Guiseppe Crolla+dario Crolla V. Ashiq Hussain+ascension Construction Ltd
| Jurisdiction | Scotland |
| Judge | Sheriff Principal E.F. Bowen |
| Court | Sheriff Court |
| Date | 08 October 2008 |
| Docket Number | (A6013/05) |
| Published date | 10 October 2008 |
(A6013/05)
JUDGMENT OF
SHERIFF PRINCIPAL EDWARD F BOWEN QCin the appeal
in the cause
GUISEPPE CROLLA and DARIO CROLLA
Pursuers and Respondents
against
ASHIQ HUSSAIN AND Ascension CONSTRUCTION LIMITED
Defenders and Appellants
Act: McIlvride, Advocate - instructed by Gillespie Macandrew, WS
Alt: D Thomson, Advocate - instructed by Wilson Terris & Co, SSC
EDINBURGH, 8 October 2008
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; recalls the Sheriff's interlocutor of 31 December 2007 in so far as it purports to repel the first plea-in-law for the defender: adheres to the allowance of proof before answer as between the pursuers and defenders; reserves meantime all question of expenses: remits to the Sheriff to proceed as accords.
(signed) E Bowen
NOTE:
1. The pursuers in this action are heritable proprietors of a flat at 5/1 Merchiston Place, Edinburgh. The flat is situated on the first floor of a tenement building on the corner of Merchiston Place and Montpelier Park. The defender is proprietor of the subjects on the ground floor, from which he operates a post office and shop.
2. In March 2005 the pursuers were advised by tenants of the flat that there was serious cracking on the walls within it. The pursuers ascertained that building works had been carried out shortly before then in the defender's premises and on his instructions. The works had been carried out by Ascension Construction Limited who have been convened as third parties to the action. The pursuers aver, and there seems to be little real doubt about it, that these building works caused the cracking in their property.
3. In their pleadings the pursuers make detailed averments as to the cause of the cracking. They say that the building works instructed by the defender involved the removal of an internal load bearing wall and the replacement of it with a steel beam. The load bearing wall is described as an "inherently quite weak" since it contained several flues. It is said that in carrying out the works the third party was provided with drawings prepared by separate firms of structural and consulting engineers. The pursuers aver that the work involving removal of the loading bearing wall required to be done in various stages. The first stage required the insertion of a temporary support system. The nature of this is set out in the pleadings in some detail. The pursuers then go on to aver that the upper portion of the wall moved when the weight of the whole wall was transferred onto temporary supports and that it was this which caused the structural damage to their property.
4. The pursuers' case against the defender is focussed in two pleas in law. These are: "(1) the pursuers having suffered loss and damage through fault of the builder for whose negligent acts and omissions the defender is responsible are entitled to reparation from the defender; (2) the pursuers having suffered loss and damage through nuisance created by the defender are entitled to reparation from the defender".
5. The pursuers' averments in support of the case of nuisance are succinctly stated. These are to the effect that the damage to their flat was caused "by nuisance created by the defender". They state: "the defender instructed hazardous works within his premises. He did so in the knowledge that the works constituted an interference with the support enjoyed by the pursuers". They go on: "in the course of the works those instructed by the defender disturbed the support of the pursuers' flat and caused them damage. If the defender had not created the nuisance the flat would not have sustained damage".
6. The substance of the averments in support of the first plea in law is contained in the opening part of Article 3 of Condescendence. This is in the following terms: "The defender was subject to an obligation to provide support to the tenements on the upper floors. He was under a duty to take reasonable care not to damage them by removing support. Damage to the pursuers' flat was caused by the fault of the builder. The defender is liable for damage caused by the builders failure to take reasonable care. The operation which the defender had instructed was one necessarily attended by risk of damage to the upper flats in the event of negligent execution of work. The defender knew of the risk. It was obvious that removing the wall which bore a load would be attended by risk of damage to the upper flats". The pursuers' averments thereafter proceed to narrate that the defender had been told by a building control officer "that the works were attended by risk" and to make more detailed averments concerning the alleged negligence of the third party in removing the lower portion of the supporting wall.
