OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER171
A5093/2001	OPINION OF MORAG WISE QC (Sitting as a Temporary Judge) in the cause K2 RESTAURANTS LIMITED Pursuers; against GLASGOW CITY COUNCIL AND OTHERS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: Murphy QC; Brodies

Defenders: Geoff J ClarkClarkee QC and B Smith; The Anderson Partnership for Hennessy Bowie & Co, Glasgow

18 October 2011

Introduction

[1] The pursuers are a company with a place of business at 235 North Street, Glasgow. They operate an Indian cuisine restaurant known as the Koh I Noor on those premises. The remaining defenders in the action are Glasgow City Council, a local authority with its headquarters in George Square. This action was raised in October 2001. For the first four years or so of its progress a demolition company, also based in Glasgow, was involved in the action as second defenders. However, on 21 December 2005, of consent, the second defenders were assolizied from the conclusions of the summons.

[2] The circumstances in which the pursuers seek damages from the defenders relate to an incident that took place on 6 November 1996. On that date, in adverse weather conditions, a portion of brickwork forming part of a gable wall and chimney flues adjacent to the pursuers' premises collapsed. Brickwork fell through the roof of the pursuers' premises, which formed the ground floor of a four storey tenement block. The first, second and third floors of the tenement had been demolished in the summer and early autumn of 1996 in accordance with a notice served by the defenders under and in terms of section 13 of the Building (Scotland) Act 1959, as amended. That notice required the owners of 229 and 235 North Street, Glasgow to carry out reinstatement works, which failing demolition of the tenement building down to the first floor level would be executed. The portion of gable wall and chimney flues that collapsed on 6 November 1996 was from the exposed gable left after the demolition had been carried out.

[3] The pursuers claim that the defenders knew or ought to have known, on completion of the demolition works, that they had left the former mutual division wall in a condition which presented a foreseeable danger to persons and adjacent property in the event of high winds. On that basis they claim that the defenders are liable to make reparation to the pursuer. In addition to defending the substance of the claim, the defenders also assert that the pursuer' right of action has prescribed. By the time of proof, there had been discussions about quantum and this was ultimately agreed in the sum of £175,000 plus interest from 6 November 1996. Accordingly, the evidence at proof related solely to the question of liability.

Evidence in the pursuers' case

[4] Four witnesses were led in the pursuers' case, Ghulam Tahir who controlled and directed the pursuers, Andrew Lightbody a chartered surveyor, Denis Garrity a solicitor and Gordon Bathgate a chartered engineer. Mr Tahir was 70 years old by the date of proof. He had taken over control of the restaurant from his father who had previously operated premises in Gibson Street in Glasgow. After the Koh I Noor moved to 235 North Street in 1983 it operated a lounge bar in addition to the restaurant premises. Mr Tahir identified the façade of the Koh I Noor as it looks today in one of the photographs number 6/20/1 of process. He also confirmed that photograph 6/20/6 illustrates how the premises looked after the collapse of the part of the wall and the chimney in 1996. There had been tenements above all of the shops in the row in which Koh I Noor is situated in 1996. These have all now been demolished. The façade of the restaurant runs from numbers 225 to 237 North Street. Mr Tahir confirmed that the tenement above the Koh I Noor had been neglected by the owners and was in a state of disrepair. There had been three flats on each of three floors but only one or two in total were occupied from 1983 onwards. The owner of the ground floor premises at 241 North Street had been a Mr Equi who owned a bookmaker that subsequently became an internet café. On being shown number 6/10/4 of process Mr Tahir recalled that there had been a section 13 notice served requiring work to be carried out to a building regarded as dangerous and that it had been served on Greenford Properties, an Isle of Man company owning the tenement above the Koh I Noor and also on K2 Restaurants. There had been an ongoing concern about the structural integrity of the tenements above the ground floor properties. Mr Tahir explained that he and Mr Equi had regularly suggested meetings but that Greenford Properties had failed to respond. In the absence of any agreement by Greenford Properties to carry out work, Mr Tahir was content with the alternative of demolition of the tenement above the restaurant to first floor level. He understood that the council would undertake that in a gradual way and he was informed that a roof would be constructed over the restaurant to the upper surface of the first floor joists of the tenement. Mr Tahir and his neighbour Mr Equi were relieved once the council became involved because Greenford Properties had consistently delayed in responding to requests. Further they were required to pay increased insurance premiums because of the derelict state of the upstairs premises. It was clear from the notices served that the works were to be carried out only in relation to the tenement above that part of the Koh I Noor that ran from numbers 229-235 and not beyond. Mr Tahir confirmed that photograph number 6/20/6 showed the gable wall that remained after the demolition of the tenement above 229-235 North Street. The photograph had been taken after the collapse of a portion of that gable wall. On being shown a letter from the defenders planning department number 6/18/65 of process Mr Tahir agreed that the demolition work had started on 11 July 1996. The collapse had occurred after the first stage of demolition and shortly thereafter the defenders had taken the decision to demolish also the tenement above Charlie's Bar (next to the Koh I Noor and Mr Equi's premises). The photograph 6/20/1 of process showed the premises after the second demolition. A system of tying metal work along the edges of the gable wall is shown in that photograph. Mr Tahir confirmed that no such tying in had been done after the first demolition. He thought that had such tying in been carried out there would have been no problem. He confirmed that to the best of his recollection the condition of the tenements above number 239 was as poor as the flats above the tenement demolished in the summer of 1996. They had also become derelict through lack of occupation over a long period of time. Mr Tahir was taken through number 7/2 of process, the land certificate confirming the title of 225-239 North Street. There had been a common right of property to the solum for all the proprietors in the block. Prior to the demolition being carried, a number of concerns had been expressed by Mr Tahir and Mr Equi in relation to the state of the building. Those concerns were expressed by the architect Ian Rae who has since died. Number 6/12/1 of process is a letter from Mr Rae dated 1 September 1994 enclosing a copy of the section 13 notice. In another letter from Mr Rae, number 6/12/2 of process, he referred to the south gable being "... clearly in a state of progressive collapse." Further, in a statement for the planning sub-committee on building control (number 6/12/4 of process) Mr Rae drew to the council's attention that number 237 North Street was in an equally bad state and the demolition of number 229 might have a serious effect on the stability of the flats above the adjacent premises. These concerns were reiterated in a letter of 4 November 1995, number 6/12/8 of process and in further correspondence at number 6/12/9 of process, also referring to the adverse structural effect on the flats that would remain after demolition. Mr Tahir confirmed that Mr Rae's concerns had been that if the gable wall was not shored up properly then it would be dangerous and unstable. Those concerns had been raised with the council on Mr Tahir's behalf but he had received no response. Mr Rae had been instructed to advise on plans for the new roof of the Koh I Noor and had been enlisted to assist with making representations about the stability of the mutual gable walls after demolition.

[5] Mr Tahir had no recollection of receiving any response from the council in relation to the concerns raised. A letter number 6/14/20 of process confirmed that the council's position was that the maintenance of the structural integrity of the building after the works were carried out was for the proprietors. A letter of 11 June 1996, number 7/4 of process, was also put to Mr Tahir which referred to treatment works to the exposed gable to be carried out by the co-proprietors and indicating that these were to be organised by the pursuers. Mr Tahir confirmed that all correspondence at the time had been passed to the architects who were looking after matters. He was clear that he had never been told that he would be responsible for making sure the gable wall was structurally sound on completion of the demolition works albeit that future maintenance of it might be part of his responsibility. The period between the completion of the first demolition and the collapse of the gable wall had been 6 weeks. The Koh I Noor restaurant had been closed for only two weeks during the demolition process. Thereafter the restaurant had been open but because scaffolding had been erected business at the restaurant was quieter than normal. After the first demolition and removal of the scaffolding, the restaurant returned to normal business. Mr Tahir had not been concerned for the safety of his own property or customers. Mr Tahir did not think that Mr Equi particularly wanted a second demolition but after the collapse of the brick work on the chimney the council decided to demolish all of the flats that remained. Mr Tahir did not know at the time that Mr Equi had instructed a surveyor after the collapse of the gable wall in November 1996.

[6] Mr Tahir recalled the events of 6 November 1996. The chef in the restaurant had been preparing food in the morning when he was told of the collapse. The chef telephoned Mr Tahir who attended and saw the damage. Photograph 6/20/6 showed some of the damage to the restaurant area and the lounge bar. Debris had come through the ceiling of the lounge bar and material from the gable wall and chimney had fallen through. The roof of the restaurant had been exposed to the elements for 2-3 weeks after the incident, heavy rain during that period had further damaged the premises. Emergency repairs were carried out to the roof and the premises required to be dried out before the restaurant could re-open. The work was not fully completed until September 1997.

[7] Under cross-examination Mr Tahir agreed that the letter number 7/4 of process dated 11 June 1996 appeared to have been sent to the registered office of the company at 204 West George Street, Glasgow, the office of the company solicitor. While there was a reference in the letter to treatment works to be organised by the pursuers, Mr Tahir confirmed that his understanding had been that the gable wall belonged to Greenford Properties and that they would have responsibility for carrying out any works. On being asked when it was that Mr Rae the architect had gone upstairs into the tenement above Charlie's Bar to view the chimney and gable, Mr Tahir said at first that he thought this was after the first demolition but before the collapse. Mr Rae had not indicated that the wall within was in danger of immediate collapse at that time. In relation to the debris that had ended up on the floor of the restaurant, Mr Tahir confirmed that the pieces of stone he found there were not just from the chimney stack. There were different sizes of stones but only those from the chimney were reddish in colour. He agreed that the night leading to the collapse had been one of stormy weather in Glasgow with a gale force wind, 70 to 90 miles per hour. He thought that the collapse had happened around 9am as it had been reported to him just after that.

[8] In re-examination Mr Tahir confirmed that he had never been aware of any "planning requirement" being intimated nor had he been told that any treatment works were to be carried out by him. On the issue of when Mr Rae had examined 239 North Street, Mr Tahir recalled that when the collapse happened the insurance company wanted him to look after the neighbouring proprietor's interests and it was in that context that he had examined the property. He was quite clear that Mr Rae had not inspected No. 239 prior to the collapse.

[9] Andrew Lightbody, a 45 year old chartered building surveyor with Lambert Smith Hampton in Glasgow also gave evidence in the pursuers' case. Mr Lightbody qualified as a chartered surveyor in 1993 and had worked for some years with Graham and Sibbald having joined them in 1990 prior to his qualification. Mr Lightbody confirmed that over the years he has been involved in numerous construction and refurbishment projects involving tenement buildings. During the 1990s 70% of his work was in the Glasgow market and he was surveying tenemental properties on a weekly basis. He is now involved solely in commercial work. In 1996 he was instructed by Mr Equi who owned the internet café on the ground floor of the property adjacent to Koh I Noor restaurant. Mr Equi was a client of Graham & Sibbald and Mr Lightbody was asked to carry out an inspection of the property. He attended at the premises on 15 November 1996 to assess the condition of the property. He prepared a report at the time which now forms number 6/15 of process. The context of the report was that the council had advised Mr Equi that the premises above his café were now to be demolished. Mr Lightbody was taken through his report in some detail and spoke to the various photographs (some 42 in number) appended thereto. He also spoke to photographs lodged at number 6/20 of process to assist with understanding of the construction of the gable wall in question. He confirmed that number 6/20/14 showed that where the lower area of the gable wall had been plastered the brickwork had been protected whereas the section of brickwork in the roof void had been subject to condensation. This would be seen by the discolouration in that area. When he inspected, Mr Lightbody had been made aware of the circumstances surrounding demolition of the adjacent tenement. He expressed the view that normally where a tenement is partly taken down a weather-proofing membrane should be fixed to the wall with wooden straps to protect the newly exposed gable. He described a mutual wall as one separating two properties as distinct from a gable wall which was meant to be exposed and was the end wall of a tenement. Where a series of tenements were separated by internal mutual walls, those separating walls would not be built to the same standard as a wall intended to be an external gable. The external gable would be built in a way that would withstand structural forces. The outer leaf of the building required to be durable. He identified the photograph 6/20/1 of process as an example of a wall that had been finished as an external gable wall. While there was steel work on that wall, the difference between it and an internal mutual separating wall was that the external gable illustrated in photograph number 14 was finished with sandstone rather than common clay brick. The front elevation had quoins which are stones that fix the front elevation to the walls. In the photograph it could be seen that every second stone running up the side of the elevation was a quoin. One of the functions of those was to tie in to the adjacent wall. No such quoins were present in the mutual wall seen at number 6/20/14 of process which had been exposed by the first demolition. Thus the wall was not tied in to the front and rear elevations which is why structural tying would be required. Mr Lightbody had examined the section of brickwork that had collapsed on to the Koh I Noor side of the exposed wall. He explained that a skew putt was a term for a junction between two properties where the brickwork extends above roof level with coping stones above. Those coping stones had collapsed and the remaining copes and brickwork had become twisted or dislodged. This could be seen in photographs numbers 18 and 35 appended to Mr Lightbody's report. Photographs numbers 15 and 16 showed the inner leaf of the flue to the chimney above Mr Equi's property, the outer leaf having collapsed. The flue bridge separates the flues to each property and is tied together. Mr Lightbody's inspection of the flues revealed that several had a build-up of tarry deposits on the internal face which was normal. However, as a result of lack of use and condensation, a chemical breakdown of those deposits had occurred causing flue gas condensation and sulphate attack to both the brickwork and mortar joints of the flues and surrounding area. By running a finger or metal object such as a key along the mortar joints to the brickwork originally located within the roof void close to the collapse, Mr Lightbody found these to be suffering from widespread expansion, erosion and crumbling due to sulphate attack. He also found that the brickwork was showing signs of early spalling. He explained that the mechanism of sulphate attack is that when fires are lit the combustion products rise through the chimney and smoke is emitted. When the fire is extinguished the smoke lessens and the heat in the flue lessens. Then the heat transfers to moisture particles which condense onto the flue linings and tarry deposits form. In time this breaks down the lining of the flue and starts eroding the brickwork. Evidence of that could be seen in photograph 14 appended to his report. While any chimney that has had solid fuel is susceptible to sulphate attack much depends on how it has been maintained. Mr Lightbody had been able to inspect the exposed internal flues in the building. He confirmed that these could normally be inspected by looking up fireplaces or, if the chimney was going to be removed, by an aperture through the wall. On the photographs Mr Lightbody pointed to "open joints" where there was no mortar left. This could be caused by sulphate attack or could even be a construction problem. In photograph 16 tarry deposits are shown with no cement lining to protect the brickwork. He confirmed that someone looking up the chimney would have seen blackened brickwork and evidence of loose mortar. This deterioration should have alerted someone to carry out repairs. It was clear that the brickwork of the original roof void was in a condition that required remedial work to be carried out. Mr Lightbody was of the view that ties should have been put in place to support the outer leaf of the brickwork so that it was tied back to the rafters. In his view the defects would have been visible to building control during the course of the first demolition works over the Koh I Noor. He confirmed that tying in the gable was insufficient to stabilise the apex and that separate ties would be required for the roof section.

[10] Mr Lightbody explained that after the first demolition, the element of support from the tenement above the Koh I Noor had been removed as the indirect support provided by the floor joists was no longer there. Photograph 26 appended to his report showed cracking on the wall from the second floor to the roof level. This may have been historical but structural ties should have been inserted in the area of the cracking to ensure that no movement occurred. The lack of tying back of the gable elevation from the third floor level to the roof level meant that the wall was supported only at its junction with the front and rear elevation. As a result, when high winds attacked the roof slope and the gable head, movement occurred causing weakening to the defective brickwork and ultimately causing its collapse. In Mr Lightbody's opinion, three types of works or attention ought to have been given to the separating wall exposed by the demolition contractors prior to the defenders certifying the work as complete. These were:

(a) The area of brickwork formerly located within the roof void should have been taken down to the third floor ceiling level and rebuilt or alternatively tied back to the adjoining property roof structure. Mortar joints should have been raked out and re-pointed where excessive expansion, erosion and crumbling had occurred and isolated spalled bricks should have been cut out and replaced by new.

(b) The entire elevation should have been weather protected to prevent further erosion/deterioration of the brickwork and penetrating dampness to the adjoining premises. This could have been executed by the application of polythene sheeting and timber struts over the entire elevations.

(c) Inspection of the adjoining premises should have been carried out to ensure the gable wall was fully retained back to the adjoining premises and where this was found to be lacking, retention fixings should have been installed tying the elevation back to floors and walls to ensure its structural integrity.

In Mr Lightbody's opinion, had those works been carried out, they would have precluded the collapse of the section of brickwork to the elevation and would have maintained the property in a wind and weather tight condition for about 3-5 years.

While he accepted that the winds on 6 November 1996 were extremely strong in the Glasgow area, Mr Lightbody's view was that it was because the adjacent property had been removed that the wind vortex was able to pull anything in the vicinity. Had the tenements above the Koh I Noor not been demolished, the wind would have simply carried along beside the roof slope. Photograph 11 appended to his report clearly showed that the skew putt and apex of the roof void had moved to the right. When asked whether it was the chimney that had caused the wall to move, not the other way around, Mr Lightbody expressed the view that it was a combination of the two. The poor condition of the roof and the lack of tying in meant that both were susceptible to movement or collapse. In his opinion, to avoid such an accident, the defenders would have had to effect both tying in of the wall and remedial works to the chimney. While he was speaking as a surveyor and not as a structural engineer, he thought that those works would have prevented the wall moving. He was clear that the defects in the apex would be evident to any surveyor looking at it prior to the collapse. Such ties as there were on the internal wall were not carried to roof level which had caused the problem.

[11] A number of documents recovered from the council were shown to Mr Lightbody. Number 6/14/72 of process contained what seemed to be the demolition specification for the works in question at 229/235 North Street naming the council officer involved as Barry Mallon. Under the heading "General Description of Work" there was mention of gable stabilisation works and at 6/14/84, paragraphs 2.5 and 2.6 of the method statement, there was reference to removing all timber lintels, joist ends etc from the party wall and bricking up along with all other openings. Further there was reference to carrying out all gable stabilisation works "...as per engineering specification..". Mr Lightbody confirmed that the bricking up would relate to former fireplaces and wall presses where the timber lintels would be removed and filled in with brickwork. So far as gable stabilisation works were concerned, the contractor would rely on the engineer to say what should be done. Some detail of the gable repair works that might be involved in the contract was listed at 6/14/68. A provisional sum of £12,000 appeared to have been included for tying works. That sum would be provisional where the amount was not known at the time of the contract. It would be an allowance so that no further funds required to be sought later. It was noted that a provisional sum of £2,000 was included for roof repair and this would have been to the roof above Mr Equi's property to allow it to be repaired if any damage was caused. On being shown 6/14/66 of process, a letter from the defenders' department of planning and development to the demolition contractors dated 19 June 1996 Mr Lightbody agreed that it appeared this confirmed the tying in works were not to be carried out. The documents lodged by the defenders illustrated that the process that appeared to have led to that decision started with a memo of 17 April 1996 (no. 6/18/77 of process). That was a memo from Mr Halliday of the contracts section of the defenders to a Mr Knowlson of the defenders' operations section. . The memo expresses concern that the demolition works would result in a mutual separation wall becoming an exposed gable wall on completion of the work. The integrity of the wall without the stabilisation works having been carried out appeared to be in doubt and Mr Halliday appears to have recommended that works do not proceed unless those stabilisation works were approved. 6/8/78 was a memo to Barry Mallon from Mr Halliday. It is dated 23 April 1996 and appears to instruct a disruptive survey of the mutual separating wall between properties but from the 229/235 North Street side only. Mr Lightbody agreed that the instruction appeared to require certain areas of the wall to be exposed. This would mean opening up certain sections to inspect their condition. This would include chimney flues and the roof space although these might be inspected internally. In terms of the roof space, one would be looking for timber decay to the rafters or joists. So far as the brickwork in the apex was concerned, this would be inspected to see if it was in good condition. If there was access to the roof space, this could be visually inspected. Mr Lightbody confirmed that the instruction to carry out this work and take a full photographic record was good practice. No. 6/21 of process appeared to be the survey report carried out on that instruction. The inspection seemed to have taken place on 25 April 1996 by Mr Mallon and a Mr A McLean. On page 3 of the report, there is a reference to the roof space and to the brick and mortar therein being "in fair condition". Mr Lightbody disagreed with that. In his view the roof space was, contrary to the observations in 6/21 of process, in a poor condition. There was no mention in the survey report carried out by the council of tarry deposits or sulphate attack. Photograph V appended to the report no. 6/21 showed that the flue had been exposed. In any event photograph W showed an open fireplace which would have allowed for inspection by shining a torch into it. The flue would normally fix at an angle 2‑3 metres above the fireplace. Mr Lightbody confirmed that no photographs appeared to have been taken of the roof space and highest level photograph was photograph W which was taken on the third floor. . In any event, the recommendations in the council's own report were that, prior to demolition, the mutual wall should be tied back to the flooring or walls of the adjacent property. Mr Lightbody agreed with that recommendation because by demolishing the adjacent property, the surviving wall would be weakened. Accordingly, he would expect horizontal ties to the areas one could access. One would have to strip the plaster work and drill through the wall to the other building and then insert metal at floor level. This was standard practice in such demolition jobs.

