ANGELA McMANUS AND ROBERT McMANUS AGAINST (FIRST) CITY LINK DEVELOPMENT COMPANY LIMITED; (SECOND) SCOTT WILSON SCOTLAND LIMITED; AND (THIRD) LANARKSHIRE HOUSING ASSOCIATION LIMITED

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OUTER HOUSE, COURT OF SESSION

[2015] CSOH 178

 

A116/13

OPINION OF LORD JONES

In the cause

ANGELA McMANUS AND ROBERT McMANUS

Pursuers;

against

(FIRST) CITY LINK DEVELOPMENT COMPANY LIMITED;

(SECOND) SCOTT WILSON SCOTLAND LIMITED; AND

(THIRD) LANARKSHIRE HOUSING ASSOCIATION LIMITED

Defenders:

Pursuers:  Hajducki QC, Sutherland; Morton Fraser LLP

First Defenders:  Dunlop QC, Turner; Pinsent Masons LLP

Second Defenders Duncan QC, Reid; CMS Cameron McKenna LLP

Third Defenders:  Keen QC, Brain; Brodies LLP

 

22 December 2015

[1]        This action concerns a development site at Watling Street in Motherwell, to which I shall refer as “Watling Street” or “the site”.  At the heart of the pursuers’ case is an allegation that, as the result of uses made of the site before it was developed for housing, it was contaminated with chemicals harmful to health, which remained present on the site during and after development.  The first defenders were the developers.  The pursuers aver that the second defenders were the environmental consultants on the development project, but that is denied by the second defenders.  It is averred that, for a time, the pursuers lived at two addresses at Watling Street, as tenants of the third defenders and that, during that time, they inhaled vapours given off by these harmful chemicals, they became ill, and they have suffered loss.  Both houses were built on a part of the site which was designated “Plot A”.

[2]        The pursuers plead a common law case of fault against each of the first and second defenders.  They aver, also, that the first defenders and, separately, the second defenders breached the provisions of section 33(1)(a) of the Environmental Protection Act 1990, and they seek damages against them in terms of section 73(6) of that Act.  The pursuers claim that the third defenders breached an implied term of their tenancy agreement, and were later in breach of certain provisions of the Housing (Scotland) Act 2001.  Each of the defenders pleads that the pursuers’ averments are irrelevant and that the action is barred by the passage of time, in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973. 

[3]        At a case management hearing held on 18 November 2014, the action was sent to the procedure roll for discussion of the defenders’ pleas-in-law.  Each of the defenders undertook not to take specification points but, in the event, that undertaking was not adhered to by the first and second defenders.  The case came before the court on 24, 25 and 26 March 2015 for a hearing, when each of the defenders sought dismissal of the action insofar as it was directed against them.  The closed record extends to 92 pages of text.  The defenders’ challenge to the relevancy of the pursuers’ averments was correspondingly lengthy.

 

The pursuers’ common law case against the first and second defenders

Background

[4]        The pursuers aver that, in or about October 1984 and in or about March 1988, the local planning authority granted outline planning consent to the Scottish Development Agency (“SDA”) in respect of the proposed residential development of the site.  The site planning brief stated that, as the site had been in continuous industrial use for some 40 years, the soil conditions must be considered suspect.  It was a condition of the consent that, prior to the submission of an application in respect of reserved matters, the applicant was to carry out a detailed investigation of the soil conditions prevailing over the entire site, in order to establish the nature, concentration and distribution of any contaminants which may be located within it.  The planning authority would not entertain any application in respect of reserved matters, unless it was accompanied by and took account of the report of that investigation, to the authority’s satisfaction.  (Article 3 of the condescendence)

[5]        The first mention made by the pursuers of the first defenders’ involvement with the Watling Street development is that:  “Notwithstanding that the site was owned by the SDA and its successors, development of the site for the purpose of residential housing” was undertaken by the first defenders.  In or about February 1990 the second defenders offered to carry out “the design of infrastructure works” associated with the proposed development and, during the following month, the second defenders quoted for design work “associated with (the) investigation of the ground at the site for contamination.”  The pursuers aver that the second defenders acted throughout as “environmental consultants”.  (Pages 62B-C and 72D-E of the closed record)  In May 1990, the second defenders wrote to the first defenders “with a proposal for procurement of additional geotechnical data”.  The proposal included carrying out a preliminary contamination survey.  In or about July 1990, the second defenders were instructed by the SDA to carry out a study of ground contamination at the site.  There then follow averments concerning the second defenders’ participation in a process of ascertaining the nature and extent of any contamination.  That process involved the Department of the Regional Chemist, but it is not averred that the first defenders had any part to play.  With reference to the first defenders’ answers, the pursuers admit that remediation works that were carried out on the site were commissioned and paid for by the Lanarkshire Development Agency (“LDA”), which is averred to have been the SDA’s statutory successors.  The pursuers aver that the SDA “initially commissioned the investigation of the site.”  (Articles 3 and 4 of the condescendence)

[6]        By about April 1991, the first defenders were proposing to develop the site and had submitted a planning application.  They had seen copies of a report by the second defenders, dated January 1991 (“the January 1991 report”).  As a result of having seen that report, “they knew or ought to have known of the limited investigation for contamination which had been undertaken at the site.”  Further testing was carried out in or about February 1992.  It is not averred that the first defenders had any involvement either by way of instruction or participation in such tests.  The pursuers do, however, aver that what is described as a “method statement” was sent to the first defenders by the second defenders in or about July 1991, which “emphasised that the preliminary study carried out by themselves and the Department of the Regional Chemist was preliminary in nature and was carried out on a very wide grid spacing.”  (Article 6)

[7]        In or about May 1992, the second defenders produced a report summarising the findings of their contamination studies and associated development costs (“the May 1992 report”).  A copy of that report was provided to the first defenders.  Consequently, say the pursuers, the first defenders knew that the investigation of the site for contamination had not complied with the recommendations of the regional chemist.  The May 1992 report contained recommendations for the remediation of the site, identifying three options.  At paragraph 4.13 the view is expressed that the choice of option depended on the value of the land to the developers, the first defenders, and that commercial decisions were best made by the developers.  In or about August 1992, the first and second defenders agreed that the only solution which permitted the whole of the 27 acre site to be developed for residential housing was the first of three options.  The first defenders wrote to the LDA on 15 October 1992 and said that the LDA “should now undertake decontamination of this site in accordance with option 1” of the May 1992 report.  In the event, option 1 was not proceeded with.  A more limited scheme of remediation of the site was chosen “due to the expense of option 1.”  The pursuers do not aver, in terms, that the first defenders played any part in the decision to adopt an alternative to option 1.  They aver that they “reasonably believe” that the first defenders would have been told of the decision either by the second defenders, or the LDA.  The pursuers also “reasonably believe” that the first defenders agreed to the proposal that a more limited scheme of remediation work should be adopted.  It is not said that such knowledge gave rise to any fault on the part of the first defenders.

[8]        By January 1993, the second defenders had been “commissioned to administer and supervise the remediation works.”  At or about the same time, the first defenders entered into an agreement with Scottish Enterprise, whereby the former would develop the whole of the site for residential use.  By about June 1993, remediation work had been carried out on 18 acres of the site, and the first defenders and the LDA entered into discussions about the remaining nine acres.  In or about October 1993 the second defenders submitted an application (to whom they do not say) for the removal of contaminated material from the site and for it to be deposited on six acres of adjacent land.  The pursuers admit an averment by the first defenders that the SDA and the LDA commissioned a report from the second defenders “to address the question of contamination on the site”.  That report is not identified by reference to its date.  (Article 7)

[9]        Remediation works were undertaken at Watling Street in or about the first quarter of 1993 and the first quarter of 1994.  Included in these works was the levelling of made ground and the formation of a bund using made ground, in order to screen a large electricity substation from the new housing development.  (Page 43D-E)  The pursuers admit an averment by the first defenders that these remediation works were to remove ash and slag deposits, as determined by visual inspection.  The pursuers do not know and do not admit an averment by the first defenders that these works were undertaken on the instruction of LDA, but it is clear from that that the pursuers do not suggest that they were undertaken on the instruction of the first defenders.  In or about the first quarter of 1995, the second defenders undertook further investigatory work on part of the site.  Further testing took place in an area which had not been remediated in 1994, and elsewhere.  Trial pits were dug and boreholes were sunk.  Polyaromatic hydrocarbons were detected in each of 11 boreholes that had been sunk.  In or about April 1995, the second defenders prepared a report for the first defenders.  It is averred in article 9 of the condescendence, at page 47 of the closed record, that the report was “on the remediation work undertaken in the first quarter of that year”.  No specification is given of what remediation work was undertaken.  It is averred elsewhere that remediation work was undertaken in the first quarter of 1994, and that the 1995 report was an addendum to a report on the post-remediation condition of the site which had been produced by the second defenders in July 1994.  As is averred elsewhere on record, the addendum report was compiled to document the results of verification pitting and testing carried out in a small section of the site.  (See, for example, article 19 of the condescendence, at page 69E of the closed record.)  The pursuers aver that no reference was made in the report to one of the trial pits.  There is no reference in the pleadings to the significance, if any, of that omission.  The pursuers admit the first defenders’ averment that polyaromatic hydrocarbons were reported in each of the tested samples of the 11 trial pits which were referred to within the report.  (Article 9)

[10]      Having been granted the appropriate planning permission, the first defenders undertook the development of Plot A, between about 1998 and about 2001.  (Article 10)  Plot A was developed by the first defenders in three phases.  The construction of houses was undertaken by Central Building Contractors Limited  (“CBC”), which is part of “the privately owned CBC Group”, of which the first defenders are also part.  After commencement of the construction of the third phase, the work was stopped and further testing was done for ash and slag.  That testing was commissioned by CBC.  The pursuers aver that they do not know the reason for commissioning the testing.  The tests “included testing with toluene extractables as a screen for polyaromatic hydrocarbons.”  Samples taken from three of the trial pits that had been dug produced results which exceeded residential use threshold concentrations for toluene extract.  In light of the results of these tests, “remediation works were done” and the first defenders instructed the second defenders to prepare a supplementary report on post-remediation conditions.  The second defenders prepared a draft report for the first defenders in or about July 2001.  The pursuers aver that the assessment of risk criteria adopted by the second defenders was the ICRCL guidance 59/83 (July 1987).  There then follows a series of averments which appear to be critical of that report, and of the work that followed, in these terms:

“The detailed sampling results for toluene extract were not referred to in the text of the (second defenders’) report.  The testing laboratory noted the presence of arsenic in five samples, and also the presence of lead in one of those samples, above ICRCL threshold levels for domestic gardens.  The (second defenders’) report included the testing laboratory’s report.  The testing laboratory noted that there were three samples taken which were found to exceed a maximum level for solvent extract and which would warrant further investigation.  It was reported by the testing laboratory that these samples potentially contained substances such as polyaromatic hydrocarbons or other carcinogenic substances.  The testing laboratory recommended that in the location of three of the trial pits the made ground be removed to a depth of 1.0m, and that in the location of three other trial pits the made ground should be removed to a depth of 0.5m.  In all cases the made ground was recommended to be replaced with clean fill material and capped by at least a further 0.25m of topsoil, which would have resulted in the amount of clean ground between the remaining made ground and the surface level being either 0.75m or 1.25m.  No further investigation or testing was undertaken at that time.  In the first quarter of 2001 ash and slag was reported to have been excavated from the gardens of the said properties to a depth of 1m, or to the level of underlying clay soil if this was less than 1m, in order to achieve a minimum of 1 metre of cover from the ash and slag to the finished surface level of the garden.  By the time this was done all the houses at Forum Place had been built.  Subsequent investigation of the gardens on the north side of Forum Place has found that the amount of clean ground in place is less than the 1m reported by the second defenders and less than the recommended levels of clean fill top soil in the July 2001 Report.”  (Article 11)

 

[11]      Notwithstanding these apparent criticisms, the pursuers’ do not aver any failure on the part of the first defenders in connection with the report, or the remediation work.  The pursuers do not aver that the first defenders knew that certain samples produced results which exceeded residential use threshold concentrations for toluene extract.  The pursuers aver that these results were not referred to in the text of the second defenders’ report.  They do not aver that the first defenders had the knowledge or expertise necessary to understand any significance that the testing laboratory report may have had for the safety of the site.  The pursuers admit an averment by the first defenders that Scientifics Ltd made recommendations to address the contaminants identified within the test pits.  They do not know and do not admit the first defenders’ averment that CBC followed or exceeded those recommendations in carrying out the remedial works.  In their answer 11, the first defenders aver that, in the supplementary report, the second defenders declared that, to the best of their knowledge, “the supplementary remediation works have been completed and the degree of risk of harm from chemical contamination has been reduced to an acceptably low level consistent with residential use of the site”.  In response to that averment, the pursuers plead that they do not know or admit the terms of that conclusion.  (Article 11)

[12]      In 2010 and 2011, consultants for North Lanarkshire Council carried out an assessment of part of the site for the purposes of part IIA of the Environmental Protection Act 1990.  These investigations covered the north-western corner of the site, which included Tiber Avenue and Empire Way.  The results of these investigations are the subject of detailed averment, from which it is relevant to quote here.  Ground samples throughout the area under investigation were found to contain a variety of polyaromatic hydrocarbons, petroleum hydrocarbons, solvents and chlorinated solvents.  Toluene, which is a solvent, was found.  Further ground investigation works were undertaken on 20 March 2012.  (Article 12)  The pursuers aver that the results of the site investigations showed the presence of contaminants in the ground in the form of volatile organic compounds (“VOCs”), semi‑volatile organic compounds (“SVOCs”), PCBs, heavy metals and chlorinated solvents.  (The pursuers do not explain what PCB is, but I understand it to be polychlorinated biphenyl, which is referred to elsewhere on record.)  In article 2 of the condescendence, the pursuers explain that the VOCs and SVOCs used on the site were solvents, in pure chemical form or in complex compounds made up of a number of chemicals.  These solvents included toluene; trichloroethylene  (otherwise known as TCE); cis-1,2-dichloroethene; ethylene dichloride; chloroform; carbon tetrachloride; benzene; chlorobenzene; 1,3,5 ‑trimethylbenzene; 1,2,4-trimethylbenzene; 1,3-dichlorobenzene; 1,4-dichlorobenzene; 1,2,4-trichlorobenzene; ethyl benzene; 1,1,1-trichloroethane; 1,1,2,2-tetrachlorethane; tetrachloroethylene  (otherwise known as PCE); p-xylene; m-xylene; and o-xylene.  (Later in this opinion, I explain why I have set out the chemical composition of the solvents.)  The results also showed that fumes from VOCs and SVOCs were entering properties at concentrations “above USEPA (United States Environmental Protection Agency) Regional Screening Level”.  It is averred that the houses at Tiber Avenue and Empire Way are built on ground containing a variety of contaminants, including VOCs and SVOCs.  VOCs and SVOCs in the ground will pool around structures on and in the ground, including the two houses mentioned.  The extent to which they will do so will depend on temperature and the level of the water table.  The level of the water table will vary according to the amount of rainfall there has been.  These vapours will permeate the houses built on the site through openings in the structure for pipes and services, airbricks in the walls, gaps between the flooring and pipes, cables and ducts, and the doors and windows of the houses.  The extent to which vapours will permeate a house, and the concentration of these vapours at any particular point in time will vary, according to the extent to which the contaminants are present in the ground, under and around the buildings, pipes and cables.  The extent to which vapours were and are present within houses, and the concentration of these vapours at any particular point in time will also be influenced by environmental factors such as the extent of water saturation of the ground and ambient air temperatures.  The particular vapours given off by the contaminants over a period of time will not remain constant due to the fact that the compounds will behave differently from each other, and that the compounds will, over time, break down into different parts, and, when they do so, they will release different vapours from when in an earlier phase.  (Article 13)

[13]      In article 14 of the condescendence, the pursuers aver a number of failings in the testing for contaminants and remediation of the site between 1993 and 2000.  They plead, for example, that the results of cyclohexane extract testing undertaken on samples taken in October 1990 and February 1992 showed the presence of organic compounds in made ground other than ash, and also in natural soil.  They aver that, by the time of the 1995 investigatory work, the Department of the Environment had produced a series of industry profiles, relevant to the former uses of the site, including “DoE Industry Profile:  Engineering Works – electrical and electronic equipment manufacturing works  (including works manufacturing equipment containing PCBs)”, dated 1 January 1995.  They aver that the publication summarises the existing state of knowledge relating to the likely contaminants associated with engineering works, such as those taking place on the site, including what was known about the migration and persistence of these various contaminants.  The pursuers refer to “wider testing for organic compounds, including volatile and semi-volatile hydrocarbons” which had been developed by USEPA and Dutch authorities.  It is averred that, by 1995, these tests were the common practice for environmental consultants in the UK, such as the second defenders.  They aver that the testing which was done in 1995 was for phenols and PAH [polyaromatic hydrocarbons], which are SVOCs, and that no testing for VOCs was undertaken until 2000 when testing took place “only in respect of a limited part of the site.”  In response to the first defenders’ answers, the pursuers admit that, following the issuing of the 1994 report, alternative works were designed by the second defenders [or their predecessors], but explain that, by that stage, “there had not been a proper investigation of the site because of the failure to consider and investigate the potential for contamination of the site by solvents”, and that subsequent remediation works “did not remove all the contaminated ground from the site”.

 

The pursuers’ averments of fault on the part of the first defenders

[14]      The pursuers’ common law case of fault against the first defenders is to be found in article 15 of the condescendence.  They aver that the first defenders were the developer “responsible for the building and construction of housing on that part of the site where the pursuers’ homes were located.”  There follow a number of averments about the first defenders’ knowledge of there being risks to human health from contamination of land through former uses of that land; that housing development was a sensitive use of land when it had been contaminated; that it was reasonably foreseeable that the former uses of the site had caused the ground to be contaminated by substances potentially harmful to health, that occupiers of houses built on the site might suffer injury to their health; and that it was reasonably foreseeable that, if the whole site was not fully investigated and remediated prior to the carrying out of any development, there was a risk of contamination being left on the site after development works had been undertaken.  The pursuers aver that, in that state of knowledge, the first defenders owed the pursuers duties of reasonable care, to ensure:  that the whole site had been fully investigated and remediated to the extent required for its proposed use, prior to undertaking the development of any part of the site; and that the investigation of the site took account of the known former uses of the site.  The pursuers aver that it was the duty of the first defenders to take reasonable care to investigate the nature, concentration and distribution of contaminants within the site, prior to the construction of any housing there and to remediate the site so as to prevent harm to the health of occupiers of such houses.  The pursuers aver that the first defenders employed their own environmental consultant, but take that matter no further in the pleadings.

[15]      Article 15 continues with averments about the first defenders’ state of actual or deemed knowledge.  While acknowledging that the remediation works that were carried out in 1993 and 1994 were not commissioned or instructed by the first defenders, the pursuers aver that the first defenders were provided with copies of the second defenders’ reports from January 1991, May 1992 and July 1994.  It is said that the first defenders knew or ought to have known from the terms of the first two of these reports that no testing had been done for solvents.  They knew or ought to have known that the “limited investigation” carried out did not allow for “proper characterisation” of the site.  The April 1995 report was prepared for the first defenders by the second defenders.  The first defenders knew or ought to have known from its terms “that the verification testing regime carried out in respect of the remediation works had not tested for solvents.”  They knew or ought to have known from the terms of the 1994 and 1995 reports that there had not been any investigation of what the organic compounds reported in the October 1990 and February 1992 testing consisted of.  The averments of the first defenders’ knowledge, actual or deemed, continue as follows:  that there had not been any investigation of oily contamination which was reported in the October 1990 and February 1992 testing; that the nature, concentration and distribution of the oil contamination and oily odours which had been found in 1994 had not been investigated further; that the site remediation works undertaken in 1993 and 1994 were only designed to deal with heavy metal contamination; that, from the need to carry out further testing of part of the site in July 2000, there continued to be questions arising as to the extent of contamination at the site; that not only had there been no testing of Phase 3 of the development of Plot A for polyaromatic hydrocarbons, but there had been no such testing at any time of any part of Plot A since the original testing for solvent extracts reported in October 1990; and that further investigation work in relation to Phase 3 was required.  The pursuers aver that the first defenders did not instruct or commission any further investigation of contamination on any part of the site for polyaromatic hydrocarbons or carcinogenic material in response to the investigative and remediation work that had been done at part of the site known as Forum Place, in 2000 and 2001.  Had the first defenders carried out such investigation work, they would have discovered the presence of polyaromatic hydrocarbons in the made ground within that part of the site.  They would then have had to consider the potential for polyaromatic hydrocarbons to be present in other parts of the site, either because they had originated from there or because they had originated within the ground in other parts of the site.  It is averred that the first defenders knew or ought to have known that, in 2000, housing had been built over one of the trial pits that had been found to produce results in 2000 which exceeded residential use threshold concentrations for toluene extract.  They knew or ought to have known that the findings contained in the second defenders’ report indicated that the earlier site investigation work had been incomplete.  It is averred that the first defenders, thereby, failed in their duty to take reasonable care as result of which the site continued to be contaminated by the presence of a variety of VOCs and SVOCs under the ground.

[16]      It is instructive to note that, in article 17 of the condescendence, the pursuers aver that it was the duty of the second defenders, owed to the pursuers, to give certain advice to those who had engaged them to investigate the extent of contamination of the ground and to advise on the remediation work which should be required to make the site suitable for residential development.  That is averred to be advice which the second defenders ought to have given as a “reasonably competent environmental consultant”.  The knowledge which is imputed to the first defenders as the developers in article 15 is imputed to the second defenders in article 17 as reasonably competent environmental consultants.  It is averred that the second defenders “failed to investigate and advise on the nature, concentration and distribution of contamination of the site by solvents as a reasonably competent environmental consultant would have done.”

 

Submissions for the first defenders

[17]      Mr Dunlop QC, who appeared for the first defenders, submitted that the pursuers’ averments of fault are irrelevant.  Counsel moved the court to sustain the first defenders’ first plea-in-law, a general plea to the relevancy, and dismiss the action, insofar as directed against the first defenders.  In support of his motion he began by going through certain of the pursuers’ averments.

[18]      In his review of the pleadings, Mr Dunlop noted that, in article 7 of the condescendence, at page 36 of the closed record, the pursuers make a number of admissions in response to averments by the first defenders.  These admissions are that:  the potential development of the site had been investigated in the early 1990s by the then owner of the site, Scottish Enterprise; that it was known that there was potential contamination of the site; that the SDA and the LDA commissioned a report from the second defenders to address the question of contamination on the site; that, with a view to effecting the development of the site, the first defenders entered into an agreement with Scottish Enterprise and the LDA in January and February 1993.

[19]      As is noted at paragraph [11] of this opinion, the first defenders aver that, in the report of July 2001, the second defenders declare that, supplementary remediation works having been completed, the degree of risk of harm from chemical contamination had been reduced to an acceptably low level consistent with residential use of the site.  The pursuers plead that they do not know or admit the terms of that conclusion.  Mr Dunlop submitted that the pursuers’ response should be regarded as a deemed admission to the first defenders’ averment, because the pursuers’ cannot found on a report, as the pursuers do elsewhere in their pleadings, and then not know and not admit what the conclusion of that report is.

[20]      Mr Dunlop observed that, in their answer 19, the third defenders aver that the first defenders entered into three building contracts with the third defenders for construction of housing on the site.  The first defenders were the contractors and the third defenders were the employers.  (Page 79A-B)  Mr Dunlop said that he believed the third defenders’ averment to be accurate, and not to be in dispute.

