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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDougal-Inglis v. Scottish Borders Council [2007] ScotCS CSOH_147 (21 August 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_147.html Cite as: [2007] ScotCS CSOH_147, [2007] CSOH 147 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 147 |
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A682/05 |
OPINION OF LORD MALCOLM in the cause WILLIAM W McDOUGAL-INGLIS Pursuer; against SCOTTISH BORDERS COUNCIL Defenders: ________________ |
Pursuer:
Locke; Lindsays, W.S.
Defenders: J D M
H Mure; Simpson & Marwick
[2] The
present action was served on the defenders on
"(1) Subject to subsections (2) and (3) below, any obligation .....to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred.
(3) In relation to a case where on the date referred to in subsection (1) above ....the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware".
[3] Mr
Mure submitted that on a fair reading of the pursuer's
averments, and on the hypothesis of fact upon which they are based, it is clear
that by at least the end of September 2000 the pursuer was aware, or could
with reasonable diligence have become aware, that loss, injury or damage had
occurred which was caused by an act, neglect or default of the defenders. It is for the pursuer to explain on record
why, even with the exercise of reasonable diligence, he could not have become
aware that the subsidence was caused by the defenders' roadworks
until after
[4] In response Miss Locke for the pursuer observed that the cases relied upon by Mr Mure all involved a pre-existing contractual relationship between the parties. In the present case there was no such prior connection between the pursuer and the defenders. She explained that the pursuer's case is that he believed the cracks to be caused by subsidence. He is a retired gentleman and he reasonably believed that his insurance arrangements would cover the matter. He had no reason to incur potentially costly investigations into the cause of the cracking. It was in October 2000 that he suspected a link between the cracking and the roadworks carried out by the defenders, when he noticed that the well had run dry. He then considered that ground dehydration might be the cause of the subsidence in his property. There was no reason why he should have suspected this earlier. The roadworks were carried out at some considerable distance from his house. Reference was made to the cases of GGHB and Glasper cited above.
[5] In reply Mr Mure accepted that this was not a contract case, but the damage alone put the pursuer "on inquiry". The pursuer's loss adjusters had been in touch with the Council about the subsidence. The case of fault includes the averment that an effect on groundwater levels was a probable consequence of the roadworks.
Discussion
[6] My task is to decide whether there are sufficient averments to allow the prescription issue to go to proof before answer. The following general propositions can be derived from the terms of the relevant statutory provisions and from the cases cited to me.
1. When a pursuer relies upon section 11(3) of the 1973 Act to postpone the commencement of the running of the five year prescriptive period, the onus is on him to plead a relevant and sufficiently specific case thereunder.
2. If a pursuer claims a commencement date which is substantially after the date when he was first aware that he had sustained the relevant loss, injury or damage, he will require to explain how and why the reasonable diligence proviso is to be satisfied.
3. The precise meaning to be given to the words "reasonable diligence" in section 11(3) will vary with the particular context in which they are to be applied, but in general the words assume the taking of all ordinarily prudent steps in the circumstances of the case.
4. If the pursuer is aware of the loss but not that it was caused by the defenders' negligence, he must show that nonetheless no immediate investigatory steps would be taken by the ordinarily prudent person, or that any steps which reasonable diligence would prompt would not have revealed the cause of action more than five years before the service of the summons.
5. If the known or admitted facts call out for an explanation as to why the pursuer took no steps to ascertain the cause of the damage, and there is no potentially satisfactory explanation in the pursuer's pleadings, then he will have failed to make the averments necessary to allow a proof on the issue of the extension of the prescriptive period under section 11(3).
[7] In
essence the pursuer's position is that he was not on notice that there might be
a link between the roadworks and the subsidence
damage until he saw that the well in his garden was dry. It is not difficult to postulate cases where
it is obvious that the occurrence of damage will suggest third party responsibility
and demand inquiries into the issues of cause and fault. An example might be if a house burns down a
few hours after it has been rewired. However,
it is not so clear that, in themselves, the occurrence of subsidence and
associated cracking, especially in a house not said to be a new build, will
trigger similar concerns in the mind of the ordinarily prudent house
owner. It is a matter of common
experience that houses subside and crack for reasons wholly unconnected with
any human agency. However every case of
this nature must be considered in its own context. That context can only be derived from a
consideration of the pursuer's pleadings as a whole, which, at this stage, must
be taken as true. When the pursuer's
pleadings are considered in their totality, I am persuaded that Mr Mure's submissions should prevail. His submissions focus on the absence of any
satisfactory explanation on record for the attempt to postpone the commencement
of the prescriptive period until a date some 18 months after the admitted
discovery of the damage to the house. In
Glasper,
Lord President Hope, when delivering the Opinion of the Court, said that "a
party who is aware that he has sustained loss, injury or damage may reasonably
be expected to take some steps to find out what has caused the loss", and that
a failure to investigate will require to be explained. Miss Locke contended that no inquiries
were to be expected until the pursuer was aware of the well running dry. The problem for the pursuer is that his pleadings
include other factors which, to my mind, cast a different light on
matters. For example reference can be
made to the pursuer's letter of
1. The roadworks took place on ground which had been the source of the groundwater flows through the pursuer's property for several generations.