[12] A memo of 26 May 1996 (6/18/79 of process) was also shown to Mr Lightbody. This memo was sent to Mr Knowlson by Mr Mallon and appeared to confirm the decision taken by Mr I Taylor to delete the tying in works to the gable wall being exposed. Mr Lightbody confirmed that the recommendations in the report no. 6/21 of process were consistent with his own opinion and he could see no reason why the tying in works would have been deleted. Unless an engineer had subsequently inspected and said that these tying in works were not required, the work should have been carried out. Under reference to a memo from Richard Gibb to Mr D MacPherson of 25 July 1996 (no. 6/18/56 of process) where there was reference to replacing timber safe lintels with concrete lintels, Mr Lightbody confirmed that if the timber lintels in the wall were left in place, they would decay or had already done so. These would be filled in to maintain the integrity of the wall. It was clear from the memo that Mr Gibb was saying that the existing ties in the mutual wall were insufficient or inadequate thus without any tying in work being carried out by the council, there was none. The memo showed that the contracts department was highlighting a concern about an instruction not to replace the timber safe lintels with concrete that could be appropriately tied in. He agreed that Mr Gibb appeared in the memo to be laying down a marker to protect his position. Concrete lintels would have helped. In Mr Lightbody's opinion the important thing was that the walls should have been tied into the building. Mr Lightbody's inspection in 1996 disclosed that the lintels had not been filled with concrete but had been bricked up.

[13] A portion of what appeared to be a handwritten final account in relation to the demolition works was shown to Mr Lightbody (no. 6/18/6 of process). The final sum for gable stabilisation work appears to have been £1,000 as opposed to the £12,000 provisional sum initially inserted. Mr Lightbody explained that the term spine wall meant a horizontal centre line wall from gable to gable. He thought that the removal of those might have been the concern of the architect, Mr Rae when writing to the council in 1995 (6/12/8-9). In any event, having looked at the documentation recovered from the council, Mr Lightbody said that the opinion expressed in his report was confirmed by that documentation. When he had inspected on 15 November 1996, he had seen defects which would suggest that the newly exposed wall was not in a good condition prior to 6 November that year. He was clear that the defects did not arise between 6 and 15 November. He found it difficult to comprehend why the tying in work was not carried out. In the absence of an engineer's report confirming that it was unnecessary to do so, Mr Lightbody regarded the decision not to tie in as folly. Further, he was concerned that insufficient investigations had been carried out in relation to the roof. He thought that the council ought to have followed their own recommendations in relation to waterproofing and tying in the wall. The cracking in the mutual wall that was observable from pavement level could only be so observed through binoculars and would not be noticed by passers-by. Mr Lightbody confirmed that the type of tying in work shown in photographs no. 6/20/1 of process could have been carried out as soon as the wall was exposed post-demolition. In the absence of a notice served on the neighbouring property, however, consent of the proprietors would be required. Pending obtaining that consent, a raking shore could be erected. This was a structure which supported a wall where one could not obtain support from the other side. Mr Lightbody's conclusion was that common practice in the situation that the council were in in 1996 was to tie in a wall that had been exposed after demolition of the adjacent tenement. To depart from that common practice would require a good reason and he had seen none in the documentation provided.

[14] Under cross-examination Mr Lightbody accepted that on one view his access inspection on 15 November 1996 was better than it would have been prior to demolition although he pointed out that the floors had still been in situ during the course of the demolition contract. He had been able to see into the flues to look for the tarry deposits. He expressed the view that any professional would know to look for the chemical reaction known as sulphate attack. Had he been asked to carry out a survey, he would have inspected from the fireplace first. He was unable to say whether the council surveyor would have noticed the deterioration of the brickwork and crumbling mortar in the apex. Much depended on whether it had been fully inspected. He agreed that demolition would have taken place floor by floor and that employees of the demolition contractors would be working in the space that he had subsequently inspected. Demolition contractors would not know to look for sulphate damage. He agreed that it was reasonable to suppose that if there had been loose coping stones noticed by the demolition contractors, they would have had to be removed. He agreed that it had been easier for him to see inside and outside the apex because of the collapse which allowed him to have a close hand inspection. On the specific issue of sulphate attack, Mr Lightbody pointed to the centre of photograph 14 appended to his report. There one could see orange discolouration of the surface of the brick. The grey parts were where the face of the mortar had collapsed. He had found evidence of such sulphate attack throughout the apex area. He thought that would have been evident to the council on inspection, although the particular aspect of the flue bridges in photograph 15 and 16 appended to his report could not have been seen by them prior to the collapse. Photograph no. 19 of his report showed patch repairs to defective areas of the gable. But it was not known when these had been carried out. In Mr Lightbody's view, they seemed to pre-date the collapse. Asked about photograph no. 11 which showed best the outward movement at the head of the gable and displacement of the cope stones when he inspected, Mr Lightbody explained that photograph no. 18 which showed the rear view of the adjacent chimney head showed how it should look when the coping stones were joined to the roof. He disagreed that movement in photograph 11 could have been longstanding. The other side of the roof shown in photograph 18 had no gap unlike the side that had moved.

[15] Mr Lightbody confirmed that it was the upper portion of the wall left exposed after the first demolition that was structurally infirm. The lower part of the wall was adequate. He was clear that he would have recommended work to be carried out to stabilise the upper portion of the wall. He was not suggesting that prior to the collapse the wall was dangerous as such, but it was clear that remedial works should have been carried out to it. He accepted that before a section 13 notice could be served, the council would have to be satisfied it was dangerous but the work that should have taken place indicated that it would be a repairs notice that would be served for that. Mr Lightbody agreed that the council's role was not to improve buildings but to ensure their safety. Their obligation was to ensure that buildings were stable. He referred to BS6187 which provided a demolition code of practice that was in force in 1996. That would determine how the building should be demolished and what should be left. The obligation was to leave the site in a safe condition in accordance with British standards. It was specifically put to Mr Lightbody that decision makers would require to balance the need to interfere in the interests of safety against the cost of doing so and that "difficult decisions have to be made" in this respect. In the absence of any record for a positive line about decisions having been made on a cost/benefit analysis basis, I allowed Mr Lightbody to comment on that matter only with that in mind. He accepted that professional men may disagree in their opinions on such difficult decisions. On the issue of the length of time during which the bricks at the apex would have been exposed prior to the collapse, Mr Lightbody agreed that in a 10 week contract, the roof would be one of the first things to come off and that the brickwork could accordingly have been exposed for up to 12 weeks prior to the collapse. However, he indicated that exposure to weather over such a short period would not alter it to any extent. When it was put to Mr Lightbody that the longer a danger took to develop the less appropriate it was for public expense to be spent on remedying it, he was clear that such decisions should not be made to the detriment of public safety. He thought that if a council could anticipate a future danger, they should act to protect public safety.

[16] On being shown photograph 21 of 6/15 of process which showed the material that had collapsed onto the roof of the Koh I Noor, Mr Lightbody confirmed that there were sections of stone and some brickwork there. He had been resident in Glasgow at the time and remembered the high winds on the night in question. When it was suggested that one could not conclude exactly how the collapse had happened, Mr Lightbody said that it was most likely that the chimney projection acted as a sail and because of the defects below, a collapse took place. The apex could not hold the bricks in place because of the defects with the mortar. He agreed that walls that were designed as outer walls would also have flues, fireplaces, and presses but only on one side. However, an outer wall would be 600mm stone whereas an inner wall would only be one brick thick. Photograph No 6/20/1 was an example of a wall built as a gable wall with dressed stone. Where there is no support from a building next to it, an external gable wall would be finished with dressed stone. The quoins seen in the photograph were tying in the gable of the property and it was clear that building was meant to stand alone. In contrast, the tenement under discussion was part of a terrace with internal mutual separating walls. He agreed that a row of tenements could be built at different times but disagreed that walls would be left unfinished where the adjoining tenement was never build. So far as the lintels were concerned, Mr Lightbody explained that timber safe lintels are simply those built into the wall. Where the timber lintels were rotten, one would expect them to be filled with concrete, but he did not see any evidence of that on his inspection. He agreed that there had been no requirement for a completion certificate in relation to the kind of work being carried out by the council in 1996. He disagreed that so long as a wall was sound and the fireplaces and presses were bricked up, it was acceptable for a mutual wall to become an outer gable wall. In his view the wall would have to be weatherproofed and ties should have been put in to avoid brickwork damage. The wall that had been an interior wall would not be in better condition not having been exposed to the elements because the fireplaces would have caused the damage. Mr Lightbody confirmed that he had been personally involved in about twenty demolitions including the administration and supervision of those. When it was suggested that at the end of the works in this contract the council had instructed the demolition company to monitor the building, Mr Lightbody agreed that would be a sensible course of action.

[17] In re-examination Mr Lightbody reiterated that the ties that he thought should have been put in place should have been at the first, second, third and roof level where the ties should have been to the rafters. On the issue of difficult decisions having to be made about whether the tying in work should be carried out, Mr Lightbody confirmed that where there was a common practice for tying in, he would have expected that to be followed by the council He did not regard it as spectrum leaving room for different judgement calls. He considered it to be a black and white situation where the council should have followed their own recommendations. Their failure to do so, while it did not present a short term imminent risk, did present a risk of erosion resulting in potential collapse in the longer term. The length of time it would take for that collapse to happen would depend on the climatic conditions. High winds would clearly exacerbate the risk. Had it not been for the wind conditions, the wall might have remained intact for a longer period of time but the risk of collapse was materially increased by the absence of ties. Finally, Mr Lightbody confirmed that photographs 37 and 38 appended to his report showed that the chimney head on the southern side of 239 North Street had been reduced by a good metre. In order to do that, the coping stones would have had to be removed and there would have been an opportunity for inspection.

[18] Denis Garrity, a 41 year old solicitor and partner with Messrs Brodies, Solicitors, was also called as a witness for the pursuers. Mr Garrity has been a qualified solicitor for 17 years and was assumed as a partner in Brodies in May 1999. His area of practice includes property work, particularly commercial property. He is very familiar with titles to tenement properties of the sort common in Scotland. He was asked to look at the title sheet for number 229225-239 North Street, no. 6/11 of process. He confirmed that this showed a complete tenement, an area edged in red. He had examined two sets of titles indicating that there were twelve flats above the ground floor. He knew that the tenement had commercial premises on the ground floor with flats above. The rear of the tenement at 229 North Street was single storey only, unlike the adjacent tenements. Page 5 of no. 6/11 had a schedule of removals which indicated that there were six houses that no longer formed part of the title in question. Further, a schedule of exceptions related to the Koh I Noor restaurant which had been split off from the remainder of the tenement. The relevant disposition splitting off the Koh I Noor property is no. 7/3 of process. Mr Garrity clarified that the expression common interest would be used where an adjoining proprietor has an interest in common with other proprietors in, for example, a tenement wall. This interest did not amount to ownership. It was standard for all proprietors in a tenement to have a pro indiviso right to the solum and any dealing with the solum would require their consent. The declaration in the title confirmed that the gable walls of the tenement were owned in common by all the proprietors. The usual rule was that the proprietor of a flat owned the nearest walls to them subject to the right of common interest. Everyone in the tenement would have a common interest in its façade so that each owner could prevent the others from doing anything that would adversely affect their property. Mr Garrity's opinion was that, according to the title, each of the proprietors of the tenement in North Street had a right of ownership to the midpoint of their respective walls but had a common interest with all the other proprietors in the whole wall. Page 15 of 6/11 of process confirms that a quorum would be five owners within the tenement of fourteen owners and that those five could make decisions on repairs. Where there was no quorum and no co-operation, arbitration could take place. In Mr Garrity's experience where buildings fall into disrepair and the owners are unable to agree a course of action, the local authority are usually asked to step in.

[19] Under cross-examination, Mr Garrity agreed that while the Keeper had deleted from the title the demolished flats of the tenement, the owners of those tenements still had title to the air space where they had been. The removal was simply a physical one.

[20] The last witness called for the pursuer was Gordon Bathgate, a 64 year old chartered engineer and arbitrator. Mr Bathgate has been a qualified chartered engineer since 1972. He is employed by URS Scott Wilson Ltd, a global business undertaking of civil, structural and environmental engineering. Over the course of his career he had initially been involved in engineering aspects of reservoirs and subsequently dam construction. He then spent 17 years working for a local authority primarily in the area of roads design. Latterly he was employed in the field of competitive tendering in engineering works. He had been with Scott Wilson since 1992. He had supervised the Gogar Interchange in Edinburgh. Thereafter he had been involved in working in Glasgow looking after the interests of engineering firms in disputes. He had some experience of building houses for water treatment works and had been involved in a tenement in West Nile Street in Glasgow where the basement had been removed. He was fully conversant in the principles of wind loading which was a feature whenever a structure requires to be built on land. He had particular experience in wind loading features in roads and bridges.

[21] Mr Bathgate had been provided with Mr Lightbody's report and examined the photographs appended to it. He had given an engineering opinion on the structural safety of the mutual wall left standing after the first demolition. That opinion was given in July 2010. On being shown photograph 6/20/14 of the mutual division wall between the two parts of what had been a single tenement, Mr Bathgate confirmed that it was clear that such a wall had been an internal dividing wall. So far as support of such walls were concerned, the constructional elements would be consistent with its original purpose. An internal wall would not be subjected to wind loading. It would be constructed by two layers of brick with fishtail ties between each leaf of brick giving the wall the properties of a two-brick thick wall. However, Mr Bathgate understood that the ties in the wall in question were "all but nonexistent" due to corrosion over the years. He had seen the council's internal memo in relation to that. The purpose of ties was to join the outer leaf and inner leaf of the wall. They would be inserted every three quarters of a metre along the way and every third of fourth course up the way. When asked whether the wall shown in 6/20/14 was suitable to be treated as an external gable wall, Mr Bathgate said that given the state of the wall ties and the deterioration of the mortar and given that there was no visible external strengthening other than the "hugging" bracket on the left hand corner he was of the view that it was not suitable to act as an external gable wall. The consequence of it acting as a gable wall would be the potential for collapse. In contrast, the photograph at 6/20/1 of process showed a wall intended to be an external gable. One could there see that the bricks alternated between being embedded in the gable wall and embedded in the façade wall. This was the fundamental difference between a gable wall and an internal wall in structural terms. The interlocking imports stability to it so that when it is subjected to wind forces it can withstand them by being tied at its ends. While the wall in question (6/20/14) had some straps, there was no resistance to superimposed wind loading. There were no interlocking bricks visible in that wall. The problem when wind was blowing into a gable wall was that it would push the wall inwards and if blowing away from the gable wall, suction would blow it out. If the wind was coming into the rear elevation then the wind loading is reduced. Walls require to be built to withstand winds from any direction.

[22] In relation to paragraph 2.03 of Mr Lightbody's report no. 6/15 of process, Mr Bathgate confirmed that the expansion and erosion of the mortar joints due to sulphate attack seen by Mr Lightbody would diminish the structural integrity of that part of the gable. From an engineering perspective, the effect of removal of the flats above the Koh I Noor exposed the previously internal separating wall to forces for which it was never designed or constructed. The spine walls which divided the various properties had lent lateral stability to the mutual wall prior to demolition. When those spine walls were in place and the separating wall was internal there was no threat from wind forces. Removal of them diminished the wall's ability to remain standing because it was exposed to wind forces. There was no restraint to the application of those and they were being applied to a wall that had diminished in stability. In a tenement where, for whatever reason, a decision was made to remove the spine walls but not to expose the mutual separating wall, there would not be the same detrimental effect on reduction of stability because the internal wall would not be subjected to forces that might make it unstable, although removal of spine walls on both sides of the tenement would disturb the stability a little. However, if, as in this case, one side of a mutual wall was removed so that the other side was now external and there was no spine wall on the side that had been removed, then the capacity of the wall to withstand the sucking effect of the wind is diminished. Mr Bathgate agreed with Mr Lightbody that one could see that there had been no tying back of the gable elevations from third floor upwards. The red coloured brick on 6/20/14 of process had no facility to support it other than it being jointed at the eaves. Straps seen in the photograph stopped at the top, and the red brickwork of the roof had to "fend for itself".

[23] So far as the significance of sulphate attack was concerned, Mr Bathgate confirmed that if an engineer was aware of that type of problem he would be concerned about the diminution of stability of the wall. Cement that was consumed by sulphate attack meant that there was no cohesion between bricks at all. An engineer would expect to see some deterioration in chimneys a hundred years old and would be looking for it. Deterioration was probably tolerable when the mutual wall was still mutual, but when it was to become a gable wall, one would require to consider the stability of the bricks above third floor level. If one found sulphate attack, one would re-point the brickwork, relay the bricks and in an extreme case retie the fish ties and possibly attach steel strapping. In Mr Bathgate's opinion the photographs taken by Mr Lightbody showed sufficient deterioration to warrant reconstruction of the chimney area and the red brickwork. On being shown photograph 11 of Mr Lightbody's report, Mr Bathgate confirmed that what was shown there was the result of the collapse. As the wall pulled outwards during the collapse then an area had fallen away. The red brick area had been pulled outwards by the coping stones being pulled out, leaving a foot between the red bricks and the roof. That sort of collapse would not have happened if there had been tying in of the type seen in no. 6/20/1 of process. There the sloping pieces of steelwork were bolted through to the roof truss, the purpose of which was to keep the wall safe from wind forces. In contrast, the wall in question was free to be pulled out by those forces. In Mr Bathgate's view, what had occurred was that wind forces had hit the exposed height of the chimney and those forces had pulled the wall out. The wind forces were greater than the inherent resistance of the brick work to withstand them due to instability and this led to the collapse. Had the wall been strapped there would be no visible damage to the skew putt at all. At worst, a few roof tiles would have been knocked off. In Mr Bathgate's opinion as an engineer, there were sufficient indicators to illustrate that the wall exposed by the first demolition was not suited to be left without addressing the consequences of the sulphate attack and the deterioration of the wall ties. He thought that steel strapping would probably have been required to re-train the brickwork and the mortar would have had to be replaced by taking down the wall, inserting fishtail wall ties and fresh mortar. He was very clear that the condition into which the mutual wall had been rendered by demolition of the adjacent wall meant that considerable work was required to render it safe. He thought that most, if not all engineers would have not left the wall in the condition that it had been left in. He considered it irresponsible to create such a condition and not remedy it by appropriate stabilisation works. He regarded the wall as unsafe.

