Scottish Gas Network V. Scottish Water
| Jurisdiction | Scotland |
| Judge | Sheriff John K Mundy |
| Court | Sheriff Court |
| Date | 13 December 2011 |
| Docket Number | A/530 |
| Published date | 08 March 2012 |
| SHERIFFDOM OF TAYSIDE, CENTRAL & FIFE AT DUNFERMLINE Case Number:A/530/09 | |
| Judgment by JOHN K MUNDY, Esq. Advocate, Sheriff of Tayside, Central & Fife in the cause SCOTLAND GAS NETWORKS PLC Pursuers against SCOTTISH WATER Defenders ________________ |
DUNFERMLINE, 13th December 2011.
The Sheriff having resumed consideration of the cause
FINDS IN FACT:
- The pursuers have statutory responsibility and ownership of the gas distribution network in Scotland.
- The defenders have statutory responsibility for the public water supply throughout Scotland.
- Between around 27 September and 3 October 2006, the pursuers' contractors Alfred McAlpine ("AM") carried out works involving the excavation of a trench, replacement of an existing cast iron gas main and the laying of a new polyethylene gas pipe ("the gas pipe") of 250mm diameter, running generally from west to east along the length of Kildonan Street, Coatbridge. The core of the pipe was polyethylene and it had a skin of polypropylene. The gas pipe was laid on around 27 September 2006.
- The gas pipe passed underneath an existing water pipe belonging to the defenders ("the water pipe"). The water pipe was a branch pipe which ran generally from north to south, connecting a water main to a fire hydrant.
- The gas pipe and water pipe intersected at or near to a point on the carriageway of Kildonan Street marked " 4" " on the plan forming 6/4 of process.
- The water pipe was three inches in diameter. It was made of cast iron and was 30 to 50 years old.
- On or about 27 September, the area where the pipes intersected was excavated by employees of AM, including John McLaughlin, Team Leader; Chris McMillan, a labourer; and another employee who operated a mechanical digger. A trench was dug along the line of the gas pipe which including the point of intersection. When the employees approached the level of the water pipe, they proceeded cautiously and dug by hand, using spades, around the water pipe and existing gas main.
- When the gas pipe was laid, it was around 200mm from the water pipe.
- Following the laying of the gas pipe, the trench was backfilled by the pursuer's contractors on around 28 September 2006.
- The backfilling operation was carried out by employees of AM, including John McLaughlin and a Walter McKeown, a lorry driver, with the aid of a mechanical crane with bucket. They used sand and Type 1 aggregate as infill material, and who used hand tools to compact the infill material in the vicinity of the water pipe.
- The infill material was adequately compacted in the course of the backfilling operation.
- No escape of water was observed from the water pipe during the excavation, the laying of the gas pipe, or the subsequent backfilling of the trench.
- Following the backfilling of the trench, at or shortly after 8 am on 3 October 2006, a reinstating team, also employed by the pursuers, laid a base layer over the infill material and a mechanical device, then either a pneumatic compacting device known as a "whacker plate" or a vibrating drum roller, was used to further compact the material in the trench in preparation for laying a new tarmac surface.
- The use of that device resulted in forces being transmitted to the water pipe which led it to fail and a leak to develop on its underside.
- A jet of water from the water pipe, containing grit from the infill material, struck the gas pipe and eroded a hole in it.
- After around two or three hours, the water jet penetrated the gas pipe, causing gas to escape and the gas supply to be interrupted.
- At around 8.50am on 3 October 2006, employees of AM observed water escaping from the excavation in the area where the water pipe crossed the gas pipe, and the team leader on site, John McLaughlin, reported the escape of water to his superior Colin Fyfe by telephone.
- At around 9am that day, and again at around 11am, Colin Fyfe reported the escape of water to the defenders by telephoning their helpline.
- At around 11.45am, the pursuers began to receive reports from customers of a loss of gas supply, resulting from the damage to the gas pipe.
- At around midday, the employees of AM began to excavate the site with a view to discovering the cause of the water leak.
- At around 1.30pm, John McLaughlin flagged down a van belonging to the defenders and alerted the driver to the escape of water in Kildonan Street, which the driver reported to the defenders. In response to that, the defender arranged for its employees to attend at Kildonan Street and cut off the water supply to the water pipe. Employees of the defenders arrived on site at around 2 to 2.30pm and the supply of water to the damaged pipe was disconnected by them at around 3.30 to 4pm.
