(A988/05)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

W F PRICE (ROOFING) LIMITED

Pursuers and Appellants

against

BALFOUR BEATTY CONSTRUCTION LIMITED

Act: Macfarlane, Solicitor, Semple Fraser

Alt: McLean, Solicitor, Tods Murray

EDINBURGH, 4^th AUGUST 2006

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 21 September 2005; finds the pursuers and appellants liable to the defenders and respondents in the expenses occasioned by the appeal and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.

(signed) EFB

NOTE:

1. In this action the pursuers seek a declarator that "the conditions on the site at Glen Turner Whisky, Starlaw Park, Livingston, West Lothian during the night between 7 and 8 May 2003 fell within the definition of "storm" in the specified perils clause (Clause 1.4) of contract conditions DOM/C/scot/CDP forming part of building contract DOM/A/scot/CDP". As the learned Sheriff has set out in the opening paragraph of his Note they aver that they entered into a sub-contract with the defenders to install roof cladding on a new building. On 7 May 2003 roof sheets had been lifted on to the roof steelworks. They were securely enveloped in packages of about 40 to 50 sheets. The weight of these packages varied from 1.2 to 1.5 tonnes. The pursuers had unwrapped some of the packages to fix the sheets to the roof. Before leaving the site they secured the unwrapped sheets and the still wrapped packages to the roof purlins with ropes. On the morning of 8 May they discovered that there had been severe damage to the unfixed roof sheets including packs which had not been opened.

2. The form of sub-contract between the parties provides that the sub-contractor shall be liable for the cost of restoration of sub-contract work lost or damaged and replacement or repair of site materials for the sub-contract works except where such loss is caused by inter alia a specified peril. The definition of specified peril includes "storm, tempest, flood". The present dispute between the parties arises because the pursuers contend that the damage to the roof sheets was caused by "storm". They have requested the defenders to submit a claim to their insurers. The defenders have declined to do so, maintaining that the weather conditions on the night of 7 and 8 May 2003 did not constitute a "storm".

3. The case came to debate before the Sheriff who dismissed it. In the first place he upheld arguments that the action was incompetent and irrelevant because the sub-contract clause founded on by the pursuers in the crave does not, in fact, contain a specified perils clause. That is a matter of formality. More critically from the point of view of the pursuers the Sheriff upheld an argument that their pleadings were essentially lacking in specification in relation to whether the weather conditions on the relevant night constituted a "storm" as that term falls to be understood in law. He also upheld arguments that the pursuers averments did not contain a link between the weather conditions and the damage, and that their reference to a Met Office report was also irrelevant when that report indicated that the wind strength on the Beaufort scale did not reach storm force.

4. The pursuers have effectively conceded that to a significant extent the Sheriff's conclusions were well founded. They have lodged two minutes of amendment prior to the matter coming to appeal. The first of these purports to deal with the failure to specify the correct sub contract clause in the crave of the writ. Whilst there remains some doubt as to whether the pursuers averments about the contractual provision on which they seek to rely are relevant to support the terms of the crave the issue in that respect is, in substance, no longer a live one. It may also be observed that there are now sufficient averments to provide a causal link between the weather conditions and the damage to the roofing sheets.

5. One further matter falls to be considered before proceeding to the substance of the appeal. It was pointed out by the solicitor for the defenders and respondents that the pursuers' crave merely seeks declarator that the conditions on the night in question fell within the definition of "storm" in the specified perils clause of the sub-contract, and would, if granted, "take them nowhere". Whilst tempted to the view that this is a bare declarator and as such is one which the Court might not be disposed to pronounce I am prepared to accept the position that what is sought to be declared does concern a real practical question between the parties. Upon the view that there is a material issue I am prepared to deal with it.

6. A further question arose as to whether I should deal with the appeal at all standing the fact that the pleadings are now extensively amended. In the normal course this might be a situation for a remit to the Sheriff to consider the matter of new, but it appeared to me to be in the interests of expeditious justice that I should give a view on the issue as now presented. In its essentials the issue now before the Court is not far removed from the central issue with which the Sheriff had to deal and I am doubtful of the value of remitting the case back to him.

