David Stewart+doreen Kennedy Stewart V. Aftab Ahmed Malik
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Eassie,Lord Marnoch |
| Judgment Date | 03 February 2009 |
| Neutral Citation | [2009] CSIH 5 |
| Date | 03 February 2009 |
| Court | Court of Session |
| Published date | 17 June 2009 |
| Docket Number | XA106/08 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Eassie Lord Marnoch | [2009] CSIH 5 XA106/08 OPINION OF THE LORD PRESIDENT in Appeal from the Sheriffdom of South Strathclyde, Dumfries and Galloway at Ayr in the cause DAVID STEWART AND DOREEN KENNEDY STEWART Pursuers and Respondents; against AFTAB AHMED MALIK Defender and Appellant: _______ |
Act: Sanders; A & W M Urquhart (Pursuers and Respondents)
Alt: Heaney; Balfour + Manson LLP (for McCluskey Browne, Kilmarnock) (Defender and Appellant)
3 February 2009
Introduction
[1] The respondents are the proprietors of a flat which comprises the first floor and the attic above of tenement property in Maybole, Ayrshire. The appellant's shop lies directly below the respondents' property. The respondents seek damages for the cost of remedial works to their flat as a result of building works carried out in June 2004 within that shop. Those works involved the removal of a load-bearing wall. The works, as planned, involved the insertion, in its place, of steel support beams and a central supporting column. The load bearing wall was directly below, and bore the weight of, the wall in the respondents' living room and the attic wall above. A building warrant had been obtained from South Ayrshire Council in respect of the works. The respondents claim that the works were not carried out in accordance with the building warrant in that there was a negligent failure to construct the central support column, resulting in damage to their flat. The works were carried out by an independent contractor, Ober Limited, engaged by the appellant and working under the supervision of the firm of architects which had applied for the building warrant. The issue in the present appeal concerns whether the appellant, having instructed independent contractors to carry out the works, is liable to the respondents for the damage to their property.
Proceedings in the sheriff court
[2] At first instance the sheriff held that, absent specific averments that the works were inherently hazardous, there was nothing to bring this case within the exception to the general rule that an employer is not responsible in law for the acts of an independent contractor: the pleadings were irrelevant. Before the sheriff principal the respondents were allowed to amend article 3 of the condescendence, which contained averments of fault, to include an averment that the removal of the load bearing wall was an inherently hazardous operation and to add a new plea-in-law that the appellant was liable for the acts and omissions of the contractor in carrying out that operation. In addition, article 2 of the condescendence, which, inter alia, described how the works deviated from the building warrant by the omission of a support column, was amended to include the following averment:
"The removal of a load bearing wall in this way was an inherently hazardous operation, as the wall supported the weight of the structures above"
In allowing the appeal, the sheriff principal found that, while the pleadings might have been framed with greater care, the respondents' case as a whole involved an offer to prove that the operation carried out was inherently dangerous and that, exceptionally, the law provided a remedy against the party who instructed such work albeit carried out by an independent contractor (Walker on Delict (2nd ed.), pages 154 and 159; Dalton v Angus (1881) L.R. 6 App. Cas. 740, per Lord Watson at page 831; Duncan's Hotel (Glasgow) Ltd v J & A Ferguson Limited 1972 S.L.T. (Notes) 84, a decision following debate).
Submissions for the appellant
[3] On behalf of the appellant Mr Heaney presented two submissions. The first was that there was in Scots law no "inherently hazardous operations" exception to the general rule that an employer was not liable for the fault of an independent contractor. The passage in Walker referred to by the sheriff principal, and relied on by the respondents, referred only to English decisions (Bower v Peate (1876) L.R. 1 Q.B.D. 321; Penny v Wimbledon UDC [1899] 2 Q.B. 72; Dalton v Angus. In analogous contexts the House of Lords had not been keen to extend the exception in that jurisdiction (Ferguson v Welsh [1987] 1 W.L.R. 1553, per Lord Keith of Kinkel at page 1560 and Lord Oliver at page 1562 (occupier's liability); D & F Estates v Church Commissioners for England [1989] 1 A.C. 177, per Lord Bridge of Harwich at page 208E (liability of a contractor for a subcontractor)). Its existence had been doubted in other common law jurisdictions, such as Australia (Stoneman v Lyons (1975) 133 C.L.R. 550, per Mason, J at pages 574-5). There was no clear authority importing the exception into Scots law: Stewart v Adams 1920 S.C. 129 involved the defender's personal fault rather than a form of vicarious liability; the decision following proof, as opposed to debate, in Duncan's Hotel v Ferguson Ltd (1974 S.C. 191) could equally have been made on the basis of the defender's recklessness - while Lord Stott had referred to the exception, the Inner House cases which he had cited were consistent with liability resulting from culpa (Cameron v Fraser (1881) 9 R. 26; Miller v Renton (1885) 13 R. 309). It was accepted that a number of early text books did make reference to the exception (Glegg on Reparation (first ed.) at pages 25 and 27; Gloag and Henderson, Introduction to the Law of Scotland (first ed.) at pages 350 and 362; cf Green's Encyclopaedia of the Law of Scotland, (third ed.) Vol.XII, paras.1103-1106). However, its existence had been doubted by Lord Macphail in Southesk Trust Company Limited v Angus Council [2006] CSOH 6 (at paras [15 ]to [21]), on which the appellant relied.