- After the water was switched off, and following excavation, the water pipe was inspected and was found to have a hole in the underside. The hole was large enough for a finger to be inserted.
- The presence of such a hole is consistent with there being corrosion in the area of the water pipe where the hole developed.
- Prior to the works, in around September 2006, Colin Fyfe, Team Manager with AM, attended a meeting with various agencies including representatives of the Roads Department of the local authority, North Lanarkshire Council, and was advised that the water pipes in the area were liable to burst and that there had been occasions when they had burst. Mr Fyfe then briefed Team Leader John McLaughlin. At the outset of the works in the locality, Mr McLaughlin who was also advised by officials from the local authority that water pipes had failed in the area.
- The water pipe were replaced by the defenders with a new plastic water pipe prior to a joint inspection attended by Dr Simon Jones, the pursuers' expert and Mr Gordon Morris, the defenders' expert on 26 August 2010.
- By the time of the commencement of the works in September 2006, the water pipe was in a poor condition and was corroded. It was near to or at the end of its useful service life.
- The water pipe failed because it was in a corroded condition such that it failed under the additional forces applied by the compacting equipment used by the employees of AM in the proper exercise of their work.
FINDS IN FACT AND LAW
1. That it has not been proved that the damage to the pursuer's gas pipe was caused or materially contributed to by the misconduct or negligence of the pursuers or their contractors either because of a failure to provide protection between the water pipe and the gas pipe or because of their conduct of the works.
- That it has not been proved that the damage to the pursuer's gas pipe was caused by the negligence of the defenders at common law in failing to respond promptly to notification of a water leak.
FINDS IN LAW
- That the defenders are liable to compensate the pursuers in respect of any expense reasonably incurred in making good damage to the pursuers' gas pipe in terms of section 141(1) of the New Roads and Streets Act 1991.
- That the defenders are not liable to make reparation to the pursuers at common law.
THEREFORE
Sustains the first pleas in law for the pursuers to the extent of finding the defenders liable to compensate the pursuers in respect of any expense reasonably incurred in making good the damage to the pursuers' gas pipe in terms of section 141(1) of the New Roads and Streets Act 1991; repels the second plea-in-law for the pursuers; repels the third and fourth pleas-in-law for the defenders; appoints the cause to a hearing to determine further procedure on a date to be afterwards fixed.
NOTE:
Introduction
[1] The pursuers have raised an action against the defenders for payment of £206,590.20. The claim arises out of events occurring between 27 September and 3 October 2006 during the replacement of a gas main by the contractors Alfred McApline ("AM") on behalf of the pursuers ("SGN") underneath the defenders' water pipe in Kildonan Street, Coatbridge. The gas pipe installed during the works was damaged by water emanating from a breach in the water pipe.
[2] The claim is firstly for compensation under section 141 of the New Roads and Street Works Act 1991 ("1991 Act") for the expense of making good the damage to the gas pipe and secondly at common law for loss and damage on the basis of negligence.
[3] The action was raised towards the end of 2009 and after sundry procedure came before me for proof on liability only. I heard evidence over four days - 23 May, 15, 16 and 17 August 2011 after which the notes were extended and submissions on the evidence made on 13 October 2011. Mr O'Brien, Advocate appeared for the pursuers and Mr Marney, Advocate appeared for the defenders.
[4] The witnesses for the pursuers were: (1) Colin Fyfe (2) John McLaughin (3) Michael McKeown (4) James Slaven - all employees or contractors of the pursuers - and (5) Dr Simon Jones, Chartered Mechanical Engineer, the pursuer's expert. Gordon Morris, Chartered Engineer, gave expert evidence for the defenders. A joint minute was lodged agreeing certain documents.
[5] Colin Fyfe was a Team Manager with AM at the material time based at Coatbridge. His job involved visiting sites, dealing with problems and liasing with the local authorities. He was involved in the work in question in a managerial capacity. He now works for SGN. John McLaughlin was at the time a Team Leader with AM. His manager was Colin Fyfe. He was directly involved with the works in question. He now works for SGN. Michael McKeown was a Team Leader with responsibility for dealing with gas escapes and became involved in the incident following reports of low gas pressure in the locality. James Slaven was a Performance Manager with the SGN based at their Coatbridge Depot who, like Mr McKeown, became involved following reports of loss of gas pressure. I found that these witnesses gave their evidence in a straight forward manner and had no reason to doubt that the evidence they gave was honestly given. It...
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