[24] Mt Bathgate was also shown extracts from the documentation produced by the council. He agreed that no. 6/14/72 of process seemed to indicate that gable stabilisation works would be undertaken by the contractor. It appeared that these were to be carried out in accordance with an engineering specification. The supervising officer of the council would be responsible for overseeing the quality of the work. He agreed that 6/14/66 appeared to be an instruction from the supervising officer to omit the provision in the contract for structural tying in works to the newly formed gable. He noted that it was clearly the council's policy that strengthening work was required to mutual walls when they became gable walls. In his experience, every standard contract had provision for it if required by the supervising officer. It appeared that the council had put in the provision and then deleted it. For reasons Mr Bathgate did not know, Mr Taylor had made a decision that in this instance, tying in works were not required. While there might be good reasons for that, Mr Bathgate could not say what those were. He thought that the position that appeared to have been taken by Mr Halliday in his memo 6/18/77 of process, namely that the council should not proceed without carrying out stabilisation work, was the correct position to adopt. It appeared from the memo that Mr Halliday had been aware of the risks and hazards of a mutual wall becoming an exposed gable wall and appeared to be recommending that it be finished properly. The memo appeared to suggest that one resolution would be to demolish the flats at 237-239 North Street at the same time as the first demolition thus avoiding the potential hazard of an exposed mutual wall. In relation to the instruction for the survey for 6/18/78 of process, Mr Bathgate's understanding of what would require to be done to expose the construction of the roof space was that the person inspecting would require to get into the roof space with light, remove bricks and check what condition the wall ties were in. The full photographic record that was instructed would show what was exposed when the bricks were removed. Mr Taylor, although not on site, would be able to assess the situation himself. Mr Bathgate was also asked to comment on no. 6/21 of process, the survey report that was the product of the memo instructing it. He noted there were a number of areas where there was no mechanical bonding of bricks between the mutual wall and the front and rear elevations. As far as the roof space was concerned, there appear to be no photographs taken and the report mentioned nothing about the condition of the wall ties in that space, notwithstanding the instruction to carry out a disruptive survey of all of the areas in question. The report did not appear to be a comprehensive response to the memo instructing because it explained nothing about what tying in, if any, there was in the roof space and there was no information about the apex. Mr Bathgate thought that the recommendations made in the report no. 6/21 of process were essential and should have been followed. In particular, the recommendation to install a tie between the soon to be exposed wall and the front and rear elevation to give it stability was important. The author of the report was recommending this to ensure the ongoing stability of the wall as it would have to withstand forces it did not have to withstand in its previous life. The recommendation in 6/21 included a provision that the apex would be tied back. This was important as there were no existing ties at all in the red brick section of the roof void. So far as the issue of removing the timber safe lintels and filling them in was concerned, Mr Bathgate thought that the original specification indicated that the lintels were to be bricked up. However, the introduction of the idea of infilling with concrete seemed sensible where lintels had rotted and this would be a variation to the specification. It was clear from 6/18/59 that Mr Halliday had decided to import some additional structural stability to the wall by infilling with concrete but that recommendation was overruled. Replacing the timer safe lintels with concrete would have assisted the stability of the wall. However this would not have remedied the problem in the apex. The final instruction appeared to have been to retain the timber safe lintels unless they were rotten. Mr Bathgate considered it was clear that it was the supervising officer that had taken the final decision on all these matters. Mr Gibb's role had been to make appropriate recommendations but these had not been adopted. It was clear from the documentation that some of the council's own officers had concerns about the stability of the mutual division wall. He had seen nothing to indicate that any consideration was given by the council to rebuilding the brickwork in the apex or installing wall ties. On the basis of all the material he had seen, Mr Bathgate was of the opinion that immediately before the collapse the exposed wall was unsafe and a hazard to members of the public. He was unable to comprehend the actions of the defenders in deleting the provision for tying in work other than that there was a reference in one of the papers to them being unable to recover the cost of that. It was simply not good enough for the council to have failed to expose the brickwork in the roof for inspection prior to the demolition. The defenders ought to have left the mutual wall in a state that it would function satisfactorily in windy conditions. In Mr Bathgate's opinion had suitable tying in works carried out, there would not have been a problem with the mutual wall and collapse could have been avoided.

[25] Under cross-examination, Mr Bathgate agreed that it was possible that the winds on the night of the collapse could have blown down a chimney such as that seen in 6/21/1 of process. He accepted that he had not been involved in the demolition of any tenement buildings, that he did not know Mr Taylor and that he was not involved in the construction or demolition of buildings in Glasgow in the 1990s. He agreed that as his career developed, he was involved more as an adjudicator and an advisor on troubled areas of engineering and that he is not personally involved in assessing the suitability of mutual walls as part of his practice. However, he expressed the view that while there were different ways of constructing tenements the system had evolved over time that he was familiar with that. He agreed that there may be examples in Glasgow of walls intended to be mutual but where the next door tenement had never been built. That was not the case with the wall in question here. He agreed that a judgement on structural integrity of a wall would be based on qualifications and expertise on the one hand and experience on the other. He disagreed that experience was the most important part of that judgement. Two people might have the same qualifications but one is a constant risk taker. Where the experienced person of the two is the risk taker one maybe more inclined to rely on the judgement of the less experienced one. As an example, it was now known that experienced people chose not to install fire extinguisher systems in the channel tunnel. When it was put to Mr Bathgate that he had no experience of the construction of tenements, he explained that he was an experienced engineer and had read Mr Lightbody's report. While it would have been helpful for him to have seen the wall himself, he felt able to express the view that if there was evidence that the same wall had been examined by surveyors and engineers and was not thought to be dangerous, then they were wrong in that conclusion. He would disagree with any view expressed by a chartered engineer to the effect that after the first demolition, the newly exposed wall was not dangerous. Mr Bathgate agreed with the suggestion that as so far as the force of the wind was concerned, as the chimney runs from east to west then if the wind was coming from the side of the gable wall where there were still flats and a roof, there would be a reduction of pressure which would pull the wall from the other side. The two forces were not equal. On the issue of tying in, Mr Bathgate agreed that the type of works recommended by Mr Lightbody and accepted by Mr Bathgate would require either a statutory notice or the consent of the relevant neighbours. However when it was put to him that the council had taken away a danger by demolition of the first tenement and had not created a danger by exposing the mutual wall, Mr Bathgate disagreed and said that by removing the first danger the council had created another one. It was suggested that such a view was expressed as an engineer rather than as a building control officer with statutory constraints. In response Mr Bathgate said that Mr Taylor would have been under a duty not to do anything dangerous and that statutory constraints have to be secondary to the danger to the public. It was put to Mr Bathgate that Mr Lightbody had indicated that the wall was not in danger of imminent collapse but of longer term potential collapse after the first demolition. Mr Bathgate disagreed with any such view and indicated that a building control officer must assume that wind and its forces can arise at any time. One would not know whether gale force winds would occur the following day or not for a year. The building required to be left in a safe condition. Had he been asked to inspect the wall in question, he would have concluded that it was unsafe and that work required to be done to it.

[26] In re-examination, Mr Bathgate agreed that a member of the public would have assumed that the exposed wall was safe and that they could be near it. His view was that anyone with engineering knowledge other than perhaps the very newly qualified with no experience would have held the view that this wall was unsafe. It was not a situation where two qualified engineers were likely to have a difference of opinion. There were many pointers suggesting it was dangerous. In relation to the wind on the day of the collapse, it was not in dispute that there had been a 74mph gust over a period of three seconds. When asked whether in those conditions a chimney would have fallen to the ground if appropriate tying in was in place, Mr Bathgate confirmed that it was possible that an area above the apex could have fallen but that tying in the apex would significantly reduce the likelihood of that happening. A significant enhancement of the stability would have been achieved by tying in such that it would move from a high probability of the chimney collapsing where there were no ties to a significant improvement in the prospects of it remaining standing where ties were in place.

Evidence in the defenders' case
[27] William Simpson, a 64 year old quantity surveyor from Glasgow was the first witness called in the defenders' case. Mr Simpson is currently the director of his own company, but during the 1990's was a director with CMI (Contractors) Ltd. He has worked in the construction industry for 48 years, the last 21 of which have been involved with demolition work. He has undertaken demolitions on tenements in Glasgow, Dundee, Edinburgh and Aberdeen. During the 1990's he was project manager on a number of such demolitions. He recalled the contract involving the tenement above the The Koh I Noor Restaurant in Glasgow. He had priced the job and successfully tendered for it. CMI (Contractors) Ltd had been on a list of contractors approved by the council and Mr Simpson had personally worked on a number of contracts with Glasgow City Council. During the course of a project there were sometimes variations to the contact once a structure was opened up and a clearer view could be obtained. The demolition of the tenement above the Koh I Noor required protection to be given to the restaurant because once the roof was off it would be exposed to the elements. A temporary felt roof was constructed. Mr Simpson recalled that an extensive walkway had been created during the demolition from the scaffold on the building to a skip. The roof came off three weeks into the job and after that the floors which had been left in situ were used as working platforms for the men. There was a full time foreman on the job known as Kenny Robertson who was experienced in demolition work. Mr Simpson himself had been on site every couple of days. He recalled that Barry Mallon of the council was a constant presence. He knew of Ian Taylor but he was office based. Mr Simpson recalled bricking up the fireplaces after the adjacent gable had been exposed. He pointed to fireplaces on photographs 6/20/14 of process as examples. He also recalled putting in some galvanized ties, although a company called Parkhead Welding was contracted to do that. Mr Simpson described the project at North Street as "standard demolition". It was only after they had finished the job that the chimney and brickwork had collapsed in high winds.

[28] On being asked what he would have done had he thought that the wall gave rise to danger during the course of his work, Mr Simpson said that he would have evacuated the site and brought it to the attention of the council. Similarly, had he seen checking or bulging in the exposed wall, he would have brought that to the attention of the council too. He said that had he seen loose mortar they would have redone it with sand and cement rather than the limestone mortar which was originally used in such buildings and had less strength. Mr Simpson was aware that sulphate corrosion often took place in buildings of this sort. He thought that the sign of that was a dark shadow in the brickwork when looked at from the outside. He was happy with the job that had been done by the demolition company on the project.

[29] Under cross-examination Mr Simpson explained that as the project developed, he would meet Barry Mallon of the defenders on almost a daily basis, perhaps for an hour each day. He agreed that the council had been effectively both the employer and the client on the job and that there had been no architect involved. Mr Taylor, who had been one of three directors of building control, was the head of operations but it would be very rare for him to attend site. The council personnel Mr Simpson had dealings with, apart from Mr Mallon, were Kerry Crookston, David MacPherson, Mr Halliday, Richard Gibb and Peter Knowlson. They were all experienced building control personnel. The documentation indicating that there had been a provisional sum for tying in the gable of £12,000 which ultimately resulted in the sum of £1,000 being spent was put to Mr Simpson. He agreed the £500 had also been spent on pointing which he thought was a "fair amount". The £1,000 for tying in related purely to the metal bonding and retaining straps. He couldn't recall whether any work at all had been done on the chimney breast of the newly exposed wall by his firm. He agreed that the chimney head shown in photograph 18 of 6/15 looked as if it had been lowered at some point but he didn't think it looked as if that had been done recently. On being shown photograph 17 of 6/15 of process, Mr Simpson disagreed that the brickwork there looked in poor condition from sulphate attack. He agreed that there were cracks but thought that the brickwork looked in not bad condition for a flue. He accepted there were tarry deposits on the flues shown in photographs 16 and 17 but he thought that was normal from 100 years of smoke going up the chimney. Where a flue was badly corroded by sulphate action he thought that the brickwork would be eroded in a way not shown in the photographs. He agreed that photograph 15 showed that there had been movement and that some of the mortar had fallen out, but he could not say whether this was as a result of wear and tear or something that had happened in the collapse. He agreed that if lime mortar had become friable or vulnerable then the bricks would have been more easily dislodged through wind force. Mr Simpson thought that the black areas shown on photograph 14 of 6/15 of process illustrated sulphate attack. If Mr Lightbody had had said that sulphate attack was orange in colour, Mr Simpson t first thought that was wrong. When pressed on the issue, however, Mr Simpson indicated he was unclear exactly how sulphate attack would manifest itself. He agreed that if what was shown in photograph 14 of 6/15 was sulphate attack then that would have been easily observable by someone of experience carryout an inspection prior to the floor in that area being dismantled. He agreed also that it would be easy to inspect the roof space at that stage and that if there was evidence of spalling or sulphate attack it would be seen unless the inspector did not know what they were looking for. Mr Simpson accepted that as he knew little about sulphate attack he would be unable to contradict a surveyor's view that the orange colour on the brickwork was sulphate attack. Mr Simpson agreed that if lime mortar is friable it crumbles when a finger or key is run over it. When it is in that condition it can become more easily dislodged.

[30] In relation to the original provisional sum of £12,000 in the tender for tying in works, Mr Simpson agreed that the works were deleted before he started work and that the decision not to tie in had been taken before his company had arrived on site. He agreed that a better inspection than those that may have been carried out prior to demolition could take place when the building was opened up, including inspections on the issue of the longevity of the mutual wall. Mr Simpson himself had not been involved in any such inspection. No one in his company had been instructed to carry out a disruptive survey on the remaining tenement during the course of the demolition. Mr Simpson agreed that if Mr Taylor had issued an instruction he would carry it out unless what he was being asked to do was objectively dangerous. He confirmed that he had not been interested in the specific construction of the mutual division wall that was left exposed by the demolition. However, he agreed that if one half of a tenement is removed, that has an effect on the ability of the remaining part to withstand wind forces. At the time Mr Simpson had not been concerned for the stability of the gable. He agreed that the stability had to be compromised to some extent by the demolition. He agreed that if there was minimal or non existent tying in between inner and outer leaf of the wall that would give cause for concern. On being shown the memo at 6/18/56 of process where it was recorded that the existing ties on the wall either did not exist or were "to say the least inadequate" Mr Simpson agreed that in such a situation one would consider using the £12,000 provision for tying in, particularly if one added to that scenario the existence of sulphate attack and consequent friable mortar. In a situation where the contracts section of building control seemed to be recommending that the job should not go ahead without tying in, Mr Simpson thought that the only basis for going ahead without following that recommendation was if someone was satisfied that the wall was safe. His company, however, simply acted on instructions. Had he been the decision maker reviewing the information that the ties were inadequate, he would have gone ahead with the more expensive tying in job. That would increase the strength of the wall such that it had improved resistance to wind loading.

[31] In re-examination Mr Simpson agreed that a provisional sum such as the £12,000 for tying in seen in the original contract in this case was an allowance to cover an eventuality. The work would only be carried out if specifically instructed. He confirmed that he had never heard anyone saying in the course of his work that he should look for orange discolouration during demolition. He would look at joints between bricks and the distress in the brickwork itself. He thought that the wall in the roof space of the building adjacent to the tenement being demolished was not in a pristine condition but would not be described as deplorable. On being shown photograph 18 of 6/15 of process which showed the other side of the apex of the roof in question, Mr Simpson reiterated that this seemed to have been lowered as it did not have a stone coat and had been rendered. It looked like it had been lowered and capped but not within a matter of weeks prior to November 1996, almost certainly some years prior to that. In relation to photographs of the collapsed brickwork, Mr Simpson estimated that about 20% was lost in the incident and that the roof remained 80% intact. In relation to the description given by Mr Lightbody to photograph 15 of 6/15 of Process namely that it showed "crumbling mortar joints and broken flue bridges to chimney", Mr Simpson disagreed to the extend that he thought that the flue bridges looked reasonably intact although one could see that there had been movement in the brickwork above. He personally would not have been concerned about the tarry deposits shown in photograph 16 of 6/15. There was nothing particularly about the state of the wall that would have given him concern prior to the collapse. On the hypothesis that there was a lack of bonding between the front and rear elevations of the tenement being left, Mr Simpson agreed that the insertion of a steel box would help and that the elevations had ended up being bonded by steel in this contract. Mr Simpson agreed that if Mr Taylor had chosen not to have accepted the recommendation to spend £12,000 on tying in, he would have expected him to have a good reason for that.

[32] Barry Mallon was also called in the defenders' case. Mr Mallon is now 47 years old and is employed within City Property, Glasgow LLP which is a Limited Liability Partnership owned by Glasgow City Council. He is the principal surveyor with responsibility for the contracts and maintenance side. He holds a BSc in Building and is a member of The Royal Institute of Chartered Surveyors. He is a team leader for demolitions and is now the most senior employee in that field with the council. He worked directly with the council for 22 years and has been within the LLP that is formally an arm's length organisation but owned by the council for about a year. In 1996 he was employed as a building surveyor in the planning and development department of the council. Building Control was part of that department and there were two groups within building control namely the operational side that dealt with building warrants and serving notices and the contract side in which the building surveyors with specialist knowledge were employed. They dealt with all demolition work. So far as the system for section 13 notices was concerned, at some point a building would be highlighted to building control. If the concerns were serious and no action had been taken by the owners then the contract side would be asked to become involved in a demolition. At the time of the demolition in North Street, Mr Mallon had been a relatively junior surveyor. Only about 10% of the work he was involved in at that time involved section 13 notices. In such contracts the "client" was regarded as the operational side of building control and the contracts group carried the work out as if it was a private commission. The operations side followed what they regarded was the "letter of the law". In order for them to take action the building had to be dangerous in terms of public safety. Mr Mallon's first involvement with the property at 229 North Street was the preparation of the tender document for which he required to survey the building. On being shown the memo to Mr Knowlson from Mr Halliday, number 6/18/77 of process, Mr Mallon confirmed that Peter Knowlson was the group manager and Mr Halliday was the divisional officer for contracts. Mr Mallon reported direct to Mr Halliday. He specifically recalled a concern about the gable wall becoming exposed after the first demolition. He was aware that as the statutory notice related only to numbers 229 - 235 North Street, the council had no permission to enter the adjacent building. Mr Mallon thought that what was suggested by the memo was that minimal holding works would be carried out after the first stage of demolition. To some extent that is what occurred. With reference to the memo from Mr Halliday to Mr Mallon of 23 April 1996 number 6/18/78 of process, Mr Mallon confirmed that this was an instruction to him to carryout a survey. The memo recorded a meeting between Mr Gibb and Mr Halliday. Mr Gibb was the assistant director of building control and reported direct to Mr Taylor. Mr Gibb was Mr Halliday's boss's boss. Mr Mallon understood that a disruptive survey of the mutual separating wall from the 229/235 North Street side only had been required. This involved him in going behind the plasterwork in each area to see what was behind it. The requirement to expose the six areas listed in the memo required these areas to be opened up. For example each corner of the separating wall required to be so exposed. Following the investigation he had been instructed to carry out, Mr Mallon had prepared the report entitled "Mutual Wall Survey Report" at number 6/21 of process. Attention was drawn to page 5 of that report where Mr Mallon had drawn the inspection locations on the first, second and third floor, numbering these 1 through to 9. So far as the roof space was concerned, he had not understood that exposure was necessary and had inspected it from just one side. Exposure would have created a hole. In relation to the walls that were exposed, the actual work in taking off the linings and so on had been carried out by a contractor. A full photographic record of the inspection had been taken because Mr Taylor had wanted to see the results of the survey himself.

[33] So far as the budget relating to the gable stabilisation work was concerned, Mr Mallon recalled that there had been a lot of debate between the contract side and the operational side about this. The contracts team wanted works to be carried out to what would become the exposed wall prior to demolition. In contrast the operations team felt there was no justification to serve a notice to demolish the other side and that in consequence there was no justification to carry out the tying in work. The decision as to what should happen lay with Mr Taylor. Mr Mallon was not privy to all the meetings. For the original tendering process Mr Mallon had been instructed to put in a provisional sum of £12,500 to allow for repair work to the gable. This was a mechanism for making the money available so that when they went to the relevant council committee with costings, provision up to a certain sum for those works would be approved. Mr Mallon recalled that there was a debate about whether or not the £12,000 allowance for gable stabilisation works was to be included in the tender documents. The survey that led to the report number 6/20/21 of process had been carried out by Mr Mallon together with a more junior surveyor, a Mr McLean. So far as the ground floor was concerned, because the restaurant was still trading, it was felt that the proprietor would have been happy with a disruptive survey and in any event the ground floor was not at risk of imminent collapse. It was not opened up and Mr Mallon and Mr McLean simply had a look at it. The areas that were opened up were on the first floor, second floor and the third floor as per the numbering on page 5 of his report. Mr Mallon spoke to all of the photographs that accompanied the report. He considered these supported the findings made in his report. The areas that had not been exposed included the rear kitchen on the third floor of the building which was covered with pigeon droppings and was unpleasant. So far as the absence of photographs of the roof space was concerned, Mr Mallon explained that knowing the condition of the building he would not have attempted entering the loft space. He knew there would be pigeon droppings given that they were in the room below. He would have put a ladder through the loft hatch and either himself of Mr McLean will have climbed up to have a look. He was unable to remember which surveyor had done so. In order to have made the comment in his report that the bricks and mortar in the roof space were in a fair condition, he thought that either himself or Mr McLean must have seen it at least from a distance. It would have been dark in the roof space and they would have shone a torch inside. Mr Mallon confirmed that he had discussed the recommendations made in his report number 6/21 of process direct with Mr Halliday. He had recommended that prior to demolition of 229-235 North Street, the following works be carried out:

(1) Stripping of all plaster and finishes to the mutual wall to expose brickwork.

(2) Removal of all timber lintels and bricking up of all openings in solid brick.