[21]      Having regard to the pursuers’ averments about the nature of the first defenders’ involvement in the development of Watling Street, said Mr Dunlop, it was not surprising that the pursuers’ counsel had confirmed to him that the pursuers’ common law case is “largely periled on the inherently hazardous exception” to the general rule that a person is not liable for the fault of an independent contractor.  I say more about that later in this opinion.  Mr Dunlop said that he needed to qualify that assertion in two ways.  The first was that he had recently understood from counsel for the pursuers that there was more to his case than that the development of the site was inherently hazardous.  Secondly, it was only when Mr Dunlop saw the pursuers’ note of argument that it appeared to him that the pursuers were relying on the inherently hazardous exception.  The only hint of it in the pleadings, he said, was the use of the phrase “inherently hazardous”, but without any assertion that non-delegable duties of care were incumbent on the first defenders, or that, in some way, the first defenders were under a duty to ensure that some other party did something specific.   That was part of what Mr Dunlop described as a “generalised complaint” about the “lack of comprehensibility” of the pursuers’ case.

[22]      Mr Dunlop then turned to article 15 of the condescendence, the pursuers’ case of fault against the first defenders, and noted that the pursuers aver that the development of housing on a site where it was reasonably foreseeable that the ground had been contaminated as a result of its previous use “was an inherently dangerous activity”.  Accordingly, they say, it was the duty of the first defenders “to take reasonable care that prior to undertaking the development of any part of the site that the whole site had been fully investigated and remediated to the extent required for its proposed use”.  (Page 65C-D)  Mr Dunlop asked, rhetorically, how a developer might best fulfil that duty of reasonable care.  He submitted that it is best fulfilled by consulting an expert, which is what the pursuers aver the first defenders did.  The pursuers’ averments about the first defenders’ knowledge, actual or deemed, before 2001, are irrelevant, argued Mr Dunlop, because the second defenders reported that the site was fit for residential development in July of that year.

[23]      The case against the first defenders continues in the following terms:

“It was the duty of the (first defenders) to take reasonable care that the investigation of the site took account of the known former uses of the site.  It was the duty of the (first defenders) to take reasonable care to investigate the nature, concentration and distribution of contaminants within the site prior to the construction of any housing on the site.”

 

Pausing there, Mr Dunlop submitted that, on the pursuers’ own averments, the first defenders had engaged experts to advise on that issue, and those experts reported that the site was fit for residential occupation.  There is no suggestion that the first defenders, themselves, investigated anything, or that they had the expertise or the ability to do so.

[24]      The last of the duties which it is averred were incumbent on the first defenders, noted Mr Dunlop, is that “it was the duty of the (first defenders) to take reasonable care to remediate the site so as to prevent harm to the health of occupiers of such housing by substances present under the ground arising from its known former uses.”  Mr Dunlop submitted that it is only if that was a non-delegable duty, although not pleaded as such, was it a duty owed by the first defenders.  The first defenders were not the owners of the site, they did not do the work on site, and they were not the ultimate employer.  Consequently, there was no basis for the pursuers’ contention that the first defenders owed a non-delegable duty to them.  Further, the “universal theme” of the authorities is that the scope of a non-delegable duty is narrow.  If “non-delegable duty” is a concept of the law of Scotland, which Mr Dunlop did not concede, it is not engaged in this case.  If the pursuers in this case are correct about the scope of the exception, it would effectively become the rule.

[25]      In support of these submissions, counsel invited the court’s attention to the following authorities:  Read v J.  Lyons & Company, Limited 1947 AC 156  (“Read”); Salsbury v Woodland and Others [1970] 1 QB 324  (“Salsbury”); Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2009] QB 725  (“Biffa”);  Farraj v King's Healthcare NHS Trust [2010] 1 WLR 2139  (“Farraj”); Woodland v Swimming Teachers Association [2014] AC 537 (“Woodland”); McLaughlan v Craig 1948 SC 599  (“McLaughlan”); Duncan's Hotel  (Glasgow) Ltd v J&A Ferguson Ltd 1974 SC 191  (“Duncan's Hotel”);  Stewart v Malik 2009 SC 265  (“Stewart”) ; Morris Amusements Ltd v Glasgow City Council 2009 SLT 697  (“Morris Amusements”); D&F Estates Ltd v Church Commissioners for England [1989] AC 177  (“D&F Estates”); Haseldine v CA Daw & Son Ltd [1941] 2 KB 343 (“Haseldine”); Green v Fibreglass [1958] 2 QB 245; McLeod v Hastie & Sons Ltd 1936 SC 501(“McLeod”); and Kennedy v Glenbelle 1995 SC 95  (“Kennedy”).

 

Response for the pursuers

[26]      In their note of argument, counsel for the pursuers contend that:  “the nature and adequacy of the investigation of contamination on the suitability of the remediation process was a matter where a duty of care arose on the developer of the residential housing”.  In support of that contention, they cite Murphy v Brentwood DC [1991] 1 AC 398 (“Murphy”).  Where work to be done has obvious potential to create a danger to the public unless adequate precautions are taken, “a person who employs a contractor for this type of work is bound to supervise the contractor’s proceedings to see that all necessary precautions are taken”.  For that proposition, counsel rely on the decisions in Stewart v Adams 1920 SC 129 (“Adams”) and Morris Amusements.

[27]      The pursuers’ case, say counsel, is that, up to 1994, the first defenders were made aware of the former uses of the site, and the extent of the investigation and remediation works which were carried out up to 1994.  In 1995, further investigatory work was carried out on behalf of the first defenders.  Thereafter, the first defenders developed the site and, in 2000, further investigations were carried out at part of the site which ought to have been investigated more thoroughly than it was, and which ought to have caused the first defenders to consider whether the scope of the previous investigations and remediation works had been appropriate.  Prior to, and during the course of, development, the first defenders had a separate duty of care to those occupying the houses which they were developing.  That duty was to take reasonable care that the occupiers would not be harmed by reasonably foreseeable sources of contamination of the ground, ensuring that the site had been remediated so as to make it suitable for residential development.  It is contended on behalf of the pursuers that it is a matter for proof whether, in all the circumstances averred, there was a breach of that duty of care.  It is submitted that it cannot be said that the pursuers will necessarily fail in proving that there was such a breach.

[28]      In his oral presentation, Mr Hajducki QC invited me to consider the pleadings as a whole, and to have regard to a timeline which had been prepared showing “key events”.  He devoted three hours of his submissions to reading out the pursuers’ pleadings and extracts from various reports, including the detail of the second defenders’ “Report on Post Remediation Condition”, which is dated July 1994.  (Number 6/3 of process)  The report was introduced into the pleadings by the second defenders.  Counsel also read from the second defenders’ report, dated April 1995.  I say more about these reports later in this opinion.

[29]      Whilst reading out article 11, counsel went through all of the sections of the second defenders’ “Supplementary Post-Remediation Report Following Completion of Phase 3 at Development Site A” of 2001, including the passage founded on by the first defenders reporting the contamination on the site as having been “reduced to an acceptably low level consistent with the residential use of the site.”  (Number 6/7 of process)  Mr Hajducki made no comment on that passage, nor did he attempt to counter Mr Dunlop’s submission that the pursuers should be taken to admit that that was the conclusion of the July 2001 report.  Counsel did, however, subject the report to detailed criticism, by reference to the pursuers’ averments in article 11 of the condescendence.  He was also critical of the report in terms that are not to be found in his pleadings.  He asserted, for example, that the report does not mention organic compounds or solvents, and does not consider the information available to the first defenders and second defenders “relating to the risks”.  So far as the first defenders are concerned, I take the mention of risks to be a reference to the pursuers’ averment in article 15 of the condescendence that the first defenders were experienced developers and were “aware that there were risks to human health from contamination of land through former uses of that land.”

[30]      On the subject of “inherently dangerous activity”, Mr Hajducki contended that it was inherently dangerous to build houses on land which was known to be contaminated.  That would create a danger to those who live in the houses, unless the proper remediation of the land has been carried out.  It was “reasonably foreseeable” that the whole site was not fully investigated and remediated prior to the carrying out of building.  Counsel observed that, at pages 65D to 66A of the closed record, the pursuers aver that the first defenders knew or ought to have known from the terms of the April 1995 report that the verification testing regime carried out in respect of the remediation works had not tested for solvents.  That is important, contended Mr Hajducki.  The first defenders were a developer.  It was obvious from the previous use of the site that solvents were going to be or may be a problem, “and if you don’t test for the solvents then how can you actually say that there is no problem with solvents?  You can only say that if you’ve actually tested for them.”  When asked to whom it was obvious, counsel replied that it was obvious to both the first and second defenders.  The first defenders were developers, they were “not just a firm of building contractors who don’t know anything about site conditions and things like that, and they are obviously aware that there is such contamination”.  The pursuers were offering to prove that one of the manufacturing processes which had been conducted was “very obviously one that used solvents for cleaning metal etc.”.

 

Decision and reasons

[31]      The pursuers do not aver that the first defenders themselves carried out any activity in connection with the investigation or remediation of the site which was causative of injury to them.  Part of their common law case against the first defenders appears to depend on the assertion that the first defenders knew, or ought to have known, that the site had not been properly investigated for contamination, and that they knew, or ought to have known, that it had not been properly remediated so as to be fit for residential development.  Having regard to what the pursuers aver that the first defenders knew or ought to have known from having had sight of the reports of 1992, 1994, 1995, and 2001, the first question that arises in the context of this part of their case is whether the terms of these reports were such as to have alerted the first defenders to failings on the part of the second defenders or others.

[32]      It is clear from the averments in article 5 of the condescendence that site investigation work which began in 1990 was to be undertaken in two phases.  The 1991 report was a final report issued by the second defenders “on the phase 1 contamination study.”  That report contained a recommendation by the regional chemist that the site investigation should be completed with sampling on a 25 metre grid and examination of “substantially more samples” than the phase 1 study.  In article 2, the pursuers admit that, in or about October 1990 and February 1992, a phase 2 contamination study was undertaken by Scott Wilson Kirkpatrick and Co (Scotland) Limited (the second defenders’ predecessors) and the Strathclyde Regional Chemist, under explanation that the regional chemist was “to do the technical work”.  In article 7, the pursuers aver that, from the terms of the report of May 1992, the first defenders knew that the investigation of the site had not complied with the recommendations of the regional chemist.  The pursuers do not aver what “terms of the report” they have in contemplation.  It is not averred in what particular respect these recommendations were not complied with, nor what relevance, if any, such non-compliance had for remediation of the site.  Such alleged non-compliance, therefore, takes the pursuers nowhere in their common law case against the first defenders.

[33]      The July 1994 report is incorporated into the second defenders’ pleadings.  They aver, and the first defenders admit, that the report concluded that the remedial works provided an area with “an acceptably low level of contamination and therefore considered to be suitable for residential development.”  The pursuers refer to the 1994 report for its terms, beyond which no admission is made by them.  The report by the second defenders, which was produced in April 1995, is averred by the first defenders to have referred to the presence of polyaromatic hydrocarbons, and that is admitted by the pursuers.  That report is also incorporated into the pleadings.  According to its terms, however, polyaromatic hydrocarbons and phenols are shown to be present at “concentrations below the ICRCL threshold trigger values for the most sensitive end use.” 

[34]      Mr Dunlop submitted that, given the terms of the conclusion in the 2001 report, that the degree of risk of harm from chemical contamination was acceptably low, everything that preceded it is irrelevant.  I do not agree.  According to its terms, the report supplemented the reports of July 1994 and April 1995, and should be read in conjunction with them.  (Number 6/7 of process, paragraph 1.3)  Phases 1 and 2 of the development had been completed, and the houses were occupied.  (Paragraph 3.1)  The 2001 report was concerned with work which had been carried out in 2000 on only part of the site.  (Paragraph 4.2)  The purpose of the 2001 report was to record the outcome of that limited work.  (Paragraph 5)  The conclusion at paragraph 6.7, which is relied on by Mr Dunlop, cannot, therefore, properly be read as advising that the risk of harm from chemical contamination had been reduced to an acceptably low level throughout the entirety of the site.

[35]      Nevertheless, in my opinion, a lay person reading the second defenders’ reports together would understand from them that Watling Street was safe for residential development.  That is what the reports were intended to convey.  The pursuers do not aver otherwise.  Consequently, the pursuers can only succeed against the first defenders in this case if they establish one or other of two propositions.  The first is that the first defenders had a level of expertise such that they knew, or ought to have known:  (i) the nature of the former uses of the site; (ii) the nature of the possible contaminants resulting from the former uses; (iii) the nature and extent of tests necessary to detect such possible contaminants; and (iv) that such tests were not carried out.  The second, alternative, proposition is that the first defenders owed a non-delegable duty of care to the pursuers.

[36]      It is important to have in mind that the 1988 planning permission was granted to the SDA.  In terms of the conditions of the consent, the SDA was required to carry out a detailed investigation of the soil conditions, in order to establish the nature, concentration and distribution of any contaminants which may be located within the soil.  That was to be done prior to the submission of an application in respect of reserved matters.  Thereafter, the SDA was required to take whatever action was recommended in such a report to remove or render harmless any areas of contamination.  Consequently, as the pursuers admit, the SDA engaged the second defenders “to investigate the nature of contamination on the site and to address the question of remediation of any such contamination prior to residential development.”  (Page 8E)

[37]      Having regard to these averments, in my opinion (i) it fell to the second defenders, and not the first, to determine the nature of the former uses of the site.  It is not suggested in the pursuers’ pleadings that the first defenders either undertook or had the expertise to (ii) determine the nature of the possible contaminants resulting from the former uses.  Nor is it averred that the first defenders undertook to, or had the expertise to (iii) determine the nature and extent of tests necessary to detect the possible contaminants which may have resulted from the former uses of the site.  In that state of affairs, it is not averred that the first defenders undertook to, or had the expertise (iv) to recognise that the necessary tests had not been carried out.  On the contrary, in their answer 3, the first defenders aver that, in the assessment of the import, if any, of IRCRL guidance, the first defenders throughout were “entirely reliant” on the second defenders, or their predecessors, “as (their) expert advisers”.  In answer to that averment, the pursuers aver that they do not know and do not admit that the first defenders throughout were “entirely reliant” on the second defenders or their predecessors “as (their) expert advisers”.  The pursuers go on to explain that, in respect of the remediation works carried out up to about April 1994, the second defenders were instructed by the LDA and that the first defenders employed their own environmental consultant, Gilchrist Environmental Consultants “to advise them”.

[38]      All that is said about the first defenders’ expertise is that they were an “experienced developer”.  On the pursuers’ averments about the first defenders’ involvement in the development of Watling Street, it is clear, and unsurprising, that their role was entrepreneurial.  The site was owned by the SDA and its successors.  (Page 23A)  The SDA appointed the second defenders to carry out the ground contamination study.  (Page 23B-C)  The first defenders appointed consulting architects.  (Page 24C)  The houses were built by CBC.  (Page 36C-D)  The third defenders let the houses.  (Page 78A)  Experience as an entrepreneur is not averred by the pursuers to have equipped the first defenders with the skills necessary to scrutinise the work carried out by the second defenders, who are averred by the pursuers to have been engaged by the SDA as environmental consultants “to investigate the extent of contamination of the ground at the site as result of its previous uses, to advise on the remediation works which would be required to make the site, or any part of it, suitable for residential development, to prepare a scheme for the remediation works and to administer and supervise the remediation work contract.”  (Page 72D-E)  It can be seen from the terms of the averments which are recorded in paragraph [12] of this opinion that the investigation of the site for contaminants and its remediation were highly specialised tasks.

[39]      Mr Dunlop did not appear to dispute the pursuers’ proposition that it was reasonably foreseeable to the first defenders that, having regard to previous uses of the site, if it was not investigated and remediated prior to the carrying out of any development, there was a risk of contamination being left on the site after development works had been undertaken.  Nor did he seem to dispute the proposition that the first defenders owed the pursuers a duty of reasonable care, to ensure that the whole site had been fully investigated and remediated to the extent required for its proposed use.  In my opinion, however, Mr Dunlop was well founded in submitting that the first defenders’ duty of reasonable care was sufficiently discharged by considering the terms of the second defenders’ reports.

[40]      Given that the first defenders are not averred to have had any specialised knowledge of environmental matters, there is no proper basis for the pursuers’ averments that the first defenders knew or ought to have known from reading the second defenders’ reports of January 1991, May 1992 and July 1994 that the investigations that had been carried out were “limited” or that they did not allow for “proper characterisation of the site”.  Whether or not the first defenders may have appreciated that the verification testing regime carried out prior to the issuing of the April 1995 report “had not tested for solvents”, there is no proper averred basis on which can be said that the first defenders knew or ought to have known that the absence of such testing was in any way inappropriate or blameworthy.  Similarly, there is no proper basis averred to impute knowledge to the first defenders of any other shortcomings which may have been apparent to an environmental expert on reading the second defenders’ reports.

[41]      As is noted earlier in this opinion, the pursuers aver that the findings contained in the second defenders’ July 2001 report “indicated that the earlier site investigation work had been incomplete.”  The pursuers do not aver in what respect the 2001 report did so.  The conclusions of the July 1994 report, which forms part of the pleadings, state that ash and slag, which was the focus of the remediation work, had been “substantially removed from the site” which was, therefore, “considered to be suitable for residential development”.  (Number 6/3 of process, paragraph 7.1)  It is expressly noted, however, that there remained “several localised areas across the site that, for practical reasons, were not dealt with during the remediation, which may require further removal of ash and slag in garden areas once the site layout had been determined”.  (Paragraph 7.2)  It is explained in the April 1995 report, which also forms part of the pleadings, that some isolated areas of ash and slag could not be removed in the vicinity of buried services and from boundary slopes.  (Number 6/4 of process, paragraph 2.2)  In these circumstances, the pursuers aver no proper basis on which the court could hold that, because further investigation of the ground was undertaken in 2000, during phase 3 of the development, the first defenders knew or ought to have known that previous site investigation work had been incomplete. 

[42]      During the course of his oral submissions, counsel for the pursuers relied heavily on the averment about Gilchrist Environmental Consultants, contending that it was intended by the first defenders to demonstrate that they exercised reasonable care by appointing contamination experts.  But, said Mr Hajducki, the first defenders do not aver what advice the consultants may have given, whether they made any recommendations, or whether any recommendations were followed.  All of these were matters for proof.  In response, Mr Dunlop observed that it was the pursuers who introduced the averment that the first defenders took advice from Gilchrist.  I agree that the reference to these environmental consultants does not assist the pursuers’ case.  The first defenders’ position, as I understand it, is that any duty of care which the first defenders may have owed to the pursuers was complied with when the first defenders satisfied themselves that the second defenders had assessed the site as suitable for residential development.  On the first leg of the pursuers’ case, which is identified at paragraph [35] of this opinion, therefore, the first defenders’ position is well founded.

[43]      Consequently, in order to succeed against the first defenders, the pursuers would have to establish that the first defenders owed them a non-delegable duty of care.  Having regard to the authorities which were cited on both sides, I am of the view that the pursuers cannot do so.

[44]      The earliest English case cited by Mr Dunlop in support of his submissions was Haseldine.  The plaintiff was on his way to visit a tenant in a block of flats and was injured when travelling in a lift which malfunctioned and fell to the ground.  It had been regularly serviced by lift engineers whose negligence had led to the fall.  The plaintiff sued both the engineers and the landlord.  In considering that what the plaintiff contended for was strict liability on the part of the landlord, Scott LJ said that he could see no ground for the law turning the landlord, as an ordinary occupier, into an insurer.  There was no authority on the point, binding on the court.  The landlord of a block of flats, as occupier of the lifts, does not as such profess to be either an electrical or a hydraulic engineer.  “Having no technical skill he cannot rely on his own judgment, and the duty of care towards his invitees requires him to obtain and follow good technical advice.”  If he does not do so, said Scott LJ, he would be guilty of negligence.  But, to hold him responsible for the misdeeds of his independent contractor “would be to make him insure the safety of his lift.”  (Page 356) 

[45]      Goddard LJ expressed the view that, on the assumption that the plaintiff was an invitee, the landlord had the duty of taking care that the premises were reasonably safe.  By employing a “first-class firm of lift engineers to make periodical inspections of the lift, to adjust it and to furnish reports upon it”, the landlord discharged his duty.  Of the plaintiff’s argument that, if the engineers were negligent, it could not be said that the occupier had discharged his duty, Goddard LJ expressed the view that, where the occupier’s duty is to take care that the premises are safe, it could not “be discharged better than by the employment of competent contractors”.  Indeed, his Lordship continued “one may well ask how otherwise could the duty be discharged?”  (Page 374)

[46]      Haseldine was followed in Green, in which the plaintiff undertook the cleaning of offices of which the defendants were the tenants and occupiers.  On an occasion when cleaning an electric fire in the offices, the plaintiff sustained severe electrical burns, caused by faulty wiring.  Some years earlier, when they became tenants, the defendants had engaged the services of reputable expert electrical contractors.  The wiring was dangerous because of the negligence of one of the contractors’ workmen.  The defendants had no reason to suppose that the contractors had been negligent or that the installation was unsafe. 

[47]      In finding for the defendants, Salmon J expressed the view that it was obvious that, unless the electrical wiring of any premises is put into a safe condition, anyone using the premises may be exposed to danger of an unusual kind.  Electrical wiring, however, was a matter for expert electrical contractors and is not ordinarily carried out by the occupier himself.  The defendants discharged their duty of reasonable care by employing reputable and competent experts.  (Page 249)  Later in his judgment, Salmon J held that, if some act is to be performed which calls for special knowledge and experience which a person cannot be expected to possess, he fulfilled his duty of care as a prudent man by employing a qualified and reputable expert to do the act.  (Page 253)

[48]      In Read, an inspector of munitions was injured in the course of her duties, while in a munitions factory operated by the respondents, when an explosion occurred.  The explosion was not alleged to be due to any negligence on the part of the respondents.  In the course of his speech, Lord Macmillan paraphrased counsel for the appellant’s argument as being that there is a category of things and operations “dangerous in themselves” and that those who keep such things or carry on such operations on their premises are liable, apart from negligence, for any personal injuries occasioned by these dangerous things or operations.  Lord Macmillan was prepared to accept that, in the case of dangerous things and operations, the law has recognised that a special responsibility exists to take care.  His Lordship was of the view, however, that it has never been laid down that there is absolute liability, apart from negligence, where persons are injured in consequence of the use of such things or the conduct of such operations.  The more dangerous the act, the greater is the care that must be taken in performing it.  The person who engages in obviously dangerous operations “must be taken to know that if he does not take special precautions injury to others may very well result”.  Lord Macmillan was unable to accept the proposition that, in law, the manufacture of high-explosive shells was a dangerous operation which imposed on the manufacturer an absolute liability for any personal injuries which may be sustained in consequence of his operations.  The sound view, said his Lordship, is that the law in all cases exacts a degree of care commensurate with the risk created.  Lord Macmillan noted that it had been suggested that some operations are so intrinsically dangerous that no degree of care no matter how scrupulous can prevent the occurrence of accidents and that those who choose for their own ends to carry on such operations “ought to be held to do so at their peril”.  His Lordship was of the opinion that that was not the present law of England.  Counsel had attempted to invoke the doctrine of Rylands v Fletcher, but Lord Macmillan noted that Rylands was concerned with the escape of dangerous substances, saying that the two prerequisites of the doctrine were that “there must be the escape of something from one man’s close to another man’s close and that that which escapes must been brought upon the land from which it escapes in consequence of some non-natural use of that land, whatever precisely that may mean”.

[49]      The case of Salsbury was concerned with the issue of vicarious liability for an independent contractor.  The first defendant had engaged the second defendant to fell a tree.  The second defendant did so negligently, causing an accident to the plaintiff.  The trial judge found both defendants liable, the first in respect of the negligence of the second.  The Court of Appeal reversed the trial judge’s decision.  In the course of his judgment, Widgery LJ expressed the view that it is trite law that an employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor.  He is not able to control the way in which the independent contractor does the work, and the vicarious obligation of a master for the negligence of the servant does not arise.  His Lordship noted that there are cases in which an employer has been held liable for injury done by the negligence of an independent contractor, but said that these were, in truth, cases where the employer owed a direct duty to the person injured, “a duty which he cannot delegate to the contractor on his behalf.”  His lordship described these cases as being “within one of the somewhat special exceptions – cases in which a direct duty to see that care is taken rests upon the employer throughout the operation.”  Widgery LJ expressed the view that the evidence in the case with which he was concerned had made it clear that the tree could have been felled by a competent contractor, using proper care, without any risk of injury to anyone.

