Southesk Trust Company Limited+elsick Farms Limited V. Angus Council+nynas Uk Ab+harry Lawson Limited+scottish Water
| Jurisdiction | Scotland |
| Judge | Lord Macphail |
| Neutral Citation | [2006] CSOH 006 |
| Date | 20 January 2006 |
| Docket Number | A1599/02 |
| Court | Court of Session |
| Published date | 20 January 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 006 | |
| A1599/02 | OPINION OF LORD MACPHAIL in the cause (FIRST) SOUTHESK TRUST COMPANY LIMITED and (SECOND) ELSICK FARMS LIMITED Pursuers; against ANGUS COUNCIL First Defenders; NYNAS UK AB Second Defenders; HARRY LAWSON LIMITED Third Defenders; SCOTTISH WATER Fourth Defenders: ________________ |
Pursuers: Clarke; Brodies, W.S.
First Defenders: No appearance
Second Defenders: Jones, Solicitor Advocate; Brechin Tindal Oatts
Third Defenders: Hofford; HBM Sayers
Fourth Defenders: Haldane; Dundas & Wilson
20 January 2006
Introduction
[1] The pursuers sue this action as the trustees acting under a deed of trust between the late Earl of Southesk KCVO and others. The property they hold in trust includes the Kinnaird Mill Trout Farm near Brechin, Angus. The trout farm is fed from the waters of the River South Esk. The pursuers seek damages for the loss and damage which they aver they sustained when a large quantity of diesel oil entered the river after a spillage during a delivery of oil at Brechin High School. As a result, say the pursuers, a substantial quantity of fish in the trout farm became contaminated by the oil and had to be destroyed; and the pursuers also suffered other losses. They sue each of the defenders for payment of £112,354.82. The first defenders are the local authority who are the owners of Brechin High School and the employers of the janitors. The second defenders produce and deliver oil for heating purposes. The third defenders were engaged by the second defenders to deliver the oil to the school. The fourth defenders are a body corporate created by the Water (Scotland) Act 2002 in terms of which they have succeeded to the liabilities of the North of Scotland Water Authority.
[2] Each of the defenders have stated a general plea to the relevancy of the averments against them, while the pursuers have stated pleas to the relevancy of the averments of the first, second and third defenders. When the case called before me on the Procedure Roll there was no appearance on behalf of the first defenders. I was advised that they accepted that as far as they were concerned there should be inquiry by way of proof before answer. Counsel for each of the other defenders submitted that the action so far as laid against them should be dismissed. Counsel for the pursuers did not argue their pleas to the relevancy and invited me to repel them.
[3] Before counsel embarked on their submissions, counsel for the fourth defenders tendered a minute of amendment containing averments and a plea-in-law to the effect that any obligation on their part to make reparation to the pursuers had prescribed in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973. On counsel's unopposed motion I allowed the minute of amendment to be received and I appointed the pursuers to lodge answers, if so advised, within six weeks. Counsel were agreed that the hearing on the Procedure Roll should proceed notwithstanding this development.
[4] It is convenient to record now that the solicitor advocate for the second defenders tendered a supplementary note of argument at the bar, and I allowed it to be received. In the course of the hearing I allowed the following minor amendments. In article 3 of the condescendence I allowed the sentence at the foot of page 24 and the top of page 25 to be amended to read:
"At the material time businesses, including fish farms, could be found located at rivers in Scotland or used waters diverted from such rivers."
In article 9 on page 37, at lines 17 and 19, I allowed the figure of "450 kg", startlingly averred to be the average selling weight of the pursuers' fish, to be modified to "450 gm".
The pursuers' averments of fact
[5] It is necessary to set out the pursuers' averments of fact in articles 2 and 3 of the condescendence in so far as they were discussed at the hearing. It will be convenient, for future reference, to divide the averments into numbered sub-paragraphs. In article 2 the pursuers aver:
"(Cond 2)
(1) The property held in trust by the pursuers in terms of the Deed of Trust includes the Kinnaird Mill Trout Farm near Brechin in Angus. The trout farm is located adjacent to and is fed from the waters of the River South Esk. The first defenders own Brechin High School and employ inter alia the janitor and assistant janitor at the said school. The second defenders produce and deliver oil for heating purposes. In about June 1999, the first defenders ordered oil from the second defenders. The third defenders were engaged by the second defenders to deliver the said oil.
