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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> National Grid Gas Plc v Stanley Stores (Strathclyde) Ltd [2008] ScotCS CSOH_94 (26 June 2008)
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Cite as: [2008] CSOH 94, [2008] ScotCS CSOH_94

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OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 94

 

     

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD McEWAN

 

in the cause

 

NATIONAL GRID GAS PLC

 

Pursuers;

 

against

 

STANLEY STORES (STRATHCLYDE) LIMITED

 

Defenders:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Pursuers: Young, Q.C.; DLA Piper

Defenders: Shand, Q.C.; Simpson & Marwick

 

26 June 2008

 

[1] The action before me has had an unusual history. The incident giving rise to the case happened in November 1999. A Record was closed some five years later. The proof began in April 2006 with an argument about an amendment. A witness was called and on the second day it was discovered that the defenders (who are a Limited Company) had been dissolved and struck off the Companies Register. The proof was discharged and only resumed a year later. It reached avizandum in December 2007.

[2] I want to look at the Pleadings in this case since the defenders' argument at the hearing relied heavily on the Record. The pursuers allege the fracture was to a pipe some 0.8 metres in the ground and in the area of a site office which had been there for 18 months. The ground was being cleared for a car park with a toothed bucket of an excavator machine on 8 November 1999.

[3] Article 3 deals with an earlier fracture in April 1998 and the many site visits by Mr Quigley of the pursuers. It is complained that the defenders did not provide any risk assessments or attempt to locate pipes. They were told to contact the pursuers if they were going to carry out excavations and did not do so. There is mention of a site meeting in 1998 which resulted in a pipe diversion in another area. Reference is made to the defenders being given site visit sheets. Individuals are named who received these. It is averred that the defenders were given an advice form (No 6/4 of Process and known as the Yellow Susiephone sheet). That form referred to an HSE publication of importance. There is mention of continuing trafficking and piling of dirt over piped areas and disposal of some site areas by the defenders to third parties. The attitude of the defenders' staff is criticised. (I observe that the defenders' averments in answer about some of the named persons are less than clear).

[4] The ground of fault is in Condescendence 4. It alleges a failure to contact the pursuers to check where the pipes were and a failure themselves to locate them. The defenders blame the pursuers for giving them misleading information. Thereafter the record is concerned with damages but that matter is now agreed in the Joint Minute.

[5] From a record in these terms it is clear that what happened on site is important. Plainly anyone who had dealings with Mr Quigley and other representatives of the pursuers could assist the Court. The names given on Record are Messrs Amis and Burns. In the course of the proof other names emerged including who were the site engineers (Adams) and architects (Wilson) and the identity of the site foreman (McSeveny), the plant operator (Shankland) and the driver of the digger (Hill) on the day of the fracture. None of these people gave evidence.

[6] In moving me to grant decree in terms of the joint minute Mr Young asked me to uphold his second plea in law and repel the defenders pleas. There had been a failure to take reasonable care on the part of the defenders.

[7] In the first place it was important to know how the defenders operated. They were retail newsagents with little or no experience of property development. It was wholly unclear when they bought the farm. They appeared to have subcontracted much of the work to construct roads and buildings. Mention had been made of Trigon and Hillan, the latter disappearing after the pipe fracture in 1998. It was not clear who was building the houses; some were self built. The defenders' director (Kavanagh) was ignorant about what was happening on site. There had been no evidence from any site agent, architect or engineer. The gas pipe had had to be diverted because the defenders were building on top of it. The director had no idea of what checks had been made or by whom in this regard. The defenders appeared to have relied on title deed plans. That was na๏ve. They had produced no working site plans. The man Adams must have been the engineer. The driver of the excavator who fractured the pipe in November 1999 had not been called as a witness.

[8] The pursuers' Mr Quigley was on site most of the time. He only found out that the defenders were on site by the accident of a drive past. He had produced the site books, and (white) copies of what was recorded in them were given to the defenders or those acting for them. The defenders had only kept one of these. Quigley was so concerned about the movement of plant and stockpiling on the pipe line that he asked his manager Mr Barclay to visit. Quigley walked the line of the gas pipe several times with representatives of the defenders and gave out safety information (No 6/4). He and Barclay were concerned that the defenders did not appear to heed their advice. There was a site meeting probably near a road corner on site. The date was not clear - nor who was present apart from Quigley. In 1998 Quigley knew that the pipe to the north was "dead". In November 1998 Quigley had to give out maps to the defenders. It is important to note that these maps were not drawn with precision and had a disclaimer. The earlier fracture to the pipe had been in April 1998 at a different part of the site.

[9] Only the Map 7/4 showed the pipe on the line contended for by the defenders. That was their own plan. The pursuers' database showed the line on 7/5 and 7/4. The defenders had 7/5. The maps should have alerted the defenders to the risk that the pipe was near the compound area. They did not in any event rely on maps. No 7/3 was a map not to scale, not orientated and was only broadly indicative. It was not clear who had put the colours on map 7/2.

