Viewpoint Housing Association Limited V. The City Of Edinbugh Council
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Judgment Date | 2007 |
| Neutral Citation | [2007] CSOH 114 |
| Court | Court of Session |
| Published date | 05 July 2007 |
| Year | 2007 |
| Date | 05 July 2007 |
| Docket Number | A220/05 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 114 | |
| A220/05 | OPINION OF LORD EMSLIE in the cause VIEWPOINT HOUSING ASSOCIATION LTD Pursuer; against THE CITY OF EDINBURGH COUNCIL Defender: ________________ |
Pursuers: Ellis QC; HBM Sayers
Defenders: McBrearty; Simpson and Marwick
5 July 2007
Introduction
[1] The twin issues which have been canvassed at a procedure roll debate before me are (i) whether the pursuers have relevantly averred a case of negligence against the defenders at common law in respect of the flooding of their property in Edinburgh in April 2000, and (ii) whether the pursuers have relevantly pled a case of nuisance against the defenders arising out of the same set of circumstances. The pursuers are the heritable proprietors of a sheltered housing complex in Colinton Road, Edinburgh, some 700 metres distant from the point at which the Braid Burn is culverted through an embankment carrying Redford Road. The embankment and associated culverting arrangements were constructed by the defenders' predecessors as roads authority between 1957 and 1968, and since then the defenders and their predecessors have not only been the relevant roads authority but also (by admission on record at page 7B) the owners, possessors and controllers of the relevant works.
[2] On Record, the pursuers aver a lengthy history of flooding in the area from 1984 onwards, alleging that this was caused by the inadequate size of the culvert and by the absence of ancillary protection in the form of screening to prevent blockage or constriction by water-borne debris. They also aver a series of reports obtained by the defenders between 1993 and 1996, which inter alia highlighted the inadequacy of the culverting arrangements and discussed remedial measures which were never in fact undertaken. According to the pursuers the applicable design and maintenance standards from 1975 onwards required that the culvert be of sufficient size and capacity to cope with a 100 year return flood, with the embankment providing 20 per cent extra protection against flooding at the locus. Since what occurred in April 2000 was a 100 year return flood, the pursuers' position is that properly designed and maintained culverting arrangements would have avoided flooding and property damage altogether or, failing that, materially reduced their extent and duration.
Submissions for the defenders
[3] In seeking dismissal of the action, counsel for the defenders acknowledged that the pursuers had sufficiently averred the forseeability of flooding and consequent property damage in the event that culvert improvement works were not undertaken. He contended, however, that the pursuers had failed to bring themselves within the other two limbs of the well-known tripartite test for liability in negligence at common law. In the leading case of Caparo Industries Plc v Dickman & Others 1990 2 AC 605 Lord Bridge of Harwich at pages 617-618, confirmed that forseeability of harm was not of itself sufficient to give rise to a relevant duty of care, and that the existence of such a duty must also depend on (i) proof of a relationship of proximity between the parties and (ii) a judgment by the court that in all the circumstances the imposition of liability would be fair, just and reasonable. In a Scottish context, this tripartite test had been subsequently affirmed in many cases, of which British Telecommunications Plc v James Thomson & Sons (Engineers) Ltd1999 SC HL 9, Gibson v Orr 1999 SC 420 and Bennett v J Lamont & Sons 2000 SLT 17 were cited as examples. In the last-mentioned case it was alleged that the duty of care owed by a roads authority to road users extended to the maintenance of adjacent walls so as to prevent third parties' cattle straying on to the carriageway. Temporary Judge TG Coutts QC dismissed this claim, holding inter alia that the averments of forseeability were inadequate, and also that it would not be fair, just and reasonable to extend the responsibilities of a roads authority in the manner alleged.
[4] Importantly, their Lordships in Caparo pointed out (a) that the three limbs of the tripartite test could not be defined with precision, (b) that one might substantially overlap with another, such that clear proof of forseeability of harm might often suffice to establish proximity, (c) that the three limbs were no more than convenient indicators against which the detailed facts and circumstances of a given case must be judged, and (d) that the established categories of liability at common law should not be extended except on an incremental and analogous basis.