[50]      The question whether the inherently hazardous exception is truly an exception to the general rule was considered by Lord Bridge of Harwich in D&F Estates.  His Lordship expressed the general rule as being that the employer of an independent contractor is not liable for the negligence or other torts committed by the contractor in the course of the execution of the work.  To that rule, said Lord Bridge, there are what his Lordship described as “certain well-established exceptions or apparent exceptions”, quoting with approval a passage from Clerk & Lindsell on Torts, 15th edition, (1982) in which the authors express the view that the so-called exceptions “are not true exceptions, for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff.”  The plaintiffs had sought damages to compensate them for certain costs that they had incurred as a result of defective plastering work carried out by a subcontractor.  The main contractor was convened as a defendant, and the case against it was that it was liable for the subcontractor’s negligence.  In the course of his speech, Lord Bridge expressed the view that the plaintiffs’ “real difficulty” was that, if the main contractor were to be held liable for the negligent workmanship of their subcontractors, the plaintiffs would have to establish that the main contractor “had assumed a personal duty to all the world to ensure” that the building should be free of dangerous defects.  The plaintiffs’ counsel had submitted that such a duty is undertaken “by any main contractor in the building industry who contracts to erect an entire building.”  His Lordship expressed disagreement with that proposition and continued:

“I cannot recognise any legal principle to which such an assumption of duty can be related.  Just as I may employ a building contractor to build me a house, so may the building contractor, subject to the terms of my contract with him, in turn employ another to undertake part of the work.  If the mere fact of employing a contractor to undertake building work automatically involved the assumption by the employer of a duty of care to any person who may be injured by a dangerous defect in the work caused by the negligence of the contractor, this would obviously lead to absurd results.  If the fact of employing a contractor does not involve the assumption of any such duty by the employer, then one who has himself contracted to erect a building assumes no such liability when he employs an apparently competent independent sub-contractor to carry out part of the work for him.  The main contractor may, in the interests of the proper discharge of his own contractual obligations, exercise a greater or lesser degree of supervision over the work done by the sub-contractor.  If in the course of supervision the main contractor in fact comes to know that the sub-contractor's work is being done in a defective and foreseeably dangerous way and if he condones that negligence on the part of the sub-contractor, he will no doubt make himself potentially liable for the consequences as a joint tortfeasor.  But the judge made no finding against [the main contractor] of actual knowledge and his finding that they "ought to have known" what the manufacturer's instructions were depended upon and was vitiated by his earlier misdirection that [the main contractor] owed a duty of care to future lessees of Chelwood House flats in relation to their sub-contractor's work.”  (Pages 208-209)

 

Lord Bridge concluded that the main contractor was under no liability to the plaintiffs for the damage attributable to the negligence of their subcontractor.  Lords Templeman, Ackner, Oliver of Aylmerton and Jauncey of Tullichettle agreed.

[51]      Of particular interest in the context of this case is Lord Bridge’s disagreement with the Court of Appeal of New Zealand’s view on the duties incumbent on a developer.  In Mount Albert Borough Council v Johnson [1979] 2 NZLR 234, the purchaser of a flat had suffered damage due to the substance of a building erected on inadequate foundations.  One of the issues was whether the plaintiff was entitled to recover damages from the developer which had employed independent contractors to erect the building.  Cooke J, delivering the judgment of Somers J and himself, noted that the development company’s interest was “primarily a business one”, acquiring land, subdividing it and having homes built on the lots for sale to members of the general public.  The buildings are intended to house people for many years.  The court held that the developer had “a duty to see that proper care and skill are exercised in the building of the houses (which) cannot be avoided by delegation to an independent contractor.”  Lord Bridge expressed the opinion that, “(a)s a matter of social policy, the conclusion may be entirely admirable.”  As a matter of legal principle, however, said his Lordship, there was no basis on which it was open to the court to embody that policy in the law “without the assistance of the legislature”.  (Page 210)

[52]      In Biffa, the Court of Appeal had occasion to consider what it described as “the principle in Honeywill”.  At paragraph 69 of the judgment of the court, Stanley Burnton LJ noted that the decision in that case had been “the subject of substantial criticism” and said that ”the law in all cases exacts a degree of care commensurate with the risk created.”  The plaintiffs in Honeywill had installed a sound system in a cinema.  They wanted to take photographs of the inside of the cinema, for their own business purposes.  The photographer used a chemical flashlight which involved the ignition of magnesium powder in a metal tray held above the lens.  As a result of the negligence of the photographer, the powder was ignited close to a curtain which caught fire and damage was done to the cinema.  The cinema company threatened to sue the plaintiffs for the cost of repairs. The plaintiffs settled with the company and sued the employers of the photographer.  The defendants contended that the plaintiffs had been under no legal liability to pay the cinema company.  At first instance, the defendants were successful, but the Court of Appeal allowed the plaintiffs’ appeal.  Slesser LJ, who gave the judgment of the court said, among other things:

“To take the photograph in the cinema with a flashlight was, on the evidence stated above, a dangerous operation in its intrinsic nature, involving the creation of fire and explosion on another person's premises, that is in the cinema, the property of the cinema company.  The appellants, in procuring this work to be performed by their contractors, the respondents, assumed an obligation to the cinema company which was, as we think, absolute, but which was at least an obligation to use reasonable precautions, to see that no damage resulted to the cinema company from these dangerous operations:  that obligation they could not delegate by employing the respondents as independent contractors, but they were liable in this regard for the respondents' acts.”  (Biffa, paragraph 69)

 

Stanley Burnton LJ expressed the view that there were a number of difficulties with that judgment, “not least of which is the reversal of the trial judge’s finding of fact that flash photography was of a quite harmless nature.”  (Paragraph 70)

[53]      Later, his Lordship expressed the view that much in life is inherently dangerous, even crossing the road, unless precautions are taken.  Asking himself what principled basis there is for distinguishing between operations that are not inherently dangerous and those that are, Stanley Burnton LJ found the answer in the speech of Lord Macmillan in Read, in a passage in which Lord Macmillan said that it is a matter of degree.  “Every activity in which man engages is fraught with some possible element of danger to others”.  (Paragraph 73)

[54]      In Farraj, Dyson LJ quoted with approval the words of Professor Glanville Williams, who was considering liability for independent contractors and expressed the following view:

“The law is now settled that where a person who is under a duty of care entrusts the performance of the duty to an apparently competent contractor, he is not generally (so far as his own duty of care goes) under a duty to check the contractor’s work, being entitled to rely upon its proper performance.  This is particularly obvious where the propriety of the work can only be ascertained by an expert, for otherwise the duty to employ experts would be one of infinite regress.”  (Paragraph 68)

 

[55]      Woodland concerned a child who had suffered a severe brain injury during a swimming lesson which had been arranged by her school, at a pool run by another local authority.  The lesson was supervised by a swimming teacher and a lifeguard, both of whom were employed by an independent contractor who organised and provided the lesson.  The claimant brought a personal injury action against, among others, the contractor, the lifeguard and the two local authorities.  It was alleged that the education authority owed the claimant a non-delegable duty to secure that reasonable care was taken of the claimant during the school day when she was at a location separate from the school.  The judge at first instance held that the non-delegable duty case was bound to fail on the pleaded facts and struck it out.  The Court of Appeal upheld his decision.  An appeal to the Supreme Court was allowed.  In the course of his judgment, Lord Sumption JSC, with whom Lords Clarke, Wilson and Toulson JJSC agreed, said this:

“3.  In principle, liability in tort depends on proof of a personal breach of duty.  To that principle, there is at common law only one true exception, namely vicarious liability.  Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other:  Majrowski v Guy’s and St Thomas’s NHS Hospital Trust [2007] 1 AC 224.  The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment:  Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1.  But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford [who organised and provided the lesson] appears to have been in this case.

 

…

 

5 The law of negligence is generally fault-based.  Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all.  The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do.  This is because, as Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in Guardian ad litem of Lewis v British Columbia [1997] 3 SCR 1145, para 18, a common law duty of care

‘does not usually demand compliance with a specific obligation.  It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.’

The expression “non-delegable duty” has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.”

 

[56]      Lord Sumption identified “two broad categories of case” in which a non-delegable duty arises.  The first is where the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work.  (Paragraph 6)  The second category comprises cases where the common law imposes a duty which has three essential characteristics.  The first arises, not from the negligent character of the act itself, “but because of an antecedent relationship between the defendant and the claimant.”  The second is a positive or affirmative duty to protect against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury.  The third characteristic is that the duty is, by virtue of that relationship, personal to the defendant.  The work required to perform such a duty may well be delegable, and usually is.  But, said Lord Sumption, the duty itself remains the defendant’s and its delegation makes no difference to his legal responsibility for the proper performance of a duty which is, in law, his own.  (Paragraph 7)

[57]      The characterisation of non-delegable duties, said Lord Sumption, originated in the law of nuisance.  (Paragraph 8)  In his Lordship’s view, the essential point about Rylands and Dalton v Henry Angus & Co  (1881) 6 App Cas 740 was that there was “an antecedent relationship between the parties as neighbouring landowners, from which a positive duty independent of the wrongful act itself could be derived.”  The duty was personal to the defendant, because it attached to him in his capacity as the occupier of the neighbouring land from which the hazard originated.  (Paragraph 9)  That type of duty, said his Lordship, would today be regarded as arising from an assumption of responsibility “imputed to the defendant by virtue of the special character of his relationship with the claimant.”  There was no doubt that the education authority owed a duty of care to its pupils to protect them from injury.  But, continued Lord Sumption, the concept of assumption of responsibility is relevant to determine its scope.  The circumstances must be such that the defendant can be taken, not just to have assumed a positive duty, but to have assumed responsibility for the exercise of due care by anyone to whom he may have delegated performance.  His Lordship then took on the task of identifying the circumstances in which a person may be taken to have assumed it, and concluded that, in the nuisance or quasi-nuisance cases, the personal character of the duty results from the fact that it arises from the defendant’s occupation of the land from which the hazard originates.  In other cases, the relevant factors are the vulnerability of the claimant, the existence of a relationship between the claimant and the defendant by virtue of which the latter has a degree of protective custody over him, and the delegation of that custody to another person.  (Paragraph 12; see also paragraph 23)

[58]      Turning from the last word in the law of England and Wales on this topic to the position in Scotland, McLeod came before the Second Division on a reclaiming motion, after proof.  The pursuer was the mate of a steam trawler who was injured when working a rusted windlass.  He sued both the registered owners of the vessel, and the master.  The Lord Ordinary assoilzied both defenders, and the pursuer’s reclaiming motion was refused.  It was argued on behalf of the pursuer that the master was aware of the rusted condition of the windlass, which was an obvious defect which he would have seen, had he been exercising reasonable care.  The Lord Justice-Clerk described that as a ”forcible argument”, but it failed for two reasons.  First, the ship’s engineers had been given the task of putting the windlass into proper working order, before it was used.  “Their job was to get the mechanism to work safely and efficiently and that is a job that no one can do better than an engineer”.  His Lordship expressed the view that the master was entitled to rely on the engineers “not neglecting to see that the apparatus was in a condition to be used with safety.”  Second, it was not put to the master during his evidence that he had failed in a duty of inspection after the engineers had completed their work.  (Pages 515-516)  Lord Anderson was also of the view that the master “had discharged all the duty incumbent upon him by getting the engineers to put the windlass right, it being an engineer’s job rather than a job for any other tradesmen.”  (Pages 517-518)  Finally, Lord Murray held that the negligence, if any, rested with the engineers.  They were competent to carry out the work.  The master was entitled to delegate the work to them, and he was under no duty to satisfy himself by inspection “that the detail of work properly entrusted to the proper and competent officials (had) been thoroughly attended to.”  (Pages 519-520)

[59]      The dispute in McLaughlan arose out of an explosion of gas in a tenement flat.  A tenant complained to the proprietors of the tenement that she was not receiving “a proper pressure of gas”.  The factors instructed the second defenders, a firm of plumbers, to clear a suspected choke in the pipe which supplied the tenants with gas.  While endeavouring to pass a wire through the service pipe beneath the tenement, the plumbers tore a hole in a corroded portion of the pipe, with the result that gas escaped into the house of another tenant.  That led to an explosion which caused injury to the second tenant and his property.  In an action of damages against both the proprietors and the plumbers, the pursuer contended that the proprietors, as owners of the pipe, should have suspected its condition and should, in any event, have made periodical inspections.  It was alleged that the plumbers had adopted a negligent method of clearing the choke.  The pursuer failed at first instance, and appealed to the Court of Session.

[60]      The appeal was refused.  Lord Russell, with whom Lord Carmont and the Lord President (Cooper) agreed, found that neither defender had been at fault.  In his opinion, the Lord President said this:

“In view of the assistance which the pursuer sought to derive for his case against the first defenders [the proprietors] from Rylands v. Fletcher and its derivatives, it may be permissible to utter yet another warning against the dangers to our native principles which attend the incautious use of English precedents bearing upon this highly controversial branch of law, the limitations of which have recently required to be pointedly stressed by the House of Lords in an English appeal  (Read v.  Lyons & Co.).  It is now recognised in England that the extreme form of the rule of absolute liability is simply a modern revival or survival of the medieval principle of English common law that a man acts at his peril; and England has been groping for a characteristic compromise between that "coarse and impolitic idea" and the doctrine of culpa as the indispensable basis of delictual liability (see per Lord Macmillan and Lord Simonds in Read v.  Lyons & Co.).  In Scotland we have never felt the need to seek any such compromise, for the medieval rule has never been part of our law.  There are of course cases in which there is little difference in the result between the application of the English rule of absolute liability and the Scottish rule of culpa, where the facts raise a presumption of negligence so compelling as to be practically incapable of being displaced.  But, when it comes to extending the rule in Rylands v. Fletcher to situations undreamt of by those who formulated it, we cannot ignore the wide distinction in principle between the two systems without destroying the very basis of the Scots law of delict.”  (Page 610)

 

[61]      The question which arose for determination in Duncan’s Hotel concerned the liability of a proprietor for damage caused to a neighbouring property by works carried out by an independent contractor.  A shop owned by the defenders on the ground floor of premises in Glasgow was seriously damaged by fire.  A number of cast-iron columns and beams had to be replaced.  Duncan’s Hotel occupied the three floors immediately above the shop, and suffered smoke and water damage.  The defenders decided to modernise the layout of the premises during the course of the repair works, and they instructed a firm of consulting engineers to prepare an open plan design for the reconstruction.  After investigation, the engineers concluded that piled foundations should be incorporated, the piles to be bored underneath the building.  The main contractors engaged subcontractors to sink the piles.  The piling work caused extensive damage to walls and ceilings throughout the hotel.  The foundations were redesigned but, during the course of that work, further settlement took place, further damaging the hotel.  The owners of the hotel sued the owners of the shop who brought in the main contractors as first third parties.  The main contractors convened the consulting engineers as second third parties.  The Lord Ordinary, Lord Stott, treated the case as falling within two separate compartments, and considered, first, the action relating to the damage caused by the piling operations.

[62]      The pursuers alleged that the initial damage was caused by the negligence of, and, in any event, by a nuisance caused by, the subcontractors.  The Lord Ordinary held that the subcontractors had not been negligent, but that their piling operations constituted a nuisance which materially contributed to the damage suffered by the hotel company’s property.  His Lordship next considered the question whether the defenders were liable for the nuisance caused by the subcontractors.  Adopting the views of Lord Kissen, Lord Stott noted that there was “ample authority for the proposition that an employer is liable for the negligence of an independent contractor in carrying out hazardous operations”, and could not delegate his responsibility or his duties by employing an independent contractor.  The piling operations were self-evidently hazardous work, and the defenders were liable for the damage caused by it.  (Page 196)

[63]      The primary submission in the case against the main contractors was that, if a building employer is to be held liable for negligence or nuisance committed by his contractor in the course of hazardous operations, so a contractor must, in the same way, be liable for the subcontractor whom he employs.  In addressing that contention, the Lord Ordinary said this:

“That is by no means a self-evident proposition.  What the building employer is being held liable for is negligence or nuisance in the hazardous work which, in the last analysis, is being done for him and on his instruction, whether by himself or by his servant or by a contractor or by a subcontractor employed by him.  The relationship between contractor and subcontractor is rather different.  No doubt, in a sense, the contractor in employing a subcontractor is appointing someone to do part of his work for him.  But the work is being done not for him but for the building employer, and there is no compelling reason to assume that in delegating part of the work to a subcontractor he is to be taken as accepting responsibility for the subcontractor's delicts.  His obligations, unlike those of his employer, do not stem from occupation or possession or interest in the end-product of the work, but merely from the terms of his contract, and if the terms of the contract do not include an acceptance of liability for a subcontractor's delicts, it is difficult to find any principle of law apt to impose such a liability upon him.  ‘No liability without culpa’ is a principle well rooted in the law of delict, and, outmoded and anomalous as the principle may be, it must remain the standard criterion for determination of liability in delict until Parliament decides otherwise.  To that there are recognised exceptions, of which the building owner's responsibility for hazardous work done on his behalf is one.  But it is not for me to extend the scope of the exceptions beyond their accepted limits.”  (Page 198)

 

[64]      The dispute in Kennedy arose out of the removal of a section of a load bearing wall in the basement of a tenement building.  The tenants of the basement had engaged a firm of consulting engineers.  The engineers devised a scheme which, when put into operation, resulted in a redistribution of loading, whereby the fabric of the upper floors of the building was damaged.  The proprietors of the upper floors raised an action against the tenants of the basement premises and the engineers.  The pursuers averred that the damage was caused by, among other things, nuisance created by the engineers who had instructed and directed hazardous works within the premises, which they had occupied at the material time, and which they knew had constituted an interference with the support enjoyed by the pursuers.  The Lord Ordinary allowed a proof before answer in respect of the averments relating to damage caused by nuisance.  The engineers’ reclaiming motion was refused.

[65]      At page 99 of the report, the Lord President (Hope) observed that, according to the law of Scotland, liability in reparation for damages arises either ex contractu or ex delicto.  “There is no other basis on which a liability in reparation for damages can arise, according to our law.”  His Lordship went on to express the view that a claim for damages for nuisance is a delictual claim, and that both liability for nuisance and for negligence depend on the presence of culpa.  His Lordship continued as follows:

“Culpa which gives rise to a liability in delict may take various forms.  In vol 14, Stair Memorial Encyclopaedia, Nuisance, para 2087, it is stated that the usual categories of culpa or fault are malice, intent, recklessness and negligence.  To that list there may be added conduct causing a special risk of abnormal damage where it may be said that it is not necessary to prove a specific fault as fault is necessarily implied in the result:  see Chalmers v Dixon, per Lord Justice-Clerk Moncreiff at p 464.  In Campbell v Kennedy at p 126 Lord President McNeill said that the remedy of an action of reparation is confined to cases of breach of contract and of damage caused by delinquency, and that no action of damages caused by delinquency can be relevant unless negligence or culpa of some description is averred.  In Chalmers v Dixon at p 464 Lord Justice-Clerk Moncreiff said:  'A good deal has been said as to the necessity of proving culpa.  I think that culpa does lie at the root of the matter.  If a man puts upon his land a new combination of materials, which he knows, or ought to know, are of a dangerous nature, then either due care will prevent injury, in which case he is liable if injury occurs for not taking that due care, or else no precautions will prevent injury, in which case he is liable for his original act in placing the materials upon the ground.”

 

[66]      The Lord President went on to say more about the concept of culpa in the following passage at pages 100-101 of the report:

“The essential requirement is that fault or culpa must be established.  That may be done by demonstrating negligence, in which case the ordinary principles of the law of negligence will provide an equivalent remedy.  Or it may be done by demonstrating that the defender was at fault in some other respect.  This may be because his action was malicious, or because it was deliberate in the knowledge that his action would result in harm to the other party, or because it was reckless as he had no regard to the question whether his action, if it was of a kind likely to cause harm to the other party, would have that result.  Or it may be — and this is perhaps just another example of recklessness — because the defender has indulged in conduct which gives rise to a special risk of abnormal damage, from which fault is implied if damage results from that conduct.  In each case personal responsibility rests on the defender because he has conducted himself in a respect which is recognised as inferring culpa by our law.  So what is required is a deliberate act or negligence or some other conduct from which culpa or fault may be inferred.”

 

[67]      Kennedy was one of many cases considered by the First Division in Stewart, in reviewing the jurisprudence of the inherently hazardous exception.  The proprietors of a flat sued the owner of a shop which lay directly below their property.  They sought damages for the cost of remedial works to the flat, as a result of building works carried out within the shop, involving the removal of a load-bearing wall.  In the result, Stewart was decided on the application of the law of the tenement, whereby the defender, as ground floor proprietor, owed an obligation of support to the pursuers as proprietors of the flat above.  Included in the obligation of support is the obligation not to carry out operations which endanger support to other parts of the building.  (Paragraph [25])  The servient proprietor owed a positive duty to avoid endangering the dominant property.  That duty, being personal to the servient proprietor, “cannot… be elided by the instruction of an independent contractor to execute the works.”  (Paragraph [26])

[68]      In Morris Amusements, the proprietors of a building sought reparation from a local authority and specialist contractors, for damage caused to the building by demolition works to an adjacent property.  The pursuers pleaded that the works were inherently dangerous and that, therefore, the local authority was liable for damage caused by the specialist contractors.  In considering whether the works were inherently hazardous or not, the Lord Ordinary acknowledged that it may not always be easy to determine on which side of the line particular operations should be held to fall.  In discussing that matter, his Lordship expressed the view that, the mere fact that appropriate precautions might have been identifiable, could not automatically take the works out of the “inherently hazardous” category.  Otherwise, said his Lordship, the exception could only apply to works so dangerous that they should never be attempted at all.  The Lord Ordinary did not believe that the true scope of the exception had ever been defined in such a restricted way.

[69]      As is recorded earlier in this opinion, the pursuers in this case aver that the development of housing on a site where “it was reasonably foreseeable the ground had been contaminated as a result of its previous use was an inherently dangerous activity.”  That is echoed in Mr Hajducki’s note of argument, and elaborated by the contention that the nature and adequacy of the investigation of contamination and the suitability of the remediation process “was a matter where a duty of care arose on the developer of the residential housing”.  Murphy is referred to by the pursuers in support of that proposition, but, neither in the note of argument nor in oral submissions, was any indication given of the passages on which counsel for the pursuers intend to rely.  The report in Murphy extends to 101 pages, and contains seven reasoned judgments.  It is unsatisfactory not to have been given any indication of what counsel intended the court to take out of the decision.

[70]      Counsel for the pursuers relied, also, on Adams.  The pursuer in that case had the right to graze a cow on the shores of Loch Ericht.  The defender, the tenant of Loch Ericht Hotel, had a right of fishing in the loch, and kept his boats in a boat house situated on the grazings.  In an action of damages brought in Inverness Sheriff Court, the pursuer averred that the defender had employed a man to scrape off part of the outside painting of these boats.  These operations were, on the instructions of the defender, carried out on the pursuer’s grazing.  It was also averred that a considerable amount of paint scrapings and white lead were “culpably and negligently left lying” on the grazing, with the result that the pursuer’s cow swallowed a quantity of the scrapings and white lead, became seriously ill, and died.  After proof, the sheriff-substitute assoilzied the defender.