(3) Tying back of the mutual wall to the flooring or walls of the adjacent property to enable the wall to meet its requirements as a new gable wall.

(4) Providing ties where the wall met the rear and front elevations. This fourth requirement would be met by inserting steel into the wall at the rear and front elevations.

Mr Mallon had also recommended that a protective waterproof covering be given to the new gable after demolition. He confirmed that the absence of a diagram of the loft space on the page noting the inspection locations was explained by his not having entered that space. He accepted that it might be said that he and Mr McLean could have instructed that more holes be put in the flues for inspection. He specifically accepted that he and his colleague had failed to carry out the instruction in sub paragraph (f) of the memo from Mr Halliday namely to expose the roof space to determine the condition and construction of the apex brickwork between properties. However, he felt that no one would have expected he and his college to enter the roof space in the condition it was. He accepted that they could have cut more holes in the walls to establish the chimney system. No further disruptive work was carried out after his report was submitted.

[34] Mr Mallon could not recall specifically how often he had visited the site once work had commenced but he thought that it would be at least twice a week. As every level of the building became exposed, he and colleagues had looked at the gable wall. As the plaster was stripped off the wall they had a better view of what would become the newly exposed gable. A scaffold had been erected to the front and the back of the building and this gave safe access so that as the work progressed the gable could be examined. There was never a working platform at the height of the attic, although there was a bridge between the two scaffolds to form a gantry. The gantry gave a working platform at each level which allowed each length of the wall to be walked. Mr Mallon indicated that although he was not concerned about the general structural integrity of the wall as the work progressed he did have a concern about its capacity to withstand wind loads because it had not been intended as an outside wall when it was built. On the issue of sulphate attack, Mr Mallon did not proclaim to be an expert but had some knowledge that when sulphates get into mortar it can expand, putting additional pressure on the brick which then crumbles and erodes. He knew to look for crumbling brickwork in flues. If he found an area he was concerned about in that way he would refer to the engineers. He had no note of crumbling brickwork in the newly exposed gable. A number of personnel from building control had visited the site. They would all have had sight of the report that Mr Mallon had prepared. Mr Mallon thought that the most important aspect of a job such as that undertaken in 1996 was the health and safety of the operatives. Reference was made again to the £12,000 allowance within the original tender for work to the gable. Authority was given for that by the council committee as confirmed in a letter of 3 June 1996 (number 6/18/75) where the relevant council committee authorised a total sum of £89,964.60 for the project which included the £12,000 provision. CMI (Contractors) Ltd had been the cheapest of the competitive quotes. However, on 19 June 1996, Mr Mallon had signed an instruction to the demolition contractors that the provisional sum for tying in works was to be deleted in its entirety and that those works were not to progress. In relation to the memo from Mr Crookston to Mr MacPherson of 23 July 1996 (number 6/18/72 of process), Mr Mallon recalled that this related to an issue about whether or not to remove timber safe lintels if they were structurally sound. Mr Crookston was suggesting that these should not be removed where they were structurally sound as this would avoid unnecessary disturbance to the wall, but where they were rotten they would be cut out and replaced with concrete lintels. Mr Mallon thought it might have been an error on his part in the original documentation to suggest all timber safe lintels would be removed as that would not be normal if they were not rotten. He confirmed that what then occurred was that on 23 July 1996 a memo was sent by Mr Crookston to Mr MacPherson following a further discussion with Mr Halliday and Mr Mallon where it was recorded that several of the timber safe lintels were in fact rotten and would require to be replaced. As the new concrete lintels that would be inserted would enhance the structure stability of the wall, a view was expressed that all the timber safe lintels should in fact be removed as per the original contract. This was all recorded in a file note of 23 July 1996 number 6/18/64 of process. Shortly thereafter, however, Mr MacPherson, the head of operations, instructed Mr Crookston, the contracts manager, that not withstanding the view expressed the timber lintels were to be left intact. Mr Mallon recalled that the concern in the contracts team had been the inadequate tying in of the gable wall. Accordingly, as replacing the timber safe lintels with concrete which could be appropriately tied in would to some extent assist with that inadequacy they were firmly of the view it should be carried out. This was reflected in Mr Gibb's memo to Mr MacPherson of 25 July 1996 (number 6/18/56). However Mr MacPherson of operations who had the role of considering the council's responsibilities under the Building (Scotland) Act had taken the view that the wall was not dangerous and that the timber lintels were serving a function. Mr MacPherson had taken the final decision. In relation to the issue of what tying in was, Mr Mallon explained that fish tail ties are brick ties which are double ended prongs tying in the mutual wall. There were effectively none present in the wall concerned. So far as bridging of the flues were concerned, there were 16 flues in the building and the wall between each flue acted as a bridge. By the time of the decision in relation to the timber safe lintels, the contractors had completed the removal of about one third of the structure. Certainly the roof had been taken off and possibly one floor. Ultimately what happened was that some timber safe lintels that were rotten were replaced with a Robeslea lintel. These were pre-cast concrete lintels.

[35] Mr Mallon was then asked about some monitoring work that was carried out after the demolition. In particular a firm called Masons quoted for work to attach targets to the gable wall. These were used as datum points but very few results were obtained.

[36] So far as a memo from Mr Halliday to Mr MacPherson of 2 September 1996, was concerned, this related to a problem of a bulge in the wall at the rear elevation between the back of the building and the window. The cavity between the two leaves had filled with rubble, causing the bulge. As a result it was proving difficult to leave a satisfactory stable corner. Additional rear window nib works were accordingly carried out. These are specified at number 6/18/36 of process, a specification prepared by Mr Mallon. As part of those works, galvanised fish tail type ties were to be fixed between the leaves of stones work at every external course level. This was to tie the internal leaf to the external leaf of the rear elevation wall but not to the gable wall. The extent of connection with the gable wall was that three Batt straps which were pieces of steel were installed. No similar mechanism was fixed to the front elevation wall. The purpose of the steel straps was to tighten up the area of the bulge and make it safe in that particular area.

[37] Mr Mallon had met Mr Rae, the now deceased architect, on two or three occasions. He knew that he was acting on behalf of the Koh I Noor Restaurant. He recollected that Mr Rae's involvement was in connection with the replacement roof over the Koh I Noor. He had no information about any inspection work carried out by Mr Rae. In relation to a memo of 1 August 1996 (number 6/18/23) relating to a chimney head, Mr Mallon confirmed that the chimney head referred to in that memo was that of the opposite gable to the one that partially collapsed. No work at all had been carried out to the chimney that ultimately fell. On the issue of tying in, Mr Mallon explained that when a tenement is taken down it leaves a large exposed gable which would act like a sail in the wind, thus it had to be pulled back. The usual mechanism for doing so was to use the roof structure and the floor matrix. Steel work would be applied to the external of the gable and steel rods to either the roof structure of the floor matrix or usually to both, for the entire length of the gable. However, this work would require a section 13 notice and the question of whether or not a notice was to be served was a decision for the operations team. Mr Mallon had given the initial report in relation to his concerns and recommending tying in. The operational side had decided that despite his report they would not serve a further notice. Mr Mallon thought that the council should not walk away without tying in works being carried out but he understood that the operations team felt that they could not do so without a section 13 notice. He was made aware that the owners had been written to, advising them that there were concerns. Mr Mallon's view that tying in works should be carried out was shared by Mr Gibb, Mr Cruickston, Mr Halliday and Mr MacLean. He recalled that leading up to the ultimate decision he and his colleagues did challenge the operations team on this issue but when the application of the legislation was put to them, they accepted that it was not dangerous as such which they were told was the test.

[38] Under cross-examination Mr Mallon confirmed that during the last year or so he has only spent about 10 to 15 per cent of his time in demolition. Prior to that it was up to 80 per cent but the need for demolition at the instigation of the council dropped with the development of housing association properties. Mr Mallon is not, and never has been, involved in taking the decision about whether or not to serve statutory notices in relation to buildings. Mr Mallon did not profess any expertise in the interpretation of the buildings legislation. However, he was aware that building control frequently applied the test of "imminent danger". When it was put to him that the legislation referred to a building being dangerous rather than in imminent danger, Mr Mallon's view was that building control would tend to use the word imminent, to refer to a building that was dangerous at the present time rather than the one that might be dangerous in the short term future. In relation to the wall in question, Mr Mallon did not accept that he was persuaded that the tying in works did not need to be done. He was simply told that the work could not be done in terms of the regulations. He was of the opinion that the works were still required. The wall in question was never intended to be a gable, and there was no meaningful tying in of the type he had recommended. He was unaware of whether there were ties in

the roof space and accepted there might have been none at all. The comments in his report number 6/21 of process reflected his concern that this wall was designed as a mutual wall and would be exposed following the demolition. It was not so much that Mr Mallon regarded the wall as unsafe if it was not tied in, but he thought that it should be so that the wall would last the life of the building. When asked how a wind load affected a wall that was not tied in, Mr Mallon said that if the wind was strong enough then the effect would be that the wall could move. He also agreed that where mortar was friable as a result of sulphate attack, this would increase the risk of collapse. He agreed that in the circumstances of there being no tying in in the apex and friable pointing and brick work in poor condition there had been a high risk of movement in high winds. In relation to the monitoring that was put in place before the council left the site, Mr Mallon confirmed that there had been no results at all when they left and at the time of the collapse there had only been one or two readings. Accordingly, he accepted that he had walked off site with no monitoring results and being unaware of whether there were ties in the apex. He accepted that no holes had been cut or flues examined in the apex and he accepted that no disruptive survey of the apex had effectively been carried out. Mr Mallon did not accept that it was a mistake not to carry out such a disruptive survey because at the time he thought there would be tying in, in accordance with his recommendations. He accepted that Mr Taylor had nothing concrete in the report in relation to the condition of the roof space. He was unaware of any other reports being made after the one he had submitted. Mr Mallon's understanding of why Mr Taylor had asked for photographs following the inspection was so that he could make a judgment, albeit a more limited one, from looking at them. He thought that Mr Taylor might in any event be visiting this site at a later date. The primary purpose of Mr Mallon's report was to report to Mr Gibb on the condition of the wall. When asked whether he knew in carrying out the survey that a decision would be taken on the basis of his recommendations about whether tying in works would be deleted from the contract or not, Mr Mallon accepted that he was so aware. He knew that his report would be put to Mr Taylor who would be making a decision on the matter. When asked whether there was any reason why he had not qualified his report by highlighting the limited nature of his inspection of the roof, Mr Mallon said that the report was intended to be a serious of bullet points was an internal document rather than a full survey report. However, he accepted that it would have been useful for Mr Taylor to know that he had not fully carried out the detailed instruction so far as the roof space was concerned. He accepted it would have been open for him to record the limited nature of his inspection and to suggest further inspection of that area. Again however, Mr Mallon had expected his recommendations to be carried out and irrespective of what would have been found in the roof space he was clear that tying in of all areas was required. In relation to the various exchanges between the contract side and the operations side, in particular the reference to the integrity of the wall without stabilisation works being in doubt, Mr Mallon had been in agreement that without an allowance for tying in works the demolition work should not proceed. He agreed that there should have been a decision to design and execute stabilization works before work started. David Halliday shared his view and he thought Mr Gibb was of a similar mind. Mr Mallon thought that operations had attended the site after his report although he had seen no notes or paperwork in relation to that. He did recall one visit by Mr MacPherson who was a particularly senior member of operations and he recalled being nervous in his presence. That visit had been at a time when the issue of removing the timber safe lintels was being discussed. His visit did not relate to any roof inspection. Mr Mallon was clear that he agreed with the comments made by Mr Gibb in relation to him being unable to guarantee the wall's stability and the recommendation that anything that would improve at tying in such as filling in the lintels with concrete was a good idea. The contracts team were unhappy with the decision to delete the tying in works generally. On the issue of sulphate attack, Mr Mallon said that while he would recognise the consequences of sulphate attack in terms of its effect on mortar and brickwork he was unaware of any colour that illustrated that sulphate attack had occurred. He knew that sulphate attack often occurred in damp chimneys and where any flue was exposed to the environment. On being shown number 6/20/14 of process, a photograph of the exposed wall, Mr Mallon agreed that it was only the bricks that were still red in colour that were affected by the collapse. Those bricks would never have been plastered in contrast with the lighter coloured brick in the floors below which had plaster removed from them. Mr Mallon was not in a position to disagree with Mr Lightbody's view that there was widespread expansion, erosion and early spalling in the brickwork in the roof void. He agreed that it was not unusual for lime based mortar to become loose. He did not think that the brickwork in the roof space could have been re-pointed, although had he seen what was outlined by Mr Lightbody in paragraph 2.03 of his report he might have accepted that some localised areas should be rebuilt. Mr Mallon would not have been able to see the inside leaf of the brickwork which appeared to be where the widespread expansion and crumbling was. Photograph number 14 of the report number 6/15 of process was put to Mr Mallon who indicated that if this was the external leaf of the flue it would not concern him other than in terms of its inability to be a weathering gable. He was not aware that the sulphate attack manifested itself in orange discolouration in the brickwork. Mr Mallon accepted that if the mortar in the brickwork in the apex was friable it would be easier to dislodge in high winds there would be a domino effect leading to collapse. When put to him that a situation where the apex had no ties and poor brickwork represented a building that could be a danger to the Koh I Noor Mr Mallon said that he thought that the possibility of a wall collapsing was not a danger.

[39] Mr Mallon accepted that the decision to delete the provision for funding for tying in works in May 1996 took the ability to use the sum involved out of the contract. However, the council having approved the provision for tying in works, the matter would not have required to go back to committee but only to the operations department. When shown 6/18/12 of process, where in the final account £1,000 appears to have been spent on the gable, Mr Mallon confirmed that at some point he must have been given authority to use that amount. He had a recollection of discussions in relation to whether or not he was allowed to do the tying in works but he did not think there was any paperwork in connection with that. He thought that the £1,000 may have been spent on the batt straps but these were not tying in works, they simply stopped the stone of the front elevation coming away. Mr Mallon specifically recalled a meeting at which Mr Taylor had been present in May 1996 where those from the contract section were arguing the tying in works should be carried out. In response Mr Taylor had said that the building did not present a danger and so there was no authority for a section 13 notice. At that meeting, Mr Mallon's report number 6/21 of process was discussed. He had no recollection of informing Mr Taylor that there had been no disruptive survey of the roof any only a very limited inspection of it. As he understood it, Mr Taylor's decision that the tying in works were not to be carried out was based on their being no "imminent danger" from what was to be the newly exposed mutual wall. Mr Mallon thought that he had not been asked for his advice on whether there was a danger as he would have recollected that. He said that after the works were carried out the proposed monitoring gave him comfort in relation to the stability of the gable wall albeit that none took place. Also the building was the responsibility of the owners and according to Mr Mallon they were told it was defective and it was up to them to initiate action. He accepted that the purpose behind the council carrying out work under section 13 was to move from a dangerous building situation to one that was not dangerous. Stabilisation works might be required to fulfil that statutory obligation. Mr Mallon also accepted that a letter to some of the proprietors (No 6/14/22) did not indicate that there was any such problem with the building that was being left and none of the owners in question had been told that tying in works had been recommended but not carried out. The responsibility for not conveying that information would have lain with the operational side. Mr Mallon thought that a letter had been sent by Mr Crookston to the owners indicating that they had responsibility for looking after the building after demolition of the adjacent tenement. While Mr Mallon was concerned that there had been no tying in of the wall, again he said he did not consider that to be a danger. He accepted that there was no letter actually warning proprietors that they should consider carrying out stabilisation works to the gable wall. He accepted it might have been sensible to have given that notice, although he thought the owners could have sought their own professional advice. So far as the suggestion that had been made to Mr Tahir that he was under some planning requirement after the work, Mr Mallon thought that the only planning requirement on K2 Restaurants was in relation to the intention to put a pitched roof over the Restaurant, not in relation to the exposed wall. He could not explain why the letter at 6/13/1 of process referred to a planning requirement for treatment works as he had been unaware of it. Mr Mallon accepted that the letters that had been sent to K2 Restaurants had been sent prior to the demolition works and the owners could not be expected to take comfort from them so far as the stability of the gable wall was concerned. He accepted that the pursuers ought reasonably to have been waiting for further correspondence after the demolition works. He thought that the pursuers would have received a letter from the defenders' about continuing works that would have to be done to maintain and repair the newly exposed gable wall and advising them to seek professional advice. He thought that such a letter would have been sent although he accepted that he could not point to any such document. He could not recall specifically whether such a letter, if sent, said anything about carrying out stabilisation works as such. Mr Mallon thought that the council had left the building in question in condition where it was not unstable but did require further works to be carried out to it. An engineer would require to advise on what particular work was required to tie in the building and to repair the brickwork and pointing. He thought that work would have to be carried out relatively soon after at the demolition. The responsibility for advising the owners such as K2 Restaurants that such work had to be carried out lay with the operational side of building control. Mr Mallon accepted that he had been unhappy with the decision not to tie in the wall contrary to his own recommendations. The practice in such a situation at the time was that the council would tell the owners that further works were required and that they should take their own advice but again, he accepted that no such letter had been produced. Mr Mallon did not know whether Mr Taylor had ever visited the site. He accepted that the consequences to a member of the public would be the same regardless of whether the danger was an "imminent danger" or one where work required to be done because the wall might be unable to sustain the impact of high winds. In relation to the memo number 6/18/77 Mr Mallon recollected that Mr Knowlson's view had been that minimal holding works should be carried out to the tenement at 229-235 North Street and then an additional notice served so that both tenements could be demolished at the same time. The problems with the mutual wall that would be left if only one tenement was demolished had been identified at that time. Mr Mallon was unable to explain why the survey report that he had prepared, number 6/21 of process, had not been produced or its existence admitted until shortly before proof. He had not been involved in the legal process. Reverting to the issue of the Batt straps, Mr Mallon reiterated that these were a temporary holding measure and had not been intended to be a permanent solution. They had only been fitted on the rear elevation.

[40] In re-examination Mr Mallon confirmed that he knew Mr Taylor's background was that he was a chartered building surveyor. So far as the proposed monitoring of the wall left after the first demolition was concerned, Mr Mallon said that he expected seasonal movement in the wall but not immediate lateral movement. He was shown correspondence number 6/18/30 and 6/18/31 of process. This was correspondence between Mr Equi and the council in October 1996. Mr Equi, the neighbouring proprietor was requesting that a section 13 notice be served on the remaining tenement due to its derelict state. The council had responded by indicating that although the building was in a state of disrepair, did not warrant a section 13 notice. Mr Mallon thought that Mr Equi was aware of the condition of the tenement in question.

[41] Evidence was also given in the defenders case by Alan McCulloch, a 58 year old consulting engineer from Glasgow. Mr McCulloch is a member of the Institute of Civil Engineers and has his own practice which is involved mainly in engineering aspects of building projects and repairs to new buildings. He was first consulted by the defenders in connection with this case during the week prior to his giving evidence. He had some experience of tenemental buildings and had been involved in several projects of partial demolition. He was familiar with section 13 notices and had been involved in drawing up schemes for the safety of personnel and the public in that context. However, he had no experience of situations where an internal wall had become an external gable as a result of a partial demolition. He thought that in such a situation the issue of stability would require to be assessed. The wall would require to be inspected and a judgment call made. He disagreed with Mr Bathgate's suggestion that it was "inherently dangerous" to remove one side of a mutual wall. He thought there were examples of such walls which had been built with the intention of being a mutual wall but where the adjacent tenement was never built and that these had stood for over a hundred years. He was aware that there were issues in terms of the cost of attaching steel bracing to two walls and questions of ownership involving consent or a statutory process.