(2) At about 7.00 a.m. on about 22nd June 1999, Adam Finnie, an employee of the third defenders, arrived at Brechin High School to deliver the oil. At all material times Adam Finnie was acting in the course of his employment as an employee of the third defenders. Edwin Murray, assistant janitor at the school, was in attendance at the oil tanks. At all material times Edwin Murray was acting in the course of his employment as an employee of the first defenders.
(3) The oil tanks at the school were housed within a single-storey brick building with a paved flat roof. The single-storey brick building was attached to the main school premises. There were two oil tanks in the building. Oil was delivered by means of connecting an oil delivery hose to the connection point on the outside wall of the building and delivering oil into the first tank. The two tanks were linked by a pipe. The link pipe was approximately 1.25 inches in diameter. Oil fed into the first tank passed to the second tank through the link pipe under the action of gravity. The first tank could fill up even though the second tank was only partially filled. The first tank was therefore able to overflow, even when less than the full capacity of the two tanks had been delivered. The first tank was more likely to overflow if oil was delivered more quickly than would allow it to pass into the second tank. At all material times the first defenders were aware that if the rate of flow into the first tank exceeded the rate of flow from the first to the second tank, oil could back-up in the first tank and escape through the vent pipes. No bund or catchpit or chamber was located at the site of the tanks for the purpose of containing an overflow of oil and avoiding or reducing the possibility of it flowing into the town's drainage system. Each tank had a vent pipe. Each vent pipe projected through the roof. The vent pipes were not visible to a person standing at the hose connection point. There were two drains in the paved flat roof. These drained to the drainage system. On the outside of the wall of the building containing the tanks there were gauges showing oil levels within the tanks.
(4) Edwin Murray [the assistant janitor] gave instructions to Adam Finnie [the third defenders' employee]. Adam Finnie connected the oil delivery hose. Adam Finnie commenced pumping oil from the delivery vehicle to the tanks. The oil delivery hose was 2 inches in diameter. Accordingly, oil flowed into the first tank from the delivery vehicle more quickly than it could transfer, by means of the linking pipe, into the second tank. During delivery of the oil, Edwin Murray did not check the vent pipes to see whether oil was escaping. Edwin Murray did not supervise the delivery of oil by Adam Finnie in order to check that oil was being delivered at an appropriate rate or to check the gauges to see whether a tank was becoming full. During delivery of the oil, Adam Finnie did not take steps to have the vent pipes checked to see whether oil was escaping. Adam Finnie did not ask Edwin Murray to check the vent pipes to see whether oil was escaping. Adam Finnie did not check the gauges to see whether a tank was becoming full.
(5) A substantial quantity of oil escaped from one of the vents in the paved roof of the building. At about 11.50 a.m. on 22nd June 1999, the second defenders contacted the Scottish Environment Protection Agency (SEPA) and informed them that approximately 1500 gallons of oil had escaped from a vent as the tank was being filled. The North of Scotland Water Authority estimated that between 1200 and 1700 gallons of diesel oil had been spilled. Significant quantities of the oil entered the drainage system and thereafter entered the River South Esk. SEPA noted that hydrologists doing work at a gauging station on the river reported seeing diesel oil in the river on 23rd June 1999. Janice Wotherspoon, a SEPA Environment Protection Officer, also noticed diesel in the River South Esk on 23rd June 1999. Further oil was discharged from the drainage system into the river in the evening of 23rd June 1999 or in the early hours of 24th June 1999.
(6) As a result of the oil spillage on 22nd June, a substantial number of fish in the fish farm became contaminated by the oil and required to be destroyed. The pursuers discovered the contamination of the fish when they were harvested, at about 4.30 a.m. on the 24th June 1999. By letter dated 28 June 1999, North of Scotland Water Authority advised the first defenders of the seriousness of the incident and required the first defenders to notify the authority in writing within fourteen days of all remedial steps the first defenders intended to take to prevent a repetition of such an incident. The authority stressed that all deliveries of oil and diesel must be supervised. The authority invoiced the first defenders for the costs of remedial action. Thereafter, the first defenders issued instructions that deliveries of oil required to be supervised.
(7) Further explained and averred that the tanks were installed when the school was built in 1970. From about 1974 it was known to the first defenders that the gauges were slow in displaying the levels of oil in the tanks. The first defenders' head janitor, David Candy, understands there to have been two previous oil spillages from the...
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