[71]      On appeal, the Second Division made a number of findings of fact, including that the defender took no steps to guard against the poisonous material being a source of danger to animals which were lawfully grazing on the land, by directing the material to be removed or otherwise.  During the hearing, counsel for the defender had argued that the joiner who undertook the repairs “was an independent contractor, not a servant.  That being so, it was part of his duty to remove the material here in question.”  In the course of his opinion, the Lord Justice-Clerk (Scott Dickson) observed that, according to the terms of the contract between the joiner and the defender, “the only work which this man was employed to do was to repair and tar the boats so as to make them seaworthy, but no provision was made for removing any debris that might result from the operation.”  (Pages 131-132)  The Lord Justice-Clerk concluded, therefore, that it was not the joiner’s duty to remove material that came from the boat.  His Lordship expressed the view that “a man who has engaged a contractor to do work for him, in circumstances such as the present case discloses is not absolved from liability to any one suffering damage through deleterious material being left on the ground after the contract is completed.”

[72]      In Malik, the Lord President expressed the view that the opinions delivered in Adams “do not admit of a very clear ratio decidendi” but that the case appeared to have been decided in the pursuer’s favour “because the boat owner made no provision in his contract with the joiner or otherwise for removal of the dangerous scrapings; thus he was personally liable to the pursuer.”  (Paragraph [19])

[73]      In my judgment, to the extent that the pursuers seek to invoke the hazardous operations exception to the general rule, their attempt is misconceived.  Developing residential housing is not an activity which falls within the exception, nor do the pursuers contend that it is.  (D&F Estates, page 210)  I agree with the pursuers that, where it is known that the lands on which houses are to be built may be contaminated, and the person responsible for developing the land knows that it may be contaminated, that person may owe a duty to the ultimate occupiers of the houses to take reasonable care for their safety, depending on the circumstances of the particular case.  Such a duty, if owed, is personal to the developer.  Where, as here, the developer does not have the expertise to investigate and remediate the site, the duty may be discharged by engaging competent experts in the field.  (Haseldine, Scott LJ at page 356 and Goddard LJ at page 374; Green, page 249)  According to the pursuers’ averments, the second defenders were acting throughout as environmental consultants.  (Article 14 of the condescendence, page 63B; article 17 page 72D-E)  The pursuers aver that they suffered injury to their health because the second defenders failed to discharge the duties of care owed by environmental consultants.  (Article 17 of the condescendence, pages 72 to 72)  The first defenders were provided with a copy of the second defenders’ July 1994 report, and the April 1995 and July 2001 draft reports were prepared for the first defenders by the second defenders.  The second defenders reported that the site was safe for residential development.  In these circumstances, the first defenders’ personal duty of care did not extend to checking the second defenders’ work, being entitled to rely on its proper performance.  (Farraj, paragraph [68])  The pursuers point to nothing in the first defenders’ activities that can properly be said amounts to culpa.  (Kennedy)

[74]      It follows from what I have said so far that the pursuers’ common law case directed against the first defenders is irrelevant. 

 

The pursuers’ averments of fault on the part of the second defenders
[75]      As has been seen, the pursuers’ case against the second defenders is predicated on their being environmental consultants, responsible for the investigation and remediation of the site.

 

Submissions for the second defenders

[76]      In their note of argument, counsel for the second defenders submit that, to make out a case of negligence, the pursuers must aver and prove four essential ingredients:  fact, fault, causation and loss.  They contend that the pursuers’ averments fail to provide any notice, let alone fair notice, of the case which the second defenders have to meet.  The pleadings lack specification to the point of irrelevancy on each of the key aspects of the case against the second defenders.  The pursuers’ averments are little more than a narrative of aspects of work done at Watling Street, stretching over a decade.  There would be no point in having an inquiry into these averments.  Counsel submitted that an important purpose of discussion on the procedure roll should be kept in mind:  “It would be unfair for the defenders to be required to spend time and money on what will obviously be a fruitless inquiry.”  (Mitchell v City of Glasgow Council [2007] UKHL 11; 2009 SC (HL) 21 (Mitchell) at [12] per Lord Hope of Craighead)

[77]      The pursuers’ case in article 17 of the condescendence is that, as the environmental consultants concerned for the whole of the decade or so of the development of the site, the second defenders were in breach of a number of duties of care owed to future residents.  The pursuers aver that the duties on the second defenders were:  (i) to investigate the extent of contamination of the ground at the site as a result of its previous uses; (ii) to advise on remediation required to make the site (or any part of it) suitable for residential development; (iii) to prepare a scheme of remediation works; and (iv) to administer and supervise these works.  Counsel submitted that there are a number of problems with these averments.

[78]      Any duties owed to the pursuers are owed in delict.  As the pursuers acknowledge, the second defenders’ involvement on the site arose from contracts to which the pursuers were not party.  Those contracts are the legal context in which the existence of duties of care to third parties requires to be analysed.  In particular, it is not possible to assert the existence of duties, or understand the content of those duties, owed to third parties for work done by an environmental consultant, without first considering whether, in fact, the second defenders were ever the subject of such an appointment.

[79]      Counsel observes that the second defenders set out the history of their contractual appointments in relation to Watling Street at answer 2 on page 12 of the closed record.  As regards those aspects of the second defenders’ work on which the pursuers rely, the second defenders aver that their appointment was made under the extant ACE conditions.  That is to say they were appointed as consulting engineers.  Those averments are denied by the pursuers, and they do not engage, therefore, with the obligations on engineers arising under the ACE scheme.  The requirement to do so is emphasised by the appointment of other individuals or contractors whose roles might be thought to be more indicative of the provision of environmental consultancy services.  The regional chemist is an example, as is the remediation contractor.  In the latter regard, counsel referred to answer 7 for the first defenders, at page 39 of the closed record.  It is noteworthy, say counsel, that the other defenders aver that the second defenders were appointed as engineers.  (Answer 7 for the first defenders, at page 38 of the closed record, and answer 19 for the third defenders, at page 80)

[80]      Thus, counsel submit, the pursuers’ pleadings do not disclose the basis upon which the various duties said to have been owed by environmental consultants fell to be performed by the second defenders.  In itself, this deficiency is sufficient to warrant dismissal of the action insofar as it proceeds against the second defenders.  Nor do the pursuers aver any basis for the existence, content or manner of breach of the alleged duties of the second defenders to prepare, administer and supervise a scheme for the remediation works.

[81]      Counsel then turn to scrutinise the alleged failures on the part of the second defenders during discreet periods, the first of which was that from 1990 to 1992.  The duties said to have been incumbent on the second defenders, as environmental consultants, during that period, were to:  (i) investigate the nature, concentration and distribution of contaminants within the site;  (ii) prepare a scheme of remediation to meet the future use of the site;  (iii) advise that the 1990 and 1992 testing meant that further testing was required to ascertain the nature, concentration and distribution of oily contamination; and  (iv) advise that it was necessary to investigate the distribution and extent of a variety of solvents within the site.

[82]      The nature of the work and the appointment which was undertaken by the second defenders during the first period are analysed by counsel in their note of argument.  In 1990 the second defenders were instructed by the first defenders to design the infrastructure works associated with the site.  That included site investigations to assess the contamination of the site.  The advice of the regional chemist was sought and relied upon.  A two-stage site investigation was undertaken by the regional chemist.   (Answer 4 for the second defenders)  Based on those investigations the second defenders produced the phase 1 report, which was issued to the first defenders.  The phase 1 report proposed a remediation strategy and recommended that a verification study follow.  (Answer 5 for the second defenders)  These works were undertaken in accordance with the second defenders’ first contract in relation to the site.  (Answer 2, page 12 of the closed record)  Further investigations were then undertaken, in accordance with the recommendations of the phase 1 report.  Those investigations were undertaken in February 1992 and reported in May 1992 in the phase 2 report.  Again, the regional chemist carried out the testing, sampling, analysis etc.  The second defenders relied upon the regional chemist’s experience and expertise.

[83]      Turning to the alleged failure on the part of the second defenders to investigate the nature, concentration and distribution of contaminants within the site, counsel for the second defenders submit that, at no point do the pursuers grapple with the questions of who was responsible for undertaking the investigations in question and who is responsible for their inadequacies.  In particular, contend counsel, as regards identified failures in the execution of the investigation, or failures as regards compliance with so-called established practice, the pursuers do not identify who was responsible and why, in particular, it could be the second defenders. 

[84]      The pursuers refer to the second defenders having managed the investigation.  (Article 5, page 28 of the closed record)  In that case, the criticism should be one of a failure of management.  It can be seen from the 1991 and 1992 reports that the second defenders did evidently consider themselves to have a management role.  The pursuers make no attempt to analyse the obligations on the manager of the investigation.

[85]      The pursuers fail to consider whether the criticisms of testing, for example the criticism of the sampling methodology in article 5 of the condescendence at page 28A of the closed record, were failures of management or failures in the execution of the work by the regional chemist.  In that regard, counsel point to the second defenders’ averments in answer 6, at page 36 of the closed record. 

[86]      Counsel contend that it would appear that the pursuers’ case is that the site investigations culminating in the May 1992 report were inadequate.  Nowhere, however, do the pursuers set out the duties incumbent on those investigating contamination or how the investigation fell short.  In article 7 of the condescendence, the pursuers aver that it was patent on the face of the phase 2 report that the regional chemist’s recommendations had not been followed.  That is not accurate.  Nowhere in the phase 2 report, which the second defenders have produced as number 8/13 of process, is there any reference to, or suggestion of, a failure to follow some recommendation by the regional chemist.

[87]      Counsel make what they describe as “a logical objection” to the pursuers’ proposition that, as at May 1992, the second defenders, or anyone else, required to continue to undertake further investigation and testing.  That proposition takes no account of the conclusions and recommendations contained within the May 1992 report.  That report recommended options for remediating the site and advised that verification testing should be done afterwards. 

[88]      The source and nature of the alleged duty to prepare a remediation scheme, say counsel, is entirely unexplained.  Nor is the nature of any breach averred.  In particular, counsel question what it was about the recommendations set out in the phase 2 report in May 1992 that amounted to a breach of the unspecified duty to prepare a remediation scheme, contending that the pursuers’ pleadings do not answer that question.  In article 7 of the condescendence, the pursuers set out what appear to be criticisms of the second defenders’ assessment and handling of remediation options, but the pleadings do not attempt to engage with the requirements for pleading a relevant case of fault.

[89]      Counsel note that averments about signs of oily contamination are made in article 6.  That averment is associated with an alleged duty to advise further testing of oily contamination and solvents.  There are no averments, however, to explain how and why that was something for which the second defenders were responsible.  The allegations about the absence of testing for solvents are similarly unspecific.  Each of these duties also suffers from the same “logical objection” as before.

[90]      It is submitted on behalf of the second defenders that criticisms of the contamination investigations up to May 1992 do not take the pursuers anywhere.  The chain of causation between the failures discussed above and the presence of vapour in the pursuers’ houses is very long.  The pursuers’ pleadings fail to explain how, standing the intervention of remediation and further investigation, there would have been no harmful vapours in their houses but for failures up to May 1992.  The second defenders should not be put to the cost of defending this litany of pointless criticism.

[91]      In relation to the period from 1993 to 1995, the duties which the pursuers aver were incumbent on the second defenders, as environmental consultants, were to:  (i) ensure that the same range of testing on soil samples taken in 1990 and 1992 was repeated in 1993, 1994 and 1995;  (ii) in 1995, to test for a wider range of organic contaminants than polyaromatic hydrocarbons and phenols; and  (iii) in 1995, investigate the site for a variety of solvents likely to have been used when it was an engineering works.  (Article 17 of the condescendence)

[92]      The foregoing averments, say counsel, appear to be directed, first, at the period during which the remediation work took place.  The remediation commenced around 11 January 1993 and was completed in the spring of 1994.  (Answer 7 for the second defenders at page 42)  The second defenders issued a post-remediation condition report in July 1994.  (Answer 8, at page 46; number 8/17 of process).  While one might have expected the remediation and the verification that followed it to be the focus of specific averment by the pursuers, it is impossible from the lengthy narrative to understand the nature of the case the pursuers make against the second defenders as regards this stage of events.

[93]      Counsel submitted that a narrative “of sorts” is to be found at articles 7, 8 and 9.  That narrative is, however, lacking in the following ways: 

•    The obligations said to have been incumbent on the second defenders are not specified.  Regard should be had to the averments of the first and second defenders regarding obligations on others.  (Answer 7 for each of these defenders, pages 38 and 42)

•    It is not said how, and even if, the alleged failures in remediation and verification were the responsibility of the second defenders.  It is to be noted that at least some of the allegations made depend upon the illegitimate use of the believed and averred formula.  In that regard, counsel refer to the averments at the end of article 7 of the condescendence.

•    Once again there is no explanation of how these failures – whether it is the creation of bunds or the absence of mention of pit v.7 from a report – have anything to do with the presence of harmful vapours within the pursuers’ houses.

[94]      Moving on to 1997, the duties said to have been incumbent on the second defenders, as environmental consultants, were to:  (i) investigate the nature, concentration and distribution of contamination of standing water on the site by oil as reported to them in October and November 1997; and (ii) investigate for a variety of solvents likely to have been used when the site was an engineering works.  The pursuers make averments about these matters at article 10 of the condescendence.  Those averments are the subject of detailed answers.  The 1997 investigations were carried out on plots B1 and B2.  The pursuers houses were not in either plot – their houses were in  Plot A, and the causal and relevancy difficulties arising from that are entirely unaddressed by the pursuers.  There was an average spacing of 17.5m between pits that exceeded the required degree of sampling.  No odour suggestive of solvents was logged, and oily water was found in only five of 127 trial pits that were dug.  The second defenders aver in their answer that, based on the results of testing on plots B1 and B2, there was no reason for them to conclude that solvents may be present throughout the site.

[95]      It is submitted by counsel for the second defenders that the difficulties for the pursuers’ case in 1997 are of the same nature as the second defenders’ criticisms for the earlier periods.  First, the pursuers make no attempt to explain the terms of the second defenders’ appointments under their contract with Scottish Homes in 1997.  Thus, there is no attempt to explain the contractual context in which duties of care to third parties are said to have arisen.  The pursuers do not engage with the second defenders’ averments about the scope of their appointment and the content of the reports.  For example, the pursuers simply ignore the clear advice given to potential contractors that they should consider whether further investigation requires to be made.  Counsel refer, for example, to paragraph 1.4 of the November 1997 report, which is number 8/21 of process.

[96]      The second problem with the pursuers’ approach to this period is, once again, a complete absence of any specification of the nature and manner of breach of duties said to have been incumbent on the second defenders.  The third problem, contend counsel, concerns causation.  The pursuers do not aver how, but for the unspecified failures in 1997, there would have been no harmful vapours within their houses.

[97]      Looking at the averments about 2001, the duties said to have been incumbent on the second defenders were:  (i) when reviewing the site investigation work done that year, to realise that further investigation was required;  (ii) to realise that the investigation done in 2000 had not tested for a variety of solvents likely to have been used when the site was an engineering works;  (iii) to realise that the site investigation work done before 2000 was incomplete and that the site had not been tested for the presence of contamination by a variety of solvents likely to have been used within the site while it as an engineering works; and  (iv) to realise that the validation testing done in 1994, 1995 and 2000 had not tested for a variety of solvents likely to have been used within the site.  It is not said what the second defenders should have done, when armed with this knowledge. 

[98]      In article 11 at page 53 of the closed record, the pursuers aver that, in 2001, the second defenders prepared a report on post-remediation conditions.  Counsel submit that it is not possible to say from the averments that then follow what criticism is directed at the work undertaken by the second defenders.  Again the pursuers fail to address the role of other parties.  For example, the second defenders aver and the pursuers admit that the 2001 sample testing was carried out by Scientifics Ltd.  (Pages 54 and 55 of the closed record)  Again, it is not said how any of this is relevant to the presence of harmful vapours within the pursuers’ houses.

[99]      It is contended by counsel for the second defenders that, in article 14 of the condescendence, it is to be noticed that the pursuers summarise a number of complaints about the investigation and remediation of the site.  These averments are entirely unspecific, and do not cure, but rather exacerbate, the problems already identified.

[100]    On the topic of “reliance on other parties”, counsel observe that, in their pleadings, the second defenders aver that they instructed a number of specialists “in terms of the appointments they [the second defenders] received”.  It is explained that the second defenders were required, in terms of their appointments, to instruct such specialists.  The second defenders relied on those specialists.  They were entitled to rely on them.  The pursuers’ averments fail to identify any basis on which it could be said that the second defenders are responsible for any failings by specialist contractors.  In that connection, counsel referred to Clerk and Lindsell:  Torts, 21st edition, at paragraphs 6-59 and following.  There are no averments suggesting that the specialist contractors on which the second defenders relied were incompetent or that the second defenders interfered with their work.  Accordingly, any case against the second defenders based on the sampling, testing, analysis and interpretation of the site is bound to fail.

[101]    Mr Duncan QC opened his oral submissions by inviting the court to sustain the first and second pleas-in-law for the second defenders, and to dismiss the action so far as directed against them.  The first plea-in-law is a general plea to the relevancy, and the second is to the relevancy of a case directed against the second defenders alleging breaches of the Environmental Protection Act 1990  (“the 1990 Act”).

[102]    Counsel submitted that the pursuers are not entitled to a proof of their averments, because their case has not set out the building blocks necessary to turn their allegations of negligence into an actionable claim.  The pursuers’ pleadings give rise to three questions:  (i) what duties were owed by the second defenders to the pursuers, and how did such duties arise;  (ii) in what way were any such duties breached by the second defenders; and (iii) how would discharge of any such duties have prevented injury to the pursuers.  In that context, counsel referred to a number of passages in Mitchell in the Inner House and in the House of Lords about which I shall say more later. 

[103]    Having adopted his note of argument, Mr Duncan read out a number of passages from the pursuers’ pleadings and from certain productions, in order to illuminate the criticisms advanced in the note of argument.  I address these criticisms in the decision section of this opinion.

[104]    Mr Duncan submitted that it is clear from the pleadings and from the phase 1 contamination study, dated January 1991, number 6/1 of process, that it was contemplated that further work would be done on the site.  It was not, therefore, appropriate to criticise either the report or the actings of the second defenders.

[105]    In answer to the first two questions which are set out in paragraph [102], Mr Duncan advanced three propositions:

1.   Where it is a matter of admission by the pursuers that the second defenders subcontracted work to experts, the second defenders discharged any duty of care incumbent on them.  Counsel referred to Farraj at paragraph 68.

2.   In these other cases where, on the pleadings, it is not said that the appointment of an expert contractor was directed by the second defenders, there are still, nevertheless, issues of reliance.  For phase 1, the second defenders and the regional chemist were appointed separately by the SDA.  At the remediation stage, the SDA appointed I & H Brown, who made their own appointment of Clyde Analytical Limited.  The second defenders relied on the work of these experts, and it was anticipated that other work was going to be carried out by other people.

3.   Since the second defenders were going to be relying on the work of others who were expert, as the authorities make clear, it is necessary to look at the surrounding contractual framework in order to bring home a case against the second defenders.  The pursuers fail to do so.

[106]    In support of his attack on the pursuers’ case against the second defenders, counsel referred to Harrison v Technical Sign Co Ltd [2014] PNLR 15  (“Harrison”), and Oldschool v Gleeson  (Construction) Limited  (1976) 4 BLR 103  (“Oldschool”).

[107]    Mr Duncan closed his submissions by adopting those of Mr Dunlop in support of the limitation and causation arguments, and invited me to sustain the second defenders’ third plea-in-law, a limitation plea, and to dismiss the action against the second defenders as having become time-barred.

 

Response for the pursuers

[108]    In their written response to the second defenders’ note of argument, counsel for the pursuers note that the services provided by the second defenders are set out in article 4 of the condescendence, at page 23 of the closed record.   In Answer 4, at page 26 B-C, the second defenders admit that:  in 1990 they were instructed by the SDA to carry out a study of the ground contamination at the site; they offered to carry out the design of infrastructure works and to carry out design work associated with investigation of the ground for contamination; they offered to provide advice as to the scope of the infrastructure work which included a two part study to assess whether the site was contaminated; they were instructed to carry out a study of the ground contamination at the site; and they contracted with the regional chemist for the latter to undertake chemical analysis of the soil samples taken.  In article 5 of the condescendence, the pursuers aver that the site investigation study was managed by the second defenders, which is also averred by the second defenders, at page 29 D of the closed record.

[109]    In answer 6, the second defenders aver that they made detailed proposals for a phase 2 contamination study, and made recommendations as to what work was to be done  (including the materials to be tested for), with the fieldwork to be done by the regional chemist.  (Page 33E of the closed record)  Those averments, it is contended, are admitted or otherwise accepted as true by the pursuers.  The pursuers aver that the phase 2 study was managed by the second defenders who also compiled engineering logs during the field work period.  In answer 7 the second defenders admit that they produced a report in May 1992, summarising the findings of their contamination studies and the options for remediation of the site.  The pursuers’ averments and separately the second defenders’ admissions as to their instructions are consistent with the second defenders being responsible for deciding what investigations were required, and thereafter contracting with the regional chemist to undertake the work that was required. 

[110]    Article 7 of the condescendence concerns remediation works undertaken following the phase 2 report.  The pursuers aver that, by January 1993, the second defenders had been commissioned to administer and supervise the scope of the remediation works.   (Page 36A of the closed record)  That averment is admitted by the second defenders (under explanation).  (Page 40E)  The role of the second defenders in this regard is also the subject of averment by the first defenders (at page 37E) and the third defenders (page 43A).  It is averred in article 7 that further investigatory work was undertaken by the second defenders on part of the site in the first quarter of 1995, that the seconder defenders reported on that work, and that they made certain recommendations.  The findings of site condition reports by the second defenders are averred in article 10 of the condescendence.  In article 11, the pursuers make averments about further testing, commissioned by CBC, which the second defenders were subsequently asked to report on.  The ICRCL guidance 59/83 (July 1987) was adopted by the second defenders as the assessment of risk criteria. 

[111]    It is submitted on behalf of the pursuers that their averments and, separately, the second defenders’ admissions are consistent with the second defenders acting as an environmental consultants to investigate the extent of contamination at the site; to advise on remediation works required to make the site suitable for residential development; to prepare a scheme for the remediation works; and to administer and supervise the remediation work contract. 

[112]    Counsel for the pursuers contend that the second defenders’ position proceeds on the basis that it was the regional chemist and Clyde Analytical Limited who were responsible for determining the scope of the investigation, with the second defenders relying on the regional chemist’s experience and expertise and Clyde Analytical Limited’s advice and guidance to determine these.  On the basis of the pursuers’ averments and the second defenders’ admissions, that is not the case.  Reference is made, in particular, to article 6 of the condescendence, and answer 6, in respect of the regional chemist.  The terms of any contract between the second defenders and either the regional chemist or Clyde Analytical Limited are not the subject of averment. 

[113]    In any event, it is submitted, putting it at its highest for the second defenders, the responsibilities of the second defenders for determining the scope of the original site investigation works is in dispute.  The fact that the second defenders had been asked to provide advice based on the exercise of professional judgment  (i) about the suitability of the site or parts thereof for residential development and  (ii) what remediation works were required to make the site suitable for residential housing are completely ignored by the second defenders. 

[114]    The initial omissions by the second defenders were not subsequently addressed over an extended period of time when the second defenders had further involvement in relation to various parts of the site.  During these further periods of involvement, further information about the site conditions was provided, giving the second defenders the opportunity to consider the appropriateness of the scope of the original investigation.  The second defenders failed to take those opportunities.

[115]    In his oral submissions, Mr Hajducki contended that the second defenders were employed to report on whether or not the land was safe on which to build houses.  It was up to them, said counsel, if they wanted to engage a contractor to carry out some of the testing, but they were still responsible for making sure that the appropriate testing was carried out.  They were the ones certifying that the site was safe, on the basis of the duty that they had undertaken.  If certain tests were missed out, that was the responsibility of the second defenders.  It also fell to the second defenders to form their own judgment as to what the tests showed, and to form an opinion as to whether the site was safe for building houses. 

