McKenna v O'Hare
| Jurisdiction | Scotland |
| Judge | DL Murray,PJ Braid,RA Dunlop |
| Judgment Date | 06 April 2017 |
| Docket Number | No 5 |
| Court | Sheriff Appeal Court |
| Date | 06 April 2017 |
[2017] SAC (Civ) 16
Sheriff Principal DL Murray, Sheriff PJ Braid and Sheriff Principal RA Dunlop QC
Henderson v Foxworth Investments Ltd sub nom Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd [2014] UKSC 41; 2014 SC (UKSC) 203; 2014 SLT 775; 2014 SCLR 692; [2014] 1 WLR 2600; 158 (27) SJLB 37
Kennedy v Glenbelle Ltd 1996 SC 95; 1996 SLT 1186; 1996 SCLR 411
Kerr v Earl of Orkney (1857) 20 D 298
Rhesa Shipping Co SA v Edmunds [1985] UKHL 15; [1985] 1 WLR 948; [1985] 2 All ER 712; [1985] 2 Lloyd's Rep 1
RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17; 1985 SLT 214
Rylands v Fletcher (1868) LR 3 HL 330
Macphail, ID, Sheriff Court Practice (3rd ed, W Green, Edinburgh, 2006), para 16.76
Reparation — Nuisance — Oil contamination on neighbouring premises — Whether pursuer must establish precise mechanism of contamination — Whether inference of culpa on the part of the defenders can be legitimately drawn
Henry McKenna, Christine McKenna and Paul McKenna and James McAllister, Julia McAllister and James Anthony McAllister raised an action against Robert O'Hare and Maureen O'Hare at the sheriff court in Airdrie. The cause called before the sheriff (M Galbraith) for a proof restricted to liability, on 11 to 13 August 2015 and 24 November 2015. The sheriff sustained the pursuers' pleas in law that they had suffered loss, injury and damage as a result of a nuisance created by the defenders. The defenders appealed to the Sheriff Appeal Court.
The pursuers and defenders were neighbours. The pursuers became aware of a strong smell at their properties which increased in intensity until they became uninhabitable on account of contamination. It transpired that the smell was due to kerosene contamination. The chemical composition of the contaminating oil was essentially identical to that in a storage tank in the defenders' garden. The pursuers raised an action for damages. After a proof restricted to liability, the sheriff found in favour of the pursuers, and held that once nuisance was established, liability proceeded on the proof of culpa, and that there was an onus of proof on the defenders to show that they were not at fault. The defenders appealed to the Sheriff Appeal Court.
They submitted that the sheriff misapplied the law in relation to nuisance. In particular, the defenders argued that although the pursuers' land was contaminated with the defenders' oil, it could have been so contaminated due to several possibilities, only some of which would be the defenders' fault. Separately, the defenders submitted that the sheriff's approach to the evidence was flawed and that she had made findings in fact she was not entitled to make.
In response, the pursuers submitted that it was sufficient for them to prove that their property had been damaged by contamination caused by an event on the defenders' land, namely the escape of oil from a tank which it was the defenders' duty to manage and maintain or to control; the onus then shifted to the defenders to explain the escape consistent with the absence of fault being either intervention of a third party for whom the defenders were not responsible or damnum fatale.
Held that: (1) it was for the pursuers to prove sufficient facts to give rise to an inference of culpa which it was then for the defenders to negate, if they could, by an explanation consistent with the absence of culpa (para 15); (2) what mattered was not whether the pursuers could aver and prove precisely what caused the nuisance, but whether they could aver and prove facts which may properly lead to an inference of culpa being drawn (para 16); (3) since properly managed tanks did not lose substantial quantities of oil, an inference of culpa could be drawn (para 18); (4) the only relevant defences available were either third-party intervention or damnum fatale (para 18); (5) the sheriff looked at the whole evidence and she was entitled to make the findings in fact that she made and to infer culpa (paras 19, 23, 28, 30, 32, 33); and appeal refused.
RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17 applied and Rhesa Shipping Co SA v Edmunds[1985] 1 WLR 948distinguished.
The cause called before the Sheriff Appeal Court, comprising Sheriff Principal DL Murray, Sheriff PJ Braid, and Sheriff Principal RA Dunlop QC, for a hearing, on 11 and 12 January 2017.