[4] Given the potential for danger in most operations, the breadth of such an exception was problematic and its application might lead to anomalous results (Atiyah, Vicarious Liability in the Law of Torts, chapter 32). Its existence was also inconsistent with the modern law of delict in Scotland, which based liability on culpa (Kennedy v Glenbelle Limited 1996 S.C. 95, per Lord President (Hope) at page 100). An employer might be liable for the actions of an independent contractor where he knew, or ought to have known, that work being done would harm his neighbour (cf Noble's Trs v Economic Forestry (Scotland) Limited 1988 S.L.T. 662; Borders RC v Roxburgh DC 1989 S.L.T. 837; G.A. Estates v Caviapen Trustees Limited (No.1) 1993 S.L.T. 1037, per Lord Coulsfield at page 1042; McKenzie v Peter McAinsh Limited and Others 1975 S.L.T. (Notes) 34). That involved personal fault, which had not been averred in the present case. By employing an independent contractor and obtaining a building warrant the appellant had discharged his duty to take reasonable care. Business depended on the right to rely upon individuals sufficiently experienced being entrusted with relevant work (Daniel v Metropolitan Railway Company (1871) L.R. 5 H.L. 45, per Lord Westbury at page 61). A strict liability rule was not required given the right of action available to the respondents against the contractor (cf Donoghue v Stevenson 1932 S.C. (H.L.) 31).
[5] Mr Heaney demurred to the suggestion that the exception might simply apply to property-based actions involving an antecedent obligation of support. While English law recognised an absolute right of support at the time of Bower v Peate (cf Blake v Woolf [1898] 2 Q.B. 426), there was no such obligation encompassed by the law of the tenement and of common interest, which governed the present case (Thomson v St Cuthbert's Co-operative Association Ltd 1958 S.C. 380, per Lord Justice Clerk (Thomson) at pages 391-2 and Lord Mackintosh at page 398; Stair Memorial Encyclopaedia, Vol.14, para.2030). That was so even where the interference with the support was by some form of innovation due to works carried out (Doran v Smith 1971 S.L.T. (Sh. Ct.) 46 at page 48). The duty of care on the lower tenement was significant where operations affected support, but he was not an insurer. An upper floor proprietor could seek an interdict preventing such operations being carried out where he anticipated that they involved some danger, but his agreement was not needed. Operations would be allowed by the court where danger could be avoided by the use of due caution (Thomson v St Cuthbert's Co-operative Society Ltd, per Lord Mackintosh at page 398; Stair Memorial Encyclopaedia, Vol.18, para.233; Fergusson v Marjoribanks 12 Nov 1816 F.C; Dennistoun v Bell and Brown (1824) 2 Shaw 784; McNair v McLauchlan and McKeand (1826) 4 Shaw 546). In any event, the respondents' pleadings were not founded on nuisance or common interest and the cases on which they relied which were so founded were not in point.
[6] The appellant's second proposition was that, even if there were such an exception to the general rule, the respondents' pleadings did not aver facts from which it could be shown that the works were inherently hazardous. Mr Heaney submitted that the terms of the respondents' pleadings suggested that it was the fact that the building warrant was not followed which made the works inherently hazardous: they accepted that the works could be done safely, had it been so followed. Despite the amendments which were made, the second article of condescendence still contained the averment that it was the removal of the wall "in this way" which was inherently dangerous. The meaning of inherent was: "existing in something as a permanent, essential, or characteristic attribute". One could only decide if work was inherently dangerous before it was carried out, and not after the event. Such work, no matter what steps were taken, would still pose a risk. The averments did not, therefore, describe an inherently hazardous operation (cf Stoneman v Mason, per Mason, J page 575; Dalton v Angus, per Lord Watson at page 831). Mr Heaney moved that we allow the appeal, sustain the appellant's first plea-in-law and dismiss the...
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...by the court. A neutral citation comprises: Names of parties [year] abbreviation for the court running number Example: Stewart v Malik [2009] CSIH 5 The Cardiff Index to Legal Abbreviations (see above) will expand the abbreviations used for all courts. The neutral citation abbreviations for......