[5] Against that background, the main contentions advanced by counsel were as follows:-
(i) As a matter of law, any duty of care incumbent on a roads authority at common law was owed only to road users and in an operational context. This proposition was said to be vouched by a series of cases in which road users had been the pursuers:- Innes v Magistrates of Edinburgh 1798 M 13189; Laing v Paull & Williamsons 1912 SC 196; McFee v Broughty Ferry Police Commissioners 1898 1F 194; Barrie v Kilsyth Police Commissioners 1890 17R 764; Mackie v Dumbartonshire Council 1927 SC HL 99; Smith v Middleton & Others 1971 SLT n.65; Syme v Scottish Borders Council 2003 SLT 601; Grant v Lothian Regional Council 1988 SLT 533 and Gibson v Orr, supra. The pursuers' case based on negligence was thus irrelevant because it involved a radical departure from this established limitation on the common law liability of a roads authority, and because it could not be said to be a modest or incremental development of the accepted scope of the law. The pursuers were not road users at all; they sued in the capacity of heritable proprietors; and their property was situated some 700 metres distant from the relevant works. The demarcation line here was, according to counsel, clear and immutable. In no circumstances could any roads authority be said to owe a duty of care at common law towards anyone other than a road user. Thus (as counsel asserted during the debate) no common law liability could be asserted against a roads authority by local residents poisoned by fumes from road works, nor by the occupants of a train on to which a road bridge collapsed, nor by members of the public suffering harm from flooding due to road operations, whether by drowning or by property damage. The short point was that the common law liability of a roads authority could not extend beyond harm to road users, and the pursuers' case was thus fundamentally irrelevant because it sought to assert the contrary. Wherever the boundary line lay, the pursuers came nowhere near to bringing themselves within it.
(ii) While acknowledging that forseeability and proximity might in some circumstances be difficult to distinguish, the pursuers could not meet the essential requirement of proximity in this case. Again the physical location of the pursuers' property, and its relative remoteness from the embankment and culvert, were important considerations, but as the debate progressed it became clear that the want of legal proximity (on account of the fact that the pursuers did not sue as road users) was counsel's primary concern. Even if the pursuers' property had been situated 7, rather than 700, metres from the locus, the claim would still have been irrelevant on proximity grounds.
(iii) Since the Roads (Scotland) Act 1984 imposed only limited public law duties on roads authorities, coupled with largely discretionary powers which could only be exercised with the concurrence of a third party, namely the Secretary of State, it was clear that any purported imposition of common law duties along the lines averred on Record would be neither fair, nor just, nor reasonable. The defenders did not (and could not) assert that the desiderated culvert enhancement would have been de facto impossible, nor that any statutory immunity could be prayed in aid. Nevertheless, the court should be slow to impose wide-ranging common law duties on a roads authority which might be thought to go beyond the ambit of their statutory powers, and which might, at the instance of individual claimants, prejudice the proper exercise of the defenders' statutory discretion for the benefit of the community as a whole. By statute it was the "bigger picture" which the defenders had to consider; works and expenditure in one place might adversely affect the situation elsewhere; and on no view could the defenders be expected to undertake common law duties which went beyond the intended scope of their statutory functions. According to counsel, the defenders' powers and duties under the 1984 Act were exercisable only in connection with the proper establishment, maintenance and management of the roads system for which they had responsibility, and the imposition of a common law duty to take different or more extensive measures for the benefit of individual third parties would impact adversely on the statutory regime and on the interests of the community which it was designed to serve. The same applied to the defenders' statutory functions under the Flood Prevention (Scotland) Act 1961, as amended.
(iv) Turning with a little less conviction to the case of nuisance averred in condescendence 7, counsel maintained by reference to the decisions in RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC HL 17 and Kennedy v Glenbelle Ltd 1996 SC 95 that some element of culpa was (with one possible exception which did not arise on the present pleadings) an essential prerequisite of liability in nuisance. Since the pursuers sought to establish culpa by reference to the same irrelevant averments of negligence as had already been discussed, the averments here were again irrelevant to go to inquiry. It might conceivably have been open to the pursuers to allege strict liability where the...
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