7. It is a general rule of law that where an independent contractor is employed to provide services, the employer is not vicariously liable for wrongs committed by the contractor in the course of the employment: see Walker on Delict page 154 and the authorities cited therein, in particular Stephen v Thurso Police Commissioners 1876 3R 535 at 540. In the present case the pursuers found on what is not uncommonly referred to as "an exception" to the general rule, which is said to arise when the contractor is carrying out inherently hazardous operations. In the case of Southesk Trust Co Ltd v Elsick Farms Ltd v Angus Council and Others 2006 CSOH 006 Lord Macphail doubted whether Scots law recognised this exception. At debate the defenders and appellants attempted to persuade the Sheriff to go further and reject "the exception" as having any basis in Scots law; they further argued that, in any event, the pursuers had not relevantly pled a case within the exception and in consequence maintained that the action should be dismissed so far as directed against them. The Sheriff was not disposed to uphold either of these arguments and, although the interlocutor pronounced by him was not entirely comprehensible, in effect allowed a proof before answer. That decision gives rise to this appeal.
8. In a persuasive argument counsel for the defenders and appellants took as his starting point the section in Delict (supra) where Professor Walker states: "When the operation instructed by the employer is one of a hazardous nature, with an obviously serious danger of considerable harm befalling if it is not carried through safely, the employer remains liable if that harm results, and cannot evade liability by having employed a competent contractor". Counsel drew attention to the fact that the authorities cited in support of this statement (of which the most notable is Dalton v Angus 1881 VI App Cas 740) were English. He then proceeded to examine the two Scottish cases cited by Professor Walker in which this rule, or exception to the general principle might be found.
9. Whilst Paterson v Lindsey (1885) 13R 261 was a case of liability for injury caused by hazardous operations (a gardener having been injured by a rock propelled by shot blasting in an adjoining property) it did not involve the employment of an independent contractor. The works which caused the harm were carried out by the defender or his servants. It was accordingly not authority for the existence of the exception. Sandison v The Commissioners of the Burgh of Paisley 1899 7SLT 255 was a brief report of an Outer House decision. It was held that there was a relevant case stated against proprietors of a bowling green who had instructed works which involved digging a trench in a street into which the pursuer fell. It was said that because the operation which they ordered was in its nature dangerous to the lieges unless proper precautions were taken, they could not relieve themselves of the duty of seeing that such precautions were taken by delegating the work to a contractor. This proposition, said counsel, was advanced without any reference to binding authority.
10. Counsel proceeded to consider certain other Scottish decisions. Cameron v Fraser 1881 9R 26 was a case where injury to a business was caused by dust and smoke emanating from building operations in an adjoining building. In upholding a decision in favour of the pursuer Lord Young said (at page 29): "This may be taken as a safe principle of law, that when a party executes operations on a property...however lawful and reasonable these operations may be, he must take care in conducting them to do as little damage as possible to his neighbour". The court appeared to have decided the cause without reference to the proposition that liability could be avoided by employment of an independent contractor. Miller v Renton & Ors 1885 13R 309 was a case which arose from structural operations carried out on the ground floor of a building in which the pursuer operated a hotel in the upper floors. The claim was one for damages for business disturbance. The pursuer, who was a tenant, raised the action against the proprietor of the building and independent contractors engaged by him to carry out the works. The case against the independent contractors was dismissed by the Lord Ordinary as irrelevant. The subsequent reclaiming motion, with which the report was concerned, was in consequence directed only to the relevancy of the averments against the contractors. The case was thus concerned neither with hazardous operations nor with the purported exception to the general rule that an employer is not liable for the actings of an independent contractor.
11. In the light of these decisions, counsel for the defenders and appellants maintained that it could not be said that any 19th century authority pointed to the existence of the "exception" as part of the law of Scotland. Turning...
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