[42] Mr McCulloch was shown the photographs appended to Mr Lightbody's report number 6/15 of process. When shown photograph 2 he thought that the wall looked like a typical tenemental construction. Photograph 8 illustrated a brick lined chimney with each flue being separated by a brick bridge. He appeared to have no concerns about any of the brickwork on photographs 12, 13 and 14. Mr McCulloch said he had never seen sulphate attack on a wall of that type. He was not an expert in such matters but thought that quite a bit of water was needed and that sulphate didn't attack bricks but attacked products such as cement resulting in expansion. He couldn't see evidence of that in the photographs. He had looked at almost 200 walls during the course of his work. In looking for sulphate attack he would be looking for expansion and open joints. He thought that sulphate attack would be green or perhaps the colour of sulphur yellow but he did not know enough about it to be sure. He was not surprised that a demolition contractor might not have not known what colour to look for in the brickwork where there was sulphur attack. He thought that the condition of the mortar and the tar and soot level on photographs 15 and 16 looked fairly normal. He was unable to see expanded mortar joints in photograph 17. He had no particular concerns about the mortar joints in photographs 19 or 20. He was shown the Met Office report number 7/6 of process which was agreed in terms of the joint minute. The wind on 6 November 1996 had reached 74 knots/83 miles per hour. It was the sixth highest wind in the area in 32 years. A wind speed of over 70 knots or 81 miles per hour could cause structural damage to some buildings. As the gable wall in question faced south, Mr McCulloch thought the alignment of the chimney head would be east/west. On being shown photograph 11 appended to Mr Lightbody's report, Mr McCulloch thought it odd that the gap between the sarking and the brickwork was so similar to that where the coping stones were in that it was unusual for such a wall to move outward. He wondered whether the wall in the roof had a gap between them and the timber sarking. He would want to investigate whether the coping stones had moved independently of the wall. He explained that the bottom cope stone usually has a raking position in that it stops the others sliding down the slope. On being shown 6/20/14 of process Mr McCulloch thought that the cope stones had moved independently of the walls. He agreed that the terms of a letter sent by Mr Equi to the council on 3 October 1996 number 6/18/30 of process which indicated that the coping stones at roof level appeared to be loose, was consistent with them having already moved prior to the collapse. In relation to the steps that ought to be taken to an exposed wall following demolition, Mr McCulloch agreed that one should consider weatherproofing the wall if one was improving the building but he considered that the purpose of a section 13 notice was not to improve the building which was the responsibility of the owners. He agreed that mortar can be weakened by exposure although it was not always the case. He would not expect the council to tell owners what to do in relation to the building that remained. He would expect them to be referred to a surveyor or engineer. In relation to Mr Lightbody's comment that he had found the mortar joints of the brickwork in the roof void to be suffering from expansion as a result of sulphate attack, Mr McCulloch disagreed. He thought the photographs didn't show the damage he would have expected to confirm that opinion. He had seen nothing to give him any cause for concern that the exposed wall was structurally infirm. He re-iterated that he was not an expert in sulphate attack which is a complex reaction known as "concrete cancer". The consequence of such an attack is that the concrete or mortar becomes very soft, almost like porridge.

[43] Mr McCulloch had been involved in a project where the rear elevation to a building had a bulge but no evidence of movement. It was monitored for a year and as the extent of the bulge led to a concern about the structural stability it was shored up to hold the bulge back. The owners of the building had paid for a survey to be carried out to build up a picture of the crack pattern showing the extent of the bulge. Mr McCulloch thought that in a case such as the present one monitoring would be carried out. In relation to the cause of the collapse, Mr McCulloch thought that one couldn't be definitive. In his view it was likely that the wind took the chimney off. One of the things that helps a vertical load is that the more bricks, the more stable a structure would be. The one exception to that was where there was already a bulge. Mr McCulloch had met Ian Taylor when he was working on the job with the bulging wall. He recalled having to persuade Mr Taylor about the funding of the rectification work required.

[44] Under cross-examination Mr McCulloch confirmed that it had been in 1996 when he had met Mr Taylor. Since that time he had not carried out work for Glasgow City Council directly but had worked for many owners and property managers who worked for or had contracts with the council. Mr McCulloch's business is on an approved list of engineers with Glasgow City Council and had been selected for a number of jobs as a result although that number was very small in relation to the turnover of the business, as low as 1%. Mr McCulloch is the only qualified engineer in his business which has four employees. He reiterated that he had never dealt with a situation where a mutual division wall became an external gable. When shown number 6/13/3 of process, Mr Equi's letter that related to numbers 239/243 North Street, Mr McCulloch was unable to relate that to any part of the building in question. He found the different addresses confusing and had simply been told that the photographs he had been shown were the gable in question. It was put to Mr McCulloch that so far as the state of disrepair of the tenements above the Koh I Noor was concerned it was likely that there had been a problem with water and that sulphate attack was likely. Mr McCulloch agreed that a derelict building would be worse in relation to water penetration and possible subsequent sulphate attack. Mr McCulloch had been under the impression that there were photographs of inside the roof space, although he accepted that there were no photographs of the roof space in 239-243 North Street. On being shown the letter from the architect Mr Rae, number 6/12/8-9, Mr McCulloch accepted that it was reasonable to be concerned where mutual wall was becoming a gable wall and inspection would be required as one-half of the tenement was disappearing. Mr McCulloch had not been advised that both tenements in question had been largely unoccupied for years prior to the demolition. In relation to the need to inspect, it was accepted that this would be to assess the stability of the wall, but Mr McCulloch would be concerned about structural stability both in relation to a mutual wall or in relation to a gable wall. He thought that a mutual wall would have the same ties or lack of ties as a gable wall. He thought that both a mutual gable and an end gable would be distinguished from a mutual division wall which was not prepared for later extension. When an end gable with 600 millimetres stone and quoins was compared with an internal wall constructed of bricks with no bonding to the front and rear elevations Mr McCulloch said that each wall would have to be inspected and assessed and it was primarily the condition of the wall that made a difference. He would certainly treat a wall with two leaves of brick and horizontal spine walls more carefully because they were never supported. Mr McCulloch confirmed that the opinions he was giving were based on what he had seen in the Graham & Sibbald report and a report by Scott & Wilson, Engineers and that he had not had sight of any of the council memoranda. When shown the concerns expressed in the memo 6/17/77 of process about the integrity of the newly exposed wall and the recommendation that works should not proceed without provision for stabilisation works being carried out, Mr McCulloch said that he interpreted that as a recommendation the budget allowances should be made for tying in works not that they be carried out. He agreed that such provision could be an important element of the project as otherwise the work would have to stop while an increase in the budget sought. Looking at the memo, number 6/18/78 of process dated 23 April 1996 where Mr Halliday instructed the disruptive survey of the mutual separating wall, Mr McCulloch agreed that they would be looking for a check on deterioration of the wall and movement. But it might be that Mr Halliday was trying to justify the cost of the proposed stabilisation works. Mr McCulloch was not usually in a position to strip walls inside people's homes and would normally simply inspect a gable. The instruction in the memo required the removal of the finishes by exposure of the brickwork. He agreed that the instruction under sub-paragraph (e) was one to expose the chimney stack situated above the roof. He thought this could be done by taking the chimney pots off and shining a torch down but one would also want to check the flue bridges. One would require to go up a scaffold and look down the chimney for that inspection. So far as the inspection of the roof space required by sub-paragraph (f) was concerned, the surveyor should inspect the condition of the mortar using a screwdriver or keys and to check the bridges where one could see the end of a brick to check how many ties there were. That would tell you something about structural stability. Where two leaves were tied together with brickwork, this formed a diaphragm which would be strong but the bridges could fail. One would want to check for that. However, to access the chimney it could cost up to £15,000 in scaffolding which is why an allowance would be put in the budget for tying in. Inspection could also take place after the demolition from a working platform. An engineer wouldn't always inspect in such a situation, only if "alarm bells were ringing". It seemed that Mr Taylor was the man taking the ultimate decisions on the project and that he would trust his officials to report to him without having to visit the site himself. Mr McCulloch agreed that you would not want such a decision-maker having an incomplete understanding of the facts before making his decisions but he was not surprised to hear that all that was done was sub-paragraph (e) and (f) of the instruction was that the surveyor put his head through the entrance to the roof space and shone a torch through. He thought that if the surveyor had been instructed to carry out a disruptive survey in (e) and (f) of the memo then it should have been carried out. If Mr Taylor had not been told that these had not been carried out then he would be taking decisions on incomplete information. Mr McCulloch was shown the survey report (which he had not seen previously) of Mr Mallon number 6/21 of process and asked to comment on various matters. He agreed that the recommendations in the report seemed reasonable and had he been making the decision he would have assumed that the team had done their analysis and he would have recommended that the tying in on other works be included in the costs of the project. While he didn't feel he had sufficient evidence to express a firm view, on the basis of what was in the report in relation to a lack of tying in, he agreed that the recommendation to insert ties was a good idea and that he would also have recommended that had he personally made the findings that were in the report. Taking the material shown to him into account he could see no logical argument for deleting the tying in works as a provisional sum. He would have left it in. He agreed that tying in the building would be safer in public safety terms than not doing so. He agreed that the fact that the demolished part of the building had been immediately above a restaurant would be an important consideration in considering what steps to take in relation to the exposed wall. However, he said that in a section 13 situation he would tie the front and rear elevation to the wall but not to the floor. He thought that would be acting in his clients interests. Had he discovered that there had been no inspection of the chimney stack he would have sent the surveyors back in. In relation to the memo from Mr Gibb in the contract section to Mr Macpherson on the operation side of 25 July 1996, number 6/18/56 of process, Mr McCulloch agreed that replacing timber safe lintels with concrete lintels would assist with the tying in of the wall. However, inserting concrete lintels above doors with no bond to the wall would not assist with tying in and would be something different to what is being suggested in the memo. While Mr McCulloch could see that the lack of tying in of the wall was a worry for the author of the memo, as a consulting engineer had he been on the project he would advise the client of his options but didn't think there was that ability under a section 13 notice. He agreed that the front elevation of the wall was cracked but he would want to establish the reason for that. He thought one could never guarantee the stability of such a wall but that an opinion could be expressed on full inspection. Mr McCulloch accepted that while a section 13 notice was not intended to improve a building its purpose could not be to get rid of one danger and create another or to leave a dangerous situation behind. He was prepared to accept that Mr Lightbody had the advantage of having inspected the building at the time and that all he could do was try and interpret photographs taken by someone else. On the expansion and spalling found by Mr Lightbody, Mr McCulloch commented that he did not know enough about the effects of sulphate attack on lime mortar because he had read about it only in relation to cement. What Mr Lightbody had observed was not what Mr McCulloch would have been looking for. He would have been looking for cracking in the mortar. He had taken the opportunity to have a quick look at a publication on sulphate attack the day before he gave evidence and it didn't mention that sulphate attack manifested itself in an orange colour in the brick. However, he was not in a position to say that Mr Lightbody was wrong either about that or about the bricks suffering from widespread erosion and crumbling. He could not dispute Mr Lightbody's analysis of how sulphate attack occurred. If mortar was viable it would crumble when run over with a knife or finger. Mr McCulloch had never seen a whole wall come down in one piece and if the part of the gable wall that collapsed here had come down due to a wind loading problem then he would have expected a separation of the mutual wall from the front and rear elevation. He had seen no evidence of that having happened although he acknowledged that a letter from Mr Taylor number 6/13/16 of process written after the event appeared to state that "... the rest of the gable moved to become largely detached from the rest of the building".

[45] In re-examination Mr McCulloch agreed that the description given by Mr Lightbody of sulphate attack, namely that it occurred where tar formed in liquid form and attached to the wall of chimney that if not swept would condense and together with dampness from lack of occupation acted with the sulphate in the tar to produce the attack, did not coincide with the publications he had read. He thought the sulphate would be in a gas, not in the tar. He thought that if observing sulphate was as simple as a brick turning from yellow to orange he would expect to have heard. He did not see evidence of erosion and crumbling brickwork in the photographs and noted that the report he had been shown showed that the brickwork in the roof was in good condition. On the issue of tying in Mr McCulloch thought that if the council felt there was an immediate danger they should carry out the tying in work but that after that it would be passed back to the owners.

[46] The last witness called on behalf of the defenders was Ian Charles Taylor, a 64 year old retired director of building control. Mr Taylor had qualified as a chartered surveyor in 1974 and retired from his employment with Glasgow City Council in 1998. He had held a number of posts within that organisation. In the early 1990s he had been director of building control and then later became depute director in a larger planning department. Much of his career had involved him holding posts of responsibility within building control departments. He had extensive experience of dangerous buildings, most of which had become such due to neglect. The majority of the properties in that category he had dealt with were of the tenemental type. By 1996 he had about 20 years experience of dealing with such properties. He thought that he knew as much if not more than anyone else he knew at the time.

[47] At the time of the demolition of the North Street building, Mr Taylor was probably not involved in the initial process to put a section 13 notice on it. He did the committee work and headed up the work required to obtaining an order. He would have familiarised himself with the circumstances. The usual process at that time was that the council would obtain notification of a building that was thought to be dangerous and they would have a look at it. If there was an imminent danger or a deteriorated building was becoming more serious then a section 13 notice would be served on the owners of the building and he had authority to serve that. The notice required the owners to carry out the works and they could challenge it if they thought the works were not necessary. Usually the situation was very serious and if the owners did not carry out the works within about a month then the council committee would give authority to have the work carried out. The council would do so and then charge the owners the cost of that because the building was still their responsibility. Immediate works could be carried out without a notice although those would be subject to legal challenge. The section 13 notice at North Street referred only to numbers 229-235. The adjacent building was not in the same ownership. It was not unusual for the council to end up with a wall that had been a mutual wall exposed as a gable after demolition of its neighbour. On being shown the memo, number 6/18/77 of process, where an alternative suggestion had been made as a way forward, Mr Taylor said that he thought that what was being suggested there was proceeding with the first demolition and then making an assessment of whether further work was required. If the wall was "falling down" emergency action would be taken under section 13. If the wall was not in imminent danger then the council would walk away. If the wall was not able to be in the condition it was in for a period of time then further notices would be considered. In relation to the instruction that Mr Taylor had given for the disruptive survey, number 6/18/78 of process, he explained that the contract section was that part of his office that carried out the works. When tenders were prepared the contract section wanted to include provision for everything that might conceivably be required including for tying in. When Mr Taylor had seen that provision he deleted it because there was no legal right to encroach on the neighbouring property to the extent that would be required to carry in that work. So far as the inspection of the chimney flues was concerned he envisaged that the surveyor could stick his head up the fire place or look down from the roof level. If internal collapse was suspected the bricks might be taken out. Occasionally an endoscope with a light on the end could be used. So far as the roof space was concerned what was envisaged was that the brickwork would be exposed so that the condition could be examined. The purpose of having the £12,500 provision for tying in was that if the newly exposed wall was going to fall down then the council would have to execute works immediately and provision would mean that no fresh tender would be required. So far as the survey report, number 6/21 of process was concerned, Mr Taylor said that the two reasons for obtaining such a report were first that the council had to make sure that in demolishing one building was not to the detriment of the building left standing, and, secondly, they wanted advance warning of the overall state of the wall to be exposed. Although they did not want to carry out works to that newly exposed wall, they wanted to know whether it was likely to have to be carried out at a later stage. Mr Taylor confirmed that he had given the instruction to delete the provision to spend £12,500 on gable stabilisation works. He said in terms that the survey report of Mr Mallon, number 6/21 of process, had "no relevance" to the deletion of that provision. On being shown the photographs taken by Mr Lightbody after the demolition and appended to his report, number 6/15 of process, Mr Taylor's view was that the brickwork was not uncommon in that type of wall and was not "horrendous". He thought some of the brickwork was quite good for the type of building and its age. So far as sulphate attack was concerned Mr Taylor expressed the view that this occurred exclusively where the wall concerned was saturated over quite a period of time. He thought it was unusual to see sulphate attack in an internal wall unless it was wet for a period. He thought sulphate attack was a white chemical deposit on brickwork or mortar. He agreed that photographs 15 and 16 appended to Mr Lightbody's report showed crumbling mortar joints and broken flue bridges which would be seen on any building that age. He did not think that the tarry deposits were excessive given the age of the building but agreed that these would result in a weakened gable. So far as photograph 6/20/14 was concerned which had been taken after the collapse, Mr Taylor confirmed that the strapping at the corners of the wall was to attempt to tie in the corner to the rear elevation.

[48] Mr Taylor accepted that he had been the person who made the decision not to carry out the tying in works recommended by Mr Mallon and Mr MacLean. If any tying in work was to be done it couldn't be done within the contract for the first demolition. He could not recall how his decision was informed. In general terms one would make an assessment. If it was thought that further works were required then the owners could be contacted. If that was impossible or things had to be done quickly a notice would be served. In this particular case it was thought there was no imminent danger. They were proceeding to take steps towards serving a notice in relation to it. Because of the change in circumstances to the wall he said that the council would not just "walk away". The newly exposed wall was not built for the circumstances in which it now found itself. It was a question of the timescale in which something would happen to it but that could be altered by circumstances such as the storm. Mr Taylor said he was "certain" that the storm was the cause of the collapse. It had resulted in other damage throughout Glasgow and there were other incidents of brickwork collapse that night of 6 November 1996. He was referred to incident reports, number 7/7 of process, which had been compiled by his staff. A report was prepared in relation to events that might be a threat to safety such as chimney heads coming down. Not all of the collapses were in tenement buildings but collapsed chimney heads were typical of the night of such a storm in Glasgow. In Mr Taylor's view had the tying in work been carried out from the floor right through to the roof of the wall that would not have stopped the collapse. The chimney head couldn't be tied in. It would have had to been taken down.

[49] Under cross-examination Mr Taylor thought that the timings listed on the report number 7/7 of process probably related to the time at which the council attended the site. He was not involved in compiling the report. He did not know whether some of the report might relate to chimney heads coming down before 6 November as he was not involved. He accepted that those who had compiled the reports might have been better placed to tell the court exactly what incidents it related to. Those who attended would have been able to give some information about the age of the properties that had problems and whether they were in good condition or not. If information was available about whether they had involved gable walls which were tied in or not tied in, that could have been provided. The orientation of the building to the wind direction would vary, particularly in an urban area. On the issue of the application of section 13, of the three situations where a notice might be relevant were put to Mr Taylor. The first, an immediate danger of a wall that was falling down was inapplicable in this case. The second scenario was that a wall not in imminent danger was one that could be left but that would depend on an accurate judgment being taken on the condition of the building, a proposition with which Mr Taylor agreed. The third scenario was in relation to a building that was not able to stand in its entirety for a period and so a notice might be served. There Mt Taylor also agreed that a judgment would require to be made about the period for which it might stand. He agreed that the council ought to do something if it was executing works and knew or ought to have known that it was creating a danger but he did not accept that there was any danger in the wall exposed after the first demolition. He said he would never have walked away from a danger of any kind. He accepted that the council would have to be satisfied that the building left after demolition of one side of the tenement was safe and not dangerous. It was put to Mr Taylor that the legislation did not use the expression "imminent danger". He accepted that there were options within section 13 for the council to carry out work where the danger was not immediate. However, all he could do was serve a notice and had had to account for a situation where the owners might not act in response. He would not let something be dangerous for a period such as four weeks. When it was put to him that his department had walked off the site in question in the October without taking action he said that a period of time had elapsed between then and the collapse and that a set of circumstances had arisen which he could not have foreseen. He reiterated his view that what had occurred was that the chimney collapsed and brought down some of the gable with it. He didn't think that there was an immediate danger to the wall and the decision taken had been to follow up work carried out to see if more work required to be done later. the council was were monitoring with a view to when they would serve a section 13 notice on the adjacent building. When it was put to Mr Taylor that in October 1996 there had been correspondence with Mr Equi where the council had said in terms that a section 13 notice was not warranted on the tenement above his property notwithstanding its state, Mr Taylor's comment was that the council only served section 13 notices sparingly. He accepted that the building that was left was in a state of disrepair and that the council knew that. He accepted that the letter to Mr Equi did not indicate that the council was keeping an eye on the building but said they would have been doing so. He felt that that situation did not take responsibility from the owner. When asked to explain why he had said that the instruction for the disruptive survey had "no actual relevance at all to the decision" to delete the provision for tying in works, Mr Taylor reiterated that he could only carry out works under the section 13 notice to the tenement above the Koh I Noor. He had no power to carry out works on the next door tenement. He agreed that the survey would inform him about the condition of the wall that was to remain standing and that it must have been for that purpose rather than any issue of powers. He accepted that the survey report would give him information but thought that was for a later stage after the first demolition had been carried out. He agreed that the survey report would have been helpful in understanding the construction of the wall and its properties but said that he did not have a remit to go round and repair all properties in Glasgow. He accepted that the survey report would determine whether stabilisation works were necessary immediately or later. He could not remember if he had visited the site immediately after the demolition or not but thought he might have. He thought that all of the exposure works listed for Mr Mallon to carry out were important but disagreed that one might have to take the chimney off. He thought looking at it internally would be sufficient to make a judgment on whether the bridges had collapsed. He knew that if there had been scaffolding up the surveyors could have seen more into the roof space but he had no money or power to instruct that. He did not have money or a remit to take off chimney caps. He said that it would not surprise him if nothing like the inspection of the chimney stack that was instructed was carried out. So far as the roof space was concerned, if it was plastered then the plaster would have to be removed and he would expect the surveyor to go up into the roof space and examine it. He agreed it was important to understand how good the condition of the roof void was. Although there was nothing in the report of Mr Mallon about that, Mr Taylor felt that if something had given the surveyor cause for concern it would have been noted. He could not comment on whether the inspection carried out by Mr Mallon was adequate although he accepted that if they had been unable to see into the roof space they should have known that was a concern. When it was put to Mr Taylor that Mr Mallon might have paid less attention the roof space because he expected that tying in works from floor to roof were going to be carried out, Mr Taylor's response was that a newly exposed gable wall will always have to be tied in at some stage. What mattered was the degree of danger that the wall was perceived to be in and it was an ongoing situation. He thought that looking at the wall as each section of the adjacent tenement came down was the most important thing. Mr Taylor's staff would have been on site at the time of the demolition and would have seen each level as it was ongoing. Mr Taylor confirmed again that he removed the provision for tying in works in the contract because he had no legal basis to do it and not because of the survey report number 6/21 and its recommendations. When asked why in the face of Mr Mallon's report, the provision for tying in was deleted, Mr Taylor acknowledged that they needed to know the state of the building but as he would have to go to committee for approval for any works to be carried out, he deleted the provision for tying in, in the absence of that power. Mr Taylor reiterated on several occasions that the reason he had deleted the provision for the tying in works was because he had no legal standing to execute them. He had ignored or failed to follow Mr Mallon's recommendations because of the lack of legal ability to carry out the work of those recommendations. He did not accept that the tying in work recommended by Mr Mallon was required immediately after demolition. He did not accept that the collapse three to four weeks after they left the site was related to the lack of tying in work. Mr Taylor was taken through the survey report, number 6/21 of process in some detail. He thought that the general position was that while there were some concerns noted, there was nothing that had to be done immediately. He accepted that the exposed wall would not have the stability that it had had before the demolition and that it would be susceptible to wind suction. His primary concern at the time of the survey report had been lack of legal title to carry out any works. He knew inevitably that the council would have to do tying in works at some stage if circumstances changed. It was suggested that the council was effectively waiting for an accident to happen, Mr Taylor disputed that and said that other things might have occurred such as internal collapses of floors that would have alerted them to take action. He thought that the photographs appended to Mr Lightbody's report showed that the brickwork was in reasonably good condition. He agreed with some of the narrative in relation to sulphate attack in Mr Lightbody's report, number 6/15 of process at paragraph 2.03 but he disagreed that what was seen in the photographs of this wall was sulphate attack as the walls were not soaked. He then said that he thought this was, if anything, a minor attack. The condition of the brickwork was relative to the age of the building and the fact that it had not been looked after. He felt that the entire mortar of the building would be friable and was not surprised at that. He had no real recollection of what the function had been of the baton straps fixed to the wall. He would not disagree with Mr Mallon's recollection on that.

