Pursuer: Di Rollo, Q.C., Barne; Drummond Miller

Defenders: Clarke; Simpson & Marwick

25 January 2007

[1] The pursuer is a tenant of a house in the Pollok area of Glasgow. She lives there with her children. Her house is low lying and is near to the Levern Water. The drainage of water from that area is achieved by a system of pipes. It joins with drainage from other nearby areas, and at times of high flow will discharge from a sewer into the Levern Water. It is said that the sewer was built in 1932. Flooding in the area occurred in 1985 and 1992. The then responsible authority (now the present defenders) obtained an engineers report which said that the capacity of the system should be augmented. Nothing was done and in December 1994 after rainfall the system could not cope and the pursuer's home was flooded. Much of her property, furniture and carpets were ruined and she was put out of her home for a year.

[2] In the action now before me the pursuer specifies what caused the flooding. She says it was caused by two matters, the first being the presence of new developments in the nearby area and the second a specific fault in an overflow valve (known as L2). What had occurred at the valve was this. The overflow pipes at L2 discharged into the Levern Water. However, if the water level there was too high water would flow back into the pipe the "wrong" way. At L2 there was a flapvalve designed to prevent this. It is said, however, that the valve was of poor design and lacked screening (ie a grid to prevent silt blocking the valve). As a result the flapvalve was silted up in the open position and could not prevent the overflow surcharging eventually towards the pursuer's house.

[3] Mr Clarke appeared for the defenders and moved me to dismiss the action for one simple reason. He said that both parties were in agreement as to what duties were relevant, and a number of matters were either agreed or conceded on matters of pure law. He said, however, that the pursuer had plead alternative cases and, as the case based on overdevelopment was irrelevant the whole case was irrelevant on the "weaker alternative" argument. If he is correct about that, then I agree the whole case falls. He referred me to both written notes of arguments but without elaboration. He said that a fair reading of what the pursuer avers at pages 9 to 10 disclosed an alternative case; and the pursuer was saying that the cause was overprovision, or L2 problems. It could not be said that any duty was owed to the pursuer on first point. That related to allocation of the defender's budget and the proper use of monies. Counsel did accept that the case made about L2 was relevant.

[4] Mr Di Rollo asked me to send the case to proof before answer. He stressed the common agreement that the case about the L2 valve was plainly relevant. He went on to argue two other basic points. He said that, looked at properly, the matter of "overprovision" was not really an alternative case; and even if it was it was in any event relevant. He pointed to page 20 where this duty was admitted. What the pursuer was saying, was that (generally) but for the capacity problem there would have been no flood and (particularly) but for the defects at L2 there would have been no flood (my emphasis). Both materially contributed and each impacted on the other and the incapacity was seen to be worse at a defective L2. Subsequently simple measures were taken and the problem was fixed.

[5] The incapacity case was reinforced by the averment of prior floods, the adverse report and the easy solution found. It was not necessary to say what other local authorities would do. It was enough to say that capacity could be and was solved at reasonable cost. The case about L2 was about poor design and lack of maintenance. The pursuer was offering to show fault and this was the relevant test both at common law and under the Sewerage (Scotland) Act 1968, section 1. Counsel agreed that the parties were not in dispute about the law and although he, like his opponent, mentioned some well known cases, he did not canvass them in detail.

[6] I will take note of the cases referred to later out of deference to counsel although none of them was referred to in any detail. Since I am going to allow a proof before answer the less I say here about the facts the better. In my opinion the pursuer has not plead her case in the alternative. A fair reading of Article 3 of the condescendence shows that the cases are cumulative and in the area challenged the case is about capacity then existing and is not concerned with provision. Read as a whole the record shows an admitted clear need to have proper capacity. It would thus be quite wrong to dismiss the case at this stage, the more so when supercharging is admitted (page 17).

[7] That leaves only a need to notice the concessions in law. Both parties agreed that at common law, nuisance and under the 1968 Act there was no absolute duty, but the pursuer had to show fault. In my view that is a concession correctly made. The authority for it is R H M Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (H.L.) 17 Lord Fraser at 41/3; Argyll & Clyde Health Board v Strathclyde Regional Council 1988 SLT 381 at 382. Noble's Trustees v Economic Forestry (Scotland) Ltd 1988 SLT 662 at 663.

[8] Porter v Strathclyde Regional Council 1991 SLT 446 was mentioned. That case was quite different to the present facts. It was decided after proof. It concerned the application of the wrong test to causation and it was never suggested here that any incorrect test had been averred. Hand v North of Scotland Water Authority 2002 SLT 798 was a claim by the tenant of a public house for flooding allegedly due to the defenders' fault when others were undertaking work on a nearby road and properties. The Lord Ordinary allowed proof before answer and the case is of interest only here where it dealt with the duties of the defenders as contrasted with the pursuer's landlord. Kennedy v Glenbelle Ltd 1996 S.C. 95 concerned alterations to a load bearing wall. It confirmed that it is necessary to aver and prove culpa in nuisance claims. McGuiness v Endeva Service Ltd [2006] CSOH 41was a case decided after proof. The pursuer was a television engineer. He was sent on a repair to an area of Glasgow which had a high incidence of crime. He was seriously assaulted. It is not clear to me what relevance this case has to the one before me. In McGuiness there was mention of foreseeability but that is not an issue here where flooding had occurred in the past and the defenders had a report on improvements. Finally, I was asked to look at Marcic v Thames Water Utilities Ltd [2003] 3 WLR 1603. That case may yet hold some uncomfortable words for the pursuer once the facts are known but for present purposes it is not in point. The plaintiff had a low lying garden in his home at Stanmore near Harrow in London. Flooding occurred. Under the Water Industry Act 1991 there was a Statutory enforcement code to deal with such problems. It involved complaining to a director general who had wide powers. It illustrates the problem where sewerage undertakings are privatised and the operator has to secure a return on its capital. The plaintiff chose not to use the statutory remedy and the court declined to do the task assigned by statute to the director (see Lord Hoffman paragraphs 63/4 and the problems faced by the judge in the Technology and Construction Court paragraphs 68 to 70).

[9] As I have already said in my view this is not an alternative case but one where it is said there was negligence in failing to deal with the capacity and the maintenance of L2. Both materially contributed to the flooding and the pursuer is entitled to go to proof leaving all pleas standing.