Morrison Sports Limited+brian Kennedy Pitchers+baljit Singh And Others V. Scottish Power Plc+scottish Power Plc+scottish Power Plc
| Jurisdiction | Scotland |
| Judge | Lord Wheatley |
| Neutral Citation | [2007] CSOH 131 |
| Date | 18 July 2007 |
| Docket Number | A839./04 |
| Court | Court of Session |
| Published date | 18 July 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 131 | |
| A839./04 A840/04 A842/04 | OPINION OF LORD WHEATLEY in the cause MORRISON SPORTS LIMITED Pursuers; against SCOTTISH POWER plc Defenders: _________ BRIAN KENNEDY PITCHERS Pursuers; against SCOTTISH POWER plc Defenders: _________ BALJIT SINGH & OTHERS Pursuers; against SCOTTISH POWER plc Defenders: ________________ |
Pursuers: Ivey QC; Stuart, The Anderson Partnership
Defenders: Cullen QC, Barne; Shepherd & Wedderburn
18 July 2007
[1] These are three related actions which seek to pursue the interests of various property occupiers and owners following a fire in buildings at 23 Moss Street, Paisley in March 1998. The first named pursuers operated a sports goods shop from the address, having taken a lease from the pursuer in the second action, who is the owner of the premises. The pursuer in the third action is the proprietor of adjoining property. Electricity was supplied to the premises by the defenders, and the pursuers claim that the fire was started because of a fault in the electricity supply system for which, the pursuers aver, the defenders were responsible.
[2] The exact mechanism by which the pursuers claim that the fire started is fully developed in the pleadings. It is sufficient for present purposes to note that the pursuers say that the defenders carried out some electrical work in the premises two years before the fire. In the course of the subsequent investigation, it emerged that a possible cause for the fire might be found in a metal shim which, in the course of the electrical work, had been wrapped around the end of the prongs of a cut-out fuse, so that it could fit more effectively into its fuse holder. The presence of this shim, which appeared to be nothing more than a strip of metal wound round the end of the fuse, and which was not in any sense a standard part or piece of equipment, caused resistive heating, leading to arcing and thus causing the fire. The pursuers therefore claim that the fire was caused by the fault of the defenders, and that they have suffered financial loss thereby.
[3] The pursuers have tabled two cases of fault against the defenders. The first of these is based on general common law duties of care which are said to have been breached. It is agreed that these are relevantly averred and that a proof before answer will require to be held to investigate them. However, in this respect, the pursuers' first plea-in-law in each of the three actions suggests that the defenders' duties of common law care were both direct and vicarious. In the defenders' view, there are no sufficient averments to suggest why the defenders had themselves failed in these duties of care, as distinct from being responsible for the actions of their employees. The only passage in the pursuers' pleadings where the defenders are said to be directly involved in the discharge of duties of care is in the esto case pled at the end of Article 5 of condescendence, where it is said that the defenders had a duty to replace the fuse with one which did not require to be fitted with a shim to enable it to be secured into the fuse holder. It is accepted by the pursuers that this averment is incorrect, and should properly refer to a duty imposed on the defenders' employees, rather than the defenders directly. These semantic discrepancies were not pursued, it seemed to me, with any particular enthusiasm. I therefore do not consider that the distinction between the defenders' direct and vicarious responsibilities in the present pleadings is of sufficient significance to merit further comment.
[4] However, the pursuers go on to aver that the fire was caused by the defenders' breaches of statutory duty, and in particular by their contravention of Regulations 17, 24 and 25 of the Electricity Supply Regulations 1988, as amended by the Electricity Supply (Amendment) Regulations 1990. The defenders now submit that a simple breach of these regulations, by itself and irrespective of carelessness, does not give rise to any civil liability so far as they are concerned, and they seek to have all references to the pursuers' statutory cases deleted at this stage. The pursuers, on the contrary, claim that they are entitled to refer to the alleged breaches of the statutory duties which they say are incumbent on the defenders in order to establish their case for damages against them. The question at issue in this debate, therefore, was whether or not a breach of the cited statutory duties gives rise to a private civil right of action which allows a claim in damages in respect of that breach.