[50] In re-examination Mr Taylor said that he thought that he had inspected the site at some point although could not remember when. That might add to the information that was before him in relation to the issue of tying in. He felt that the wall in question was typical of and almost identical to others he had seen. After the demolition "telltales" were applied and he wanted to see if the wall moved.

Submissions for the Pursuers

[51] A motion was made by Senior Counsel for the Pursuers at the outset of his submissions to introduce a case by way of amendment that the defenders had created a nuisance. However, as the defenders (who opposed the motion) had no prior notice that any case for nuisance was to be made out and given the stage of the case at which it was made, I refused such an amendment and no case based on nuisance was accordingly before me for determination. I was not persuaded that such an amendment was necessary to determine the issues in controversy between the parties. Indeed Mr Murphy himself said that the amendment was not essential to his case. Had the amendment been allowed, Mr Murphy intended to rely on the decision in Kennedy v Glenbelle 1996 SLT 1186 at 1188-1190.

[52] Mr Murphy submitted that the first plea-in-law for the pursuer should be sustained and decree pronounced in the sum of £175,000 plus interest at the judicial rate from 6 November 1996, the principal sum having been agreed in the joint minute No.50 of process. The central question to be answered was whether the Council knew, or in the exercise of reasonable care ought to have known, that the mutual division wall was left, on completion of the first demolition, in a condition which presented a foreseeable danger to persons and adjacent property in the event of high winds. He accepted that if that question was answered in the negative then the Council was exonerated. He submitted that a positive answer would result in liability attaching.

[53] Mr Murphy summarised his submissions on liability and on prescription into ten succinct statements. First, he contended that applying the general law of "neighbourhood" the defender was in breach of a direct duty of reasonable care not to cause injury and damage to adjacent property. Secondly, he argued that the statutory scheme of the 1959 Act does not exclude expressly or by implication the duties of reasonable care found in the law of delict. Indeed the underlying policy of the 1959 Act relates expressly to the protection of persons and property from danger. Thirdly, the complaint in this case relates to the way in which the defenders carried out operations which clearly, if done negligently, would cause injury or damage to adjacent property. Fourthly, the action was founded on a direct common law duty of care arising from the duty imposed under the 1959 Act. It was a common law duty arising from the negligent performance of a statutory duty. Fifthly, by that negligent performance the defenders had created a nuisance. The sixth point was the crucial proposed finding, namely that the defenders knew or ought to have known that the mutual division wall was left, on completion of the demolition works, lacking in inherent structural stability to the extent that there was a material risk that the chimney and part of the wall would be blown down, in high winds, onto the pursuer's property. The seventh matter was that for the purposes of prescription the relevant loss and damage caused by the breach of duty was the damage to the restaurant on 6 November 1996 and not the "unsafe" situation left behind at the completion of the demolition. The eighth point was that in any event any unsafe situation left behind at the completion of the demolition did not objectively represent "loss and damage" caused by a breach of duty as required by prescription. Ninth, even if the unsafe situation did represent such loss and damage that was, on the evidence, unknown to the pursuer who even with the exercise of reasonable diligence could not have known or discovered any breach of duty causing loss prior to 6 November 1996. The tenth and final point was that as the summons had passed the signet on 26 October 2001 no obligation had been extinguished by prescription.

[54] Mr Murphy outlined the authorities relevant to these propositions before turning to the evidence. Reference was made to section 13 of the Building (Scotland) Act 1959 which was the background to the works carried out by the defenders. It was clear from the terms of section 13(c) of that Act that the local authority were not only required to intervene in situations of imminent danger. Where a local authority was acting pursuant to section 13 the welfare of the public and adjacent property would be priorities. The central issue was whether the defenders ought to have anticipated a danger of the newly exposed wall collapsing in the foreseeable future. Any issue about power or legal title to execute works to the property adjacent to that taken down in the first demolition evaporated if the defenders knew or ought to have known of a material risk of such collapse. The two elements to the duties of the defenders included both the statutory duty to look after the public and the duty to take reasonable care in executing the works flowing from that statutory duty. The latter was a common law duty distinct from the fact that the work was being carried out on the back of a statute. A summary of the relevant common law duty of care was provided in the cases of Donoghue v Stevenson 1932 SC (HL) 31 at 44-45, Caparo v Dickman [1990] 2 AC 605 at 617-618 and X v Bedfordshire County Council [1995] 2 AC 633 at 729-740. In essence, Mr Murphy submitted that the defenders appeared to have ignored their common law obligations when carrying out the work in question and seemed to think only of the statutory framework within which they were carrying it out. The statutory duties and common law duties on the defenders were said to be entirely complementary.

[55] So far as the evidence was concerned, Mr Murphy had identified the proposed finding in his summary submissions as that which required to be established. The starting point was the undisputed fact that the Council was put on notice of the potential for resultant instability of the mutual division wall approximately one year before the demolition works began - Nos. 6/11/4, 8 and 9, 6/14/18 and 20 of process. Further, the statutory notices forming No. 6/10 of process demonstrated that the Council envisaged that they would require to "reinstate the structural integrity of all ....internal walls...". It was also undisputed that removal of the first half of the tenement would result in the loss of horizontal support to the internal mutual division wall due to the removal of the spine wall and floor joists and the breaking effect of that half of the tenement. It was clear that both halves of the tenement were largely unoccupied and in a dilapidated state. At least four of the professionals who gave evidence had concerns as regards the internal mutual wall being used as an external gable, namely Mr Lightbody, Mr Bathgate, Mr Mallon and Mr Simpson. Indeed the defenders' own expert, Mr McCulloch was also concerned and gave evidence that a judgment could only be taken after a "full assessment" of the wall. Mr Mallon had particular concerns for the wall's capacity to withstand wind loads in the future. It was Mr Mallon who had included the sum of £12,000 for tying in works in the original specification and it was clear that by 17April 1996 the issue of stabilisation works was in the forefront of Mr Halliday's mind. In his memo of 6/18/77 he had recommended that the works did not proceed without approval of the stabilisation works. In that context the disruptive survey was instructed by the memo of 6/18/78.

[56] On the issue of the investigations to be carried out that led to the survey report no.6/21 of process it was submitted that Mr Taylor's evidence was contradictory and even disingenuous. While on the one hand he had claimed that the investigations were undertaken as a record of the condition of the wall before work commenced,

on the other he said that the investigations had no bearing at all on the issue of whether the tying in works were to be carried out. The determining factor was said to be the lack of legal title. At another point in his evidence however he had said that the survey would establish "the overall state of the wall" as the Council needed advance warning at a later stage of works to be carried out. The contention on behalf of the pursuer was that on the evidence there was every possibility that tying in works could be envisaged either at the outset or in the course of the works as they progressed. All of the building control officials on the contracts side of the department who included the provisional sum and argued for it were of that view. The deletion of the provisional sum for tying in work before the works began was a decision that could only have been made taking into account what was said in the report no.6/21 of process. No other documentation or material was before Mr Taylor when he took that decision. The defenders had failed to disclose the report no. 6/21 of process until a few days prior to proof. Before that they had made a general denial to an averment that a disruptive survey had been carried out.

[57] It was clear from Mr Mallon's evidence that he argued for tying in works to be carried out. He took some comfort from the monitoring that was to be carried out after the first demolition and from a letter he thought was sent to the owners of the adjoining properties although such a letter was never produced. It was submitted that the owners were not alerted in any meaningful way that the internal division wall represented a concern. The report No. 6/21 of process clearly recommended that tying in works should be carried out. Mr Mallon had made only a cursory inspection of the roof, but had not mentioned that in his report as he assumed that the wall would be tied in from the floor right up to the rafters. Thus Mr Taylor took his decision to delete the tying in works on the basis of inadequate information and an erroneously restrictive view of the Council's obligations once it was seized with the knowledge that the tying in was inadequate. It was simply disingenuous for Mr Taylor to say that the report No.6/21 of process was irrelevant to his decision. It was a material consideration in discussions on 16 May 1996 as spoken to by Mr Mallon. As Mr Lightbody put it the basis upon which Mr Taylor took the decision to delete the tying in works on the evidence before him was "incomprehensible" in the absence of a report from an engineer.

[58] It was clear that further efforts had been made by Council officials to effect some sort of tying in of the wall that would be exposed. The memo of Mr Gibb of 25 July 1996 suggested removing all timber safe lintels and replacing them with concrete lintels which could be appropriately tied in. Mr Gibb was ultimately prepared to accept the instruction of the operations team not to carry out that work although he was unable to guarantee the gable's stability in doing so. It was submitted that the evidence of Mr Lightbody as regards the state of the apex wall should be accepted where he indicated that those in charge of supervision of the works were or should have been aware of the condition of the apex as the defects were patent and longstanding. Mr Lightbody's evidence on that was consistent with the evidence of Mr Mallon who accepted that he carried out only a cursory inspection of the apex through a roof hatch in the dark with a torch.

[59] On the basis of all of the evidence led Mr Murphy submitted that the Council knew that the stability of the mutual division wall was weakened due to the removal of the horizontal support from the demolished tenement. They knew that the bonding between the internal mutual division wall and the front and rear elevations was inadequate at best and that there was no evidence of ties between the internal mutual division wall and the floor joists and rafters in the tenement. It was known that the internal mutual division wall had been subject to movement and that ought to have been investigated by an engineer to establish the cause. The defenders own expert, Mr McCulloch supported that. They knew or ought to have known that the tying in of the apex was inadequate. Mr Mallon thought that the apex was similar in construction to the rest of the gable and it was well known that the whole wall lacked the necessary ties. It was clear that the entire tenement was in a dilapidated condition and that the internal division wall was not designed as an outside wall and consequently would not be expected to have imposed wind loading. The evidence illustrated that the considered opinion of the majority of the building control officials was that substantial tying in works were required. That was against a background of no adequate survey of the apex in the roof space or the chimney stack having taken place. It followed from the various pieces of knowledge that the Council had as narrated above that they ought to have known the following:

(a) that the brickwork forming the apex in the roof space and the chimney stack was in the condition described by Mr Lightbody in paragraph 2.03 of his report, No.16 of process including widespread observable defects caused by sulphate attack at or near the area of collapse,

(b) that elderly lime mortar based pointing in such circumstances has a tendency to become friable, weaken and where there is movement may result in the dislodging of brickwork,

(c) that in the context of the west of Scotland storm winds and gusts such as those that occurred on 6 November 1996 were reasonably foreseeable. The measurement of a return event of every 5 years in No.7/6 of process demonstrated that. Insofar as there was meaningful evidence of other problems in Glasgow at the relevant time, little weight could be attached to that in the absence of any detail as to why those other events occurred and as to the nature and condition of the building which was so effected,

(d) that in such winds there was a materially increased chance that the internal mutual division wall, in the absence of tying in and secure brickwork, would be subject to wind forces and, given its structural condition, movement,

(e) that had substantial tying in works and/or brickwork to the apex been carried out the prospect of the collapse would have been minimal or materially diminished.

[60] The evidence illustrated that there was no objective justification for Mr Taylor's decision to delete the recommended works. If he had considered the Council's common law duty of care to the pursuers he would have insisted that the tying in works were carried out either at the outset or in the course of the demolition works. It was astonishing that the defenders, given what they knew, had given no indication to adjacent property owners of the condition and limited longevity of the building they had left behind on completion of the demolition.

[61] In relation to the defenders' plea of prescription, it was submitted that such a plea proceeded on a misunderstanding of the pursuer's pleadings. It was accepted that prescription started to run on the concurrence of iniuria and damnum. The relevant loss and damage was the damage to the pursuer's restaurant premises on 6 November 1996 and the action had been raised within five years of that date. It was clear from the evidence that Mr Tahir as a restaurateur had no cause to examine and did not examine the upper reaches of the building left exposed after the first demolition. Mr Lightbody's report was initiated after the collapse and prior to that Mr Tahir had been given no information that an unstable or unsafe situation had been left behind. Mr Lightbody had said that any cracks in the wall could not be seen unless with the aid of binoculars. Mr Tahir had been clear in re-examination that Mr Rae the architect had visited the building only after the collapse. Even if the crack in the wall after the demolition was "damaged" that would not mean that the defenders were in breach of duty for that damage when demolishing a derelict building. It could not be suggested that the defenders required to leave behind a building free from cracks. It was unlikely that any enforceable obligation arose in that regard. The proper characterisation of the case was that, unknown to the pursuer, the defenders left behind an unstable building and when the collapse occurred loss and damage was sustained. Even if the defenders' approach was correct on the facts Mr Tahir was in any event unaware that actionable damage had occurred and section 11(3) of the 1973 Act would apply. The plea of prescription should be repelled.

[62] Mr Murphy anticipated a suggestion that there would be an attack on the expertise of Mr Bathgate, the engineer called for the pursuer. It was noted that no such attack had been made in relation to Mr Lightbody and the defenders had not taken any engineering advice prior to taking the crucial decision in question. Thus it was difficult to assess the relevance of the engineering evidence. In any event, Mr Bathgate was a qualified engineer with decades of experience and was very clear that he regarded the wall as a danger. Mr Murphy suggested that Mr McCulloch did not have the gravitas or reputation to merit the description of expert. The views of Mr Lightbody should be accepted. The significant weight should be attached to his observations. He was the only independent witness to have visited the locus soon after the collapse.

[63] In anticipation that submissions would be made for a reduction of the interest due on the claim, Mr Murphy submitted that Mr Tahir had incurred all of his losses by the time his business reopened on 15 September 1997. As not all of the losses had crystallised at the date of the collapse it might be fair to take a mid-point between the date of the collapse and the re-opening as the point from which interest on damages should run. That would be 20 April 1997. In the absence of any evidence led by the defenders as regards the pursuer being overcompensated by virtue of an ability to achieve a rate of return akin to the judicial rate in the markets there was no basis for departing from the usual award. It could not be said that delays in the action were caused solely by the pursuer. The issue of interest could be discussed at a By Order hearing after the decision in principle was known.

Submissions for the defenders

[64] Mr ClarkClarke for the defenders submitted a 28 page detailed written submission and produced a number of authorities for discussion. He emphasised at the outset that the onus to prove the vital elements of the case was firmly on the pursuer. It was noted that there had been some discussion as to the proper meaning of the memo from Mr Halliday, No. 6/18/77 of process and that despite it being described by counsel for the pursuers as "very important", Mr Halliday had not been called to speak to it. No positive finding could be made about what was in the author's mind when he wrote the memo.

[65] Mr ClarkClarke submitted that five of the professionals who gave evidence gave similar evidence on the question of whether or not there was an imminent danger in the newly exposed wall after the first demolition. Only Mr Bathgate thought there was an immediate danger and it should be noted that he was the only expert who had no experience of demolition. He had given a report but was not asked to speak to it. Mr Lightbody went no further than being concerned at the lack of weatherproofing and tying in might mean that the building would deteriorate so that it might become dangerous. He had some experience of demolition and was certainly entitled to express an opinion. Mr Simpson was very experienced in demolition and was perfectly content when he left site. Mr McCulloch was said to have vast experience and saw no immediate cause for concern although he would wish to carry out an assessment for the owners. Mr Mallon and Mr Taylor were undoubtedly highly experienced.

[66] A typed version of all of the evidence as noted by the defenders was produced and referred to by Mr ClarkClarke in submissions. One aspect of the evidence on which some emphasis was placed was the question about when the final decision was taken not to carry out tying in works. Particular reference was made to Mr Mallon's evidence and it was contended that there was some support for the notion that no final decisions were taken until the end of the first demolition. It was emphasised that Mr Mallon had said that they would not have walked away from the building if they felt it was dangerous. Mr ClarkClarkee 's position on Mr Taylor's evidence was that it should be accepted, other than his position that Mr Mallon's survey report No. 6/21 of process was irrelevant to his decision to delete any provision for tying in works. It was said that he must have been wrong about that and that he must have considered the report when he made his decision. However, the report was only one factor, the statutory limitations meant that there had to be a danger. Mr Taylor was well qualified to assess the recommendations in the report and disagree that tying in works were justified by what the surveyors found.

