Kennedy v Glenbelle Ltd

• Jurisdiction: Scotland
• Judgment Date: 12 January 1996
• Date: 12 January 1996
• Docket Number: No 14
• Court: Court of Session (Inner House - First Division)

FIRST DIVISION

Lord Abernethy

No 14

KENNEDY

and

GLENBELLE LTD

ReparationNuisanceHeritable propertyTenementBuilding operationsHazardous worksDamage to support of neighbouring premisesWhether culpa requiredWhether deliberate act done in knowledge that damage could result sufficient to establish nuisanceRelevancyAverments

In 1989 the tenants of premises at the basement level of a tenement building engaged a firm of consulting engineers to remove a section of a wall of their premises. That section was a load-bearing wall which contributed to the support of the floor and ceiling on each of the upper flats. In order to carry out the operation the engineers devised a scheme whereby one opening would be created which would result in a redistribution of loading. Damage was subsequently sustained to the upper floors of the tenement and the proprietors thereof raised an action against the proprietors and tenants of the basement premises and the engineers. The pursuers averred that the damage was caused by nuisance created by the engineers who had instructed and directed hazardous works within the premises, which they had occupied at the material time, which they knew had constituted an interference with the support enjoyed by the pursuers. In the course of those works the engineers had disturbed the support of each of the pursuers' premises and thereby caused them damage which otherwise would not have been sustained. The pursuers also averred that the loss, injury and damage occasioned to them was caused by the fault of the engineers in that the engineers had known that the execution of the works was likely to cause damage to the pursuers' premises of the type which in fact had occurred so that, in those circumstances, it had been their duty not to instruct and direct the removal of the section of the wall. The pursuers also averred that the engineers were liable in negligence for their actions. The Lord Ordinary (Abernethy) allowed a proof before answer in respect of the averments relating to damage caused by nuisance and in respect of a case based on negligence in respect of the failure to take reasonable care to minimise any damage to the premises but excluded from probation averments relating to an action based on negligence of the engineers in respect of their knowledge that the execution of the works was likely to cause damage to the premises. The engineers reclaimed.

Held (aff judgment of Lord Abernethy) (1) that, with the possible exception of a case involving interference with the course of a natural stream, the essential basis for liability and reparation for nuisance was culpa which arose either ex contractuor ex delicto and no other; (2) that culpa might be established by demonstrating negligence, in which case the ordinary principles of the law of negligence would provide an equivalent, remedy or it might be done by demonstrating that the defender was at fault in some other respect which might be because his actions were malicious or because it was deliberate in the knowledge that his actions would result in harm to the other party or because it was reckless as he had no regard to the question whether his action, if it were of a kind likely to cause harm to the other party, would have had that result; so that in each case personal responsibility rested on the defender because he had conducted himself in the respect which was recognised as inferring culpa; (3) that, accordingly, what was required was a deliberate act or negligence or some other conduct from which culpa might be inferred; and (4) that in the light of their averments the pursuers would be entitled to lead evidence to show that the engineers' presence in the basement premises was more than a merely transitory one, as they were in a substantial sense in control of what was going on there when work was being done under their supervision and direction at the request of the first defenders, which would be a sufficient basis for finding the engineers liable for the effects of a nuisance which was caused by the work which they directed the workmen to carry out; and reclaiming motion refused.

Ewan Graham Kennedy and Others brought an action against Glenbelle Limited and Charles Scott and Partners and others. The averments of parties appear sufficiently from the opinions of their Lordships in the Inner House.

The cause called in procedure roll before the Lord Ordinary (Abernethy) who, at advising, allowed a proof before answer of averments contained in arts 9 and 11 of the condescendence but excluded from probation averments contained in art 10. Parties were agreed that a proof before answer should be allowed against the first-named defenders. The second-named defenders, however, reclaimed.

Cases referred to:

Advocate (Lord) v Reo Stakis Organisation LtdSC 1981 SC 104

Caledonian Railway Co v Greenock Corporation 1917 SC (HL) 56

Campbell v KennedyUNK (1864) 3 Macph 121

Chalmers v DixonUNK (1876) 3 R 461

Edinburgh Railway Access & Property Co v John Ritchie & Co (1903) 5F 299

Hester v MacDonaldSC 1961 SC 370

Noble's Trs v Economic Forestry (Scotland) Ltd 1988 SLT 662

RHM Bakeries (Scotland) Ltd v Strathclyde Regional CouncilSC 1985 SC (HL) 17

Sedleigh-Denfield v O'CallaghanELR [1940] AC 880

Watt v JamiesonSC 1954 SC 56

The cause called before the First Division, comprising the Lord President (Hope), Lord Kirkwood and Lord Murray for a hearing.

At advising, on 12 January 1996

LORD PRESIDENT (Hope)The pursuers are the heritable proprietors and tenants of premises at 23 Royal Exchange Square, Glasgow. They seek damages from the first defenders and the second defenders jointly and severally for the loss and damage which they claim to have suffered as a result of settlement within the tenement at that address. They aver that the first defenders are and were at all material times the tenants and occupiers of premises at the basement level of 25 Royal Exchange Square which, together with the premises at 23 Royal Exchange Square, form part of the tenement building known as 2129 Royal Exchange Square, Glasgow. The second defenders are a firm of consulting engineers, whose services were engaged by the first defenders to advise on, design a scheme for and direct and supervise the removal of a section or sections of wall within their premises at the basement level of the tenement.

The action is laid against both defenders on two grounds. The first ground is that of nuisance. The second ground is described by the pursuers in their pleadings and pleas-in-law as being fault and negligence. It has been agreed that the case so far as directed against the first defenders should go to proof before answer. The second defenders have, however, challenged the relevancy and specification of the averments so far as directed against them. The matter came before the Lord Ordinary on the procedure roll, where he held, after a debate, that the second defenders' attack on the relevancy of the pursuers' averments in art 10 of the condescendence was well founded. He sustained the second defenders' first plea-in-law to the extent of excluding art 10 of the condescendence from probation. He held that the remaining averments were appropriate for a proof before answer. The second defenders have now reclaimed against that interlocutor, in regard to the Lord Ordinary's decision to remit to probation the pursuers' averments of nuisance which are set out in art 9 of the condescendence. They do not challenge the Lord Ordinary's decision to remit to probation the pursuers' averments of fault and negligence which are set out in art 11 of the condescendence, although a number of criticisms of these averments were advanced in the debate of the procedure roll. The pursuers have lodged a ground of appeal in...