RHM Bakeries (Northern) v Commissioners of Customs and Excise
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 24 January 1985 |
| Judgment citation (vLex) | [1985] UKHL J0124-2 |
| Docket Number | No. 2. |
| Court | House of Lords |
| Date | 24 January 1985 |
[1985] UKHL J0124-2
House of Lords
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
My Lords,
This appeal raises a question as to the principle on which the owner or occupier of land in Scotland (the defender) is liable at common law for damage to his neighbour's land caused by an agency, in this case sewage, which escapes from an artificial work on the defender's land. A secondary question arises as to the liability of a defender which is a public authority acting under statutory powers.
The appellants (defenders), are a local authority responsible for sewerage in a large area of Scotland including Glasgow. I shall refer to them as "the local authority." The respondents (pursuers) are a company which operates a bakery in Paton Street, Glasgow. I shall refer to them as "R.H.M." On 28 September 1978, there was heavy rainfall in Glasgow and R.H.M.'s bakery in Paton Street was flooded. The cause of the flooding was that a main brick sewer in Paton Street, which was under the operation and control of the local authority, had collapsed about a fortnight earlier and had not been repaired, so that on 28 September it did not effectively drain the area. The precise cause of the collapse is not known. The case has been argued throughout, on both sides, on the footing that the bakery was flooded not only by rainwater from the street, but also, and indeed mainly, by sewage from the blocked sewer, although that is not specifically averred. R.H.M. claim damages from the local authority at common law and also under the provisions of the Sewerage (Scotland) Act 1968. In their common law case, they do not aver that the damage to their bakery was caused by any fault on the part of the local authority, either in failing to take reasonable care to maintain the sewer, or in failing to repair it promptly after it had collapsed, or in any other way. Their case at common law on record is that the flooding was, or possibly was caused by, a nuisance for which the local authority are "strictly liable." Their case under the Sewerage( Scotland) Act 1968 is that by section 2 of that Act the local authority were under a duty to maintain the sewer, and that "said duty [was] absolute." A faint attempt was made by Mr. Murray, who appeared for R.H.M., to argue that his pleadings were sufficient to found a case of fault at least by relying on the brocard res ipsa loquiter. In my opinion the attempt was hopeless on the pleadings as they stand, and we were not moved to allow them to be amended. The pleadings are not well drawn. Nevertheless, inelegant as the pleadings are, the judgments of both courts below show that there has never been any doubt about the issues between the parties. The first issue is, and has always been, whether the local authority are liable at common law for the damage caused by flooding, even if it occurred without fault on their part, or whether they are only liable if they were to some extent at fault. The second issue is, and has always been, whether the local authority are liable for breach of the provision of the Sewerage (Scotland) Act 1968, section 2 requiring them to maintain the sewer, even if they have used all reasonable care and skill to maintain it. A third issue, which depended on section 20 of that Act, was raised in the initial writ, but the averments relating to it were held by the Sheriff and the Sheriff Principal to be irrelevant, and that matter was not reopened in the Second Division or in this House.
Damages, if any, were agreed at £10,250, which is the sum sued for. I assume that that sum was agreed before the action was raised; if so, that may explain, though it cannot justify, the inappropriate form of R.H.M.'s first plea-in-law, which purports to state the sole legal basis of the claim. It is simply that "the defenders [the local authority] being due and resting owing to the pursuers in the sum sued for, decree should be granted as craved." The Sheriff (Horsfall) sustained the local authority's plea to the relevancy of R.H.M.'s pleadings, and dismissed the action. The Sheriff Principal (Dick Q.C.) recalled the Sheriff's interlocutor, sustained the defenders' plea that the averments relating to the third issue (which concerned section 20 of the Act of 1968 and which I have already mentioned) were irrelevant and allowed a proof before answer on the other two issues. The Second Division (Lord Justice-Clerk (Lord Wheatley), Lord Robertson and Lord Dunpark) allowed an appeal from the Sheriff Principal, held the defences irrelevant and granted decree de piano for the sum sued for. The Division held by majority (Lord Dunpark dissenting) that R.H.M.'s averments of nuisance at common law were relevant and unanimously that their averments of breach of section 2 of the Act of 1968 were relevant.