7. The words "storm, tempest, flood" are standard perils which frequently appear together in policies of insurance against damaged property. The words have in consequence been given judicial consideration on a number of occasions and the solicitor for the defenders and respondents, in maintaining that the pursuers' case was still irrelevant, commenced his submissions by referring to a number of English cases, and two Scottish cases in which these terms or similar had been considered. The English cases are Oddy v Phoenix Assurance 1996 1 Lloyds Rep 135; S & M Hotels v Legal & General Assurance 1972 1 Lloyds Rep 157; Anderson v Norwich Union 1977 1 Lloyds Rep 253; Young v Sun Alliance & London Insurance Limited 1976 2 Lloyds Rep 189 and Computer Systems Engineering v Lelliott 1990 54 BLR4. The two Scottish cases are Glasgow Training Group Motor Trade Limited v Lombard Continental PLC 189 SC 30 (a case heard by Lord Clyde sitting in the Outer House) and William Nimmo & Co Limited v Russell Construction Limited 1995 SLT 1281 (heard by Lord Cullen in the Outer House).

8. From these cases the solicitor for the defenders sought to derive the following principles:

(1) What constitutes a storm is a matter to be determined on the facts and circumstances of each case.

(2) The test to be applied in any case is whether or not a person of ordinary common sense making the ordinary use of language who was in or around the area at the period in question would have used the word "storm" to describe the weather prevailing in that area (Glasgow Training Group supra at page 37).

(3) It followed that the pursuers required to make averments about facts and circumstances which would entitle the ordinary man to conclude that there was a "storm".

(4) Violent weather of some kind was needed: Oddy (supra) at page 138 and averments of "adverse" weather are insufficient (Glasgow Training Group (supra) at page 36/37.

(5) It would be usual to have averments about the statistical probability of the type of weather complained of: (see William Nimmo & Co Ltd (supra) at page 1283).

(6) Some averments would normally be required about effects on surrounding areas.

9. The defenders' solicitor then turned to the pursuers' averments as they now stood. He maintained that in essence they were insufficient to support a conclusion that an ordinary man, present at the time of the alleged damage and using the word "storm" in its ordinary sense would be able to describe the conditions as meeting that description. There were general averments to the effect that winds can become damaging when windward obstructions cause the currents to become turbulent. There were averments that the wind "was of such a violence that it moved the packs of sheets causing them to oscillate". Apart from that there were no averments about the weather conditions at all. There was nothing to suggest that there was any sustained high wind, or averments of other damage. The only averments of damage related to some caused by handrails damaged by flying sheets, that being in effect the same damage as sustained by the pursuers. The pursuers in their pleadings persisted in making reference to the Met Office Report which showed wind speeds according to the Beaufort scale falling short of storm force. There were no averments showing that the wind was of a strength which was statistically unlikely; indeed when one read the pursuers' averments as a whole it became clear that the reason for the damage was that winds below "storm" level were rendered damaging because of the interference with their flow by the partly constructed building. Even if their averments were proved it could not be said that a person of ordinary common sense would have used the word storm to describe the conditions described.

10. The solicitor for the pursuers and the appellants did not challenge to any material extent, the principles which the defenders' solicitor sought to extract from the cases referred to. He observed that wind could be constituted by one weather element. He accepted that whether the conditions could be described as a "storm" was essentially a jury question, that is to say whether the conditions were such that they would be recognised by an ordinary or reasonable man as a storm. It did not depend on a technical measurement such as the use of the Beaufort scale, and it was accordingly his position that a storm could exist notwithstanding a record of winds below the speed on that scale which constituted storm conditions. The pursuers' approach was that you could look at what happened and ask "did a storm cause that?" The averments in the present situation supported the view that damage could only have been caused by a violent wind. The averments about the nature of the structure and the effect of the wind on it were simply there to link the damage caused with the wind itself. It was not possible to aver that there was damage to other buildings because no other buildings were in the vicinity. In these circumstances the pursuers were entitled to a proof of their averments about the damage from which it might reasonably be inferred that the cause was "a storm".

