MORRISON SPORTS Ltd and Others Pursuers (Respondents) against SCOTTISH POWER Defenders (Reclaimers)

JurisdictionScotland
CourtCourt of Session (Inner House)
Judgment Date08 December 2009
Neutral Citation[2009] CSIH 92
Docket NumberA839/04

Court of Session Inner House Extra Division

Lady Paton, Lady Dorrian, Lord McEwan

No 20
Morrison Sports Ltd
and
Scottish Power Ltd

Damages - Damage to heritable property due to electricity plant default - Whether right to damages under statute - Electricity Act 1989 (cap 29), secs 29, 39, sch 17(2) - Electricity Supply Regulations 1988 (SI 1988/1057)

Statute - Construction - Whether subordinate legislation to be construed in accordance with subsequent primary legislation - Energy Act 1983 (cap 25) - Electricity Act 1989 (cap 29) - Electricity Supply Regulations 1988 (SI 1988/1057)

Section 29(1) of the Electricity Act 1989 (cap 29) provides that the Secretary of State may make such regulations as he thinks fit for the purpose of, inter alia, securing that supplies of electricity are regular and efficient; protecting the public from dangers arising from the generation, transmission or supply of electricity supplied or from the installation, maintenance or use of any electric line or electrical plant; and eliminating or reducing the risks of personal injury, or damage to property or interference with its use. Section 29(3) provides that regulations may be made providing that any person who contravenes any specified provision of the regulations may be guilty of a criminal offence but that nothing in the subsection affects any liability of any such person to pay compensation in respect of any damage or injury which may be caused by the contravention. Section 39(3) provides that if a public electricity supplier fails to meet a prescribed standard, he shall make to any person who is affected by the failure and is of a prescribed description such compensation as may be determined by or under the regulations. Section 39(4) provides that the making of compensation under the section shall not prejudice any other remedy which may be available in respect of the act or omission which constituted that failure. Schedule 17(2) provides that any regulations made under sec 16 of the Energy Act 1983 (cap 25) effective on the day appointed for the coming into force of sec 29 shall have effect as if they were made under sec 29.

A building was destroyed by fire and actions for reparation were raised against the electricity suppliers following investigation of the cause of the fire which identified the seat of the fire as an electricity meter cupboard in a ground floor sports shop tenanted by one of the pursuers. The cause of the fire was thought to be arcing due to a metal shim wrapped around the prongs of a fuse to improve the fit in the fuse holder. The defenders denied that their employees inserted the metal shim in the fuse, suggesting that it had been tampered with by a third party. They also maintained that the pursuers' case in so far as based on the Electricity Supply Regulations 1988 (SI 1988/1057) was irrelevant.

Following debate, the Lord Ordinary on 18 July 2007 allowed a proof before answer on the pleadings before the court, including the averments of breaches of the 1988 Regulations applying in terms of the 1989 Act. The defenders reclaimed against that decision to the Inner House.

Counsel for the defenders submitted that a breach of statutory duty did not normally give rise to a private right of action; that the 1988 Regulations had been made under an earlier Act and not the Act of Parliament current at the material time; no specific class of individual was identified; there were means of enforcement other than criminal enforcement; exemptions were permitted; the introduction of detailed and complex regulations where there was a pre-existent duty of care was an indicator that the creation of a new array of private law rights was not envisaged; the regulations related to a duty to supply electricity to the public; there was no express or implied power to make regulations containing duties enforceable by civil action in the 1989 Act; and the alleged inadequacy of any fine imposed in terms of the enforcement provisions of the statutory scheme should not be viewed in isolation but the entire scheme should be viewed as a whole.

Counsel for the pursuers submitted that the issue was the proper construction of the particular statutory regime. In general, a breach of a statutory provision would not confer private rights of civil suit, unless the terms of the statute provided for such rights; each case must be dealt with individually; and if on a proper construction of the statute, it could be shown that Parliament intended to confer private rights of action upon members of the public for their protection, it was unnecessary to define a protected class. On this approach, the decision of the Lord Ordinary was correct.

Held that: (1) the 1988 Regulations fell to be applied as if they had been made under sec 29 of the Electricity Act 1989 (para 37); (2) relying upon a proper construction of sec 29, Parliament's intention was that any member of the public who suffers any damage or injury which may have been caused by a contravention of the 1988 Regulations should be entitled to raise an action for damages against the person who contravened the Regulations, founding upon that breach of statutory duty (para 44); and reclaiming motion refused.

Morrison Sports ltd raised an action against Scottish Power Ltd seeking damages in the sheriff court at Glasgow. The matter was remitted to the Court of Session on the pursuers' motion made before the sheriff (B Kearney) at Glasgow on 2 December 2004 on account of the importance and difficulty of the case. The Lord Ordinary (Wheatley), following a debate held on 25 May 2007, allowed a proof before answer as sought by the pursuers on 18 July 2007. The defenders reclaimed against that decision to the Inner House.