[67] So far as the law was concerned reference was again made to the provisions of section 13 of the 1959 Act. It was submitted that the primary power was the service of a notice under section 13 which could be followed up by works only if the danger was such that an event might occur imminently. The local authority must use judgement to decide what is dangerous and are given a statutory discretion as to what operations are necessary. It is only if they are of the view that it is necessary for the protection of the public that they may carry out works. Demolition, rather than mere repairs, can only be executed if it is necessary in the Council's opinion. Reference was made to an unreported decision of Sheriff Gordon, City of Glasgow DC v Bale Investments Limited (4 October 1991). That case involved a complaint about a Council's decision to remove certain rubble following a demolition without contacting the owners. The sheriff in that case expressed the view that it was not for the Court to interfere with such decisions unless they could be shown to be unreasonable and that it was not sufficient that they appeared to be mistaken. It was submitted that in this case there required to be recognition of the limits of the powers available to the local authority. Mr ClarkClarke also referred to the case of City of Edinburgh District Council v Co-operative Wholesale Society 1986 SLT (Sh.Ct.)57 which was referred to by Sheriff Gordon in the Bale Investments Limited case. In the Co-operative Wholesale Society Limited case the Sheriff Principal (O'Brien QC) expressed the view that in many cases a local authority may require to act under section 13(1)(b) for some operations, but that other less urgent operations may have to await the procedure laid down by section 13(1)(c) and the following subsections. Reference was also made to Robertson v Scottish Union & National Insurance Co 1943 SC 427, Smith v Giuliani 1925 SC (HL) 45 and Wilson v McCaffrey 1989 SCLR 250. In the last of these a man had been killed in a ground floor shop when the upper floors of the tenement above it collapsed. The upper floors of the building had been in the process of demolition. Both the contractors were sued who brought in the local authority as a third party. The case against the local authority was dismissed. It was held that their decision not to serve a section 13(1)(a) notice was an exercise of the local authority's discretion which did not found an action unless done in bad faith. There was no suggestion in the pleadings that it was the state of the building that caused the collapse rather it was the mode of operation of the demolition works. Neither were there any relevant averments of any duty on the part of the local authority to supervise the method of demolition. According to Mr ClarkClarke the case of Wilson v McCaffrey was important as the defender's position was that the section 13 notice in question did not permit them to take the steps that the pursuer claimed they ought to have taken. In the absence of bad faith or public unreasonableness in the exercise of discretion, the Council could not be liable. For similar reasons the pursuer's case here should fail. It was submitted that the context of the case was that the Council had improved the wall in question by the limited tying in works that they did, namely the metal butts and the bricking up of the voids. Of course they had removed another building which may have acted to hold parts of the wall up and it had to be accepted that without removal of the building the chimney and brickwork that had collapsed could not have got into the pursuer's premises. That was no more than a conditio sine qua non and not a causa causans. Reference was made to the case of X v Bedfordshire County Council [1995] 2 AC 633 also relied upon by Mr Murphy. There, Lord Browne-Wilkinson ( at p 731 et seq) had opined that private law claims for damages (where work is done or not done in terms of the statutory power or duty) can be classified into four different categories, namely (A) actions for breach of statutory duties simpliciter, (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; and (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful. It was clear that categories (A) and (D) were not in issue in the present case. In essence, the issue was whether category (B) or (C) was applicable. The dicta in X v Bedfordshire County Council made clear that where category (B) applied, namely the careless performance of a statutory duty, no common law duty of care arose. Where a claim is based upon there being a statutory duty which was negligently breached but with no allegation that the defender was under a common law duty of care to the pursuers then no cause of action arises. What the pursuer in this case has to show is that the circumstances are such as to raise a duty of care at common law. This is category (C). In this category, the claim must be either that a statutory duty gives rise to a common law duty of care owed to the pursuers by the defenders to do or refrain from doing a particular act or that in the course of carrying out a statutory duty the defenders have brought about such a relationship between themselves and the pursuers as to give rise to a duty of care at common law. Mr ClarkClarke submitted that if I disagreed with his contention that this case could be categorised as a (B) case and the common law duty of care arose, there was in any event no liability in the circumstances. Further, a distinction required to be drawn between the notion of taking care in exercising a statutory discretion whether or not to do an act and having decided to do that act taking care the manner in which it is done. It was only where someone in the position of the pursuers could allege fault, not in the taking of a discretionary decision to do an act, but in the practical manner in which that act has been performed that the question of whether or not there was a common law duty of care fell to be decided by applying usual principles laid down in Caparo Industries plc v Dickman [1990] 2 AC 605 at 617-618. Only in that situation would one look at the questions of reasonable foreseeability, the proximate relationship between the parties and the reasonableness of imposing a duty of care. The view was also expressed in X v Bedfordshire County Council that the question of whether there was such a common law duty and if so its ambit must be profoundly influenced by the statutory framework within which the acts complained of were done.

[68] It was further submitted that the context of this case was that the pursuers had a duty to take reasonable care that their building did not give rise to a reasonably foreseeable risk of injury and that it was because of their and the other owners' default that the local authority had to step in and carry out a demolition at considerable cost to the public purse, albeit that there is a power for costs to be reclaimed. The defenders had undertaken work to the extent that they considered they had removed a danger. They then handed back full control of the remaining building to the owners. The pursuers were sufficiently aware of the state of the remaining wall that an architect was engaged. It was submitted that it was difficult to understand why the architect did not also have the property surveyed. On that basis it was submitted that the damage was not reasonably foreseeable so far as the defenders were concerned. What was foreseeable was that the owners would put their wall in order. Alternatively, if the monitoring showed dangerous movement, then the Council would serve a further notice. It was submitted that the relationship between the parties was not sufficiently proximate after responsibility was handed back following the demolition. It was also submitted that it was not just and reasonable to impose a duty of care because the pursuers failed to take care of their own wall and as a result suffered a loss of business. It could not be just and equitable that the Council should underwrite the pursuers' loss simply because they had carried out some repairs at some stage earlier. The default was on the part of the owners including the pursuers. It should be borne in mind that the building was judged so dangerous that it had to be demolished. It was legitimate to ask what might have happened if it had not been so demolished. Even if the pursuers' premises had been unscathed in such a collapse the defenders might well have demolished the whole building including the pursuers' premises. On the issue of the discretionary decisions to be taken under section 13, it was submitted that even once the decision had been taken to serve a section 13 notice there were further discretionary decisions to be made. In particular, had a danger arisen at any time Mr Taylor could have exercised his discretion to issue a further notice. No such danger had arisen.

[69] While issues of direct liability and vicarious liability, also discussed in X v Bedfordshire County Council, were said not to arise in the present case, it was accepted that if an employee could be shown to be negligent then there was vicarious liability. In this case, however, it was difficult to see who had been negligent. Mr Mallon could not have been negligent because he and his colleagues in the contract section wanted to carry out the work but were expressly forbidden from doing so. Mr Taylor could not be negligent as he was plainly exercising his discretion under the legislation.

[70] Mr ClarkClarke's submission was that taking the cases of Wilson v McCaffrey and X v Bedfordshire County Council together it could be seen that decision taken in this case not to effect tying in works was firmly within the realms of a discretionary decision rather than the operational elements of executing a duty. On that basis it did not give rise to a common law duty of care. Finally, reference was made to the cases of Stovin v Wise 1996 AC 923 and Gorringe v Calderdale 2004 1 WLR 1057.

[71] It was submitted that in this case the duty to take reasonable care to avoid the chimney falling rested upon the owners. During the course of the works the defenders had to work safely but they did not assume the duties of the owners. The powers under the legislation in question were limited and correctly so. The Act was involved in interfering with fundamental property rights for the civic good. Every time something was demolished it would leave a space and this space might be a conditio sine qua non for an accident but that did not mean that a relationship of proximity was formed between the Council executing the work and the public at large or indeed the owners. The person upon whom the duty of care falls is the owner or owners even during the works unless it can properly be said that the consequences of the breach of duty by the owners should have been spotted and prevented by the Council or the contractors. To view the matter in the way suggested by Mr Murphy for the pursuers was to "drive a coach and horses" through the statutory framework. It would mean that whenever the Council became involved they would be required to assume the full duties of the owners in default, perhaps in perpetuity. That would mean that they had to improve buildings up to some unspecified standard, possibly to modern building requirements. That would be extremely burdensome upon those proprietors who pay their share and decidedly advantageous to the more dubious proprietors who act in the manner of Greenford Properties in this case. In addition it would ignore the experience, as spoken to by Mr McCulloch, that despite not being built to such standards, tenements in Glasgow have stood for more than 100 years.

[72] On the issue of causation, Mr ClarkClarke submitted that the pursuers had failed to prove that taking the steps recommended by Mr Lightbody would have prevented the collapse. The two possibilities were tying in or taking down and rebuilding. As these are pled in the alternative the pursuers required to prove that both would prevent the collapse since either step would satisfy any duty upon the defenders. Mr Lightbody thought that there might have been a combination of forces leading to the collapse. Mr Simpson, Mr McCulloch and Mr Taylor all thought that what had happened was that the wind blew the chimney over and some courses of bricks came with it. The photographs in 6/15 of process showed that individual bricks did not penetrate the roof, so it is not at all clear that the bricks made any difference. Thus it could not be said that but for the defenders' failure the accident would not have happened. The wind just hit the gable at the perfect time for part of it to collapse. It was submitted that material increase in risk is not the proper test for causation.

[73] On the question of prescription, if liability was established by accepting the evidence of Mr Bathgate and Mr Lightbody then in any event that liability had been extinguished by limitation in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973. If there was a finding that the wall was so perilous that it was negligent to leave it and that the Council had a duty of care towards the pursuers which they had negligently breached, then they had done so by the time they had left the site which was more than 5 years prior to the raising of the action. The dicta in Dunlop v McGowans on the occurrence of inuria and damnum was relied upon by a Division of five judges in Aitchison v Glasgow City Council 2010 SC 411. In any event it was said that it was clear from the evidence of Mr Tahir that he was aware of a problem. It was for him to prove that he could not with reasonable diligence have discovered damnum prior to the collapse. The evidence showed he was aware of a risk of collapse. One only had to consider the effect on the value of the restaurant to see a clear loss. Even if Mr Tahir did not understand the precise nature of the defect reasonable diligence would include instructing a surveyor and probably an engineer. Had such instructions been made an engineer such as Mr Bathgate would have reported an immediate danger.

[74] Finally in relation to the question of interest, it was submitted that as the judicial rate was a punitive rate designed to discourage protracted delays in litigation by the wrongdoer then if there had been conduct by the other party which caused delay it was appropriate to modify that rate. A broad brush was required. In this case the pursuers waited five years before raising the action. There had been multiple amendments before the claim was relevant for proof before answer. The defenders had been assoilzied by Lord Wheatley and the pursuers' case had been saved only at the door of the reclaiming motion by an amendment which had resulted in a significant finding of expenses against them. While there could be no criticism of the pursuers for the period from 7 January 2010 onwards there were vast delays occasioned by the conduct of the pursuers prior to that. Mr ClarkClarke suggested an interest rate of 4% for the period up to 7 January 2010 and 8% thereafter.

Reply on behalf of the pursuers

[75] In response to Mr ClarkClarke's submissions, Mr Murphy submitted that the issues in the case were now well focused and that much depended upon whether the crucial finding in fact he had suggested could be made. So far as the so called statutory discretion was concerned, it was clear that the line taken at proof was that Mr Taylor was exercising a judgement when he took the decision that no tying in works would be carried out. However, in Mr Murphy's submission that was beyond the stage of statutory discretion. It was a straightforward decision not to carry out a material piece of work in the course of the contract. That had nothing to do with a public interest issue. It was simply the way in which the job was carried out. A statutory discretion applied to matters such as whether or not to grit a road in the winter having regard to a cost/benefit analysis. It was clear that the Court would not interfere with that sort of decision. In this case it was very clear that the actings of the Council were in the area of (C) in X v Bedfordshire County Council. It is more analogous to a situation where a roads authority had taken a decision to carry out repairs to a road and failed to leave a warning sign or light thus causing an accident. That would be a clear breach of a common law duty albeit that the context was they had first taken a decision to carry out repairs. The issue was not whether Mr Taylor's decisions were unreasonable or irrational in a way the public law would approach the matter. This concerned a private law duty of care.

[76] Where a danger had been identified in terms of section 13(1) of the 1959 Act was clear that there was a duty to rectify that danger. While the owners were called upon in the first instance by the time the defenders took the decision to carry out works the owners were no longer in control and it would be nonsensical to argue that somehow the primary duty continues to be with them. Mr Tahir was clearly not in a position to consider the stability of the gable wall. So far as the authorities relied on were concerned, those that involved a decision whether or not to take action under section 13 were irrelevant. In this case the council was well past the stage of determining that something was a danger. In Wilson v McCaffrey no common law duty of care had been pled. The context was that the contractors had been sued because they had failed to carry out their work properly. They had been negligent and caused the collapse. Wilson v McCaffrey was correctly decided in refusing to hold the Council to blame for the contractors' failure. It had no relevance to the present case. The context of the cases of Stovin v Wise and Gorrige v Calderdale were also very different and were of little assistance.

[77] Mr Murphy noted that he had cross examined each of the defenders' witnesses in relation to the opinions expressed by Mr Lightbody. The knowledge on the part of the Council that without tying in works the stability of the wall could not be guaranteed was there at the time the decision was taken to delete the provision to carry out that work. The overwhelming body of evidence supported the contention that the decision to delete the provision for those works was made in May 1996 and never revisited. There was no evidence whatsoever of any proper subsequent inspection to see if the wall was safe when the Council were leaving the site. As Mr Taylor's evidence seemed to be that he could not carry out the tying in works and that the recommendations in 6/21 of process were irrelevant then what the Court was left with was that for some unfathomable reason he went on to decide that the exposed wall was safe without tying in.

[78] On the issue of prescription it was certainly the case that Mr Rae had been warning the Council of the potential danger of the building in 1995 but that had no bearing on the Council's duty not to leave behind a dangerous situation. There was no coherent body of evidence that Mr Tahir knew that the wall was at risk of collapse prior to November 1996. While Mr Equi had written to the Council on 6 October 1996 there was no evidence that he had told Mr Tahir of the content of that correspondence. Finally, on the matter of interest, Mr Murphy disagreed with the contention that the judicial rate was somehow punitive. Rather it is simply the rate that the Government seeks fit to maintain at any given time. If there was to be any suggestion of interfering with the ex lege rate of interest then there would require to be a basis for that in the evidence. In the absence of such evidence there was no basis for exercising a discretion on the rate of interest and the rate required to be at 8% per annum throughout.

Discussion

[79] The events that led to this claim being made occurred some 15 years ago. However, the witnesses who had been involved in the demolition project seemed to have a reasonable recollection of the important events, as the collapse of the chimney and part of the wall left exposed by the demolition was a noteworthy event that had an impact on those such as Mr Mallon who had been actively involved in the work. Ultimately, the dispute in relation to how events unfolded was relatively limited. The central issues that remained in dispute were the circumstances in which a provision in the demolition contract for tying in works to the former mutual wall that was to be exposed came to be deleted, the reasons behind the decision not to carry out substantial stabilisation works to that wall and the role, if any, of the survey report of April 1996 (No. 6/21 of process) in that decision making process. I will return to these issues in more detail. A number of objections were taken to certain lines of evidence at proof. However, with the exception of a specific objection to Mr Bathgate being regarded as an expert which is addressed below, there was no suggestion in submissions that any particular aspect of the evidence adduced should be ignored on grounds of competency or relevancy.

[80] So far as the credibility and reliability of witness is concerned, I found Mr Tahir, Mr Simpson and Mr Mallon to be generally credible and reliable in their accounts. Mr Tahir was confused initially about when the architect had gone into inspect the adjacent premises ( a point relevant for the arguments on prescription), but I do not consider that detracts at all from the overall impression I had that he was an honest witness who was doing his best to recall a sequence of events so many years later. Mr Mallon was in a very difficult position in giving evidence. He is effectively still employed by the Council and much of what he had to say was detrimental to the defenders' case. He was clearly uncomfortable during certain parts of his evidence, particularly when he stopped short of accepting that the defenders had left an unsafe situation following the demolition, a matter on which he could not at this stage properly be expected to express an objective view. However, I have accepted the vast majority of his evidence in relation the work he carried out and the views he expressed at the time. In contrast, I found the evidence of Ian Taylor, the defenders' Director of Building Control at the material time to be unsatisfactory and in many respects unreliable. Mr Taylor gave the impression of being someone with a high regard for his own ability and experience. His evidence on the central issues of controversy was given in a rather dogmatic fashion and he appeared to quite unable to acknowledge that a view different to his own might be taken. As will be apparent from the discussion of the substance of his evidence, on one issue I was concerned about the candour of his position. So far as the independent professional expert witnesses are concerned, I had no difficulty accepting the brief evidence of Mr Garrity. I was particularly impressed by Mr Lightbody's evidence. Quite apart from having had the advantage of inspecting the building shortly after the collapse, Mr Lightbody presented as a knowledgeable chartered surveyor who explained his findings with care. His opinion was expressed clearly but without any overstatement or undue forcefulness. I have no hesitation in accepting his evidence in its entirety and I have relied on his expert opinion. Each side called an independent engineer. While their evidence was of less significance in light of the findings I make about the decisions taken by the defenders and in the absence of evidence that engineering advice was sought at any stage, an attack was made by the defenders on the credentials of Mr Bathgate, the engineer called in the pursuer's case. It was contended that he could not be regarded as an expert as he had no real experience of demolition projects and his practical experience was primarily in relation to the construction of dams and bridges. In the event, one of the main issues on which I derived assistance from Mr Bathgate's evidence related to wind loading, a subject about which he was undoubtedly qualified to speak with authority. As he put it, all structures built on land must be constructed taking wind loading into account. He is an engineer with almost four decades of experience, many years of which have been spent in the area of dispute resolution in all aspects of engineering practice. It seems to me that he is well qualified to comment as an expert on structural engineering matters. He had a direct manner and was very forthright in expressing his views. I do not consider that reduces the weight to be attached to those views. While Mr McCulloch, the engineer called by the defenders, has had some experience in demolition matters, he has had no experience whatsoever with a former mutual separating wall becoming an exposed gable wall. Thus, like Mr Bathgate, he was not someone with particular expertise in the specific peculiarities of this case. In any event, he was first instructed only a week prior to giving evidence and was able to express some general views only. He had not had sight of critical material such as Mr Mallon's survey report No. 6/21 of process. While I thought that Mr McCulloch tried to answer all questions as best he could and was clearly also a professional of some experience, I have placed more reliance on the views of Mr Bathgate where the two were at odds.

[81] The contract under scrutiny in these proceedings began with a decision made by Ian Taylor, as Director of Building Control, to serve a Notice on 8 September 1995 under section 13 of the Building (Scotland) Act 1959. That Notice required the owners of 229 and 235 North Street, Glasgow, to carry out certain specified repairs to the building, which failing to demolish the building to the upper surface of the first floor joists. The evidence clearly established that the pursuers were unable to secure the agreement of Greenford Properties, the owners of all flats above ground floor level to engage in any process of repairs and that it was in those circumstances that the Defenders then took the decision to organise demolition. No criticism can be levelled at the pursuers in this respect. Mr Tahir had become increasingly frustrated at the situation where he was running a restaurant business beneath derelict flats. He welcomed the decision to demolish and he instructed an architect Mr Rae to design the new roof structure for his restaurant that would be required following demolition. I accept that in making the decision to carry out the demolition Mr Taylor exercised a judgement and that judgement is not open to criticism. However, in my opinion, the chronology of the following events illustrates that, having taken that decision, the Defenders were obliged to take reasonable care not to cause injury or damage to property adjacent to that they were demolishing and that they failed to do so.

[82] In taking responsibility for this and other contracts during the relevant period, the Defenders were acting both as the "client" instructing the work and the contractors with a commission to carry it out, albeit that the physical aspects of the demolition work was were contracted out to an independent company. It is clear that there was a tension between the two groups within the Defender's Building Control department. The "Operations" group took the decisions but it was the "Contracts" group in which the building surveyors with specialist knowledge were employed. Those employed in contracts could make recommendations based on their knowledge and experience to those in operations, but they did not hold any ultimate decision making power. That rested with operations and ultimately with Ian Taylor, the overall head of both sections. The decisions made in relation to the wall exposed by the demolition must be examined in that context. By 17 April 1996 a timescale for the demolition work was being planned and the project was proceeding to tender. On that date Mr Halliday of the contracts group sent a memo to Mr Knowlson in operations recording concerns about the fact that an internal separation separating wall of the tenement would become an "exposed gable wall" on completion and stating that the "... integrity of this wall without stabilisation works having been carried out is in doubt". While Mr Halliday was not called as a witness this memo was shown to almost every witness called and there was no suggestion that it had not been sent. Barry Mallon had a fairly clear recollection of the discussions that went on in April and May 1996 about the issues raised in the memo. However he appeared to agree with two contradictory suggestions made to him first in chief and then in cross about what Mr Halliday had recommended as a solution to the problem of the Council having no authority to enter the neighbouring premises at 237-239 North Street. I can well understand that Mr Mallon was unable to recollect the terms of each memo sent by someone else in his department more than 15 years ago. In my view, however, the terms of Mr Halliday's memo of 17 April are clear from the face of the document No. 6/18/77 of process. It is there stated in the most straightforward and unambiguous terms that one way forward would be to approach the matter in two stages. First, minimal holding works could be carried to 229-235 North Street and then a Notice could be served in the proprietors of 237-239 North Street. If the proprietors of those flats did not react by carrying out repairs, then " ...demolition of both properties could be secured and a 'finished' product achieved." I do not accept that the memo can be interpreted in the way suggested on behalf of the defenders, that the minimal holding works referred to would be carried out after the first demolition, because it would make little sense to talk of reducing further major deterioration to property already demolished. What is important, however, is not so much what suggestions were being made to the decision makers of the Defenders, but the fact that the contracts group were clear from the outset that some solution had to be found to the doubtful stability of the wall that would be left exposed following demolition of 229-235 North Street. There can be no question but that the contracts group understood that they ought not to leave the site knowing that the wall was of dubious stability. Mr Halliday recommended that the works should not proceed at all unless approval of gable stabilisation work (at a cost of about £10,000 excluding VAT) was secured. Within a week of Mr Halliday's memo and as a result of the concerns expressed by him Mr Mallon and his colleague were instructed to carry out a disruptive survey of the wall in question. Mr Mallon accepted that the survey was carried out to inform Mr Taylor in his decision making process about whether provision for gable stabilisation works would be authorised. Photographs were to be taken to assist the reader of the report. Mr Mallon did not carry out a disruptive survey of the chimney flues or roof space to examine the brickwork there, despite the instructions given to him by memo (6/18/78 of process). He was quite self-critical in that respect but it became clear in cross examination that he was not too concerned about not having done so at the time because he assumed that his recommendations to carry out tying in works from floor to roof would be accepted. I consider that anyone reading the report carefully would have noticed that the roof space is omitted from the sketch in the report confirming the areas actually inspected and would have asked for an explanation. I have accepted the evidence of Mr Lightbody on the poor condition of the brickwork in the apex and the incidence of sulphate attack. That state of affairs could have been ascertained by the defenders on closer inspection of the area. I conclude that they ought to have known that the brickwork in the apex was in a poor condition and needed attention.