DECISION

11. The first issue with which I can deal relatively briefly is simply whether high wind alone can constitute a storm. In his decision the Sheriff noted that in none of the cases to which he had referred had wind alone qualified as a storm, and said that a storm is "usually rain or snow plus high wind". The first part of these observations is correct, and the second is derived from the shorter Oxford English Dictionary definition of storm namely "a violent disturbance of the atmosphere, manifested by high winds, often accompanied by heavy falls of rain, hail or snow, by thunder and lightening". What falls to be noted is that the dictionary definition does not exclude the possibility of a storm constituted by high wind alone and, as a matter of experience, it is not impossible to envisage a "wind only" storm. This was conceded by the solicitor for the defenders. Although it is not a direct authority the case of William Nimmo & Co Ltd bears the strongest implication that a single element - in that case heavy rain - can constitute a "storm". I do not think that the Sheriff went so far as to suggest that the pursuers' averments were irrelevant because they failed to suggest that some other factor such as rain, snow, hail or sleet was present, but for the avoidance of doubt I hold that averments of high wind alone would be sufficient for the pursuers' purposes provided they were otherwise relevant.

12. A further matter relates to the relevance of the Met Office Report and the Beaufort scale. In Glasgow Training Group (supra) it was accept by eminent counsel on both sides that the word "storm" should not be given the particular technical significance which it has in the Beaufort scale. Standing the law as to how the term "storm" falls to be construed it is not hard to see why that concession was made. In the context of this case all that one could say is that the fact that wind speeds on the night in question did not reach storm force levels on the Beaufort scale is a factor to be taken into account, perhaps in the context of "statistical likelihood". It is a fact which favours the defenders more than the pursuers. As the pleadings formally stood it did tend to point to a want of relevancy on the part of the pursuers' pleadings, but for the purposes of determining the relevancy of the present pleadings the fact that the Met Office Report is referred to by both parties is to my mind inconsequential.

13. Next, I reject the contention advanced on behalf of the pursuers and appellants that the existence of a "storm" can be determined by reference to the damage which it caused. Such an approach would not meet the test of the observations of the ordinary man in the vicinity, that being now well established by a line of decided cases. Whilst it might be possible to look at anything blown over or damaged by wind and describe it as "storm damage" such an approach would not be correct. The issue is whether the weather conditions constituted one of the specified perils, and the word storm has to be interpreted in the context in which it appears, namely alongside the words "tempest" and "flood". These are all examples of exceptional weather conditions and it is for that reason that the Courts in general (and indeed the Sheriff in this case) apply the interpretation that a "storm" requires atmospheric violence of an extreme or at least unusual condition. I do not consider that one could reach that conclusion simply from examination of a single item, or indeed confined area, of damage.

14. When one takes the pursuers' averments as a whole I feel bound to agree with the submission on behalf of the defenders and appellants that the case which these set out is that the wind became damaging because of the site and situation of the building. Thus they say for example, "wind flows passing through lattice like structures, for example partly constructed buildings, can cause damaging eddy currents". They go on to say "the site is south facing in a open exposed location. The site is a high point on a plain". I cannot read these averments as simply providing a link between the wind and the damage. When the pleadings continue "the wind was accelerated around the structural steel skeleton of the roof and around the packs of sheets" it seems clear that the position and construction of the building is brought into the picture as a factor causing the damage. Very little is said about weather conditions apart from the fact that the wind came from a south westerly direction and that "packs of sheets on the west elevation were particularly exposed". I do not consider that these amended pleadings would provide a basis for the leading of relevant evidence to establish that the specified peril of "storm" existed.

15. In all the circumstances it follows that the appeal should be refused and the Sheriff's interlocutor adhered to. The pursuers must bear the expenses of the appeal.