[10] In her reply Miss Shand relied heavily on the pleadings and the onus of proof. She said the defenders only had to meet the case made against them and that the duty averred in Article 4 did not exist in law. She referred me to Morrisons v Rome 1964 S.C. 100 at various places. How could the defenders foresee that any gas pipe would be in the relevant area or be likely to be damaged by a work of scraping? Kavanagh said he had been shown the line of the pipe at the "corner walk" and had it confirmed by a plan. She referred me to various passages in the printed evidence. There was no evidence to show that it was likely there was a pipe in the area of the compound. Paint lines done by the pursuers would get lost in the soil.

[11] The site sheets did not help the pursuers, there was no proof who got them and they did not cover 1999. It was not negligent not to use a locating device or hand dig. The use of such needed training. The Yellow Card (6/4) post-dated the fracture. No developer gave evidence who had used locating devices. There was no duty to hand dig or that any accident would have been avoided if they had. Would Quigley have come on site if he had been advised what the defenders were doing at the compound?

[12] The duty was irrelevant as it was predicated on excavation. The work done was scraping. It was not foreseeable that such would fracture a pipe. Quigley's evidence was unreliable and contradictory. In any event the defenders were to blame for giving the wrong line of the pipe.

[13] What then was the evidence as to what occurred on the day?

[14] At the proof the pursuers led a number of witnesses, viz Mr Quigley (the main witness) who was the pursuer's representative on the site. His evidence was printed in part but the copy is very poor and I have preferred to rely mainly on my notes. That seems fairer as the evidence of no other witness was extended. He spoke to many matters but principally to his concerns over the defenders behaviour and attitude to the work the ongoing problems of heavy traffic crossing the line of the pipe, and the piling of earth on top of the line. He even contemplated making a RIDDOR report to the Health and Safety Executive about the defenders' behaviour. (RIDDOR is Report into Diseases and Dangerous Occurrences Regulations). He described his many site visits and their recording in the site books (nos 6/1 to 6/3). At times the defenders refused to sign this book (see eg 6/3 page 11). Most importantly he spoke to handing over (twice) written safety information to the defenders and to the many times he had to "walk the line". This exercise was to determine the line of the gas pipe and to do so he used a metal detector device (RD 400) referred to in the safety information. Having found the line he spray painted it with yellow paint or pegged it out. His efforts were often driven over and obliterated by the defenders vehicles working on site. He said it was not his practice to "point out" the line of a pipe or give a verbal indication. Only RD 400 detection would do and then the line had to be marked. He was also probably involved in what came to be called the "corner meeting". He was responsible for Barclay's visit.

[15] Norman Barclay was the second witness. He worked in pipeline and plant protection and had special training in agricultural sites. Because of Quigley's concerns about danger to life and limb he went to the locus probably in 1999. He said it was in early summer. Quigley showed him the line of the pipe marked with yellow paint and pegs. There were marks of vehicles crossing it and earth stockpiled. These matters were pointed out on the visit to the site to Mr Kavanagh. He was asked to and reluctantly gave a signature then walked away. Mr Barclay also said that no map could give the depth of pipe and that once the line was found the depth had to be checked by hand digging.

[16] The third witness was a Mr K Feeney a Network Technician and Pipeline Engineer. He was involved in the 1998 diversion for the Phase one housing which involved replacement, decommissioning and diversion.

[17] In November 1999 he got an emergency phone call when the pipe was fractured. He arrived to find a lot of people on site. The area was being made safe. There was an excavation, a damaged pipe and gas blowing out under pressure (30 p.s.i.). There was a serious risk of an explosion. The supply had to be tied off in two places so that a repair and renewal was possible. There was inevitable disruption to household supply. He described the process of "bunging, stoppling and fixing 'to make good the repair. (He illustrated this by reference to the Photos 6/6 especially B and D). He saw the defenders digger which he described as a big orange coloured CAT 363 tracked machine. He was of the opinion that mere surface scraping by a toothless bucket would not have caused the fracture. The pipe was deep, more than 300 m.m. in his estimation. He was involved in the re-mapping but said the defenders would not give him any map. He may have seen 6/5 but that shows no pipelines, only phased housing.

[18] The last of the pursuers' witnesses was Andrew Layden a networks operation manager with long experience. He went to the site after the fracture to conduct an investigation. He examined the locus and found the pipe in question to have been 0.8m in the ground (2 feet 8 inches). The repair seen in the photos 6/6 was then in place. He ascertained from Kavanagh that the defenders were undertaking earthworks for a car park using a JCB type digger. He said that if only topsoil was being removed that would involve about 100 m.m. and not threaten the pipe. He then arranged for the maps to be surveyed by Cluttons and the pipe line to be found and plotted. An RD400 device was used and the work was done by either McAlpines or Kennedys (both major contractors). He was uncertain whether the plans he saw fitted the site he found and he then arranged for new maps.