I consider first the question of liability at common law.
The argument in this House resolved itself largely into an analysis of the legal basis of the decision in Kerr v. The Earl of Orkney (1857) 20 D. 298, and later Scottish cases in the same field. Inevitably the argument touched also upon the decision of this House in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 and later English cases in the same field. But no question of English law is raised in this appeal so far as it relates to common law, and I disclaim any intention of deciding one.
The decision of the Second Division on the common law case was based mainly on two recent decisions in the Court of Session — Lord Advocate v. Reo Stakis Organisation Ltd. 1982 S.L.T. 140 and Watt v. Jamieson 1954 S.C. 56 — and I shall have to refer to them later. But it is convenient to start with Kerr v. The Earl of Orkney (1857) 20 D. 298 which for long has been regarded as a landmark decision in this field. Unfortunately the legal basis on which it rests has been the subject of much discussion and, I humbly think, some misunderstanding. The facts were that the defender, the Earl of Orkney, had built a dam on his land in Ayrshire across a stream on which the pursuer had a mill about half-a-mile lower down. Four months after the dam had been completed, there were several days of heavy rain, the dam burst, the waters in the pond behind it escaped and the stream, augmented by those waters, swept away the pursuer's house and his mill. Not surprisingly the defender was held to be liable in damages to the pursuer. The question is as to the exact basis on which he was found to be liable. The Lord Ordinary (Lord Ardmillan) clearly rested his decision in favour of the pursuer on the ground that the defender was at fault. He said at p. 301:
"It is the undoubted fact that the embankment thus constructed by the respondent burst within four months of its completion, and the pent up waters, breaking through the barrier, swept the [pursuer's] house and mill away. This fact occurring in reference to a recent work, constructed by a private party for his own pleasure, must be held to throw on the respondent [the Earl] the burden of explaining the fact on some footing consistent with the strength and sufficiency of the work. In the opinions of Lord Fullerton and Lord Jeffrey in the case of Macaulay v. Buist & Co. (1846) 9 D. 245 and in the opinion of Lord Moncreiff in the case of Samuel v. The Edinburgh and Glasgow Railway Co. (1850) 13 D. 312, sufficient authority will be found for the proposition, that a private party constructing a work under no statutory powers, but at his own hand, must, if that work give way, and causes injury, explain the cause of it on some footing consistent with his discharge of his own duties in regard to it."
The opinion of Lord Fullerton in Macaulay v. Buist (1846) 9 D. 245, 248 contains as clear a statement of the doctrine of res ipsa loquitur (though of course without using that name) as can be found anywhere. The case arose out of an accident in a coalmine where a miner had been killed by a scaffold and machinery giving way. Lord Fullerton after referring to the evidence said:
"Now, what is the fair inference of fact which any man of ordinary sense would draw from this account of the accident? What but that the machine was in some essential particular defective? When a man is ordered by his employer to mount a ladder, and before he has got half way up, the ladder goes to pieces; or when half-a-dozen of men are put upon a scaffold, and the unavoidable consequence is the fall of the scaffold, what is the fair and natural conclusion, but that the one and the other were defective. To say that in such a case the sufferers, in order to make out the responsibility of their employers, are bound to prove the specific defect which occasioned the failure, would be in many cases an absolute denial of justice."
Lord Jeffrey concurred in Lord Fullerton's view. The other opinion relied on particularly by the Lord Ordinary in Kerr v. The Earl of Orkney was that of Lord Moncreiff in Samuel (1850) 13 D. 312 which is also clearly founded on culpa.
When Kerr v. The Earl of Orkney reached the Inner House, the Lord Justice-Clerk (Hope) began his opinion with a general statement which seems to lay down a rule of strict liability and has been so understood in some later cases. The Lord Justice-Clerk said at (1857) 20 D. 298, 302:
"[The] principle is — that if a person chooses upon a stream to make a great operation for collecting and damming up the water for whatever purpose, he is bound, as the necessary condition of such an operation, to accomplish his object in such a way as to protect all persons lower down the stream from all danger; he must secure them against danger. It is not sufficient that he took all the pains which were thought at the time necessary and sufficient."
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