 

Decision and reasons

The factual background

[116]    The pursuers’ case against the second defenders can be stated relatively briefly.  It was a condition of the SDA’s planning consent that the applicant was to carry out a detailed investigation of the soil conditions, to establish the nature, concentration and distribution of any contaminants which may be located there.  (Page 16C-D of the closed record; my emphasis)  In March 1990, the second defenders quoted for design work “associated with investigation of the ground at the site for contamination”.  They proposed carrying out a preliminary contamination survey.  The proposal was sent to the first defenders, and the SDA instructed the second defenders “to carry out a study of the ground contamination”.  The regional chemist’s involvement was, on the instructions of the second defenders, “to undertake chemical analysis of the samples taken.”  (Page 23 A-C)  The sampling methodology was not carried out according to existing established practice, as averred in article 3 of the condescendence.  (Page 28A-B)  The investigation that was carried out was “limited”.  (Page 30E)

[117]    In January 1992, the second defenders wrote to the LDA, as successors to the SDA, making recommendations for the next phase of the contamination study.  These recommendations included:  the number of pits to be dug and their depth, and the type of material to be analysed for in the samples.  The role of the regional chemist was to undertake the fieldwork, and he was engaged to do that in February 1992.  (Page 31C-E)  The second phase of testing was undertaken in or about February 1992.  (Page 30E)  The second defenders managed the study.  (Page 31E)  The testing showed “the presence of organic matter in the samples”.  A total of 14 trial pits produced results for cyclohexane extract which exceed threshold trigger levels.  (Page 31A-B)  Testing with cyclohexane extract gives an indication of the concentration of organic compounds, but does not give any indication of the type of organic compounds.  (Page 62C-D)

[118]    The second defenders produced a report on the contamination studies and associated development costs, in or about May 1992.  The sampling methodology was not carried out according to existing established practice, as averred in article 3 of the condescendence, as the second defenders knew, or ought to have known.  (Page 35B-C)  By January 1993, the second defenders had been commissioned to administer and supervise the remediation works.  (Page 36A)  The testing of soil samples which had previously been undertaken was primarily testing for metals and elements, and “only very limited testing had been carried out for the presence of organic contaminants”.  The pursuers infer from that that material removed from the site was not tested for the presence of solvents.  (Page 37B-C)  (That is the “believed and averred” averment which Mr Duncan criticised as “illegitimate”.  The inference is drawn from primary facts and “believed and averred” is appropriately used.)

[119]    Remediation works were undertaken in or about the first quarter of 1993 and the first quarter of 1994, the “stated purpose” of which “was to enable the entire site to be developed for residential purposes.”  Following each phase of these works, verification pitting, testing and logging of results was carried out by Clyde Analytical Limited on the instructions of I & H Brown Limited, and a report of the results was prepared for the latter by the former.  The only testing carried out was for metallic and other base elements.  No testing was done for solvents.  Following the completion of the remediation works the second defenders issued a certificate of substantial completion in April 1994.  They issued a report on the remediation works, in or about July of that year.  It was patent from the terms of that report that no testing had been done for solvents, notwithstanding “the foreseeable likelihood that solvents would have contaminated the ground” and that they could still be present at any part of the site and at any depth within the made ground.  (Page 44A-D)

[120]    In the first quarter of 1995, the second defenders undertook further investigatory work on part of the site.  Trial pits were dug and soil samples taken, which were tested for SVOCs.  They were not tested for volatile components.  (Page 47D-E)  In 1997 the second defenders prepared two site condition reports for Scottish Homes in respect of plots B1 and B2.  Each of them referred to standing water which had, in places, been contaminated with oil.  Each advised that special measures would be required to handle and dispose of such water to prevent pollution of the site and the surrounding environment.  Neither, however, considered the causes or implications of the oil contamination that had been found.  The only further chemical testing of the ground was for foundation design purposes.  No further consideration was given to the nature, concentration or distribution of contamination of the site, including Plot A, by organic compounds such as oil or solvents.  (Page 50E-51A)  The pursuers offer to prove that any reasonably competent environmental consultant in 1997 would have investigated the nature, concentration or distribution of contamination of standing water on the site by oil and would have investigated the site for contamination by a variety of solvents likely to have been used within the site whilst it was an engineering works.

[121]    In 2000, during construction of houses on Plot A, further testing was done of ash and slag, within the same area as formed the subject of the second defenders’ report dated April 1995.  After testing and remediation works were completed, the first defenders instructed the second defenders to prepare a supplementary report on post-remediation conditions.  A draft report was produced by the second defenders in or about July 2001.  The report by the testing laboratory, Scientifics Ltd, was included  (as an appendix) in which it was noted that three of the samples were found to exceed a maximum level for solvent extract and which would warrant further investigation.  It was reported by the testing laboratory that these samples potentially contained substances such as polyaromatic hydrocarbons or other carcinogenic substances.  No further investigation or testing was undertaken at that time.  (Pages 53E-54B) 

 

Injury to the pursuers

[122]    During the course of 2003, the first pursuer began to experience neuropsychiatric symptoms caused or contributed to by inhalation of contaminated vapours within her home at Tiber Avenue.  The symptoms persisted throughout the remainder of her tenancy.  She experienced similar symptoms for the same reason when she moved to Empire Way.  The symptoms persisted throughout her stay at that property.  (Page 80B-C)  After she left Empire Way, her symptoms started to improve.  (Page 81A-B)  During the course of 2008, the second pursuer began to experience neuropsychiatric symptoms caused or contributed to by inhalation of contaminated vapours within his home at Tiber Avenue.  He experienced the same symptoms from the same cause when he moved to Empire Way.  (Page 83B-D)

 

Causation
[123]    The chemicals used in the industrial processes which were undertaken at Watling Street included chemicals in the form of VOCs and SVOCs.  (Page 8D-E)  In or about 2010 and 2011, consultants for the local authority carried out an assessment of parts of the site for the purposes of part IIA of the 1990 Act.  Ground samples throughout the area under investigation were found to contain a variety of chemicals.  (Page 57 C-58 B)  The results showed the presence of contaminants in the ground in the form of, among other things, VOCs and SVOCs.  They also showed that fumes from VOCs and SVOCs were entering into properties on the site, at concentrations above USEPA regional screening level.  The houses occupied by the pursuers were built on ground containing a variety of contaminants, including VOCs and SVOCs.  VOCs and SVOCs under the ground are not stable and will release vapour.  Such vapour in the ground around and under properties built on the site will migrate through the ground.  It will permeate the houses by any of a number of routes, including through doors and windows.  (Page 59A-C)  Indoor air sampling was undertaken in June and July 2011 at a number of addresses at Watling Street, including the pursuers’ house at Empire Way.  Vapours were found to be present in the houses, containing levels of VOC and SVOC contaminants “which are harmful to health”.

[124]    Shortly after moving to Empire Way, the first pursuer became sick and began vomiting after lifting the carpets in the house over the course of a weekend.  The second pursuer and four other members of the pursuers’ family who also helped to lift the carpets were also sick.  One of those people suffered from diarrhoea for three week after.  Another of those people suffered blotches on her leg.

 

Fault
[125]    The pursuers aver that, in performing the various tasks which they aver were undertaken, the second defenders were acting as environmental consultants.  (Page 63B-C, and page 72D-E)  Their responsibility was to investigate the extent of contamination of the ground at the site as a result of its previous uses, to advise on the remediation works which would be required to make the site, or any part of it, suitable for residential development, to prepare a scheme for the remediation works and to administer and supervise the remediation work contract.  The purpose of the work was to enable the entire site to be developed for residential purposes.  (Page72 D-E)  Reading the averments in article 17 of the condescendence short, the second defenders’ fault lay in not requiring testing which was appropriate to discover the nature, concentration and distribution of contamination of the site by solvents likely to have been used within the site whilst it was an engineering works, so that appropriate remediation measures could be taken.  The pursuers aver that, as a result of the second defenders’ failures, “the site continued to be contaminated by the presence of a variety of volatile and semi volatile organic compounds under the ground.”  It is also averred that the continued presence of these compounds resulted in the pursuers’ being injured by contaminated vapours entering their homes.

 

Conclusion

[126]    In my opinion, it cannot be said that, if these averments are proved, the pursuers will be “bound to fail”.  Testing that conclusion against the second defenders’ submissions, Mitchell provides no support for the second defenders’ contention that the pursuers’ pleadings, insofar as directed against the second defenders, ought to held irrelevant.  In Mitchell, the widow and daughter of a local authority tenant raised an action against a local authority for damages arising out of the tenant’s death.  They averred that the tenant had died from wounds received in an assault on him by a neighbouring tenant who had previously threatened to kill him.  The local authority was aware of a long history of previous incidents of threatening and aggressive behaviour by the neighbour towards the deceased.  Written warnings had been issued to the neighbour by the local authority in respect of his tenancy, and a meeting was eventually held with the neighbour following which he attacked the deceased.  The pursuers sought damages from the local authority averring that the local authority had a duty of care to have evicted the neighbour prior to the assault and to warn the deceased about the meeting.  They also averred that the local authority had acted in contravention of article 2 of the ECHR, which protected the deceased’s right to life.  Following debate, the action was dismissed as irrelevant by the Lord Ordinary and the pursuers reclaimed to the Inner House.  The reclaiming motion was successful, and the local authority appealed to the House of Lords.  The local authority’s appeal was allowed.

[127]    The question to be determined in Mitchell was whether the local authority owed a duty of care to the deceased to do certain things in respect of the neighbour, one of which was to warn the deceased that he was at risk of injury at the hands of the neighbour.  Lord Reed, who dissented in the Inner House, explained that his conclusion that no duty of care of the kind averred by the pursuers was owed to the deceased was not based the “fair just and reasonable” test, but on factors “which, in the terms of the tripartite test in Caparo, would fall under the rubric of ‘proximity’.”  (Mitchell v Glasgow City Council 2008 SC 351 paragraph [135])  In the House of Lords, however, Lord Hope of Craighead held that it would not be fair, just or reasonable to hold that the local authority was under a duty to warn the deceased of the steps that they were taking in respect of the neighbour, and that the common law case against it was irrelevant.  (Paragraph [29])  Lord Rodger of Earlsferry, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton‑Under‑Heywood were of the same view. 

[128]    One of the difficulties facing the pursuers in Mitchell was that they contended for a positive duty on the council to protect the deceased from a criminal attack by the neighbour.  (See Lord Hope, at paragraph [15]; Lord Rodger, at paragraph [69]; and Lord Brown, at paragraph [83])  In this case, by contrast, the duty cast on the defenders is said to have been to take reasonable care in the performance of their work as environmental consultants for the safety of those whom they knew would occupy the houses to be built on the land that it was their responsibility to investigate for contamination and to remediate.  In the circumstances of this case as averred by the pursuers, it is not arguable that it would not be fair, just and reasonable to impose such a duty of care on these defenders. 

[129]    Mr Duncan observes, correctly, that any duties owed to the pursuers are delictual, and that the second defenders’ involvement with the site arose from contracts to which the pursuers were not party.  I reject his contention, however, that the pursuers’ pleadings do not disclose the basis upon which it is said that the various duties said to have been owed by the environmental consultants fell to be performed by the second defenders.  According to the pursuers’ averments which are set out earlier in this opinion, the second defenders were the environmental consultants.  The regional chemist’s involvement was subordinate to that of the second defenders.  He was engaged, on the instructions of the second defenders, “to undertake chemical analysis of the samples taken.”  (Page 23 A-C)  Whilst it may be that the second defenders relied on the regional chemist’s experience and expertise, the pursuers’ criticism is not of his analysis, but of the sampling methodology which, on any reasonable reading of their averments, they say was the responsibility of the second defenders and which, they aver, was not carried out according to existing established practice, as averred in article 3 of the condescendence.  (Page 28A-B)  The investigation that was carried out was “limited”.  (Page 30E)

[130]    It was the second defenders who made recommendations for the second phase of the contamination study, notably the type of material to be analysed for in the samples.  Once again, the role of the regional chemist was subordinate; to undertake the fieldwork.  The May 1992 report was produced by the second defenders, and the advice which it contains is, on the face of it, their advice.  The second defenders were commissioned to administer and supervise the remediation works.  Whilst verification pitting, testing and logging of results was carried out by Clyde Analytical Limited on the instructions of I and H Brown Limited, the pursuers’ complaint is that no testing was done for solvents, and that it was patent from the terms of the second defenders’ July 1994 report that no such testing had been done.  The pursuers’ case against the second defenders is that “any reasonably competent environmental consultant in 1995 would have investigated the site for contamination by a variety of solvents likely to have been used within the site whilst it was an engineering works.”  (Page 73C-D) 

[131]    Counsel for the second defenders complains that the pursuers make no attempt to explain the nature of their appointment with Scottish Homes in 1997.  In their answers, the second defenders aver that both reports were prepared for the purpose of assisting tenderers to prepare bids in a relatively short timescale and that the purpose of the reports was to provide information to assist foundation design.  It is their position that, in the circumstances which they aver, there was no reason for them to conclude, based on the results of the testing in 1997, that solvents may be present throughout the site.  They aver that oily water was found in “only” five trial pits.  Solvents have an entirely different odour and visual appearance from oils.  If solvents were present, they were “extremely localised”, and they would have been detected when foundations for the housing were excavated.  All of these are matters of fact, and they are in dispute.  They cannot be resolved at this stage.

[132]    It may be that, after proof, it is established that the 1997 investigations were not undertaken for the purpose of determining whether the site was safe for residential development.  It is clear on the pursuers’ averments, however, that the investigations undertaken prior to and after 1997 were directed to that purpose.  It will not be possible until after proof to determine the precise nature and extent of the second defenders’ duties to the pursuers over the entire period of the second defenders’ involvement in the development, but the pursuers have averred enough, in my view, to entitle them to an enquiry. 

[133]    Counsel for the second defenders’ precis of the pursuer’s case against them arising from the events in 2001 seems accurate.  Their criticism is that the pursuers make no averment about what the second defenders ought to have done in 2001, when armed with the knowledge of deficiencies in the testing carried out in previous years.  That criticism is without merit.  The pursuers offer to prove that it was the responsibility of the second defenders:  to investigate the extent of contamination of the ground at the site as a result of its previous uses and to advise on the remediation works which would be required to make the site, or any part of it, suitable for residential development; to prepare a scheme for the remediation works; and to administer and supervise the remediation works contract.  The second defenders negligently failed to test, which includes failing to instruct others to test, for the presence of solvents.  Consequently, the second defenders negligently failed to arrange for the removal of solvents.  The pursuers offer to prove that harmful chemicals remained in the ground when the houses were built, and that, therefore, Watling Street was not safe for residential development.  Clearly, if the second defenders had discovered the presence of harmful chemicals at any time between 1994 and 2000, as the pursuers aver that they ought to have done, remediation works would have been undertaken to remove such chemicals, and the pursuers would not have suffered injury to their health.  As the pursuers put it in article 17 of the condescendence:  “As a result of said failures, the site continued to be contaminated by the presence of a variety of volatile and semi volatile organic compounds under the ground… But for the second defenders’ breach of duty as herein condescended upon the pursuers would not have sustained said loss injury and damage.”  (Page 74A-B)

[134]    In common with that of the regional chemist, I & H Brown, and Clyde Analytical Limited, the role of Scientifics Ltd was subordinate to that of the second defenders.  They were engaged to test the samples.  (Page 54C)  The case which the pursuers direct against the second defenders, however, is not concerned with the testing that was carried out.  Their case is that, in light of the knowledge which the second defenders had, or ought to have had, about the original cause of the contamination of the ground, the second defenders failed to investigate and advise on the nature, etc., of the site by solvents.  None of these other specialists was, on the averments, entrusted with the performance of the duties of care which the second defenders are alleged to have breached.

[135]    The decision in neither Harrison nor Oldschool is of assistance to the second defenders.  In Harrison, the claimants were injured when a fascia fell on top of them from a shop front.  Amongst the four defendants who were sued were surveyors employed by the landlords of the tenants of the shop.  Sometime before the accident, the surveyors were called to the shop by the tenants, to investigate a complaint that an awning below the fascia was not functioning properly.  The purpose of their visit was to inspect and report to the landlords on the possible cause of the problem.  The trial judge found them liable.  The Court of Appeal reversed the trial judge’s decision in respect of the surveyors.  It held that the surveyors did not owe a duty of care to members of the public who might walk past the shop.  In his judgment, at paragraph 10, Moore-Bick LJ noted that, during the course of argument, counsel for the respondent had relied on the following passage from the judgment of Hobhouse LJ in Perrett v Collins [1999] PNLR 77:

“In cases of personal injury, it suffices that the activity of the defendant has given rise to the situation which has caused the injury to the plaintiff.  Where the defendant is involved in an activity which, if he is not careful, will create a foreseeable risk of personal injury to others, the defendant owes a duty of care to those others to act reasonably having regard to the existence of that risk.  The limiting factors are the concepts of foreseeability and reasonableness.

 

…

 

Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury.”

 

[136]    At paragraph 11 of his judgment, Moore-Bick LJ expressed the view that these statements of principle must be read in their context.  Perrett concerned the liability of an aircraft inspector, and his employer, to a passenger in a light aeroplane who was injured when it crashed because of a defect in its construction.  The inspector’s task was to examine the aircraft and issue a certificate of airworthiness.  Given the purpose of the inspection and the obvious likelihood that passengers in the aircraft might be injured if it turned out to be defective, it is not surprising, said the judge, that the court held that the inspector and the organisation for whom he worked owed a duty of care to any members of the public who might fly in it.  The necessary degree of proximity was established by the fact that the inspector was actively involved in certifying the aircraft’s fitness to fly and the obvious risk to the public if he were to carry out his task negligently. 

[137]    His Lordship expressed the view that counsel for the appellant was right in submitting that the question whether the surveyors owed a duty of care to members of the public cannot be answered without taking into account the circumstances in which they came to be involved.  At paragraph 13 of the judgment, Moore-Bick LJ said that the trial judge had placed too much emphasis on foreseeability of harm “almost to the point of treating it as sufficient to create a relationship of proximity” between the engineers and passers-by.  His Lordship noted that, in Caparo, the court rejected the submission that the auditors of a company owed a duty to members of the public who might rely on the accuracy of the company’s accounts when deciding whether to buy shares or to trade with it, even though it was foreseeable that some might do so.  The court’s reason was that auditors are appointed by the members to report to them on the accuracy of the company’s accounts.  “They did not undertake any responsibility to others who might choose to rely on the accounts for their own purposes.”  His Lordship went on to say that, if the surveyors had been asked by the tenant to inspect the awning on its behalf to ensure that it did not pose a danger to passers-by, “a sufficient degree of proximity would probably have existed, because the very purpose of the inspection would have been to ensure the safety of the public.”  In such circumstances it could be said that, by accepting the instructions, the surveyors had assumed some responsibility for the safety of those using the highway.  On the facts of the case as they were established at trial, however, the surveyors’ involvement “had nothing to do with the safety of passers-by”, their role being simply to see whether the shopfront had sustained damage for which their clients might be liable.  (Paragraph 14)

[138]    In the present case, it cannot be said that the second defenders role “had nothing to do” with the safety of those who would become householders at Watling Street.  The condition attached to the planning permission concerning the investigation of the site for contamination was undoubtedly intended to ensure the safety of the public.  The site investigation and remediation works undertaken by the second defenders were to the same purpose. 

[139]    Mr Duncan cited Oldschool in the context of his submission that the pursuers had not made it clear in their pleadings how the second defenders fitted into the contractual matrix in which other experts were involved together with the second defenders.  The plaintiffs were the owners of two adjacent properties in North London (numbers 30 and 31) which they wished to redevelop.  The first defendants were the building contractors engaged by the plaintiffs, and the second defendants were the consulting engineers.  The work involved the total demolition of number 31 and the partial demolition of number 30.  During the course of that work, the party wall separating numbers 31 and 32 collapsed.  The owners of number 32 took proceedings against the building contractors and the consulting engineers.  The building contractors admitted their liability to the plaintiffs and instituted third-party proceedings against the consulting engineers.  In those proceedings the contractors alleged that the consulting engineers owed them a duty of care in relation to the design and/or the supervision of the works, and that such duty had been breached by the consulting engineers producing a design which could not have been constructed without causing the collapse of the party wall and/or by failing to provide adequate supervision.

[140]    The judge heard expert evidence on the scope of the duties owed by both the contractors and the consulting engineers.  The expert called on behalf of the contractors expressed the view that the consulting engineer is “the father and mother of the job”, whose duty it is to direct the contractors as to the manner in which the work is to be done and, if he sees that the method which they are employing might endanger the safety of the work, his duty was to stop it if necessary.  The expert called on behalf of the consulting engineers “was equally insistent” that the manner of execution of the works is a matter for the contractors.  It was his view that the consulting engineer is in no position, for instance, to require the contractors to comply with any particular sequence of work.  The consulting engineer has “no right, let alone duty”, to involve himself in the work of the contractors.  (Page 122-123)  The judge preferred the latter view. 

[141]    Later in his judgment, the judge expressed the opinion that the consulting engineer’s duty of supervision did not extend to instructing the contractors as to the manner in which they were to execute the work.  He noted that what was submitted was that, when the consulting engineer knows or ought to know that the contractors are heading into danger whereby damage to property is likely to result, then he owes the contractors a duty of care to prevent such damage occurring.  If he sees the contractors not taking special precautions without which the risk of damage to property is likely to arise, so went the submission, then the consulting engineer cannot sit back and do nothing.  The judge was of the view that the consulting engineer had no duty to do more than warn the contractors to take the precautions necessary.  (Page 124)

[142]    Thus far, the judge was making findings in fact, on the evidence which he had heard.  He then turned to address legal submissions that had been made to him.  Having considered those submissions, and certain authorities that were cited, the judge concluded that the duty of care which an architect or a consulting engineer owes to a third party is limited by the assumption that the contractor who executes the work acts at all times as a competent contractor.  The contractor cannot seek to pass the blame for incompetent work onto the consulting engineer on the grounds that he failed to intervene to prevent it.  The responsibility of the consulting engineer is for the design of the engineering components of the work and his supervisory responsibility is to his client to ensure that the works are carried out in accordance with that design.  But if, said the judge, as was suggested in that case, the design was so faulty that a competent contractor in the course of executing the works could not have avoided the resulting damage, then on principle the consulting engineer responsible for that design should bear the loss.  Mr Duncan pointed out that, notwithstanding the age and status of the decision, it is cited as authoritative by Jackson and Powell on Professional Liability, 7th edition at paragraph 9-026.

[143]    Although he did not say so in terms, I took it that Mr Duncan had cited this authority for the proposition that the second defenders “had no right, let alone duty” to involve themselves in the work of the other contractors.  When it is realised, however, that the second defenders are not being blamed for any shortcoming in the work of other contractors, but for what the pursuers offer to prove the second defenders themselves did and failed to do, it can be seen that the decision in Oldschool is not in point when considering the case against the second defenders.

[144]    For the foregoing reasons, the pursuers have pleaded a relevant common law case against the second defenders, and are entitled to a proof of their averments.

 

The pursuers’ case against the third defenders

The averments

[145]    The pursuers aver that the third defenders are a registered social landlord, providing social housing.  It is averred that the pursuers lived in two houses at Watling Street, at different times, under tenancy agreements with the third defenders.  The first pursuer became a tenant at Tiber Avenue on or about 13 November 2000.  The second pursuer “started living” there in or about June 2004.  On or about 23 March 2009, the pursuers became joint tenants of a house at Empire Way.  (Article 2 of the condescendence)  The contract in respect of the Tiber Avenue house was an assured tenancy, to which the terms of the Housing (Scotland) Act 1987 (“the 1987 Act”) applied until 29 September 2002.  Thereafter, the agreement was a Scottish secure tenancy to which the provisions of the Housing (Scotland) Act 2001 (“the 2001 Act”) applied, as was the tenancy of the Empire Way property.  (Article 19 of the condescendence)

[146]    The pursuers’ case against the third defenders, in respect of the assured tenancy, is that they were in breach of a term of the tenancy agreement, implied at common law, “that the landlord provided a house that was in a tenantable and habitable condition at the beginning of the tenancy”.  (Article 19 of the condescendence)  The pursuers further aver that it was an implied contractual term under the provisions of section 113 of and schedule 10 to the 1987 Act that the house was, at the commencement of the tenancy, in all respects reasonably fit for human habitation.  In terms of section 27 of and schedule 4 to the 2001 Act, the pursuers aver that it is a statutory condition of a secure tenancy that the landlord must ensure that the house is, at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation. 