[83] In any event, Mr Mallon's recommendations, as spoken to by him in evidence and made on the basis of an otherwise comprehensive survey, were that there was a need for significant tying in works, both tying back the mutual wall to the flooring of the adjacent property and providing ties where the wall met the front and rear elevations. Mr Mallon knew of the reduced ability of a wall that had never been intended to be a gable wall to withstand wind forces once exposed. After the report became available there were further discussions between the two groups within Building Control. I have no hesitation in accepting Mr Mallon's evidence done that he and his colleagues argued that the tying in works should take place, particularly at a meeting of 16 May 1996. I accept also that he and his colleagues never wavered in their view that the work needed to be done. They were simply overruled. Importantly, there was no evidence of any arguments being presented to Mr Mallon and his colleagues that the findings in the mutual wall survey report were wrong or that the approach being taken was too cautious. There was reference to there being no authority to effect the works in the absence of notice on the proprietors of 237 - 239 North Street, but that was not a new matter, having been noted by Mr Halliday the previous month. Further, it could hardly be a good reason to ignore the findings of Mr Mallon without trying to find an alternative solution. It was left to Mr Taylor to decide what to do in the circumstances.

[84] Following the meeting of 16 May 1996, Mr Talyor decided to delete the tying in works to the exposed wall from the contract, thus reducing the contract sum by about £12,000. As he was the last witness called to give evidence, the reasons for Mr Taylor's decision could not be put in terms to any of the preceding witnesses. None was able to offer a possible explanation for his decision. Mr Lightbody thought it "incomprehensible" and "folly". Suggestions were made on behalf of the defenders to Mr Lighbody and others that "difficult decisions had to be made" and there was a hint that perhaps Mr Taylor would reveal some reasoned basis for his decision that took safety considerations into account, perhaps balancing them against other practical issues. There was no evidence of any other expert input into his decision making process. In the event, Mr Taylor's position in relation to the decision he had taken to delete the provision for tying in works was so extraordinary that Senior Counsel for the Defenders was constrained to suggest that it must be wrong. What he said was that Mr Mallon's survey report on the wall was "irrelevant" to the decision, which was based solely on his lack of authority to enter the neighbouring premises. He was adamant on this matter and repeated it several times under challenge. I agree with the contention of Senior Counsel for the pursuers that Mr Taylor's evidence on this central issue seemed disingenuous. It is inconceivable that he would not regard the survey report that he had instructed be sent to him as material in informing his decision on how to proceed. Had he accepted that, it seems to me that his decision not to follow the recommendations in the report would have been subjected to even closer scrutiny and he would have required to address head on the extent to which he felt able to decide that leaving the wall without ties or other stabilisation would be safe in light of the material before him indicating the contrary. At one point his position seemed to be that he could not really recall exactly how his decision to delete the provision for tying in works was informed. If Mr Taylor based his decision solely on the issue of what power he had to enter the adjacent property, that showed a total disregard for the safety of persons and property surrounding the exposed wall and was insupportable. He had before him a recommendation that the demolition simply should not proceed without ensuring the stability of the wall that would be exposed. In the absence of any clear evidence to the effect that Mr Taylor disagreed with the findings or conclusion of the survey report, I conclude that he reached his decision in the full knowledge that it would result in the defenders leaving a structurally unstable wall after the demolition. He failed to have regard to the risk to the safety of persons and property in the vicinity of the newly exposed wall. He seemed to accept that a newly exposed former mutual wall would always require to be tied in "at some stage", yet he could not explain, other than by reference to a lack of power, how he had determined when that might be. I conclude also that Mr Taylor's decision in May 1996 was a final one, as there was no acceptable evidence that it was open to be revisited. In particular, no further formal inspections or reports were instructed thereafter. There was sufficient evidence of how the defenders could have resolved the issue of the lack of authority to enter 237- 239 North Street to negate any suggestion by Mr Taylor that he was powerless to resolve the problem posed by Mr Mallon's survey report. Mr Halliday had suggested one option in his memo of 17 April 1996. Importantly, Mr Lightbody gave unchallenged evidence that a raking shore could be attached to the exposed wall after the demolition of the flats above 229 - 235 North Street pending any further decisions being taken in relation to Nos. 235- 237. Thus in my view the only unacceptable option was to go ahead with the demolition without taking or planning for any steps to stabilise the wall that would be exposed as a result.

[85] The next chapter in the chronology was the issue of whether to remove the timber safe lintels and replace them with concrete that could have the ancillary benefit of fulfilling a tying in function, at least to some extent. The relevance of this issue is not so much the extent to which replacing the timber safe lintels with concrete would have assisted the wall's stability, but the clear ongoing concern on the part of the contracts group about the lack of ties in the former mutual wall, coupled with an ongoing refusal on the part of the decision makers to address the problem. The issue is well summarised in memo of 25 July 1996 from Mr Gibb, head of contracts to Mr McPherson, head of operations. Contracts were clearly recommending a course that would allow concrete lintels to be tied in but were obliged to accept the instruction from operations, which was simply to brick up the openings left where rotted timber lintels were removed (confirmed by subsequent memo No. 6/18/ 54 of process). It is apparent that Mr Gibb felt strongly about this matter, going so far as to record that in the circumstances he was "...unable to guarantee the gable's stability." Such a statement reinforces the conclusion I have reached that the defenders knew that without carrying out gable stabilisation works there was a material risk of harm to people or property in the vicinity of the wall. No significance can be attached to the insertion of a few Robslea lintels in place of timber safe lintels that had already rotted as these pre cast lintels did not perform any tying function whatsoever. In the absence of any satisfactory explanation, I conclude that this episode was illustrative of another failure to take care for the safety of persons and property in the locality of the newly exposed wall.

[86] There was some evidence about what went on during the actual demolition process but I found that gave no further insight into the decisions already taken by the defenders. Mr Simpson of the demolition contractors noticed nothing that prompted him to take action, but he had no responsibility to assess the stability of the wall or to make any recommendations in that respect. While I accept that there were walkways that allowed Mr Mallon and others to view the exposed wall as each floor was taken down, it is clear that Mr Mallon had not changed his mind on tying in works being required. He had been told that the provision for tying in works had been deleted and it seems to me that he did his job as well as he could given that restriction. He said in evidence that as the work progressed he did have a concern about the wall's capacity to withstand wind loads. I formed the impression that Mr Mallon was aware that expressing concerns had no impact on the decision makers and would not result in action being taken. He knew that some monitoring of the wall was to take place after the demolition, to check for movement, but no results were available when he left the site nor by the date of the collapse.

[87] It is not in dispute that the collapse of the chimney and part of the brickwork of the apex section of the exposed wall on 6 November 1996 took place in adverse weather conditions. The wind force on that particular night was of a strength that could be expected every five years (Met Office Report of 18 May 2005, No. 7/6 of process). It was not a freak event, or something rarely heard of in that part of the country. It was reasonably foreseeable that such an event could occur in Glasgow in early November. While there was some attempt to show that other buildings had also been susceptible to damage that night, the documentation produced was not spoken to by anyone involved in reporting the incidents in question. It raised too many unanswered questions about the type of properties that had also suffered damage and more importantly their condition. It was not sufficient to raise any concern that even suitably stable newly exposed former mutual walls would have partially collapsed in those conditions. All of the professional or expert witnesses accepted that the now exposed wall would, as a result of the demolition of its' previous neighbour, be less stable than previously and less able to withstand wind forces. Even Mr Taylor conceded that proposition. I accept Mr Lightbody's opinion that, had the works that he recommended (similar to those that Mr Mallon had, unknown to him when he prepared his report, recommended at the time) been carried out, these would have precluded the collapse of the brickwork in question even in adverse weather conditions. Mr Lightbody described the works that should have taken place as "standard practice". Mr Mallon, who was regularly engaged in demolition work carried out by the Council, had recommended similar works without any comment that would suggest he thought his recommendations were unusual or innovative. As a result of the defenders' failures to follow those recommendations or find an alternative way of supporting the wall they had weakened, the building was unstable in that it was at material risk of collapse in such reasonably foreseeable weather conditions. I conclude that the defenders knew, or ought to have known that the mutual division wall was left, on completion of the demolition works, lacking in inherent structural stability to the extent that there was a material risk that the chimney and part of the wall would be blown down, in high winds, onto the pursuers' property.

[88] I reject the contention that the defenders should be free of responsibility for the collapse because they had written to the pursuers and others to indicate that future maintenance of the structure would be their responsibility. There was no acceptable evidence that the pursuers or other relevant proprietors had been advised that the now exposed wall lacked stability because it was not tied in or that the condition of the brickwork in the apex had not been inspected at all and could not be assumed to be any better so far as stability was concerned. It was implicit in Mr Mallon's evidence about the letter he thought would have been sent to advise the owners that further work to the wall would be required and that they should take professional advice on that matter that he considered such intimation to be something the defenders should have done in the circumstances. As there was no evidence of any such letter having been sent, it seems to me that Mr Tahir and others were entitled to assume that the defenders had carried out the work organised and controlled by them in a manner that did not create a new structural instability carrying a material risk of collapse. The defenders had information tending to suggest that the new gable lacked stability and they failed to pass that information onto the relevant proprietors. It is noteworthy in this context that the defenders denied the very existence of Mr Mallon's survey report until shortly before the proof when appropriate steps were taken by their Senior Counsel to address ongoing attempts by the pursuers to recover the relevant documentation. . In all the circumstances I do not see that the pursuers could be required to take responsibility for the situation created by the defenders.

[89] Turing to the issue of how the defenders' actions should be characterised in law, I have reached the view that this is a clear case of a common law breach of duty as contended for by Senior Counsel for the Pursuers. The physical proximity of the pursuers' premises to the part of the tenement on which work was being carried out was such as to give rise to a clear and direct duty on the defenders to take reasonable care not to cause injury and damage to that property. That such a duty arises in such circumstances has long been established - Donoghue v Stevenson 1932 SC [HL]31; Caparo Industries v Dickman [1990] 2 A.C. 605. However, the work carried out at the defenders' instigation and under their control was instigated by a decision being taken to serve a notice under section 13 of the Building (Scotland) Act 1959. In accordance with the categories set out in X v Bedfordshire County Council [1995] 2 A.C. 633 at 729-740, if the extent of the Pursuers' case was to claim the careless performance by the defenders of a statutory duty then no common law duty of care would arise. On the other hand, if the statutory duty gives rise to a common law duty of care and there is a breach of that duty, liability attaches. In my view it is important to distinguish between the decision made by the Defenders to serve the section 13 notice and their subsequent actions in failing to have regard for the safety of persons and property in the vicinity of the work being carried out. The decision to serve the notice and carry out the work necessarily involves an element of discretion and there is no question of that being challenged here. Once the defenders had made the decision to demolish part of the tenement, a relationship was created between them and at least the neighbouring proprietors that gave rise to a common law duty of care. They were squarely within category (C) of Lord Browne Wilkinson's four categories in X v Bedfordshire County Council. For the reasons given above I consider that they breached that duty. Mr Taylor's failure to follow the recommendations of his own staff was not a matter within the ambit of the discretion conferred upon him. His decision was unsupportable in light of the material before him. He did not exercise a judgement at all, his mind was closed to the ways in which the former mutual wall could be made safe. This was a clear failure to take reasonable care in work carried out after the policy decision had been taken. As I have found there was a sufficiently proximate relationship between the parties and that the damage was reasonably foreseeable, I see no basis in any of the authorities cited to me to conclude that liability does not attach in this case. The decision in Wilson v McCaffery 1989 S.C.L.R. 250 is of interest but in my opinion does not support the point the defenders in this case seek to derive from it. In that case an accident was said to have occurred because of the way in which demolition operations were carried out by the demolition contractor who was responsible for the work. He had apparently cut through a number of joists in the upper floors of a building that was being demolished down to first floor level. No props or other shoring had been inserted below third floor level and the floors collapsed, killing a man who was a customer in the shop on the ground floor. Only the demolition contractor was sued, but he brought in the local authority as a third party. At procedure roll the case against the local authority was dismissed as irrelevant. Although the authority had served notices under section 13(1)(c) and section 13(2) of the 1959 Act they had not served a notice under section 13(1)(a) requiring the occupants of the building to remove. As there was no suggestion that the exercise of the local authority's discretion in that respect was so improper as to take their failure outwith the ambit of their powers and as the accident on the face of the pleadings occurred because of the way the demolition operations were carried out rather than the state of the building itself, no relevant case against the local authority had been made out. Quite apart from my finding that the defenders in this case were beyond the point of exercising any statutory discretion in relation to the issue of securing the stability of the wall, it seems to me that, having taking responsibility for the contracts aspect of the demolition they owed the same common law duties of care to those in the near neighbourhood as the defender in Wilson v McCaffery. They failed to act and by that failure caused the damage complained of, just as Mr McCaffery was said to have acted in a way that caused the accident on that case. The pursuers' case is not that the defenders ought to have served a second notice to resolve the problem of the instability of the newly exposed gable wall. There would be obvious difficulties in law with such a case, as Wislon v McCaffery illustrates. It is not for the pursuers, or the court for that matter, to insist that a particular notice be served. The defenders had options and the particular method of resolving the problem they had created was up to them. But liability attaches because they carried on with the demolition process and ultimately left the site knowing that their own contracts team had said that the gable's stability could not be guaranteed and knowing that they had ignored clear recommendations for works to be carried out to remedy the problem. They chose to do nothing other than instruct some monitoring work and they left the site before any results were available. The insistence by the defenders' operations group and the head of Building Control that section 13 of the 1959 Act somehow required there to be an " imminent" danger before they could act illustrates that they failed to acknowledge two important matters. First, the legislation envisages circumstances short of imminent danger where a local authority may require to take action. Secondly, as I have indicated, a distinction must be drawn between the decision making process leading to the serving of a notice and the responsibilities placed on the local authority in carrying out work after the taking of that decision. If it is known that the very work intended to remove a danger will cause a new unstable situation, there is a clear responsibility to take steps to resolve the new problem created. Accordingly, while I can accept that the defenders decisions were necessarily influenced by the statutory context in which those decisions were taken, that context cannot be sued used as an excuse to ignore clear warnings as to the safety and stability of the product of their work. I have already dealt with causation in my findings at paragraph [87] above.

[90] The defenders contend that even if liability is established, the case has been extinguished by limitation in terms of section 6 of the Prescription and Limitation

(Scotland) Act 1973 as more than five years had passed between the date on which an obligation arose in terms of a relevant claim being available and the raising of the action. The pursuers' answer is that the first date on which a relevant claim could have been made was 6 November 1996 and the action had been raised within five years of that date. There is no dispute that it is the date on which iniuria and damnum coincide that is the date on which an obligation arises for the purposes of section 6 - Dunlop v McGowans 1978 SC 22, 1980 SC (HL) 73. That is the date on which the right to raise an action is created. For the purposes of section 6, a right of action exists from the date on which the damage occurs, not from the date on which it was discovered. But what is the relevant date on which there is such concurrence in this case? I have found that the defenders had breached their duty of care to the pursuers by the date they had left the site knowing that the wall they had exposed lacked stability. That was some weeks prior to 6 November 1996. Did loss and damage occur at that time, or on the date of the collapse? In my view, the relevant loss and damage in respect of which the pursuers have a right of action in this particular case was the damage to their property that occurred on 6 November 1996. I cannot see that they had a relevant right of action prior to that date. The wall was in an unsafe condition prior to that but it had not caused any damage to the pursuers' property of a sort that would give rise to an action. Any loss that might be said to arise as a result of cracks in the wall would be so negligible that no relevant claim could have been made. This is not a case where damage has occurred but the quantification of the consequent loss is difficult and may not be able to be ascertained for some time. In those situations, proceedings require to be raised within five years of damage occurring, regardless of the difficulties with quantification. In other cases, the damage occurs but is not known to the pursuers. That is where the knowledge provisions of section 11(3) can be pled. However, I am of the view that without the collapse on 6 November there could have been no relevant proceedings taken by the pursuers. Thus the action was raised timeously. Had I concluded otherwise I would in any event have regarded this as a case where the pursuers did not know, or could not with reasonable diligence have ascertained, that loss and damage caused by the defenders had occurred prior to 6 November 1996 - section 11(3) 1973 Act. Mr Tahir did not know that the wall was at risk of collapse. He had not viewed the building left after the first demolition and there was no evidence that any concerns expressed to the Council by his neighbouring proprietor Mr Equi had been shared with him. So far as Mr Tahir was concerned, the Council had removed the derelict flats above the restaurant. There was nothing to alert him to the fact that in doing so they had created unstable situation and he was open for business as usual. I accept the evidence he gave in re examination that it was only after the collapse the Mr Rae was went into the adjacent building because the context in which he did so was then explained. In all the circumstances, I do not think Mr Tahir could reasonably have discovered any loss and damage prior to the date of the collapse.

[91] On the issue of interest, the defenders' argument for a reduced rate of interest was based solely on what was said to be the conduct of the pursuers in delaying the proceedings. The judicial rate was said to be deliberately punitive, in order to discourage delays in litigation. No argument was presented that the pursuers would be over compensated by the judicial rate because of any mismatch between the judicial rate and the changing market rate of interest during the latter stages of the action. At the time of writing this Opinion, a decision of Lord Hodge on that point has just been issued - Farstad Supply AS v Enviroco Limited [2011] CSOH 153. As there was no argument (or material) before me that would allow me to approach matters as Lord Hodge did, I have decided it solely on the basis of the submissions made to me. In any event, it was conceded by the Defenders that interest should run at the judicial rate for the most recent period, from 7 January 2010 onwards. It is difficult to reach a concluded view on conduct of such a long running litigation. There seems little doubt that the pursuers took some time to plead a relevant case. However, any delay in doing so has been acknowledged by the court in significant awards of expenses being made against them at the time. I do not consider it appropriate to add to that by reducing the judicial rate of interest that would otherwise apply. It does seem that the pursuers' losses had all been sustained by 15 September 1997 when the business re-opened. Senior Counsel for the pursuers suggested that it would be fair to award interest on the agreed sum of damages from 20 April 1997, the midpoint between the date of the collapse and the date on which all the losses had been incurred. Taking a broad view of matters I agree that such an approach would be fair, given that the purpose of interest is to compensate the pursuers for not having the benefit of the sums involved.

Decision

[92] As indicated above, I have concluded that the pursuers have established liability and will be found entitled to the sum of £175,000 with interest at the judicial rate from 20 April 1997 and that the defenders' plea of limitation should be repelled. I was invited to give my decision in principle in this case and then have the case brought out By Order, so that parties could attempt prior to that to agree the sum due for interest down the date of decree and also to deal with any arguments in relation to expenses. I am happy to accede to that request.