (rev. judgment of Lord Ashmore) (1) that, as the defenders were under a statutory duty to provide for the effectual draining of the burgh, they were, in the circumstances, bound, notwithstanding their adoption of the dual system of drainage, to carry off the surface water from the pursuers' premises by means of their sewer; (2) that the defenders were, accordingly, responsible for the flooding caused by the surcharging of the sewer; and (3) that they were liable for such damage to the pursuers' premises as could be attributed to this cause, but not for that attributable to the overflow from the stream, which arose from natural causes over which the defenders had no control.
Observed (per curiam) that the apportionment of damage in such a case was of the nature of a jury question.
Opinions that, even if the pursuers had been shown to have been negligent in the administration of their property, and so to have contributed to the flooding (which had not been proved), their negligence could have been pleaded by the defenders only in mitigation of damages.
On 16th February 1921 an action was brought by James Brownlie & Son, Arthurlie Bakeries, Barrhead, against the Provost, Magistrates, and Councillors of the Burgh of Barrhead, concluding for payment of (first) the sum of 600, (second) the sum of 6000, (third) the sum of 10,000, and (fourth) the sum of 5000, in name of damages in respect of flooding of their premises on various dates, alleged to be due to the inadequacy of the burgh sewers.
The parties averred, inter alia;(Cond. 1) The pursuers are bread manufacturers in the burgh of Barrhead, and are owners of the Arthurlie Bread and Biscuit Works, situated wholly within the burgh. The defenders, as the Local Authority within the burgh, own the main and other sewers therein, and are responsible, inter alia, for the effectual draining thereof. (Ans. 1) Admitted. Explained that the pursuers' works were purchased by them in 1887. The works had been previously used as a spinning and weaving factory, and the property is old and dilapidated. It is situated close to a stream known as the Levern Water, which naturally drains the basin in which Barrhead is built. The works are low-lying. The floors of the buildings are little higher than the channel of the Levern, and are considerably lower than the ordinary flood-level of that stream. A tributary called the Kirkton Burn bounds the property on the east immediately before it joins the Levern Water. For these reasons the property has always been more or less subject to flooding from these streams. Explained further that Barrhead was turned into a police burgh in 1894, and the defenders' predecessors at once proceeded to form a drainage and sewerage system for the burgh. It was formed on the approved modern system of separating as far as possible the surface-water drainage from the sewerage. The sewers carry only sewage proper, and the rainfall from the roofs of the houses. The outfall sewer, which passes close to the pursuers' property, is led about three-quarters of a mile down the valley, where the sewage is purified and discharged into the Levern. (Cond. 2) The pursuers' said works, covering an area of about two acres, consist, inter alia, of bakehouses and ovens, breadroom, crumbery, stores, sheds, houses, and relative buildings and offices. The said works are fitted throughout with drain-pipes, which are connected by the usual trap-drains with the sewers of the burgh of Barrhead, belonging to and controlled and administered by the defenders. Admitted that the drains in pursuers' premises consist of surface drains leading to the Kirkton Burn and of drains connecting with the burgh sewer. Explained and averred that the pursuers' sewerage drain (including traps, &c.) was connected with defenders' burgh sewer at the sight of and to the satisfaction of defenders' Master of Works for the time. (Ans. 2) Admitted subject to the following qualifications and explanations. The western boundary of the pursuers' property is Scott's Mill and ground attached thereto. Glen Street, which bounds the property on the north, was constructed in 1901 by the Paisley and Barrhead Railway Company in connexion with the construction of their line which passes close to the pursuers' works. The drains within the pursuers' property consist partly of surface-water drains which connect directly with Kirkton Burn and partly of drains which connect with a branch sewer belonging to the defenders at a manhole in Glen Street. The history of the drains last mentioned is believed to be as follows:When the defenders' predecessors formed a sewerage system in 1895, the pursuers did not desire to take, and did not in fact take, advantage thereof. On the contrary when they were rated by the defenders for the sewerage assessment for the year 19001901 they appealed against the assessment and pleaded that they were entitled to an abatement of 75 per cent in respect that they had made separate arrangements for the drainage of their works and derived no benefit from the burgh sewer, also that they were unable to make any use of such sewer owing to the level not being sufficiently low to take in their drains. Before the appeal was disposed of, the railway company were in process of carrying out the operations above referred to, and, as these interfered with the pursuers' drainage, the pursuers compelled the railway company to reconstruct their drains at a higher level and to connect them with the defenders' branch sewer in Glen Street. The levels were such that such connexion should not have been made without careful consideration and adjustment of the pursuers' drains to the new conditions. Any possibility of regurgitation from the defenders' sewers in time of flood could have been effectually prevented by inserting pressure-valves in the pursuers' drains, but the pursuers negligently failed to consider the matter or to make any such provision. (Cond. 3) The said sewers, with which the pursuers' drains are so connected, are of faulty design and have for many years been insufficient for draining the part of the burgh in which the pursuers'...
To continue reading
Request your trial
- Brownlie & Son v Magistrates Barrhead
-
John Aitchison V. Glasgow City Council
...in the interpretation of an earlier limitation provision, similarly worded, it had been held (Brownlie & Son v Magistrates of Barrhead 1923 SC 915) that the punctum temporis "must be one at which iniuria and damnum concur". Lord Reid was prepared to assume that that case had authoritatively......
-
Watson v Fram Reinforced Concrete Company (Scotland) Ltd and Winget Ltd
...it was rejected unanimously by the Inner House, and, I think, rightly. It rested on two cases, Brownlie & Son v. Magistrates of Barrhead, 1923 S.C. 915, and Campbell v. Stirlingshire County Council, 1954 S.C. 197. In these cases the Court was concerned with the construction of the Public Au......
-
Gray v North British Steel Foundry Ltd
...3 Reference was made to Kelly v. Edmund Nuttall Sons & Co. (London) Ltd.SC, 1965 S. C. 427. 4 Brownlie & Son v. Magistrates of Barrhead, 1923 S. C. 915, Lord President Clyde at p. 929, 1925 S. C. (H. L.) 41;Watson v. Fram Reinforced Concrete Co.SC, 1960 S. C. (H. L.) 92, Lord Reid at p. 106......