[147]    It is averred that the first house in which the pursuers lived at Watling Street was not tenantable and habitable, nor was it in all respects reasonably fit for human habitation, “as a result of being built on contaminated land and the construction of the house permitted contaminated vapours to permeate the said house.”  The second house was not in all respects reasonably fit for human habitation, for the same reasons.  The pursuers do not aver when contaminated vapours permeated the houses.  Their case is that certain of the contaminants which they aver were left on the site will pool around structures on and in the ground, including the two houses mentioned.  The extent to which they will do so will depend on factors which are narrated in paragraph [12] of this opinion.  The pursuers aver that they left Empire Way on 1 June 2011. 

[148]    In their respective notes of argument, and during their oral submissions, counsel for the pursuers and the third defenders, respectively, referred to certain provisions of the common law and of statute which each contended are relevant to the resolution of the issues which fall to be decided in this case.  It is convenient to set out these provisions at this stage.

 

The authorities

The common law

[149]    In the course of his submissions, counsel for the third defenders, Mr Keen QC (now Lord Keen of Elie QC), referred to passages in Rankine on Leases, 3rd Edition, which are to be found in chapter XI of the work, entitled “Repairs”.  On page 240, the author refers to “the nomenclature which distinguishes between repairs, improvements, and fixtures”, and goes on to define “repairs” as “such operations on the subject let as are necessary to put and maintain it in a condition fit for the purpose for which it was let.”  The opinion is expressed that a lease “implies a warrandice on the landlord’s part that its subject is reasonably fit for the purpose for which it is let.”  As authority for that proposition, Rankine cites Erskine, 2.6.39 and Bell’s Principles, 1253.  In the latter, the editor says this:  “From the nature of the contract, warrandice is implied on the landlord’s part to make the subject effectual to the tenant, or fit for its purpose, and so to put the houses and fences in due repair.”  Referring to a house, among other things, Rankine states that, if an immediately preceding possessor left it in a condition not corresponding to the implied warranty, it must be repaired by the landlord.  In a passage relied on by counsel for the third defenders the author says that the rule of the common law in relation to a house requires the landlord to put it into habitable or tenantable condition at entry.  In a passage which follows, it is said that the landlord of an urban tenements is “further bound at common law, and unless it be otherwise stipulated, to uphold it in a tenantable or habitable condition during the course of the lease.”  It can be seen, therefore, that, at common law, the landlord is bound by two separate, but related, contractual terms when he lets a house:  the first is that the subjects are fit to live in; the second is that he will repair them during the course of the lease.  As it is put in Rankine, at page 242:  “If injury is caused to the tenant through want of repair, it is important to observe whether it existed ab initio or only supervened after entry, for the issues appropriate to the two cases are different, and cannot be combined.”  It is instructive to note that, at page 241, the author advances the view that the question whether a house is tenantable or habitable “is one of fact to be determined on a proof, or by remit to a man of skill, and the determination will greatly depend on the class of house let and the degree to which it has the advantage of modern improvements such as gas” etc., “with their attendant drawbacks in the necessity of constant supervision and upholding.”

[150]    In Kippen v Oppenheim (1847) 10D 242 (“Kippen”), on which Mr Hajducki relied, a landlord sued his tenant for damages, following the tenant’s refusal to take entry to the house which was the subject of let.  After proof, the sheriff-substitute held that, at the term of entry, the house was overrun and infested with black beetles, cockroaches and “bugs”; that there was also a nauseous and offensive smell in the house, caused by the presence of vermin, “or by some other occult cause”, and that one of the bedrooms was so damp that it could not be safely used to sleep in.  The sheriff-substitute also held that a party who has taken a house as tenant is not bound to enter into, or continue in possession, “if at the term of entry the house be in such condition that residence in it would render life substantially uncomfortable”.  In his note, after narrating the facts, the sheriff-substitute posed the question “whether the lessor had sufficiently fulfilled the obligation tacitly undertaken by him… to present the house at the term of entry in a condition fit for the stipulated use, namely, the occupation of a family”.  The Sheriff-substitute described what he called “the nuisances complained of” as “to a great extent latent”, and could not have been discovered by the tenant “at the usual brief inspection previous to the taking”.  The note continues in the following terms:

“But, although the proposed tenant had not discovered them, the landlord and owner of the premises is not entitled to plead his own ignorance of their existence as a ground for insisting that the contract was still binding.  The point is not, whether the [tenant] knew or did not know what was wrong, but whether, in the state in which the house was, a respectable tenant having once taken it, was bound to enter it at all risks?”

 

Finally, the sheriff-substitute stated the rule of law as follows:  “if the house is habitable when the term of entry arrives, the contract subsists - if it is uninhabitable, the contract is at an end.”

[151]    The landlord appealed, successfully, to the sheriff, on the question whether the tenant was entitled, at his own hand, and without calling on the landlord to remedy the nuisance complained of, “at once to throw up his lease”.  The tenant presented a note of advocation to the Court of Session.  The Lord Ordinary sustained the reasons of advocation and remitted the case to the sheriff, with instructions to recall his interlocutors.  The landlord reclaimed, and the reclaiming motion was refused.  There is nothing of significance in the opinions of the judges of the Second Division.

[152]    In Wolfson v Forrester 1910 SC 675  (“Wolfson”), a tenant brought an action in the sheriff court against his landlord for damage caused by the flooding of a workshop which he rented, averring that a pipe for carrying water from the roof passed down the outer wall of the workshop and connected with a drain-pipe one foot below the surface of the ground; that in the drain-pipe there was a hole cut by plumbers employed by the defenders to clear the pipe on an occasion during the previous year, when it had become choked; that this hole was covered only by a slate placed over it by the plumbers, but not in any way fastened; that earth entering through the hole choked the pipe, thereby causing the water to escape through the hole; and that the water escaping had entered the workshop by a hole in the wall through which a gas-pipe was carried into the workshop just above the floor, immediately opposite the hole in the pipe.  The sheriff-substitute held the pursuer’s averments to be irrelevant, and dismissed the action.  An appeal to the sheriff was refused, and the tenant appealed to the First Division.

[153]    Counsel for the tenant submitted that two duties were incumbent on the landlord.  The first was to provide wind and watertight premises at the outset of the lease.  Counsel described this as a warranty, and said that it was enough for the pursuer to show that the premises were not in the required condition.  The second duty was to maintain the premises in a tenantable condition, “this being an obligation but not a warranty”.

[154]    In the course of his opinion, the Lord President observed that, by the law Scotland, the lease of every urban tenement was, in default of any specific stipulation, deemed to include an obligation on the part of the landlord to hand over the premises in a wind and watertight condition, “and if he does not do so there is a breach of contract and he may be liable in damages.”  It is worthy of note that, if the premises are not handed over in a wind and watertight condition, that fact, alone, constitutes a breach of contract.  It is unqualified by reference to the nature of the defect, whether patent or at latent, or to the landlord’s state of knowledge.  In effect, the Lord President accepted the tenant’s contention that the provision of wind and watertight premises at the outset of the lease was a warranty.  His Lordship said that the landlord was also bound to put them into a wind and watertight condition “if by accident they become not so”.  This was not, however, a warranty, and the landlord is not in breach “as to this part of his bargain” until the defect is brought to his notice and he fails to remedy it.  (Page 680)

[155]    The Lord President went on to say that “wind and watertight means only wind and watertight against what may be called the ordinary attacks of the elements, not against exceptional encroachments of water due to other causes.”  His Lordship could find no breach of the landlord’s obligation to hand over the premises in a wind and watertight condition, “because the existence of a hole in the wall to admit a gas-pipe underground did not render the building non-wind and watertight.”

 

The statutory provisions - the 1987 Act

[156]    Section 12 of the Housing of the Working Classes Act 1885  (“the 1885 Act”), provides that, in any contract for letting for habitation by persons “of the working classes” a house, there shall be implied a condition “that the house is at the commencement of the holding in all respects reasonably fit for human habitation.”  The provisions of the 1885 Act and of the Housing and Town Planning Act 1909 (“the 1909 Act”) were amalgamated into section 1 of the Housing (Scotland) Act 1925 (“the 1925 Act”).  The 1925 Act provides, in respect of certain tenancies, that there is to be implied in the tenancy agreement “a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation”.  Provision is made to permit the landlord to view “the state and condition” of the house during the tenancy. 

[157]    Section 113 of the 1987 Act provides that schedule 10 “shall have effect in relation to the landlord’s obligation under certain leases to repair the subjects let.”  Schedule 10 is entitled “Landlord’s Repairing Obligations”.  Paragraph 1(2) of schedule 10 provides as follows:

“In any contract to which this paragraph applies there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation:”

 

Paragraph 1(4) of the schedule is in the following terms:

“In determining for the purposes of this paragraph whether a house is fit for human habitation, regard shall be had to the extent, if any, to which by reason of disrepair or sanitary defects the house falls short of the provisions of any building regulations in operation in the district.”

 

Paragraph 1(5) provides:

“In determining for the purposes of paragraph 1 whether a house is fit for human habitation, regard is to be had to the extent, if any, to which by reason of disrepair or sanitary defects the house falls short of the provisions of any building regulations in force in the area.“

 

[158]    In Summers v Salford Corporation [1943] AC 283  (“Summers”), the appellate committee of the House of Lords was concerned with the construction of section 2 of the Housing Act 1936 which, so far as is relevant to this case, is in the same terms as paragraph 1(2) of schedule 10 to the 1987 Act, and provides as follows: 

“in any contract for letting for human habitation a house… there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation…”

 

[159]    The appellant was the tenant of a house to which section 2 applied.  A sash-cord broke, and the window jammed.  The tenant gave notice to the landlord’s rent collector, but the window was not repaired.  The tenant was injured when the other sash-cord broke as she was cleaning the window.  In the course of his speech, quoting from an earlier judgment of his own, Lord Atkin said:

“If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier either in respect to personal injury to life and limb or injury to health, then the house is not in all respects reasonably fit for human habitation.”  (Page 294) 

 

The members of the committee expressly left open the question whether giving notice to the landlord of the existence of the defect is a condition precedent to his liability.

[160]    The House of Lords has returned to consider that question on two occasions since Summers was decided, first in McCarrick v Liverpool Corporation [1947] AC 219, and again in O'Brien v Robinson [1973] AC 912  (“O'Brien”).  It is unnecessary to consider the former because, on this point, the decision in both cases was essentially the same.  The appellate committee held that only when defects, although previously latent and invisible, became patent and were made known to the landlord, did his liability to repair arise.  I return to further consideration of O’Brien later in this opinion.  In the course of his speech, Lord Diplock considered the English statutory provisions and commented that, although the obligation to repair was created by statute:  ”the legal nature of this obligation was contractual.  Its characteristics were the same as those of an obligation created by a repairing covenant in a lease.”

[161]    In Todd v Clapperton 2009 SLT 837  (“Todd”), the court was called upon to consider the nature of the condition, which is implied in terms of schedule 10 to the 1987 Act, that the subjects of let are “at the commencement of the tenancy… in all respects reasonably fit for human habitation”.  The pursuer lived in a house which he and his partner rented from the defenders.  He averred that, as he was walking into the sitting room, the door began to swing closed towards him.  He placed his hand on a glass panel in the door to stop it closing, and the panel broke, whereby he was injured.  After proof, counsel for the defenders submitted that the landlord could not be liable for a defect present at the start of the lease, if it was not discoverable by reasonable inspection.  Consequently, if such latent defect subsequently manifested itself, the landlord would not be liable.  The Lord Ordinary rejected that argument for reasons which his Lordship sets out at paragraphs [108] to [120] of the opinion.

[162]    The case of Bole v Huntsbuild Ltd. and Another [2009] 124 Con LR 1 (“Bole”) concerned the proper construction of certain provisions of the Defective Premises Act 1972 (“the 1972 Act”).  In September 2001, the claimants bought a house from the first defendant.  Cracking occurred to the house, caused by heave resulting from the inadequate depth of the foundations.  Proceedings were brought against the defendants in which the claimants contended that both had breached the 1972 Act.  Section 1(1) of the Act, as recorded in Bole, provides as follows:

“A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or the conversion or enlargement of a building) owes a duty (a) if the dwelling is provided to the order of any person, to that person; and (b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that, as regards that work, the dwelling will be fit for habitation when completed.”

 

Mr Hajducki submitted that the decision in Bole is relevant to the determination of this case because of what the Court of Appeal had to say about what amounts to “unfitness for habitation”.

[163]    Mr Hajducki cited, also, Harrison v Shepherd homes Ltd.  (2011) 27 Const LJ 709 (“Shepherd Homes”), another case in which the court was called on to construe the phrase “fit for habitation” in the 1972 Act.  I say more about both Bole and Shepherd Homes later in this opinion.

 

The statutory provisions - the 2001 Act

[164]    Section 11(1) of the 2001 Act sets out the criteria whereby a tenancy is to be regarded as a Scottish secure tenancy.  Section 27 of the Act is entitled “Repairs” and gives effect to schedule 4 “which makes provision about the landlord’s obligations to repair a house let under a Scottish secure tenancy”.  Schedule 4 provides, among other things, that the landlord in a Scottish secure tenancy must ensure that the house is, at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation, and keep the house in such condition throughout the tenancy.  Before the commencement of the tenancy the landlord must “inspect the house and identify any work necessary to comply with” that duty.  In the 2001 Act, also, the landlord is given power to view the state and condition of the house during the tenancy.

[165]    It is clear that the two obligations which are placed on the landlord at common law are preserved and continued by the provisions of the 1987 Act.  In the 2001 Act, however, the Scottish Parliament has abandoned the imposition on the landlord of an implied contractual condition and an implied contractual undertaking, and, instead, imposes statutory duties on him. 

 

Submissions for the third defenders

[166]    Mr Keen argued that the pursuers’ case against the third defenders is irrelevant.  Addressing first the assured tenancy, he submitted that there can be no question of any breach of contract as between the second pursuer and the third defenders.  There was never any contract between those parties with respect to the assured tenancy.  With respect to the first pursuer, the assured tenancy would have been subject to the contractual condition that the subjects would be put into tenantable condition by the landlord at entry.  Various synonyms, said counsel, are used to describe the obligation, such as “wind and watertight”; “reasonably habitable”; “tenantable condition”; or “reasonably fit for habitation”.  Counsel referred to Rankine on Leases, 3rd Edition at page 241, and to the decision of the Lord Ordinary in Todd, where there is a summary of the authorities.  It is important, said counsel, to consider the scope of the contractual obligation, a topic which is addressed by the Inner House in its decision in Wolfson. 

[167]    Mr Keen observed that the pursuers suggest, in article 19 of the condescendence, that there may be two distinct implied contractual terms with respect to the condition of the house at Tiber Avenue at entry.  That is incorrect, he argued.  The implied term as to the condition of urban tenements at entry is established at common law.  The provisions of section 113 of and Schedule 10 to the Housing (Scotland) Act 1987 are the result of Parliament’s having intervened to prevent landlords excluding such an obligation in respect of contracts with what were termed “working class” tenants.  In that connection, counsel referred to the previous statutes and said that their provisions were re-enacted as paragraph 1(2) of Schedule 10 to the 1987 Act.  The provisions were effectively extended to all assured tenancies by virtue of amendment in the Housing (Scotland) Act 1988 and the Landlords’ Repairing Obligations (Specified Rent) (Scotland) (No.  2) Order 1988. 

[168]    The landlord's obligation at entry has to do with the state of repair of the house and with what has sometimes been referred to as “ordinary user” or the “ordinary attacks of the elements”.  In support of the former contention, counsel referred to Summers, and in support of the latter, he referred to the opinion of Lord President Dunedin in Wolfson.  The Lord President observed that the obligation of the landlord did not require that, at entry, the property should be proof against “exceptional encroachments”.  Mr Keen submitted that the case of Wolfson provides an interesting parallel to the present claim. 

[169]    With reference to the pursuers’ averment that the construction of the house permitted contaminated vapours to permeate the house, Mr Keen submitted that its construction had nothing to do with the state of repair of the house at entry.  There is no suggestion that vapours entered the house because of some element of disrepair.  There is no suggestion that the house should have been so designed or constructed as to prevent the entry of vapours, or even that it could have been so constructed.  The logic of the pursuers’ case, contended counsel, is such that a landlord would have an absolute obligation in respect of “vapours” which enter a house from a chemical spill nearby or diesel fumes from a nearby road, or where someone decided to construct a factory upwind of a housing estate, with the result that fumes from that factory are blown over the housing estate.  There are circumstances where that could give rise to a liability for negligence.  There are circumstances where even building a house downwind of such factory premises might give rise to a liability in negligence, if the builder knew or ought to have known that there was a reasonable prospect of damage.  In such a case there would be an issue of proximity.  None of that, however, gives a tenant an absolute warranty in terms of the relevant provisions that are founded upon in article 19.

[170]    Acknowledging that dampness may give rise to a breach of the landlord’s obligations, Mr Keen was able to envisage that, if a house were built on ground which was boggy or wet and if there was a failure to install a suitable damp proof course, that would amount to a defect in the construction of the house if dampness permeated the building.  In such a case “there very well may be a liability for breach of the warranty” which arises at the commencement of the lease of an urban tenement.  In such circumstances, it would be incumbent on the tenant to say that there was some aspect of the construction that exhibited want of repair, or exhibited an absence of a quality that was required in order to make the subjects tenantable and habitable.

[171]    Counsel turned to consider the provisions of the 2001 Act.  He contended that they go no further than the “previous” common law and suggested that they do not even go that far.  Section11(2) provides that an order made by the Scottish Ministers may make provision for ensuring that the rights of the landlord, the tenant and any other person under or in relation to a tenancy which becomes a Scottish secure tenancy by virtue of an order under subsection (1) “are not adversely affected” by the tenancy becoming a Scottish secure tenancy.  Mr Keen submitted that no order has been made by the Scottish Ministers under the provisions of section 11(2).  Consequently, previous rights under the 1987 Act have not been preserved.  Looking at the terms of schedule 4 to the 2001 Act, counsel submitted that the landlord’s obligations no longer amount to a warranty.  Further, contended counsel, having regard to the terms of the 2001 Act, they do not give rise to a private claim for personal injury.  Mr Keen said that he knew of no decision suggesting that it does.  The remedy which the Act gives for breach of the landlord’s obligations is the right to insist on repairs. 

[172]    Mr Keen concluded his submissions by adopting Mr Dunlop’s arguments on causation and limitation.

 

Response for the pursuers

[173]    The pursuers’ note of argument in response to that of the third defenders is concise, containing just three contentions.  The first is that the statutory warranty to ensure that a house at the commencement of a tenancy is wind and watertight and in all other respects fit for human habitation should be construed as an absolute obligation.  The decision in Todd is relied on in that regard.  Second, for a dwelling to be fit for habitation, it had, on completion, to be capable of occupation for a reasonable time without risk to the occupants' health or safety, and without undue inconvenience or discomfort to them.  The decisions in the cases of Bole and Harrison are cited.  Third, breach of a statutory implied warranty does give rise to a right to damages for breach of contract on the part of the tenant, and reliance is placed on the decision in Neilson v Scottish Homes, 1999 SLT (Sh Ct) 2.

[174]    In his oral argument, under reference to the decision in Todd, Mr Hajducki submitted that the present case is about more than “a cracked pane of glass”.  On any view, argued counsel, these houses were not suitable for human habitation.  The expression “fit for habitation” goes beyond being wind and watertight.    It goes beyond their state of repair.  In Shepherd Homes, the house was not fit for habitation because of defective foundations.  It cannot be said that either of the houses at Watling Street was capable of being lived in by tenants.  Kippen is authority for the proposition that a tenant is not bound to take possession of a house which is not habitable because of infestation by vermin and damp, even if there is no “defect of the house”.  They were caused by an “invasion from outside”.  In the present case, argued Mr Hajducki, the houses were not capable of being lived in because the vapours “coming up” were making the pursuers ill.  The pursuers’ difficulties were caused by the land the houses were built on not having been properly treated.  The vapours were not coming from a factory down the road or from a passing motorway.  The position in this case is no different from the house being damp.  The houses were not habitable, argued Mr Hajducki, “because you can’t live there without having consequences on your health which we say the pursuers had”.  The landlord is offering to provide a house that is habitable and it is not habitable because of the land on which the house is built.  Counsel submitted that the question is one of “suitability for habitation”, and gave as an example a house built on the side of a hill, which is liable to start sliding down the hill.  That, said Mr Hajducki, is not a house suitable for habitation.

 

Decision and reasons

[175]    It is important to have regard to the limited scope of what the pursuers allege were the breaches of the third defenders’ obligations.  The pursuers aver that it was an implied contractual term at common law of their assured tenancy that the landlord provide a house that was in a tenantable and habitable condition at the beginning of the tenancy.  (Page 77D‑E of the closed record)  They also aver that it was an implied contractual term under the provisions of the 1987 Act that the house was, at the commencement of the tenancy, in all respects reasonably fit for human habitation.  The third defenders take issue with the suggestion that there were two implied contractual terms, and contend that the implied term as to the condition of urban tenements at entry is established at common law.  The statutory provisions, submit the third defenders, are the result of the legislature having intervened to prevent landlords excluding such an obligation in respect of contracts with what were termed “working class” tenants. 

[176]    The third defenders may be correct in that submission, but nothing turns on it.  The breach which the pursuers allege in respect of the assured tenancy at Tiber Avenue is a breach by the third defenders (mistakenly referred to as the “Fourth Defenders”) “of their said implied contractual duties as landlords”.  That is a correct formulation of the pursuers’ complaint.

[177]    In respect of Empire Way, the pursuers aver that, in terms of the 2001 Act, it is a “statutory condition of a Scottish Secure Tenancy” that the landlord must ensure that the house is at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation.  It is not clear from that averment whether the pursuers intend to assert that the provisions of the 2001 Act operate to imply a term into the tenancy agreement in the same way as does the 1987 Act.  If so, they are, in my view, wrong.  The pursuers do, however, aver that the third defenders “were in breach of their said statutory duty as landlords”, which suggests that the pursuers are not attempting to rely on a breach by the third defenders of the tenancy agreement governing the let of the Empire Way house. 

[178]    In their note of argument, the third defenders accept that, so far as the first pursuer is concerned, “the assured tenancy would have been subject to the contractual condition that the subjects will be put into tenantable condition by the landlord at entry.”  In his oral argument, Mr Keen expressly accepted that that was a warranty.  In my opinion, however, contrary to Mr Keen’s submissions, the obligation to hand over premises which are wind and watertight is not synonymous with the obligation to hand over premises which are reasonably fit for habitation, but is an aspect of it.  In Wolfson, the focus was exclusively on the question whether the subjects were wind and watertight, not whether they were habitable.  That question could not arise in Wolfson, because the subject of let was a workshop, not a house.  It is wrong, therefore, to read across the Lord President’s reference to the “ordinary attacks of the elements” in Wolfson, to a case like this, where what is being relied on is the broader question of fitness for habitation.