Cases referred to:

Alexandra Hotel (Ballater) Ltd v Scottish Hydro Electric plc 1998 SLT 668

Beckett & Sons (Lyndons) Ltd v Midland Electricity plcWLR [2001] 1 WLR 281; 98 (5) LSG 37; 145 SJLB 15

Cutler v Wandsworth Stadium LtdELRUNK [1949] AC 398; [1949] 1 All ER 544; 65 TLR 170

Groves v WimborneELR [1898] 2 QB 402; [1898] All ER Rep 147

Issa v Hackney London Borough CouncilWLRUNK [1997] 1 WLR 957; [1997] 1 All ER 999; [1997] Env LR 157

Lonrho Ltd v Shell Petroleum Co LtdELRWLRUNK [1982] AC 173; [1981] 3 WLR 33; [1981] 2 All ER 456

McLean v Scottish Power plc 2000 GWD 4-157

Phillips v Britannia Hygienic Laundry Co LtdELRUNK [1923] 2 KB 832; 93 LJ (KB) 5; 129 LT 777; 21 LGR 709; 68 SJ 102; 39 TLR 530

R v Deputy Governor, Parkhurst Prison, ex p HagueELRWLRUNK [1992] 1 AC 58; [1991] 3 WLR 340; [1991] 3 All ER 733

Roe v Sheffield City Council and orsUNKELRWLRUNK [2003] EWCA Civ 1; [2004] QB 653; [2003] 2 WLR 848; [2003] BLGR 389

Stevens v General Steam Navigation Co LtdELR [1903] 1 KB 890

Todd and ors v Adams and Chope (t/a Trelawney Fishing Co) (The Margaretha Maria)UNKUNKUNK [2002] EWCA Civ 509; [2002] 2 All ER (Comm) 97; [2002] 2 Lloyd's Rep 293; [2002] CLC 1050

Weir v East of Scotland Water Authority 2001 SLT 1205

X (Minors) v Bedfordshire County Council; Keating v Bromley London Borough Council; Christmas v Hampshire County Council (Duty of Care); E (A Minor) v Dorset County Council (Appeal); M (A Minor) and anr v Newham London Borough Council and orsELRWLRUNK [1995] 2 AC 633; [1995] 3 WLR 152; [1995] 3 All ER 353

Textbooks etc. referred to:

Clerk, JF, and Lindsell, WHB, Torts (19th Dugdale and Jones ed, Sweet and Maxwell, London, 2006), paras 9.14, 9.24, 9.25

The cause called before an Extra Division, comprising Lady Paton, Lady Dorrian and Lord McEwan, for a hearing on the summar roll, on 4 and 5 November 2008 and 8 May 2009.

At advising, on 8 December 2009, the opinion of the Court was delivered by Lady Paton-

Opinion of the Court-

Introduction

[1] These three reclaiming motions concern the proper construction of the Electricity Supply Regulations 1988 (SI 1988/1057). The pursuers contend that the Regulations give them a civil right of action to recover damages in respect of alleged breaches of regs 17, 24 and 25. The defenders submit that no such right arises. After debate, Lord Wheatley sustained the pursuers' argument, and by interlocutor dated 18 July 2007 allowed a proof before answer in each case on the pursuers' averments including averments of breaches of the Regulations as set out in art 6 of condescendence. The defenders reclaimed, seeking to exclude the statutory case from probation.

Events giving rise to the claims

[2] On 6 March 1998, a building at 23 Moss Street, Paisley, was destroyed by fire. Investigations identified the seat of the fire as an electricity meter cupboard in the ground floor sports shop. It was thought that a metal shim wrapped around the prongs of a fuse to improve the fit in the fuse holder had caused arcing, leading to fire. The neighbouring building at 25 Moss Street was damaged and had to be demolished. The gable wall between 23-25 and 27 Moss Street was left exposed and had to be made weatherproof.

[3] Actions of reparation were raised against the defenders as suppliers of electricity to the sports shop. The parties seeking reparation are Morrison Sports Ltd, the tenants of the sports shop; Brian Pitchers, the owner of the buildings at 23 and 25 Moss Street; and Baljit Singh and six others, the owners and occupiers of tenement flats at 27 Moss Street. The pursuers blame the defenders' employees, alleging negligence at common law and breaches of the Electricity Supply Regulations 1988. Morrison Sports Ltd claim in respect of lost stock, contents, and profit. Brian Pitchers claims in respect of the value of the properties destroyed, demolition costs, professional fees, the cost of meeting smoke and water damage claims, loss of rental income, and demolition and repair costs. Mr Singh and others claim in respect of the cost of weatherproofing the exposed gable wall.

[4] The defenders deny that their employees inserted the metal shim in the fuse, and suggest that someone else tampered with the...

To continue reading

Request your trial
3 cases
  • Morrison Sports v Scottish Power
    • United Kingdom
    • Supreme Court
    • Invalid date
    ...[2010] UKSC 37 THE SUPREME COURT Trinity Term On appeal from: 2009 CSIH 92 Lord Rodger Lord Walker Lady Hale Lord Collins Lord Clarke Morrison Sports Limited and others (Respondents) and Scottish Power (Appellant) (Scotland) Appellant Richard Keen QC Jonathan Barne (Instructed by Shepherd a......
  • Ho Chee Sing James v Secretary For Justice
    • Hong Kong
    • High Court (Hong Kong)
    • 22 July 2015
    ...by the risk of damage to property’. The Extra Division were much bolder: assuming the class required to be identified, they considered 2010 SLT 243 para 46 that Parliament intended to confer rights on all members of the public within the United Kingdom.” 73. The fact that a particular statu......
  • Ho Chee Sing James v Secretary For Justice
    • Hong Kong
    • High Court (Hong Kong)
    • 22 July 2015
    ...by the risk of damage to property’. The Extra Division were much bolder: assuming the class required to be identified, they considered 2010 SLT 243 para 46 that Parliament intended to confer rights on all members of the public within the United Kingdom.” 73. The fact that a particular statu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT