Act: Sanders; A & W M Urquhart (Pursuers and Respondents)

Alt: Heaney; Balfour + Manson LLP (for McCluskey Browne, Kilmarnock) (Defender and Appellant)

3 February 2009

Introduction

[1] The respondents are the proprietors of a flat which comprises the first floor and the attic above of tenement property in Maybole, Ayrshire. The appellant's shop lies directly below the respondents' property. The respondents seek damages for the cost of remedial works to their flat as a result of building works carried out in June 2004 within that shop. Those works involved the removal of a load-bearing wall. The works, as planned, involved the insertion, in its place, of steel support beams and a central supporting column. The load bearing wall was directly below, and bore the weight of, the wall in the respondents' living room and the attic wall above. A building warrant had been obtained from South Ayrshire Council in respect of the works. The respondents claim that the works were not carried out in accordance with the building warrant in that there was a negligent failure to construct the central support column, resulting in damage to their flat. The works were carried out by an independent contractor, Ober Limited, engaged by the appellant and working under the supervision of the firm of architects which had applied for the building warrant. The issue in the present appeal concerns whether the appellant, having instructed independent contractors to carry out the works, is liable to the respondents for the damage to their property.

Proceedings in the sheriff court

[2] At first instance the sheriff held that, absent specific averments that the works were inherently hazardous, there was nothing to bring this case within the exception to the general rule that an employer is not responsible in law for the acts of an independent contractor: the pleadings were irrelevant. Before the sheriff principal the respondents were allowed to amend article 3 of the condescendence, which contained averments of fault, to include an averment that the removal of the load bearing wall was an inherently hazardous operation and to add a new plea-in-law that the appellant was liable for the acts and omissions of the contractor in carrying out that operation. In addition, article 2 of the condescendence, which, inter alia, described how the works deviated from the building warrant by the omission of a support column, was amended to include the following averment:

"The removal of a load bearing wall in this way was an inherently hazardous operation, as the wall supported the weight of the structures above"

In allowing the appeal, the sheriff principal found that, while the pleadings might have been framed with greater care, the respondents' case as a whole involved an offer to prove that the operation carried out was inherently dangerous and that, exceptionally, the law provided a remedy against the party who instructed such work albeit carried out by an independent contractor (Walker on Delict (2^nd ed.), pages 154 and 159; Dalton v Angus (1881) L.R. 6 App. Cas. 740, per Lord Watson at page 831; Duncan's Hotel (Glasgow) Ltd v J & A Ferguson Limited 1972 S.L.T. (Notes) 84, a decision following debate).

Submissions for the appellant

[3] On behalf of the appellant Mr Heaney presented two submissions. The first was that there was in Scots law no "inherently hazardous operations" exception to the general rule that an employer was not liable for the fault of an independent contractor. The passage in Walker referred to by the sheriff principal, and relied on by the respondents, referred only to English decisions (Bower v Peate (1876) L.R. 1 Q.B.D. 321; Penny v Wimbledon UDC [1899] 2 Q.B. 72; Dalton v Angus. In analogous contexts the House of Lords had not been keen to extend the exception in that jurisdiction (Ferguson v Welsh [1987] 1 W.L.R. 1553, per Lord Keith of Kinkel at page 1560 and Lord Oliver at page 1562 (occupier's liability); D & F Estates v Church Commissioners for England [1989] 1 A.C. 177, per Lord Bridge of Harwich at page 208E (liability of a contractor for a subcontractor)). Its existence had been doubted in other common law jurisdictions, such as Australia (Stoneman v Lyons (1975) 133 C.L.R. 550, per Mason, J at pages 574-5). There was no clear authority importing the exception into Scots law: Stewart v Adams 1920 S.C. 129 involved the defender's personal fault rather than a form of vicarious liability; the decision following proof, as opposed to debate, in Duncan's Hotel v Ferguson Ltd (1974 S.C. 191) could equally have been made on the basis of the defender's recklessness - while Lord Stott had referred to the exception, the Inner House cases which he had cited were consistent with liability resulting from culpa (Cameron v Fraser (1881) 9 R. 26; Miller v Renton (1885) 13 R. 309). It was accepted that a number of early text books did make reference to the exception (Glegg on Reparation (first ed.) at pages 25 and 27; Gloag and Henderson, Introduction to the Law of Scotland (first ed.) at pages 350 and 362; cf Green's Encyclopaedia of the Law of Scotland, (third ed.) Vol.XII, paras.1103-1106). However, its existence had been doubted by Lord Macphail in Southesk Trust Company Limited v Angus Council [2006] CSOH 6 (at paras [15 ]to [21]), on which the appellant relied.

[4] Given the potential for danger in most operations, the breadth of such an exception was problematic and its application might lead to anomalous results (Atiyah, Vicarious Liability in the Law of Torts, chapter 32). Its existence was also inconsistent with the modern law of delict in Scotland, which based liability on culpa (Kennedy v Glenbelle Limited 1996 S.C. 95, per Lord President (Hope) at page 100). An employer might be liable for the actions of an independent contractor where he knew, or ought to have known, that work being done would harm his neighbour (cf Noble's Trs v Economic Forestry (Scotland) Limited 1988 S.L.T. 662; Borders RC v Roxburgh DC 1989 S.L.T. 837; G.A. Estates v Caviapen Trustees Limited (No.1) 1993 S.L.T. 1037, per Lord Coulsfield at page 1042; McKenzie v Peter McAinsh Limited and Others 1975 S.L.T. (Notes) 34). That involved personal fault, which had not been averred in the present case. By employing an independent contractor and obtaining a building warrant the appellant had discharged his duty to take reasonable care. Business depended on the right to rely upon individuals sufficiently experienced being entrusted with relevant work (Daniel v Metropolitan Railway Company (1871) L.R. 5 H.L. 45, per Lord Westbury at page 61). A strict liability rule was not required given the right of action available to the respondents against the contractor (cf Donoghue v Stevenson 1932 S.C. (H.L.) 31).

[5] Mr Heaney demurred to the suggestion that the exception might simply apply to property-based actions involving an antecedent obligation of support. While English law recognised an absolute right of support at the time of Bower v Peate (cf Blake v Woolf [1898] 2 Q.B. 426), there was no such obligation encompassed by the law of the tenement and of common interest, which governed the present case (Thomson v St Cuthbert's Co-operative Association Ltd 1958 S.C. 380, per Lord Justice Clerk (Thomson) at pages 391-2 and Lord Mackintosh at page 398; Stair Memorial Encyclopaedia, Vol.14, para.2030). That was so even where the interference with the support was by some form of innovation due to works carried out (Doran v Smith 1971 S.L.T. (Sh. Ct.) 46 at page 48). The duty of care on the lower tenement was significant where operations affected support, but he was not an insurer. An upper floor proprietor could seek an interdict preventing such operations being carried out where he anticipated that they involved some danger, but his agreement was not needed. Operations would be allowed by the court where danger could be avoided by the use of due caution (Thomson v St Cuthbert's Co-operative Society Ltd, per Lord Mackintosh at page 398; Stair Memorial Encyclopaedia, Vol.18, para.233; Fergusson v Marjoribanks 12 Nov 1816 F.C; Dennistoun v Bell and Brown (1824) 2 Shaw 784; McNair v McLauchlan and McKeand (1826) 4 Shaw 546). In any event, the respondents' pleadings were not founded on nuisance or common interest and the cases on which they relied which were so founded were not in point.

[6] The appellant's second proposition was that, even if there were such an exception to the general rule, the respondents' pleadings did not aver facts from which it could be shown that the works were inherently hazardous. Mr Heaney submitted that the terms of the respondents' pleadings suggested that it was the fact that the building warrant was not followed which made the works inherently hazardous: they accepted that the works could be done safely, had it been so followed. Despite the amendments which were made, the second article of condescendence still contained the averment that it was the removal of the wall "in this way" which was inherently dangerous. The meaning of inherent was: "existing in something as a permanent, essential, or characteristic attribute". One could only decide if work was inherently dangerous before it was carried out, and not after the event. Such work, no matter what steps were taken, would still pose a risk. The averments did not, therefore, describe an inherently hazardous operation (cf Stoneman v Mason, per Mason, J page 575; Dalton v Angus, per Lord Watson at page 831). Mr Heaney moved that we allow the appeal, sustain the appellant's first plea-in-law and dismiss the action.

Submissions for the respondents

[7] At the outset of his submissions on behalf of the respondents, Mr Sanders moved to amend article 2 of the condescendence, by the deletion of the words "in this way". He confirmed that the respondents sought to prove that the work was, of itself, inherently hazardous. He referred to the second plea-in-law, which was not qualified. [That motion was opposed, and the court reserved its opinion on the matter, pending this decision.] The respondents offered to prove that damage was caused by the fault of the appellant or by those instructed by him. It was stressed that there was no absolute duty of support pled, only a duty to exercise reasonable care (cf Thomson v St Cuthbert's Co-operative Society Ltd). Mr Sanders moved to delete the pursuers' esto case in article 3 of the condescendence (which averred a duty of care on the appellant to ensure that the works were carried out in conformity with that building warrant.) That motion was not opposed.

[8] The respondents accepted the general rule that an individual would not be responsible for the wrongs of an independent contractor (Stephen v Thurso Police Commissioners (1876) 3 R. 535, per Lord Justice Clerk Moncrieff at 540). However, it was equally clear that the exception on which they relied had been recognised in Scots law (Walker on Delict (2^nd ed.) pages 154 to 159; Delict (ed. J.M. Thomson) at para 14.51; Cameron v Fraser). It had been approved recently in the sheriff court in circumstances similar to those in the present case (Hamilton v Wahla and Ryeside Construction Ltd (unreported, April 28, 1999, A3944/97E, Sheriff Kerr, Q.C., Glasgow Sheriff Court; Crolla v Hussain and Ascension Construction Ltd, unreported, October 8 2008, A6013/05, Sheriff Principal Bowen, Q.C., at Edinburgh Sheriff Court). The appellant's proposition that there was no such thing as the inherently hazardous exception in this jurisdiction could not be accepted: he was, in effect, asking the court to re-write the last one hundred years of law with regard to this principle. Mr Sanders observed that the exception, as discussed in the relevant textbooks, did not appear to be limited to operations on land. As regards the practicality of applying such an exception, given its potential breadth, it was submitted that, while precise limits of the rule were arguably still to be determined, the starting point was the commonsense view that, if one were to pull down a supporting wall, such action was likely to result in damage (cf Duncan's Hotel v Ferguson): the circumstances of the present case presented a workable example of inherently dangerous work. It was also submitted that there might also be sound policy reasons involved in framing the exception. There were a number of circumstances where it would not be fair to pass on all liability to a contractor from whom a victim might not be able to effect recovery. In the present case the independent contractor employed by the appellant was now in liquidation and the insurers did not accept that an indemnity existed.

[9] The appellant's submissions regarding the respondents' pleadings did not merit dismissal of the case. If it was assumed that the exception did exist, the pleadings, while admittedly not perfectly framed, were nevertheless adequate to allow the matter to proceed to a proof before answer. There was enough within the averments to give fair notice to the appellant as to what the respondents' case was as a matter of fact and law (cf Jamieson v Jamieson 1952 S.C. (H.L.) 44). The position would be further clarified were the amendments requested allowed. He invited us to refuse the appeal and to remit the case to the sheriff to proceed with a proof before answer.

Discussion

[10] In Stephen v Thurso Commissioners Lord Justice Clerk Moncrieff at page 540 said:

"As regards the general question of law, it is unnecessary to say anything farther. The law is well established. In the first place, a master is liable for the injurious act of his servant. In the second place, if the wrongdoer be a contractor who is subject to the control of his employer, the latter is responsible; and, in the third place, if the contractor be independent, and may do as he please as regards the execution of the work, he is to be viewed as the principal, and alone is liable."

That classification is not necessarily exhaustive. As Lord Justice Clerk Moncrieff himself noticed at page 538, there was a question (which it was unnecessary to decide in that case) whether the engagement of an independent contractor would relieve the employer where a "distinct duty" was imposed on the latter. More controversial is the general proposition that an employer is liable when the work on which the independent contractor is engaged is "necessarily attended with risk".

[11] That expression was used by Lord Watson in Dalton v Angus (an English appeal in the House of Lords) where at pages 831-2 he said:

"The operations of the Commissioners [the adjacent proprietors] were obviously attended with danger to the building in question; but these Appellants seek to shelter themselves from responsibility by proving that they took their contractor bound to adopt all measures necessary for ensuring the safety of the building. When an employer contracts for the performance of work, which properly conducted can occasion no risk to his neighbour's house which he is under obligation to support, he is not liable for damage arising from the negligence of the contractor. But in cases where the work is necessarily attended with risk, he cannot free himself from liability by binding the contractor to take effectual precautions. He is bound, as in a question with the party injured, to see that the contract is performed, and is therefore liable, as well as the contractor to repair any damage which may be done."

[12] As is plain from that passage, Lord Watson was addressing a situation where the work which was to be carried out necessarily put at risk neighbouring property which the employer was under obligation to support. Lord Blackburn (at page 829) under reference to earlier English authority, including Bower v Peate (1876) 1 Q.B.D. 321, characterised that situation as one in which a person instructed work, the doing of which cast on him a duty; he could not "escape from the responsibility attaching on him for seeing that duty performed by delegating it to a contractor". The Lord Chancellor (Lord Selborne) on this point contented himself with approving and applying the decision in Bower v Peate. Lord Colridge agreed with Lord Blackburn. The remaining judge (Lord Penzance) confined himself to the other issues in the case (bearing on the right to lateral support acquired by prescription).

[13] Lord Watson's observations were quickly adopted by textbook writers as applicable to the law of Scotland. In the first edition of Glegg on Reparation (published in 1892) the author, distinguishing "Non-hazardous operations" from "Hazardous" says at page 25:

"But in cases where the work is necessarily attended with risk an employer is liable, and he cannot free himself from liability by binding the contractor to take effectual precautions to prevent injury. The employer is bound, in a question with the party injured, to see that the contract is performed and is therefore liable, as much as the contractor, to repair any damage which may be done. Pulling down a gable, for instance, digging out foundations, and rebuilding, are operations fraught with injurious consequences to a neighbouring house, unless precautions are taken, and a proprietor is, therefore, liable for injury arising from such operations, though he has bound a contractor, by express stipulation, to do all that is necessary to support the neighbour's house. An operation which the owner himself would do only at his peril cannot be delegated to a contractor, so as to relieve the owner of liability."

Bower v Peate is also cited. Reference is also made to Rankin v Dixon (1847) 9 D. 1048, where Lord President Boyle directed a civil jury that the tenants of ironstone workings were responsible to neighbouring proprietors for the acts of contractors engaged by them to carry out certain burning operations - though, as the Lord President equiparated the contractors to any other hired labourers and the terms of their contract are unreported, it is not clear upon what principle of law he gave that direction. In the second edition of Glegg (published in 1905) the author makes at page 30 similar observations to those made in the first edition. The same theme is repeated by the respective editors of the third (1939) and fourth (1955) editions of Glegg at pages 27 and 30-1 respectively. In the first edition of Gloag and Henderson - Introduction to the Law of Scotland (1927) the authors, at pages 363-4, classify under four heads exceptions to the general principle that an employer is not liable for the wrongful or negligent acts of a contractor engaged by him. The third of these is expressed as follows:

"When the legality of the work contracted for is conditional on its being done without entailing a particular consequence. Then, even although the consequence is entailed by the negligence of the contractor, the mandant will be liable. Thus, as the legality of excavation on land is conditional on the preservation of support to neighbouring land, the withdrawal of that support, though it might have been avoided by due care on the part of the contractor for the excavation, will involve liability on the party who authorised it ...".

Dalton v Angus is cited as an authority for that proposition. The fourth exception opens:

"Where the work contracted for is obviously dangerous to the public, or to third parties, unless adequate precautions are taken. One who employs a contractor for work of this character is bound to supervise the contractor's proceedings, and to see that the necessary precautions are taken."

A number of illustrations are given, including Stewart v Adams (discussed below). Dalton v Angus is not cited under this exception. The same observations are made in the second edition (1933) by the original authors - as in the third (1939), fourth (1946), fifth (1952) and sixth (1956) editions at pages 399-400, 401-2, 412-3 and 422-3 respectively, all edited by others. In the seventh edition (1968) the exceptions are reclassified under three headings. The third (at page 460) is expressed thus:

"In certain cases, where damage is the natural and probable consequence of negligent execution of the work, the employer has the personal obligation of seeing that the work is carefully and properly done. These cases fall broadly into two classes. The first covers excavations and other hazardous work on public roads and streets; the second relates to hazardous work on private property, such as building operations which expose adjacent property to risk of damage, work involving the risk of fire spreading to adjacent property or injuring persons present, or any work involving an obvious inherent risk of serious injury."

In support of the first sub-class Bower v Peate and Dalton v Angus among other cases are cited. Similar treatment is to be found in the eighth (1980), ninth (1987), tenth (1995), eleventh (2001) and twelfth (2007) editions at pages 523-4, 578-9, 546-8, 509-10 and 597-9 respectively. The last three editions are styled "The Law of Scotland".

[14] In The Encyclopaedia of the Law of Scotland (third ed.) (published in 1931), Hector McKechnie, Advocate, under the title "Reparation", describing three general exceptions to the rule that an employer is not liable for the wrongful act of a contractor, states (vol.XII, para 1105):

"Secondly, a person who undertakes an operation on property necessarily hazardous to his neighbours, does not escape liability for damage caused by employing a contractor to do the work. Since it is the operation which in itself is dangerous, and not the manner of doing it, the injurious act is regarded as the act of the employer. In such a case an employer cannot escape liability, even by binding a contractor to take effectual precautions to prevent injury. Accordingly, an employer, who had taken a contractor so bound, was found liable for injury caused by the dangerous operation of taking down a gable and digging out foundations ...".

See also the first (1897) and second (1910) editions sub. nom. - Culpa tenet suos auctores - both articles written by Glegg. Dalton v Angus and Bower v Peate are cited.

[15] In Walker on Delict (first ed.) (1966) the author, under the heading "Where the contractor is carrying out an inherently hazardous operation", states at page 165:

"Where the operation instructed by the employer is one of a hazardous nature, with an obviously serious danger of considerable harm befalling if it is not carried through safely, the employer remains liable if that harm results, and cannot evade liability by having employed a competent contractor. 'When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions.' 'In cases where the work is necessarily attended with risk, he [the employer] cannot free himself from liability by binding the contractor to take effectual precautions'".

The two quoted passages are from Penny v Wimbledon Urban Council [1899] 2 Q.B. 72, per Romer L.J. at page 78 and from Dalton v Angus, per Lord Watson, respectively. A similar passage appears in the second edition (p.159).

[16] In all these textbooks English cases are liberally cited. In none of them is it suggested that there is any basis upon which, in this field, the law of Scotland is different from that of its southern neighbour.

[17] It should be added that in a number of Outer House cases Dalton v Angus has been cited and applied. In Anderson v Brady and Ross 1964 S.L.T. (Notes) 11 Lord Kissen observed that there was ample authority for the proposition that an employer is liable for the negligence of an independent contractor in carrying out hazardous operations. This general approach was adopted by Lord Stott in Duncan's Hotel (Glasgow) Limited v J & A Ferguson Limited (1972) S.L.T. (Notes) 84 (after debate) and 1974 S.C. 191 (after proof), by Lord Robertson in Mackenzie v Peter McAinsh Limited 1975 S.L.T. (Notes) 34, by Lord Jauncey in Noble's Trs v Economic Forestry (Scotland) Limited 1988 S.L.T. 662, by Lord Dervaird in Borders Regional Council v Roxburgh District Council 1989 S.L.T. 837 and by Lord Coulsfield in G.A. Estates v Caviapen Trs Limited (No.1) 1993 S.L.T. 107. In South Esk Trust Co Limited v Angus Council [2006] CSOH 6, however, Lord Macphail doubted whether the "hazardous operations" exception was part of the law of Scotland. Although Dalton v Angus does not appear specifically to have been relied on, Lord Stormonth-Darling in Sanderson v Commissioners of the Burgh of Paisley (1899) 7 S.L.T. 255 held that where an operation (of excavation) was "in its nature dangerous to the lieges unless proper precautions were taken [the proprietors instructing it] could not relieve themselves of the duty of seeing that such precautions were taken by delegating the work to a contractor". The exception has been applied in several sheriff court cases - for example, Hamilton v Wahla and Ryeside Construction (1999) (Sheriff Kerr, Q.C.), Powrie Castle Properties v Dundee District Council 2001 S.C. L.R. 146 (Sheriff Principal Dunlop, Q.C.) and Crolla v Hussain (2008) (Sheriff Principal Bowen, Q.C.), as well as by the sheriff principal in the present case.

[18] None of these authorities is binding on this court; and the attractive argument presented by Mr Heaney requires due attention. Before, however, discussing the principles which may be involved, it is appropriate to notice certain Inner House cases.

[19] In Duncan's Hotel (Glasgow) Limited v J & A Ferguson Limited Lord Stott suggested that Scottish support for the hazardous work exception could be found in Cameron v Fraser (1881) 9 R. 26 and Miller v Renton (1885) 13 R. 309. However, in the first case, although Bower v Peate was cited in argument, it is far from clear on what principle Lord Young, who delivered the leading ex tempore judgment, proceeded; while the proprietor was found liable, the contractor was assoilzied, so it cannot have been treated as a case where the former was held responsible for fault on the part of the latter; it is not clear that the latter was truly independent. In the later case, which was concerned with a procedural decision (whether a proof should be allowed against both the neighbouring proprietor and the contractor) the decision seems to have turned on the circumstance that a sufficiently relevant case was made against each of them personally and separately. Neither decision can be said to lay down any principle relevant for present purposes. Another Inner House case sometimes mentioned in this context is Stewart v Adams, where a boatowner who had employed a joiner to repair his boats was found liable in damages to a shepherd whose cow had died having ingested poisonous paint scrapings which had been left by the joiner on the ground. The opinions delivered do not admit of a very clear ratio decidendi but the case appears to have been decided in the pursuer's favour because the boatowner made no provision in his contract with the joiner or otherwise for removal of the dangerous scrapings; thus he was personally liable to the pursuer. Again there is little discussion of principle.

[20] In England and Wales the "inherently dangerous" doctrine has been noted and applied, perhaps most controversially in Honeywill & Stein v Larkin Brothers Limited [1934] 1 K.B. 191 (where the danger lay in the taking of photographs with flashlight involving the ignition of some magnesium powder). The doctrine has been subject to trenchant criticism by Professor Atiyah in Chapter 32 of "Vicarious Liability in the Law of Torts" (1967). In Biffa Waste Services Limited v Maschinenfibric Ernst Hese GmbH [2008] EWCA Civ 1257 (decided since the present case was taken to avizandum) the Court of Appeal acknowledged that there had been substantial criticism of the decision in Honeywill (and of the concept of "inherently dangerous" applied in it) but held that it was bound by that decision. It noted, however, that in an earlier case (Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575) the Court of Appeal had observed that it "might well be that the House of Lords today would prefer to avoid subtle distinctions between what is and is not 'extra hazardous' ...". In Biffa the court (at para 78) observed:

"The doctrine enunciated in Honeywill is so unsatisfactory that its application should be kept as narrow as possible. It should be applied only to activities that are exceptionally dangerous whatever precautions are taken."

[21] As the Court of Appeal noticed, the High Court of Australia has held that the doctrine has no place in Australian law (Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA1, especially per Mason J. at pages 29-30). On the other hand it is, as Professor Atiyah noted at page 372, well established in America and in Canada. He there suggests that it is also so established in Scotland; but the authority he cites for that is Stewart v Adam, which hardly vouches so wide a proposition.

[22] For the purposes of this case it is not necessary to decide whether the treatment in the Scottish textbooks, the majority of the Outer House cases and the sheriff courts, suggesting as it does, a general acceptance as applicable to Scots law of English decisions in this field, is well-founded. I reserve my opinion on that general issue, while noting that there has been a long tradition of such acceptance. For present purposes it is necessary to consider the circumstances of this case as disclosed in the pleadings and to bear in mind that at this stage no inquiry has taken place.

[23] In the course of the discussion Mr Sanders moved the court to allow the pursuers' pleadings to be further amended by deleting the phrase "in this way" from the sentence in article 2 - "The removal of a load-bearing wall in this way was an inherently hazardous operation, as the wall supported the weight of the structures above." The inclusion of that phrase had allowed Mr Heaney to make a secondary submission - to the effect that, in any event, on the pleadings the pursuers were not offering to prove that the works to be carried out were in fact inherently hazardous. Although amendment was opposed, I would grant it. The central issue between the parties turns, it seems to me, on whether the works in contemplation were of such a character that, notwithstanding the careful selection of an independent contractor to execute them, the defender as lower proprietor could not be thus relieved of liability to the pursuers for their negligent execution. The pursuers are now offering, without equivocation, to prove that the removal of the wall in question was an inherently hazardous operation. They should not, in my view, be denied the opportunity of proving that averment if they can.

[24] It is clear that Dalton v Angus was itself decided in the context of consideration of property law; the plaintiffs (Angus & Co) established that they had acquired, by twenty years uninterrupted enjoyment, a right to lateral support from adjoining land; the removal of that support, in the context of alterations to one of the dwellinghouses, gave rise to the claim. In the present case, the issue again arises in the context of an obligation of support between neighbouring proprietors.

[25] According to the pursuers' averments their property comprises the first and attic floors of a building of which the floor below (the ground floor) comprises the defender's shop. It is admitted by the defender that the shop provides support for the flat above. While that admission may be concerned with support in fact, it is reasonably clear that the building as a whole comprises a tenement to which the Scots law of the tenement applies. Accordingly, the defender as ground floor proprietor owes an obligation of support to the pursuers as proprietors of the flat above. Failure of support does not of itself, without proof of negligence or nuisance, give rise to liability in reparation (Thomson v St Cuthbert's Co-operative Association Ltd) but the obligation of support includes an obligation not to carry out operations on one's property which endangers support to other parts of the building. A fellow proprietor who has reason to apprehend that operations will so endanger his property may bring proceedings to prevent them. The test is whether "the alterations were of a nature to be productive of danger to the upper floors" (Dennistoun v Bell, at pages 785-6). The court may remit to a man of skill to judge of that matter. The right of the "dominant proprietor" includes a right "to insist that the owners of other flats shall not injure or endanger the property belonging to him ... the party proposing alteration must instruct that the operation does not injure or create reasonable apprehension of injury" (Taylor v Dunlop (1872) 11 Macph. 25, per Lord Ardmillan at pages 30-1).

[26] In Dalton v Angus Lord Blackburn said at page 829:

"... a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching to him of seeing that duty performed by delegating it to a contractor".

In Scotland the law of the tenement, similarly in my view, casts on the "servient" proprietor a positive duty in carrying out works which may affect support to avoid endangering the "dominant" property. That duty, which is personal to him, cannot, in my view, be elided by the instruction of an independent contractor to execute the works.

[27] The pursuers aver that the works which were to be carried out involved the removal of a load-bearing wall and that that removal was an inherently hazardous operation. The building warrant proceeded on the basis that alternative support would be provided by the insertion of new steel support beams. The wall, it is averred, was removed without the insertion of such beams, leading to settlement and consequential damages. In these circumstances, notwithstanding that the omission to insert the beams may have been an omission by an independent contractor, the pursuers have, in the context of the prior obligation of support, averred a case against the defender which is relevant for inquiry.

Decision

[28] I would allow the amendment, refuse the appeal and adhere to the sheriff principal's interlocutor.

Act: Sanders; A & W M Urquhart (Pursuers and Respondents)

Alt: Heaney; Balfour + Manson LLP (for McCluskey Browne, Kilmarnock) (Defender and Appellant)

3 February 2009

[29] I am in full agreement with your Lordship in the chair.

Act: Sanders; A & W M Urquhart (Pursuers and Respondents)

Alt: Heaney; Balfour + Manson LLP (for McCluskey Browne, Kilmarnock) (Defender and Appellant)

3 February 2009

[30] On this matter I am entirely of the same mind as your Lordship in the chair. I accordingly agree that the proposed amendment should be allowed and that the appeal should be refused.