[179]    That said, it is important to understand the terms of the warranty in its context.  As is demonstrated in paragraph [149] of this opinion, Rankine discusses the landlord’s obligation to hand over the subjects of let in a tenantable and habitable condition in the chapter that is concerned with repairs.  “By repairs are meant such operations on the subject let as are necessary to put and maintain it in a condition fit for the purpose for which it was let.”  (Rankine, page 240)  The rule as applied to urban tenements “is that they shall be put into“ such condition by the landlord at entry.  The landlord is further bound at common law “to uphold” in that condition, during the course of the lease.  Further, in the passage in which the author states that, where injury is caused to the tenant as a result of a breach by the landlord of the implied condition, it is important to observe whether it existed at entry or supervened after entry, Rankine has in mind injury “caused to the tenant through want of repair”.  It appears that the author regards the warranty of fitness and the obligation to repair as two aspects of a single, continuing, contractual duty, albeit that the landlord warrants the condition of the subjects at entry, but not during the tenancy.  Such a view is consistent with that expressed in Bell’s Principles, at paragraph 1253, that the consequence of the warrandice to make the subject “fit for its purpose” is that the landlord is obliged “to put the houses…  in due repair”.  In determining whether a house is in a habitable condition at entry, as a matter of fact, it is to be noted that the “class of house” is a consideration, as are the services, such as gas, water and drainage, which are provided.  All of that, in my view, points towards the warranty at entry being concerned with the state of the fabric of the house at that moment.  That is also how the warranty was understood in Summers by Lord Atkin:  “If the state of repair of a house is such… then the house is not in all respects reasonably fit for human habitation.”  Lords Thankerton, Russell of Killowen, Wright, and Romer agreed.  (Pages 290, 291, 292, and 299)

[180]    The determination of the content of the warranty which is implied by statute is no less aided by an understanding of the context in which it appears.  Section 1 of the 1925 Act implies a condition which applies at the commencement of the tenancy, and an undertaking which extends during the tenancy.  The condition and undertaking are in precisely the same terms, that the house is and will be kept “by the landlord in all respects reasonably fit for human habitation.”  (My emphasis)  Given its common law roots, in my opinion the landlord’s undertaking was to repair the house in order to remedy defects which arose such as to render it unfit for habitation.   Parliament does not appear to have intended that the content of the condition, or warranty, was to be different from the content of the undertaking.

[181]    I acknowledge, of course, that damage caused by a breach of the warranty of fitness at entry, where the defect giving rise to it is latent, falls on the landlord, whereas the landlord is not liable for damage caused by want of repair during the tenancy, unless and until he is given notice of the defect.  That difference exists in order to do justice to the parties, but it is of no relevance in the circumstances of this case where the dispute between the parties centres on the content of the implied term, rather than on the consequences of its breach.

[182]    Parliament’s intention as to the content of the implied term may be thought to be clearly expressed in section 113 of the 1987 Act.  Under the heading “Obligations to repair” the following is provided:  “Schedule 10 shall have effect in relation to the landlord’s obligation under certain leases to repair the subjects let.”  Schedule 10 is entitled “Landlord’s Repairing Obligations”, and the implied condition and undertaking are, as has been seen, in the same terms as in section 1 of the 1925 Act. 

[183]    The pursuers’ case against the third defenders insofar as it relies on the provisions of the 1987 Act is, in my opinion, based on a misconstruction of the implied terms on which they found.  Whether it is that subjects let must be wind and watertight, tenantable and habitable, or fit for human habitation, the various authorities, statutory and common law, when properly understood, make it clear that the landlord’s obligations relate to the repair of the fabric of the let property itself.  The pursuers aver no defect in the fabric of the subjects at Tiber Avenue as at the first pursuer’s date of entry, on or about 13 November 2000, nor at any time thereafter.  By the time when the second pursuer “started living at” Tiber Avenue, in or about June 2004,  (even if he did so under a tenancy agreement) section 113 of the 1987 Act no longer applied to a tenancy at that address, having been superseded on 29 September 2002 by the provisions of the 2001 Act.

[184]    What the pursuers do aver is that the Tiber Avenue house was not tenantable and habitable nor reasonably fit for human habitation “as a result of being built on contaminated land and the construction of the house permitted contaminated vapours to permeate the said house.”  In my judgment, it was not uninhabitable, in the sense intended by the implied condition, either because of its location or its construction.  To borrow the words of the Lord President in Wolfson, the location and construction of the house “did not render the building” uninhabitable.

[185]    Kippen does not assist the pursuers.  The question for determination in that case was not whether the landlord was in breach of the implied warranty of fitness for habitation, but whether the tenant was entitled to regard the tenancy agreement as at an end, because of the state of the premises.  The sheriff, whose decision ultimately prevailed, held that he was.  In a later decision, the Inner House characterised Kippen as falling within the category of cases concerned with rei interitus, or supervening impossibility of performance, which brings the contract to an end.  (Tay Salmon Fisheries Co Ltd v Speedie 1929 SC 593, per Lord President Clyde at page 600)  His Lordship likened the house “having been rendered incapable of being used for habitation… by vermin which cannot be easily exterminated” to a house being rendered incapable of being used for habitation by fire.

[186]    In respect of Empire Way, the pursuers base their case on the allegation of a breach of statutory duty.  They contend that the duty of the third defenders was “to ensure that the house (was), at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation”.  Combined with that, the third defenders were required to “inspect the house and identify any work necessary to comply with” the duty to ensure the fitness of the house.

[187]    Schedule 4 of that Act is introduced by section 27, the relevant provisions of which are set out in paragraph [164] of this opinion, and concern “the landlord’s obligations to repair”.  Schedule 4, so far as is relevant to this case, is in the following terms:

“1        The landlord in a Scottish secure tenancy must—

(a)        ensure that the house is, at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation, and

(b)        keep the house in such condition throughout the tenancy. 

2          The landlord must, before the commencement of the tenancy—

(a)        inspect the house and identify any work necessary to comply with the duty in paragraph 1(a), and

(b)        notify the tenant of any such work. 

3          The landlord must—

(a)        ensure that any work necessary to comply with the duty in paragraph 1(b) is carried out within a reasonable time of the tenant notifying the landlord, or the landlord otherwise becoming aware, that it is required, and

(b)        make good any damage caused by the carrying out of the work. 

4          The landlord, or any person authorised by it in writing, may at any reasonable time, on giving 24 hours’ notice in writing to the tenant or occupier, enter the house for the purpose of—

(a)        viewing its state and condition,

(b)        carrying out any work necessary to comply with the duty in paragraph 1(b)or 3.

5          (1)  In determining for the purposes of paragraph 1 whether a house is fit for human habitation, regard is to be had to the extent, if any, to which by reason of disrepair or sanitary defects the house falls short of the provisions of any building regulations in force in the area.”

 

[188]    Unlike its statutory predecessors, schedule 4 does not have effect by implying conditions into the contract of tenancy.  It imposes on the landlord statutory duties to do certain things. 

[189]    In the context of the 2001 Act, the court is concerned with the fitness for habitation of the house at Tiber Avenue on 30 September 2002 when the first pursuer’s Scottish secure tenancy commenced.  The next date of interest is 23 March 2009, when the pursuers became joint tenants at Empire Way under a Scottish secure tenancy.

[190]    There is no averment that, before either of these dates, the third defenders failed to ensure that the house was reasonably fit for human habitation.  There is no averment that they failed to inspect the properties before either of these dates or that they failed to identify any work necessary to comply with the duty to ensure fitness for habitation.  As they do in their case against the third defenders, founding on the alleged breach of the implied contractual term, the pursuers aver only that the house at Empire Way was not fit for human habitation “as a result of being built on contaminated land and the construction of the house permitted contaminated vapours to permeate the said house.”  For the reasons which I have given for holding that the breach of contract case is irrelevant, the averments in article 19 of the condescendence of breach statutory duty, which rely on the location and construction of the house, are also irrelevant.  The pursuers’ case against the third defenders, therefore, falls to be dismissed.

[191]    The third defenders submit that the 2001 Act does not, in any event, confer any private right of action for personal injury on the pursuers.  The matter was not fully argued, on either side, and I prefer not to make any finding on it.

 

The pursuers’ statutory case against the first defenders
[192]    In article 16 of the condescendence, at page 69E of the closed record, the pursuers aver that the ash, slag, VOCs and SVOCs and the ground contaminated by those VOCs and SVOCs in that part of the site where the pursuers’ homes were built “were controlled waste for the purposes of Part II of the Environmental Protection Act 1990” (“the 1990 Act”).  “During the course of remediation works in 1993 and 1994”, the same materials “were further redistributed around the site”.  The pursuers refer to the redistribution as “That depositing of controlled waste” and aver that it was not authorised by a waste management licence, contrary to section 33(1)(a) of the 1990 Act.  It is averred that, by or about April 1995, “it was known that there were areas of slag and ash known to contain contaminants remaining in parts of the site”, and that the first defenders were aware of the terms of the 1994 report from the second defenders “of the aforesaid movement of this material within the site and knowingly permitted it, contrary to section 33(1)(a) of the 1990 Act.”  The pursuers aver that the first defenders knew that contaminated waste was present in various locations within the site, particularly that part of the site upon which the pursuers’ homes were built.  The pursuers’ averments continue as follows:

“The (first defenders) knowingly permitted the deposit of controlled waste at the site through their control of the development of the site, the failure to clear the site of all made ground, their knowledge of the ground levelling operations at the site as an alternative to clearing the site of made ground and the importation of clean fill, the creation of the bund from contaminated ground, the use of ash and slag as backfill and the creation of the bund.  The first defenders knowingly permitted the deposit of controlled waste in allowing the proposed layout of the proposed housing development to be designed and altered to take account of contaminated parts of the site.  The first defenders knowingly permitted the deposit of controlled waste at the site by the construction of houses at Forum Place without properly investigating the extent of contamination in Forum Place, and without further investigating the extent of contamination of other parts of the site where housing construction had already taken place.  The pursuers have suffered damage as a result of the controlled waste which the first defenders knowingly permitted to be deposited at that part of the site where their homes were built.  The (first defenders) (are) accordingly liable to the pursuers in terms of Section 73(6) of the Environmental Protection Act 1990 for the loss, injury and damage they have sustained as hereinafter condescended upon.”

 

 

The pursuers’ statutory case against the second defenders

[193]    Article 18 of the condescendence contains the statutory case against the second defenders.  The averments are in substantially the same terms as those in article 16, with the addition of an averment that the second defenders “were responsible for the decision to level the site by the aforesaid movement of this material within the site and the knowingly caused or knowingly permitted the resultant deposit of controlled waste that resulted, contrary to section 33(1)(a) of the 1990 Act.”  The “aforesaid movement” is a reference to “the levelling of the made ground in 1994, the creation of the bund at the north-western corner of the site, the backfilling works and the open drainage at (the) site.”  The creation of the bund is averred to have been part of the remediation works which were undertaken in or about the first quarter of 1993 and first quarter of 1994, as was the installation of open ditch drainage and backfilling.  (See article 8, at page 43B-E of the closed record)

 

The first defenders’ submissions

[194]    Turning to the first defenders’ challenge to the relevancy of the pursuers’ statutory case, Mr Dunlop looked, first, at section 73 of the 1990 Act.  Subsection (6) provides that, where any damage, including injury, is caused by waste which has been deposited in or on land, any person who deposited it, or knowingly caused or knowingly permitted it to be deposited, in either case so as to commit an offence under section 33(1), is liable for damage caused by the deposit.  There are two qualifications to that provision, neither of which is applicable here.  Section 33(1)(a), as originally enacted, and as it remained at all material times, provided that a person shall not deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence. 

[195]    In their note of argument, counsel for the first defenders observe that section 73(6) came into force on 1 May 1994.  The pursuers aver that deposits were made before 1984.  They also aver that the remediation works and distribution works which took place in 1993 and 1994 constituted deposits.  Counsel contend that, for the purposes of asserting a breach of statutory duty, the pursuers’ averments regarding deposits of waste prior to 1 May 1994 are irrelevant.  Further, the pursuers do not aver that there was any new deposit on site in 1993 or 1994, as opposed to the working of material that was already on site.  That being so, argue counsel, there is no relevant averment of “depositing” such as to engage section 73(6), nor of anything actionable under section 33(1).  In that regard, counsel rely on Milton Keynes District Council v Fuller [2011] Env.  L.R. 31 (“Fuller”).

[196]    Further, the pursuers do not aver any relevant basis for the material that is averred to have been moved around the site to be “waste” within the meaning of sections 33(1) and 76(3).  The levelling and made ground created by the remediation works did not create “waste” material as that phrase is properly understood, having regard to sections 75(2) and  (3) of the 1990 Act.  Reference is made to R v W [2010] EWCA Crim 927 [2011] 3 All ER 691 (“R v W”), at paragraphs 21 and 34-37. 

[197]    Regulation 17 of the Waste Management Licensing Regulations 1994  (“the 1994 Regulations”) disapplied section 33(1) of the 1990 Act with respect to the exempt activities set out in Schedule 3 to the Regulations.  In that regard, counsel cited London Waste Regulation Authority v Drinkwater Sabey Ltd [1997] Env LR 137 (QBD).  Schedule 3, paragraph 43 provided an exemption for persons who were carrying on the treatment, keeping or disposal of waste at premises, prior to 1 May 1994, provided that before that date no disposal licence was required for that activity under Part I of the Control of Pollution Act 1974.  There is on averment no suggestion that such a disposal licence was required.  Accordingly, civil liability prior to 30 April 1995 cannot arise in terms of section 73(6).  Averments of deposits prior to that date are irrelevant. 

[198]    Counsel contended that the pursuers’ averments regarding the first defenders’ causing or permitting the deposit of waste are lacking in specification and irrelevant.  The pursuers aver that, by April 1995, it was known that contaminants remained on site.  The pursuers do not, however, aver that deposits actually took place at any point in time which would have involved breach of statute by the first defenders. 

[199]    In his oral submissions, Mr Dunlop described Fuller as the leading authority on the topic of depositing waste.  The Divisional Court held that justices were well-founded in holding that the movement of contaminated waste from one part of a site to another did not amount to a “deposit” within the meaning of section 33(1)(a).  Mr Dunlop submitted that, whilst the Divisional Court said that whether or not material has been deposited is a matter of fact, to be determined in each case, there is a clear distinction between depositing material on a site, which is actionable, and treating, keeping or disposing of it, which is not.

[200]    In support of his contention that section 73(6) came into force on 1 May 1994, counsel referred to The Environmental Protection Act 1990 (Commencement No.  11) Order 1992 and The Environmental Protection Act 1990 (Commencement No.  15) Order 1994.  In article 8 of the condescendence, at page 43B-C, the pursuers aver that remediation works were undertaken at the site in or about the first quarter of 1993 and the first quarter of 1994.  On the following page, at letters B to C, it is averred that, following the remediation works, the second defenders issued a certificate of substantial completion on 28 April 1994.

[201]    Returning to the pursuers’ pleadings in article 15 of the condescendence, at page 65E of the closed record, the pursuers aver:  “The remediation works that were carried out in 1993 and 1994 were not commissioned or instructed by the (first defenders).”  It is those works, argued Mr Dunlop, which the pursuers aver in article 16 at pages 69 to 70 breached the terms of section 33(1)(a).  The pursuers also aver that remediation works instructed by the first defenders were carried out in the first quarter of 1995, but it is not averred, submitted counsel, that these works involved the movement or deposit of waste.  Mr Dunlop contended that there is, therefore, no averment that the first defenders did anything in connection with working with waste.  Notwithstanding that, at page 70B of the closed record, the pursuers aver that, by about April 1995, it was known that there were areas of slag and ash containing contaminants remaining on parts of the site and that the first defenders were aware, from the terms of the 1994 report from the second defenders, of the movement of waste material within the site “and knowingly permitted it, contrary to section 33(1)(a) of the 1990 Act.”

[202]    In summary, submitted Mr Dunlop, the pursuers’ statutory case against the first defenders is fatally flawed, because there is no averment of anything happening after civil action ability was introduced on 1 May 1994.

 

The second defenders’ submissions

[203]    Counsel for the second defenders contend that, having regard to the terms of sections 33(1) and 76(6), the pursuers have to establish that:  (a) there was controlled waste, as defined;  (b) controlled waste was deposited at the site; and  (c) it was deposited by the second defenders, or they knowingly caused or permitted the depositing of the controlled waste.  In their note of argument, counsel submit that the averments in article 18 are insufficient to make out a relevant case, for a number of reasons.  They argue that the pursuers’ averment that the ash, slag, VOCs, etc were controlled waste for the purposes of the 1990 Act “does not begin to address the statutory definition of ‘controlled waste’”.  On the same reasoning as that advanced by counsel for the first defenders, it is submitted on behalf of the second defenders that the pursuers’ averments of deposit are irrelevant.  Further, unless a disposal licence was required under Part I of the Control of Pollution Act 1974,  (“the 1974 Act”) section 33 of the 1990 Act did not apply to the site until 1 May 1995.  Counsel referred to regulation 17 and schedule 3, paragraph 43 of the 1994 Regulations.  There is no averment that a licence under the 1974 Act was required.  Consequently, for the period during which the pursuers aver that waste was deposited, the 1990 Act did not apply.

[204]    It is also contended on behalf of the second defenders that there are no relevant averments about the state of the second defenders’ knowledge.  Counsel point to the averment at page 77C-D of the closed record that, by about April 1995, “it was known that there were areas of slag and ash known to contain contaminants remaining on parts of the site” and argued that it lacks specification.  Moreover, if controlled waste was deposited in 1986, and moved in 1993 and 1994, knowledge acquired in 1995 cannot be relevant to whether an offence was committed a year earlier.  The same criticism applies to further averments about what became known to the second defenders in 2001.

[205]    During the course of his oral submissions, Mr Duncan adopted the submissions advanced in behalf of the first defenders.

 

Response for the pursuers
[206]    In their written response to the defenders’ submissions on the statutory case, counsel for the pursuers note the terms of section 33(1)(a) of the 1990 Act, and the definition of “controlled waste”.  They submit that they have relevantly averred that the site was contaminated by controlled waste.  The word “deposit” as used in section 33(1)(a) is not defined in the 1990 Act and is, therefore, to be given its ordinary meaning.  To deposit controlled waste is an offence of strict liability.  It covers more than “actively putting down” and an unintended escape of sewage may give rise to an offence.  Reference is made to R (on the application of Thames Water Utilities Ltd) v Bromley Magistrates' Court [2013] 1 WLR 3641.  It is submitted that the word “deposit” “applies to a continuing state of affairs”, and the example is given of waste being placed in accordance with a licence, but then not covered in accordance with the same license, giving rise to liability.  (Thames Waste Management Limited v Surrey County Council [1997] Env LR 148 (“Thames Waste”)  Counsel acknowledge that whilst, in Fuller, the moving of waste that someone else had deposited, blocking access to a field, to allow access to the field, was not a deposit, moving waste a few yards as part of harbour dredging, knowing that it was toxic and without a license, was depositing.  In support of that proposition, counsel cite R v Frampton (Peter James) [2013] Env LR 18.

[207]    Counsel submit that, for a company to be guilty of the offence, it is enough that it knowingly causes or permits generally the deposit of controlled waste, not that it causes or permits each specific deposit.  It is sufficient for the prosecution to show that the accused only had knowledge of waste operations taking place; that he had allowed, or failed to prevent, them; and that, in fact, the operations were not performed in accordance with an environmental permit.  The decisions in Ashcroft v Cambro Waste Products Ltd [1981] 1 WLR 1349; Kent County Council v Beaney 1993 Env LR 225; Shanks & McEwan  (Teeside) Ltd v Environment Agency [1999] QB 333; and R v Walker & Son  (Hauliers) Ltd [2014] 4 All ER 825 are referred to.  Where a deposit is obvious or made known, therefore, constructive knowledge is sufficient. 

[208]    Whilst regulation 17 of the 1994 Regulations provides a statutory exemption, it is for the party relying on it to plead and to prove the exemption.  Neither of the defenders has done so in this case.  Although the first defenders seek to rely on the statutory defence, they do not aver that they took all reasonable precautions and exercised all due diligence by employing an environmental consultant.  The pursuers’ averment that they did so shows nothing more than that the first defenders were aware that there were environmental issues to be considered in the development of the site.

 

Decision and reasons

[209]    I reject the submissions made on behalf of the first and second defenders that the pursuers do not aver a relevant basis for establishing that the material which was said to have been moved around the site was “waste” within the meaning of the legislation.  R v W was a decision of the Court of Appeal, after trial on a charge of a contravention of section 33(1) of the 1990 Act, and was concerned with the question whether the trial judge was right to hold that there was no case to answer, on the view that the prosecution had failed to prove that the material which had been deposited was “waste” or “controlled waste”.  In this case, the pursuers offer to prove that the ash, slag, VOCs and SVOCs, and the ground contaminated by those VOCs and SVOCs in that part of the site where the pursuers’ homes were built “were controlled waste for the purposes of Part II of the” 1990 Act.  (Pages 69E and 76A of the closed record)  In my view, the pursuers have relevantly averred that the redistributed material was “controlled waste”. 

[210]    Nor do I accept the proposition that the pursuers’ averments are irrelevant because the levelling and made ground created by the remediation work did not create waste material.  It is not the pursuers’ case that the remediation work did create waste material.  As the first and second defenders acknowledge elsewhere, the pursuers aver that the waste was deposited on the site ”during the course of its former industrial use prior to 1984 or thereby.”  (Pages 69E and 76A)  The “redistribution” during the remediation works in 1993 and 1994 are averred to have been further acts of deposit, not the creation of waste.  (Pages 70A and 76A)

[211]    On the issue of exemption under the provisions of the 1994 Regulations, I agree with counsel for the pursuers that, if the first and second defenders claim to be so exempt, it falls to them to plead and prove that, and not to the pursuers to negate it.  Further, if either of the defenders wished to avail themselves of the due diligence defence under the provisions of section 33(7), it would be for them to make positive averments that they had taken all reasonable precautions and exercised all due diligence to avoid the commission of the alleged offences.

[212]    I am not persuaded by the decision in Fuller that the pursuers in this case have failed relevantly to aver that the movement of controlled waste from place to place within the site constituted deposits within the meaning of section 33(1)(a) of the 1990 Act.  On its facts, Fuller was a very special case.  Mr Fuller was the managing director of a farming company.  Intending that crops in a field belonging to the company be sprayed, he went to the field to check that access was clear.  He discovered that various waste materials had been deposited across a track leading from a public road to the field.  The position of the waste on the track made access impossible.  Mr Fuller telephoned the local council to report the matter and asked it to clear up the waste, knowing from past dealings with the council that it would be “the next day or so” before that would happen.  The crops needed to be sprayed that day, and Mr Fuller instructed his co-accused to use a forklift truck to clear the access to the field, “only moving what was necessary to gain access”.  The council brought a prosecution, alleging a contravention of section 33(1)(a).  In the whole circumstances, the justices decided that there had not been a “deposit” by either Mr Fuller or his co-accused.  The High Court refused the council’s appeal, holding that there was no question of law involved in the interpretation of the word “deposit”.  In the opinion of Aikens LJ, with whom Calvert‑Smith J agreed, “the justices’ conclusion that the act of the respondents did not amount to a deposit, was a perfectly reasonable one.”  (Paragraph 39)  His Lordship went on to observe that the council’s argument that the justices’ decision would drive a coach and horses through the section was not sound.  “There may well be cases where a second movement of controlled waste does amount to a ‘deposit’.  Each case has to be decided to the particular facts that are raised and found.”  (Paragraph 40)

[213]    I am, however, of the view that the defenders’ challenge to the relevancy of the pursuers’ statutory case is, otherwise, well-founded.  In their pleadings, the pursuers are quite specific about the dates when controlled waste, which they say caused them injury, was moved around the site.  In the first sentence of article 8, they aver that remediation works were undertaken in or about the first quarter of 1993 and the first quarter of 1994.  Both articles 16 and 18 begin by referring to those remediation works.  All of the activities involving the movement of waste which are averred in these articles of the condescendence to have taken place were part of the same remediation works.  In particular, in both articles 16 and 18, the “redistribution” of contaminated ground around the site is said to have occurred during the course of remediation works in 1993 and 1994.  As is recorded in paragraph [192], the pursuers aver that it was “(t)hat depositing of controlled waste [which] was not authorised by a waste management licence, contrary to section 33(1)(a) of the 1990 Act”.  Following the completion of these remediation works, the second defenders issued a certificate of substantial completion on 28 April 1994.  (Article 8, page 44C)  The only other references to remediation works in the pursuers’ pleadings are to work done in the first quarter of 1995, and work done by CBC after it had commissioned further tests in 2000.  The pursuers do not aver what that work involved.  In particular, it is not averred that there was any movement of contaminated waste from one place to another within the site.  It is not averred that there was no waste management licence in place at that time.  (Article 11)  The pursuers make no case in articles 16 or 18 that the work done in 1995 or 2000 involved any unlawful deposit of controlled waste. 