At advising, on 6 April 2017, the opinion of the Court was delivered by Sheriff PJ Braid—
Opinion of the Court—
[1] The parties to these conjoined actions were all previously neighbours in Ayr Drive, Airdrie. The defenders and appellants resided at number 34; James and Julia McAllister and their son at number 36; and Henry and Christine McKenna and their son at number 38. Hereinafter, we refer to the McAllisters and the McKennas collectively as the pursuers, unless the context otherwise requires. On or about 10 July 2006 the pursuers became aware of a strong smell at their properties. After investigation it transpired that the smell was due to contamination of their respective properties caused by kerosene (hereinafter ‘oil’) which had emanated, at some stage, from a tank on the defenders' land. It is common ground that the contamination amounted to a nuisance. Actions for damages were raised in the sheriff court and following a proof, restricted to the issue of liability, the sheriff ruled in the pursuers' favour, sustaining their pleas in law that they had suffered loss, injury and damage as a result of the nuisance created by the defenders. The issue in this appeal is whether she was correct to do so. Broadly speaking, there are two challenges to the sheriff's decision. First, the defenders argue that she misapplied the law in relation to nuisance. Second, they argue that her approach to the evidence was flawed and that she made findings in fact which the evidence did not entitle her to make.
[2] After sundry procedure, the proof took place on 11 to 13 August and 24 November 2015. Evidence was given by Julia McAllister, Henry McKenna, John Gillies (a neighbour who lived at 32 Ayr Drive), Robert O'Hare, Maureen O'Hare, David O'Hare; and technical, or expert, evidence by a number of witnesses, including Brian Graham, Danny Pointin, who also prepared reports which were lodged in process, Lewis Barlow and others. We find it unnecessary to go into the technical evidence in detail, since the sheriff's findings in relation thereto are, by and large, not challenged.
[3] In so far as relevant to this appeal, the sheriff made the following findings in fact (retaining her numbering):
‘2. On or around 10 July 2006 and subsequent days the pursuers became aware of a strong smell of turpentine or white spirit at their properties. The smell was worse when it rained. The smell increased in intensity until the properties became uninhabitable on account of the contamination. The pursuers dug a pit at the corner of the property at number 36 Ayr Drive and the soil there was found to be heavily contaminated with an oily substance. The pursuers contacted environmental health services of North Lanarkshire Council who investigated the contamination.
3. The oil contamination which affected the pursuers' properties was kerosene. …
7. There was an oil storage tank on the defenders' property which was under their control. It was the only tank in the vicinity.
8. The chemical composition of the contaminating oil was essentially identical to that found in the oil storage tank in the defenders' garden. The chromatography of the oil indicated that the contamination was recent and that the oil had not come from historic pools of oil.
9. The oil contamination which affected the pursuers' properties emanated from the oil storage tank on the defenders' property.
10. In or around 2003 the defenders instructed contractors to convert the central heating system in their property from oil fired to gas. They did not instruct the contractors to decommission the oil tank. The tank was only disconnected by the contractors but a large quantity of oil remained in the tank with the defenders' knowledge. The actings of the contractors did not cause any escape of oil from the defenders' property.
11. In or around 2005 John Gillies borrowed a container holding approximately 10–12 litres of kerosene from the defenders. He used very little. He returned the container to the first defender in or around the late summer of 2006. At the time of its return it contained approximately 10–12 litres of oil.
12. The contents of the container came from the oil tank on the defenders' property.
13. In or around two weeks after the said container was returned to the first defender by John Gillies a smell was detected at the pursuers' properties.
14. In or around July 2006 the first defender demolished a garden shed on his property. This occurred before the smell of oil was first detected on the pursuers' properties.
15. The oil tank was in a good condition. There was no defect with the oil tank, the valve, or associated pipework which could have resulted in a leak.
16. Properly maintained oil storage tanks and associated pipework do not leak.
17. The brickwork on which the oil tank rested had been disturbed at one end and the tank's position altered from being slightly sloping to being horizontal.
18. The oil contamination occurred on account of a spill of oil from a container and from the oil tank on the defenders' property.’
[4] The sheriff also made the following findings in fact and law:
‘2. The defenders had a duty to maintain and manage the oil tank on their premises. They failed in that duty which resulted in a spill of oil from the container and from the tank.
3. The said nuisance was caused on account of fault on the part of the defenders.’
[5] Although counsel for the defenders directed our...
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