[5] There is no doubt that in certain circumstances a person who has suffered damage as a result of a breach of statutory duty may have a private common law right of action based on that breach, which is distinct from an action based on negligence arising out of a breach of common law duties of care. It will not generally be presumed that such a statutory breach will afford such a right; but if a pursuer can demonstrate that, having regard to the terms and construction of the particular statutory provision in question, firstly that a statutory duty was introduced for the purpose of protecting a limited class of the public into which the pursuer falls, and secondly that Parliament intended to confer on the members of that limited class a private right of action for breach of that duty, such a private right of action may exist. In X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633, Lord Browne-Wilkinson, in dealing with a case involving (as in the present case) a breach of statutory duty simpliciter, said (at p 731):-
"The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for the breach of duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action, but there are a number of indicators."
[6] A similar approach was taken by Lord Diplock in Lonhro Ltd v Shell Petroleum Co Ltd (No. 2) [1982] 18 A.C. 173 at p 185:-
"The sanctions Order thus creates a statutory prohibition upon the doing of certain classes of acts and provides the means of enforcing the prohibition for a criminal offence which is subject to heavy penalties including imprisonment. So one starts with the presumption laid down by Lord Tenterden C.J. in Doe d. Murray v Bridges (1831) 1 B & Ad. 847, 859 where he spoke of the 'general rule' that 'where an Act creates an obligation, and enforces the performance in a specified manner.... that performance cannot be enforced in any other manner,' - a statement that has frequently been cited with approval ever since, including on several occasions in speeches in this House. Where the only manner of enforcing performance for which the Act provides is prosecution for the criminal offence of failure to perform the statutory obligation or for contravening the statutory prohibition which the Act creates, there are two classes of exception to this general rule.
The first is where on the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of the Factories Act and similar legislation".
It should be added that this particular area of jurisprudence seems to be founded specifically in English remedies in tort, but it appears at least on one occasion to have been adopted and accepted in Scotland.
[7] The question of whether a breach of the statutory standard does in any particular case found an action in private law therefore involves an examination of a number of issues. The first of these will generally be the terms of the relevant legislation. It appears to be accepted that the construction of each statute depends ultimately on its own terms, and it is in general difficult to formulate principles which will apply in every case; Todd & Ors v Adams & Chope (The Maragetha Maria) [2002] 2 Lloyds Rep. 293 para.16; Clerk & Lindsell on Torts 19th Edition (2006) para. 9-04. However, it is worth noting at this stage, as the learned authors of Clerk & Lindsell indicate, that when the question of whether the statute does give rise to an action in private law has been determined in favour of a particular pursuer, there are then further issues which still have to have be examined. It must be shown that there was a breach of the statutory duty in question, which caused the loss sought to be recovered. Further, the pursuer must show that the damage suffered fell within the ambit of the statute; in other words that it was the kind of damage that the legislation was intended to prevent, and that the pursuer belonged to the category of persons that the statute was intended to protect. It is therefore insufficient simply to relate the loss to the breach of statutory duty; there must be some reasonable relationship between the damage caused to the individual claimant and the purpose for which the statute was enacted. In addition, the authors note that questions of foreseeability and the normal rules of remoteness of damage will also have to be considered; the terms of the statute may determine the nature of the civil liability thus created; and the question of any available defence must be considered.
[8] The first matter, therefore, which has to be examined is whether the statutory provisions expressly or implicitly provide that a...
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Morrison Sports Ltd v Scottish Power UK Plc
...of the breach. The Lord Ordinary (Lord Wheatley) rejected Scottish Power's argument and allowed a proof before answer on the whole case: 2007 CSOH 131; 2007 SLT 1103. Scottish Power reclaimed, but, varying the Lord Ordinary's interlocutor, an Extra Division (Lady Paton, Lady Dorrian and Lor......