Mary Mcgregor (ap) And Others V. Scottish Water
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Neutral Citation | [2007] CSOH 11 |
| Published date | 25 January 2007 |
| Year | 2007 |
| Court | Court of Session |
| Date | 25 January 2007 |
| Docket Number | A1062/01 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 11 | |
| A1062/01 | OPINION OF LORD MCEWAN in the cause MARY McGREGOR (A.P.) AND OTHERS Pursuers; against SCOTTISH WATER Defenders: ________________ |
Pursuer: Di Rollo, Q.C., Barne; Drummond Miller
Defenders: Clarke; Simpson & Marwick
25 January 2007
[1] The pursuer is a tenant of a house in the Pollok area of Glasgow. She lives there with her children. Her house is low lying and is near to the Levern Water. The drainage of water from that area is achieved by a system of pipes. It joins with drainage from other nearby areas, and at times of high flow will discharge from a sewer into the Levern Water. It is said that the sewer was built in 1932. Flooding in the area occurred in 1985 and 1992. The then responsible authority (now the present defenders) obtained an engineers report which said that the capacity of the system should be augmented. Nothing was done and in December 1994 after rainfall the system could not cope and the pursuer's home was flooded. Much of her property, furniture and carpets were ruined and she was put out of her home for a year.
[2] In the action now before me the pursuer specifies what caused the flooding. She says it was caused by two matters, the first being the presence of new developments in the nearby area and the second a specific fault in an overflow valve (known as L2). What had occurred at the valve was this. The overflow pipes at L2 discharged into the Levern Water. However, if the water level there was too high water would flow back into the pipe the "wrong" way. At L2 there was a flapvalve designed to prevent this. It is said, however, that the valve was of poor design and lacked screening (ie a grid to prevent silt blocking the valve). As a result the flapvalve was silted up in the open position and could not prevent the overflow surcharging eventually towards the pursuer's house.
[3] Mr Clarke appeared for the defenders and moved me to dismiss the action for one simple reason. He said that both parties were in agreement as to what duties were relevant, and a number of matters were either agreed or conceded on matters of pure law. He said, however, that the pursuer had plead alternative cases and, as the case based on overdevelopment was irrelevant the whole case was irrelevant on the "weaker alternative" argument. If he is correct about that, then I agree the whole case falls. He referred me to both written notes of arguments but without elaboration. He said that a fair reading of what the pursuer avers at pages 9 to 10 disclosed an alternative case; and the pursuer was saying that the cause was overprovision, or L2 problems. It could not be said that any duty was owed to the pursuer on first point. That related to allocation of the defender's budget and the proper use of monies. Counsel did accept that the case made about L2 was relevant.
[4] Mr Di Rollo asked me to send the case to proof before answer. He stressed the common agreement that the case about the L2 valve was plainly relevant. He went on to argue two other basic points. He said that, looked at properly, the matter of "overprovision" was not really an alternative case; and even if it was it was in any event relevant. He pointed to page 20 where this duty was admitted. What the pursuer was saying, was that (generally) but for...
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