Morrison Sports Limited And Others V. Scottish Power
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord McEwan,Lady Paton |
| Judgment Date | 08 December 2009 |
| Neutral Citation | [2009] CSIH 92 |
| Published date | 08 December 2009 |
| Date | 08 December 2009 |
| Court | Court of Session |
| Docket Number | A839/04 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lady Dorrian Lord McEwan | [2009] CSIH 92 A839/04 A840/04 A842/04 OPINION OF THE COURT delivered by LADY PATON in the cause MORRISON SPORTS LIMITED AND OTHERS Pursuers and Respondents; against SCOTTISH POWER Defenders and Reclaimers: _______ |
Pursuers and respondents: Ivey Q.C., P. Stuart, Advocate; Andersons
Defenders and reclaimers: Cullen Q.C., Barne, Advocate; Shepherd & Wedderburn
8 December 2009
Introduction
[1] These three reclaiming motions concern the proper construction of the Electricity Supply Regulations 1988. The pursuers contend that the regulations give them a civil right of action to recover damages in respect of alleged breaches of Regulations 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 Article 6 of Condescendence. The defenders reclaimed, seeking to exclude the statutory case from probation.
The 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 Limited, 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 Limited 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 fuse. They also contend that the pursuers' cases so far as based on the 1988 Regulations are irrelevant.
The statutes and regulationsExcerpts from the primary legislation
[5] Section 3C of the Electricity Act 1989 provides for consultation by the Secretary of State and the Gas and Electricity Markets Authority with the Health and Safety Executive about all electricity safety issues, defined as:
" ... anything concerning the generation, transmission, distribution or supply of electricity which may affect the health and safety of -
(a) members of the public ..."
[6] Section 29 of the 1989 Act (the successor to section 16 of the Energy Act 1983, which provided for the making of regulations for the supply of electricity, including "the eliminating or reducing of the risks of personal injury, or damage to property or interference with its use, arising from the supply of electricity") provides inter alia:
"Regulations relating to supply and safety
(1) The Secretary of State may make such regulations as he thinks fit for the purpose of -
(a) securing that supplies of electricity are regular and efficient;
(b) protecting the public from dangers arising from the generation,
transmission or supply of electricity, from the use of electricity supplied or from the installation, maintenance or use of any electric line or electrical plant; and
(c) without prejudice to the generality of paragraph (b) above, eliminating or reducing the risks of personal injury, or damage to property or interference with its use, arising as mentioned in that paragraph ..."
[7] In terms of section 29(2) of the 1989 Act (the successor to section 16(2) of the 1983 Act and similar in its content), the regulations may contain powers to prohibit systems not approved by the Secretary of State; to require notice to be given to the Secretary of State of accidents or failures in supply; to provide for the keeping of maps and plans by the electricity supplier; to require compliance with Notices issued by the Secretary of State (for the purpose of preventing or ending a breach of the regulations, or eliminating or reducing a risk of personal injury or damage to property or interference with its use); to provide that compliance with certain specified standards will be deemed to be compliance with the regulations; and to provide a power to grant exemptions from the regulations.
[8] Section 29(3) of the 1989 Act further provides:
"Regulations under this section may provide that any person -
(a) who contravenes any specified provision of the regulations; or
(b) who does so in specified circumstances,
shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale [£5,000 at the relevant time]; but nothing in this subsection shall affect any liability of any such person to pay compensation in respect of any damage or injury which may be caused by the contravention."
[9] Section 39 of the 1989 Act provides that the Director General of Electricity Supply may make regulations prescribing standards of performance in the supply of electricity. Section 39(3) and (4) provide:
"(3) 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.
(4) The making of compensation under this section in respect of any failure by a public electricity supplier to meet a prescribed standard shall not prejudice any other remedy which may be available in respect of the act or omission which constituted that failure."
[10] Schedule 17 to the 1989 Act provides inter alia:
"2 ... Any regulations made under section 16 of the Energy Act 1983 which are effective on the day appointed for the coming into force of section 29 of this Act shall have effect as if -
(a) they were made under the said section 29 ..."
Excerpts from the secondary legislation
[11] The Electricity Supply Regulations 1988 (S.I. 1988 No.1057, made originally under section 16 of the Energy Act 1983) provide inter alia as follows:
"3.-(1) In these Regulations, unless the context otherwise requires ...
"danger" includes danger to health or danger to life or limb from shock, burn, injury or mechanical movement to persons, livestock or domestic animals, or from fire attendant upon the generation, transformation, supply or use of energy ...
"supplier's works" means electric lines, supports and apparatus of or under the control of a supplier used for the purposes of supply, and cognate expressions shall be construed accordingly ...
Sufficiency of supplier's works
17. All supplier's works shall be sufficient for the purposes for, and the circumstances in, which they are used and so constructed, installed, protected (both electrically and mechanically), used, and maintained as to prevent danger or interruption of supply so far as is reasonably practicable ...
Inspection of supplier's works
24. The supplier shall take all reasonably practicable steps to inspect his installations and works to ensure compliance with these Regulations.
Supplier's works on consumer's premises
25. (1) The supplier shall ensure that all his works on a consumer's premises which are not under the control of the consumer (whether forming part of the consumer's installation or not) are -
(a) suitable for their respective purposes;
(b) installed and, so far as is reasonably practicable, maintained so as to prevent danger: and
(c) protected, so far as is reasonably practicable, by a suitable fusible cut-out or automatic switching device as close as reasonably practicable to the supply terminals.
Provided that no such fusible cut-out or automatic switching device shall be inserted in any conductor connected with earth...
Exemption from requirements of Regulations
37. (1) Where a request is made to the Secretary of State to grant an exemption from a requirement of these Regulations, that request shall be made in writing and shall state the full extent of the reasons for the exemption sought.
(2) Where the Secretary of State is satisfied that an exemption may be granted without prejudice to safety or interference with the supply of others, the Secretary of State may grant such an exemption as he thinks appropriate."
The averments challenged: Article 6 of Condescendence
[12] In each case, Article 6 of Condescendence is in the following terms:
"Separatim the fire at the premises was caused by the defenders' breach of statutory duty. The defenders were in breach of the duties incumbent upon them as suppliers of electricity under and in terms of the Electricity Supply Regulations 1988.
Regulation 17 is in the following terms:
'All supplier's works shall be sufficient for the purposes for, and the circumstances in, which they are used and so constructed, installed protected (both electrically and mechanically), used, and maintained as to prevent danger or interruption of supply so far as is reasonably practicable.'
The cut-out fuse was part of the suppliers works as defined by the said Regulations. In its condition as at the time of the fire the fuse was not sufficient for the purposes for which and the conditions in which it was being used due to the presence of the shim. The...
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