[214]    The case which is pleaded against both the first and second defenders is that each “knowingly permitted the deposit of controlled waste at the site.”  (Pages 70C-E and 76D-E)  It is also averred that the second defenders “knowingly caused or knowingly permitted the deposit of controlled waste”.  (76C-D)  As counsel for the first and second defenders point out, however, there is no averment of knowledge on their part until “by about April 1995” when “it was known that there were areas of slag and ash known to contain contaminants remaining in parts of the site.”  Having regard to the pursuers’ contention that section 33(1)(a) of the 1990 Act “applies to a continuing state of affairs”, it is appropriate to consider the decision on which they rely for that proposition, Thames Waste. 

[215]    The case came before the Queen’s Bench Division of the High Court on an appeal from justices who had convicted the appellant of a contravention of section 33(1)(a).  The appellant had a licence to deposit controlled waste on land, subject to the condition that any deposit of waste was to be covered over in the prescribed manner on the day that waste was deposited.  It was discovered that waste had been deposited but had lain for some days without being covered.  It was argued on behalf of the appellant in the High Court that the failure to cover could not give rise to an unlawful deposit, because the failure to cover took place after the deposit of the material was complete.  Counsel for the respondent argued that the justices were entitled to regard the deposit as continuing to be a deposit “until the end of the day”.  In the course of his judgment, Rose LJ expressed the view that, “although clearly ‘deposit’ is putting down” it has also to be construed in a broad sense.  A continuing state of affairs was capable of being embraced within the meaning of the word “deposit”.  It was, therefore, open to the justices to construe the word as they did.  Their construction was, on the facts found by them, a reasonable one.  Maurice Kay J agreed.

[216]    It is not difficult to understand on what basis, on the facts of that case, the act of deposit could be construed as continuing until the end of the day on which the deposit was made, having regard to the terms of the condition that the licence imposed on the appellant.  What the pursuers contend for in this case, however, is that an act of deposit continues indefinitely.  Thames Waste is no authority for that proposition.  Further, Parliament cannot have intended that an act of deposit should be regarded as continuing indefinitely, because the legislature enacted section 33(1)(b), which makes it an offence to keep controlled waste, or knowingly cause or knowingly permit controlled waste to be kept.  It might be said that, once the remediation works were completed, and the second defenders’ 1994 report had been issued, there was sufficient knowledge on the part of someone to constitute a contravention of section 33(1)(b), but such contravention does not give rise to a civil right of action in terms of section 73(6).

[217]    I agree with counsel for both the first and second defenders that, when the remediation works were carried out in the first quarter of 1993 and the first quarter of 1994, section 73(6) was not in force.  The pursuers make no averment of fact that could conceivably lead to the conclusion that any act or acts of deposit which may have taken place by 31 March 1994 continued beyond that date.  In any event, the pursuers do not aver that either of these defenders carried out any act of deposit at any time.  The first allegation that the first defenders “knowingly permitted” movement of material within the site was after they received the 1994 report.  (Page 7B-C)  Assuming that the movement of contaminated material within the site constituted “deposit”, the first defenders cannot have knowingly permitted such deposit if, on the pursuers’ own averments, they were unaware of such movement until they received the 1994 report.  Further, a person cannot “knowingly permit” an act unless that person has power either to permit it or to prohibit it.  The pursuers do not aver that the first defenders had such power.  The thrust of their case is to a contrary effect.  The remediation works were commissioned and paid for by the LDA, who owned the site.  (Page 23E)

[218]    The pursuers also aver that the first defenders knowingly permitted the deposit of controlled waste:  “in allowing the proposed layout of the proposed housing development to be designed and altered to take account of contaminated parts of the site”; and “by the construction of houses at Forum Place”.  Once again, these averments, to the extent that they are intelligible, appear to proceed on the basis of knowledge gained by the first defenders after the remediation works had been completed, and without any explanation of what power the first defenders may have had to permit or prohibit such things.

[219]    In article 18 of the condescendence, having referred to the remediation works in 1993 and 1994, the pursuers say this:

“The controlled waste which was moved continued to remain on the site.  That depositing of controlled waste was not authorised by a waste management licence, contrary to Section 33(1)(a) of the 1990 Act.  The proposed layout of housing around the site, including that part of the site on which the (pursuers’) homes were built, was designed and altered to take account of remaining areas of contamination known to be unsuitable for housing construction.  By or about April 1995 it was known that there were areas of slag and ash known to contain contaminants remaining in parts of the site.  The (second defenders) were responsible for the decision to level the site by the aforesaid movement of this material within the site and they knowingly caused or knowingly permitted the resultant deposit of controlled waste that resulted, contrary to Section 33(1)(a) of the 1990 Act.  By or about July 2001 it was known to the (second defenders) that there was contamination in the ground of properties being constructed at Forum Place.  It was also known to them that construction of that housing was completed before the results of testing of ground samples was known.  It was also known to them that the results of that testing showed that notwithstanding previous remediation works there was contamination of garden ground where houses were to be built, and that further investigation of that part of the site ought to be undertaken.  That investigation was not undertaken.  The consequences of the investigations undertaken in 2000 were not further considered.  The (second defenders) knew that contaminated waste was present in various locations within the site, and in particular within that part of the site upon which the (pursuers’) homes were built.  The (second defenders) knowingly caused or knowingly permitted the deposit of controlled waste at the site through their knowledge that the site had not been cleared of all Made Ground, that the Made Ground had been levelled as an alternative to clearing the site of Made Ground and the importation of clean fill, the creation of the bund from contaminated ground, the use of ash and slag as backfill, the proposed layout of the proposed housing development being designed and altered to take account of contaminated parts of the site.  The (second defenders) knowingly permitted the deposit of controlled waste at the site by the construction of houses at Forum Place without the extent of contamination in Forum Place being properly investigated, and without the extent of contamination of other parts of the site where housing construction had already taken place being further investigated.  The  (pursuers) have suffered damage as a result of the controlled waste which the  (second defenders) knowingly caused or knowingly permitted to be deposited at that part of the site where their homes were built.  The (second defenders are) accordingly liable to the pursuers in terms of Section 73(6) of the Environmental Protection Act 1990 for the loss, injury and damage they have sustained as hereinafter condescended upon.“  (The quote is accurate.)

 

[220]    The only levelling of the site referred to on record is averred to have taken place in 1994 and did not, therefore, constitute an actionable breach of section 33(1)(a) of the 1990 Act.  (Page 76A of the closed record)  The second defenders’ knowledge, gained as a result of investigations undertaken in 2000, that contaminated waste was present on the site, did not amount to an actionable breach of section 33(1)(a) by knowingly causing or permitting the deposit of controlled waste.  For the reasons given in considering the statutory case against the first defenders, an act of deposit does not continue indefinitely.  The second defenders did not construct the houses at Forum Place.  There is no relevant averment to the effect that the construction of these houses by others amounted to an unlawful act of deposit.  In any event, it is not averred that the second defenders had any power to permit or prohibit the construction of these houses.

[221]    On that analysis, I reject the pursuers’ contention that either the first or second defenders were in breach of section 33(1)(a).

 

Causation

The first defenders’ submissions

[222]    In their notes of argument, counsel for the first defenders contend that the pursuers’ averments regarding the foreseeability of VOCs and SVOCs being present on the site are lacking in specification.  It is central to the pursuers’ claims, they argue, that it was foreseeable that the site was contaminated with VOCs and SVOCs (as opposed to any other contaminant).  The pursuers fail to aver:-

(a)   any basis for knowledge or reasonable suspicion on the part of the first defenders of contamination with any specific VOC or SVOC giving rise to the Pursuers’ injuries;

(b)   which industries the pursuers say used those particular solvents and whether this was or should have been known to the first defenders at the date or dates of their alleged breaches of duty; and

(c)   any basis for the pursuers’ averment that solvents would have been spilled into the ground by any of these industries  (Article 3). 

[223]    Further, the pursuers’ averments regarding the specific VOCs or SVOCs claimed to have been in contact with the pursuers, and the mechanism by which that occurred, are lacking in specification.  The pursuers have been content to rely upon irrelevant conjecture regarding potential sources of contamination in the face of evidence from the third defenders that no contamination has been found within the vicinity of the pursuers’ former residences.  The onus of proving damage caused by fault or breach of statutory duty on the part of the first defenders lies with the pursuers.  Counsel refer to Wilsher v Essex AHA [1988] AC 1074  (“Wilsher”), per Lord Bridge of Harwich at 1090-1092.  A breach of a duty to remove one type of contaminant provides no evidence and raises no presumption that it was that contaminant which caused or contributed to an injury.  For that proposition, counsel cite Wilsher v Essex AHA [1987] Q.B.  730 at 779, per Sir Nicolas Browne-Wilkinson VC in the Court of Appeal, approved by the House of Lords in [1988] AC 1074.  The pursuers must prove that a particular contaminant caused the injuries complained of as a result of a breach of duty on the part of the first defenders.  The pursuers must give fair notice of:-

(a)   which specific contaminants caused the pursuers’ injuries;

(b)   the clinical mechanism by which those injuries were caused;

(c)    where the specific contaminants were found; and

(d)   the specific pathway through which each Pursuer actually came into contact with the contaminants. 

[224]    In his oral submissions, Mr Dunlop referred to article 13 of the condescendence in which the pursuers aver that site investigations that were carried out in 2010 and 2011 showed the presence of a number of identified contaminants, including “PCB’s, heavy metals and chlorinated solvents.”  But, said Mr Dunlop, it is nowhere averred that the pursuers were exposed to those particular named contaminants, and what is averred to have penetrated the properties were VOCs and SVOCs.  Similarly, at page 59 of the closed record, the pursuers aver that indoor air sampling carried out various addresses in June and July of 2011 disclosed the presence of various chemicals, which are, again, not said to have been causative of any injury to health suffered by either pursuer.  At page 60, the pursuers make averments about the central nervous system, they aver that benzene is known to be carcinogenic, solvents are associated with increased risk of cancer, and certain named substances are said to be “probably carcinogenic” whilst others are considered to be “possibly carcinogenic.”  But neither pursuer, said Mr Dunlop, is averred to have developed cancer and it is impossible to discern from the pleadings what it is that the pursuers are saying they have been exposed to, and what it is that is said to have caused them harm.  Counsel acknowledged that he had undertaken not to take specification points but trying to work out the ambit of a proof on these averments, he said, is very difficult.

 

Submissions for the second defenders

[225]    Counsel for the second defenders also submit that the pursuers’ case fails on causation.  The averments of causation are set out in article 13 of the condescendence.  Read short, the pursuers’ case at pages 59 to 60 of the closed record is as follows:  a variety of contaminants were present within the ground under the Tiber Avenue and Empire Way houses; those contaminants included VOCs and SVOCs; VOCs and SVOCs are unstable and will give off vapour; those vapours will permeate the houses that are built on top of them; the residents of those properties will be exposed to the vapours; and the vapours are sufficient in volume to be harmful to human health.  The pursuers pray in aid sampling that was done in June and July 2011 which is said to support that position.  The first point to note, argue counsel, is that the house at Tiber Avenue was not part of the sample.  More importantly, the pursuers fail to engage with the second defenders’ averments in answer.  Again read short, those averments, at pages 61 to 62, are:  on the hypothesis that there is contamination in the ground below the Tiber Avenue and Empire Way houses (which is denied) there is no plausible pathway between that source and any occupant of the properties; the concrete slab, which sits on top of a membrane, on which the house is built interrupts any potential pathway; further testing has been commissioned by North Lanarkshire Council; the results of that testing show that there is no risk to human health at either of the Tiber Avenue or Empire Way properties; and there is no need for any remedial intervention. 

[226]    The second defenders’ averments are met with a simple denial by the pursuers.  Such a denial, say the second defenders, lacks candour.  Unless the pursuers are in a position to offer some credible explanation as to how they have been exposed to any substance that presents a risk to human health, the second defenders should not be put to the time and expense of answering criticisms of a remediation scheme for which no credible explanation has been given as to how any failings have caused loss.

[227]    In his oral submissions, Mr Duncan noted that, in article 12 of the condescendence, averments are made about site investigations.  None of these investigations identify anything within the property at Tiber Avenue.  In answer 12 for the second defenders, they place a call on the pursuers to specify what, if any, results were returned in respect of Tiber Avenue.  That call is unanswered.  In article 13 of the condescendence, the pursuers make “rather vague” averments about vapours that may be present within the two addresses within which the two pursuers resided.  There is no averment that any particular contaminant is demonstrated as being within the Tiber Avenue house.  Answer 13 for the first defenders concludes with a call on the pursuers to produce any report showing the concentration of the averred vapours or chemical constituents thereof in the pursuers’ former properties.

[228]    Counsel explained that, over the lengthy course of the adjustment of the pleadings, and when the local authority was still a party to the proceedings, it was undertaking further testing of chemicals and vapours within the houses occupied by the pursuers.  Counsel for the pursuers was “keen” that the pleadings should not close until the outcome of those investigations was known.  Mr Duncan advised me that the outcome of these investigations is now known, and is averred by the second defenders in their answer 13.  Reports on the Empire Way and Tiber Avenue houses concluded that there was no risk to human health and no remedial intervention was recommended at either property.  These averments have not been responded to, and no report has been produced by the pursuers.  In these circumstances, submitted Mr Duncan, the pursuers’ position on these matters is “entirely lacking in candour”.  Further, the pursuers have lodged no expert report.  In the whole circumstances, having regard to the powers of the court contained within Practice Direction Number 1 of 2013 and to what is said by Lord Woolman at paragraphs 127 and 128 of Todds Murray WS v Arakin Ltd 2011 SCLR, Mr Duncan submitted that the court can and should look at the underlying material, and dismiss the action insofar as laid against the second defenders.

 

Response for the pursuers

[229]    In their written response, counsel for the pursuers submit that handling solvents requires them to be delivered, stored, and used.  Residues have to be collected, stored and removed.  In the nature of life that materials are spilt as part of these processes. 

[230]    Wilsher is distinguishable from the present case.  It establishes that where two or more factors could have caused injury, the claimant has to prove which factor actually caused the injury.  He does not have to identify specific compounds.  The case for the pursuers is that:  solvents have been found in the ground; exposure to fumes from solvents can vary according to a number of changing conditions; specific sampling at one point in time has shown the presence of fumes within a number of houses; and harm can arise from long-term exposure to a combination of solvent fumes even if individual concentrations are at very low levels.  The pursuers have each experienced symptoms of exposure, and these symptoms improved once they stopped living in a house situated on the site.

[231]    Mr Hajducki advised me that the pursuers have lodged toxicology reports, and that they have an expert report which concludes that the second defenders did not arrange for all of the tests to be conducted which they ought to have arranged to be conducted.  That report has not been lodged, because the second defenders produced a report in November of this year which commented on the pursuers’ pleadings, and those representing the pursuers arranged a consultation with their expert to discuss the second defenders’ report.  It is the pursuers’ intention to lodge a full report by their expert.

 

Decision and reasons

[232]    In my opinion, having regard to the analysis of the pursuer’s pleadings which is set out in paragraphs [122] to [124] of this opinion, and for the reasons given by counsel for the pursuers, the pursuers’ averments of causation are sufficiently relevant to entitle them to lead evidence to the effect that they have each suffered injury to their health as a result of the inhalation of solvents which, but for the fault of the second defenders would have been discovered and removed before Tiber Avenue and Empire Way were built.  I am not persuaded that counsel for the first and second defenders’ criticisms of the pursuers’ pleadings carry the weight that they attach to them.  The pursuers offer to prove that site investigations undertaken in 2010, 2011 and 2012 demonstrated the presence of contaminants in the ground in the form of, among other things, VOCs SVOCs, and that fumes from these chemicals were entering into properties in concentrations above USEPA Regional Screening Level.  The pursuers aver that the vapours that caused them harm can migrate in the way that is described in paragraph [12] of this opinion.  That includes their ability to permeate into houses through service ducts, doors and windows.  The second defenders’ averments in answer 13, that the houses at Tiber Avenue and Empire Way are each built on a concrete slab, under which is a membrane, does not negative the possibility of contaminants entering these properties. 

[233]    Given the averred variation of (i) the extent to which vapours will permeate a house, and (ii) the concentration of these vapours, at any particular point in time, the result of tests conducted in late 2012 may not be determinative of the question whether harmful fumes entered the properties at Empire Way and Tiber Avenue during the course of earlier years.  All of that is a matter for proof.

 

Limitation

The pursuers’ averments

[234]    In article 20 of the condescendence, at page 80 of the closed record, it is averred that the first pursuer began to experience neuropsychiatric symptoms, during 2003, “caused or substantially contributed to by inhalation of contaminated vapours within her home at Tiber Avenue.”  It is averred that she also experienced such symptoms from the same cause when she moved to Empire Way.  In article 21, at page 83, it is averred that, during the course of 2008, the second pursuer began to experience neuropsychiatric symptoms caused by inhalation of contaminated vapours within his home at Tiber Avenue.  He experienced symptoms of the same type when he moved to Empire Way.  (As Mr Dunlop pointed out during the course of his submissions, it is unlikely that the pleader intended to aver that the second pursuer’s symptoms began in 2008 at Tiber Avenue, the pursuers’ having moved to Empire Way before 2008.)  The present action was raised in September 2012.  Each of the defenders has pleaded that the pursuers’ right of action is time-barred.  In article 23 of the condescendence, at page 86 of the closed record, the pursuers aver that the only became aware of allegations that there were contaminants remaining in the ground at the site could be harmful to health, on or after 23 September 2009.  They aver that, even when they did become so aware, they did not immediately appreciate that they had personally suffered any injury as a consequence of such contamination, or that there was any act or omission on the part of any of the defenders to whom their personal injuries were attributable.

 

Submissions for the first and second defenders

[235]    Mr Dunlop contended that what is lacking on the record was any averment that it was not reasonably practicable for the pursuers to have obtained the relevant knowledge any earlier.  In that connection, Mr Dunlop cited the decision in Nimmo v British Railways Board 1999 SLT 778 (“Nimmo”).  Here the pursuers aver that they became aware exactly three years before raising the action.  They do not aver the circumstances in which they became so aware.  They do not aver why, for example, it was not reasonably practicable for them to become aware on the day before three years before raising the action.  Further, there are no sufficiently relevant averments which, if proved, would entitle the pursuers to invite the court to exercise its discretion in favour of allowing the action to proceed.  Mr Duncan adopted the first defenders’ submissions on limitation.

 

Response for the pursuers
[236]    The pursuers’ written contentions contained no response to the first defenders’ arguments on limitation.  During the course of his oral submissions on the time-bar point, Mr Hajducki read through the pursuers’ averments at articles 20 and 21 of the condescendence, which contain the first and second pursuers’ respective averments of loss, and article 23, which deal more specifically with the first and second defenders’ averments on limitation, and make reference to section 19A of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).

 

Decision and reasons

[237]    It is clear from the first pursuers’ averments of loss that she began to be unwell during the course of 2003.  In or about late 2002, the GP referred her to Wishaw General Hospital.  When she attended there in February 2006, she was told that her symptoms were a form of migraine.  She suffered from headaches which by about March 2010 were becoming more frequent and by about June 2010 were severe.  Her GP continued to treat her for migraine.  (Article 21 of the condescendence)  The second pursuer gives a similar account.  His symptoms began with feelings of fatigue, beginning in 2005.  He began to suffer from regular severe headaches in the course of 2008.  In his case, too, his headaches were attributed by his GP to migraine.  In or about November 2010, having experienced sudden reduced power in his left arm, the second pursuer was sent to the accident and emergency Department at Wishaw General Hospital.  In or about 2011, he had he had an episode in which he felt ill and had pins and needles and sweating in his left arm.  He was taken to hospital, but the cause of these symptoms could not be diagnosed.  In or about June 2011, it was suggested that a possible explanation for paraesthesia in his left arm was a trapped nerve in his neck.  (Article 22 of the condescendence)  All of these symptoms are averred to have been “neuropsychiatric… caused by inhalation of contaminated vapours” within the pursuers’ homes at Tiber Avenue and Empire Way.

[238]    Section 17 of the 1973 Act applies to personal injury actions and provides, so far as is relevant in this case, that the three-year limitation period begins to run from the date on which the injuries were sustained or the date on which the pursuer became, or which it would have been reasonably practicable for him in all the circumstances to become, aware of all of three facts including that the injuries were attributable in whole or in part to an act or omission.  (Section 17(2)(b)(ii))  The present action was raised on 22 September 2012.  It is clear from the averments in articles 21 and 22 of the condescendence that it is the pursuers’ position that neither of them was aware until sometime after 23 September 2009 that his or her injuries were attributable in whole or in part to an act or omission, the first pursuer’s symptoms having been treated as recently as June 2010 for migraine, and the second pursuer’s paraesthesia in his left arm having been attributed to a trapped nerve in his neck as recently as June 2011. 

[239]    In Nimmo, on which Mr Dunlop relies in support of his submissions on limitation, the pursuer was aware that he had suffered significant loss of hearing by at least May 1992.  He raised an action against his former employers, whom he said were responsible for his deafness, in 1997.  The Lord Ordinary held that, to aver relevantly that the starting date for the limitation period should be later than the date on which injury was sustained, it would be necessary for the pursuer to aver that it was not reasonably practicable for him to acquire knowledge of one of the three facts until a date within three years of the raising of the action.  It may be that there is nothing that the pursuers in this case could add to their pleadings by way of averments of fact, to establish that it would not have been reasonably practicable for either of them to become aware that their injuries were attributable to an act or omission until sometime after 23 September 2009.  They aver that they both sought medical advice and treatment for their symptoms and they were both told by qualified doctors that they were suffering from conditions which might be said to give no clue as to the possibility that they may have been caused by the inhalation of harmful fumes.  Moreover, according to the pursuers’ averments in article 23 of the condescendence, the pursuers had no knowledge that there had been possible contamination of the site until 11 May 2010 when they attended a public meeting organised by the North Motherwell Community Partnership.  That knowledge was imparted to them by an official from the third defenders.  That said, on the face of it the pursuers’ right of action has expired.  If postponement of the commencement of the triennium is to be put in issue, it is for the pursuers to do that, by asserting that it would not have been reasonably practicable to have become aware that their injuries were attributable, in whole or in part, to an act or omission, so that the defenders are given the opportunity to assert the contrary.  It may be that all that the pursuers need to add to their averments in response to the defenders’ time-bar pleas, at this stage, is a formal averment to the effect that it would not have been reasonably practicable for them to have acquired knowledge that the injuries were caused by an act or omission until a date falling after 23 September 2009.  I shall put the case out by order to allow the pursuers’ advisers the opportunity to consider the sufficiency of their pleadings.  While the reasonable practicability element of the time bar issue remains unresolved, I do not propose to say anything about the pursuers’ section 19A pleadings.

[240]    For the foregoing reasons, I shall:  sustain the first plea-in-law for the first defenders and dismiss the action so far as laid against them; sustain the second defenders’ second plea-in-law, and reserve meantime my decision on their first and third pleas‑in-law; and sustain the first and third pleas-in-law for the third defenders and dismiss the action so far as laid against them.  The case will be put out by order for discussion regarding further procedure between the pursuers and second defenders and to address questions of expenses.