2. The pursuer contends that it was inevitable that the lowering of the groundwater level to protect the road formation would also draw down the hitherto natural groundwater flows across the area and effectively cut off the established flow through his property.
3. That on noticing the cracking the pursuer notified his insurers who appointed loss adjusters to deal with his claim. They and an appointed expert communicated with the defenders on the matter, albeit the pursuer "was not privy to the correspondence or its conclusions".
4. That having been informed of the absence of insurance cover for the majority of the damage, the pursuer considered that "he must return to the original pattern of events and pursue my case independently".
[8] It is not without significance that the pursuer avers that the drainage for the roadworks interrupted the natural groundwater flow and that the settlement of his house was caused by the consequential reduction in the flow of water and the dehydration of the soil. His pleadings continue as follows:
"The garden within the boundaries of the pursuer's title was designed with various water features including a well and pond stocked with fish and plants. Prior to the commencement and completion of the drainage works the water features all functioned and greatly enhanced the garden grounds. Those features are moribund following the drainage works carried out by the defenders".
Thus the pursuer contends that the drainage scheme associated with the roadworks had an immediate impact on the water levels and flows on his land. In my view, in the light of all of this some explanation is called for as to how or why the ordinarily prudent person exercising reasonable diligence would not have instigated some inquiries into a possible connection between these matters and the subsidence, and thus between the subsidence and the roadworks. The pleadings have not addressed the reasonable diligence proviso in section 11(3) with regard to the available physical evidence and what an ordinarily prudent person would have done and discovered before October 2000. In all the circumstances of the case, this failure undermines the pursuer's response to the defenders' prescription plea and renders his pleadings on this matter irrelevant. It would appear that the loss adjuster was addressing the issue with the defenders in the period between March 1998 and October 2000, however that simply supports Mr Mure's basic submission that this was an appropriate step to take. It does not allow the pursuer to extend the prescriptive period by taking no steps himself. It can be noted that this case is yet another demonstration of the risks involved in waiting until the last conceivable moment before raising an action.
[9] Although
neither counsel referred me to it, I wish to record my view that the above
decision is broadly consistent with the approach taken by the House of Lords in
the recent case of Haward
v Fawcetts
[2006] U.K.H.L.9. While the wording of
the legislation considered by their Lordships differs from the 1973 Act, both
jurisdictions have grappled with the same question, namely, in the balancing of
the competing interests of pursuers keen to prosecute actions and defenders
anxious not to defend stale claims, what must a pursuer know, or be deemed to
know, in order to start the prescriptive clock?
In Haward
Lord Nicholls of
"The language of section 14A (of the Limitation Act 1980) thus recognises a range of different states of mind: (a) actual knowledge of material facts about the damage and other facts relevant to the action (including therefore knowledge that the loss was capable of being attributed to an act or omission alleged to constitute negligence); (b) knowledge that a claimant might reasonably have been expected to acquire (from facts observable by himself or ascertainable by him or with the help of appropriate expert advice which it would have been reasonable for him to seek); and (c) ignorance. Actual knowledge within (a) involves knowing enough to make it reasonable to investigate whether or not there is a claim against a particular potential defendant: see para.112 above. Constructive knowledge within (b) involves a situation where, although the claimant does not yet know sufficient for (a) to apply, he knows sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge which would satisfy (a)".
While again acknowledging that the
English legislation differs from that which I must apply, there is sufficient
similarity to allow me to say that, in the circumstances of this case, my
decision that the pursuer's averments are deficient could be justified under
head (a) of Lord Mance's analysis, which failing
under head (b).
[10] Mr Mure developed two subsidiary arguments
on the prescription of the negligence claim.
One related to the time bar of new averments of duty added for the first
time in 2007. In the result I need not
address this issue. Had I required to do so I consider it likely that I would have concluded
that the new averments are sufficiently connected to the original case to allow
them to go to probation. Mr Mure also observed that the pursuer's pleadings are too
vague in relation to specific dates in October 2000. Given that the date of the service of the
summons was
[11] The summons also seeks various remedies relating to periods of flooding of the pursuer's property, which are said to have been caused by landscape bunds associated with the roadworks. However, after hearing Mr Mure's submissions on this aspect of the case, Miss Locke indicated that she was not insisting upon the claim based upon flooding. The one remaining chapter of the action relates to an attempt by the pursuer to obtain interdict against construction works at a nearby school. As mentioned above there were time constraints on the procedure roll debate, and although Mr Mure's Note of Argument seeks dismissal of the action, neither counsel discussed the interdict claim. There has been no interlocutor pronouncing interim interdict, and it may be that the passage of time has allowed the works to be completed. In order that the parties' position on interdict can be clarified, I shall put the case out By Order to hear parties before pronouncing a substantive interlocutor reflecting the above decision.