[19] The only other witness was the defenders' director Mr Kavanagh. His experience was mainly in retail trade, shops and selling newspapers. He had limited experience of building and property development before the company bought the area in the 1990's. It was bought in two sections and the Industrial Units to the north and access roads were built first. A Company L.F.H. Investments was used and subcontractors Hillan and Trigon were mentioned as working on site. Hillan vanished after the fracture in April 1998. The houses were built later by other sub-contractors eg. Aftonvale, Casa Mia and some by the owners of the plots. Mr Kavanagh accepted that the site books showed a number of names of people on site with whom Mr Quigley dealt. He did not know or recognise all of these. He assumed that any paperwork given out on site was handed into the site office but could not say that it did. He had never seen No 6/4 of process nor 6/7. His view on the maps I deal with elsewhere as I do with the "corner" meeting. On the day of the fracture he accepted he was not supervising Hill working the "big orange digger" and could not say what kind of bucket he was using. He accepted in cross examination that he had not told Quigley that work was to be done there or asked him to make any check of the area to identify any underground gas pipe.

[20] I want now to take note of what the defenders did about organising this site. This, according to Kavanagh was their first major venture into house building. Earlier on another part of the same site they had built factory units using a sister company (described only as L.F.K.). A contractor (Hillan) built these and went bankrupt when marking the various access roads. Plots were sold off to a company called Casa Mia. There various contractors built on a plot by plot basis. Some plots were sold to individual owners who built their own houses. (Quigley confirmed this as they caused problems for him when the gas main was diverted see p.39). It is wholly unclear to me who was building in 1999 and that is consistent with Kavanagh's inability to identify the names of the people seen on site by Quigley. I regret to say that the whole operation seemed to be unplanned and badly co-ordinated and overseen. Time and again Quigley had to issue warnings about trafficking and piling. All of this is important in considering what duties were incumbent on the defenders who by 1998 were actually aware of gas services in the area of their operations.

[21] I now want to deal with the alleged conflict between Quigley and Kavanagh. Miss Shand alleged that Quigley should not be accepted. Having reviewed the evidence several times I do not think that there is any real issue of credibility. What is more in issue is reliability. Quigley was on this site regularly for a long time. It is true that the site books vouching his appearance stop in February 1999 (Book 3 page 11) but he was there after that, and remained critical of what the defenders were doing or not doing. There is no reason suddenly to find him inaccurate or unreliable just because the books stop. He was a hands-on experienced gas engineer.

[22] Kavanagh, on the other hand is less reliable on details. He was a man in the business of running shops and selling newspapers. I do not think he had experience of gas operations and site organisation when houses were being built. The fact that he employed engineers and architects confirms me in that view. There is no clear proof that he was regularly on site or in charge of anyone before the first fracture in 1998.

[23] In relation to the safety information provided to the defenders by Quigley it was said that what was looked at at the proof post dated the fracture (No 6/4 is dated 2001 and 6/7 is not dated). There is a clear-answer to this. At the start of his evidence Quigley P.23/4 said that 6/4 was simply the same as he gave the defenders in 1998. No.6/7 is an update. It contains, in general and particular, the clearest safety advice, based on maney sources (p. 45/8) almost all of which predate the date of the fracture.

[24] I accept the witness Quigley as being credible and reliable in spite of the long lapse of time since the events in question. I do so for the following reasons. He spoke fairly and with moderation. He had a good memory of events as the job on that site frustrated him and he had cause to remember it. Also he had a system of using the Site duplicate book and filling it in carefully. He was familiar with his own safety procedures and advice documents. I accept he gave copy site slips to those persons who purported to be acting for the defenders or put them in the Site Office when they were refused. None of this evidence was contradicted and none of the named individuals who were associated with the defenders gave evidence. Indeed who they were was only discovered during Mr Kavanagh's evidence.

[25] Kavanagh I found to be vague and unclear about events. I do not think he had any experience of house construction or was much on site until after the fracture. I am also critical as I said earlier of the defenders' method of building this site. It was not co-ordinated. Parts were done by a sub contractor and parts by individual plot holders. Also the defenders produced few contemporary records of what was happening on site. No site diary was produced.

[26] I heard no evidence from the plant operator driver whose actings caused the explosion or any report made up by the defenders' site management later. The only evidence is of a cross put on a map by Kavanagh. The contemporary photos of the damage are the pursuers.

[27] In particular it would have been of assistance to hear from the plant operator since there was clear proof from the witness Feeney that the pipe affected was over 300 mm under the ground. It would have helped to know exactly what the operator was trying to do. In the absence of explanations I can only conclude that the work was done with the same cavalier attitude to safety which Quigley had seen earlier over a long time.

[28] The pursuers relied on the Brown backed carbon paper site books and I now look more at these. The books retained yellow copies and white copies were given to the defenders. These were mainly completed by Quigley and are Nos 6/1 to 6/3 of process. They do not cover the whole period of site operations and also cover other sites. They cannot, of course, corroborate Quigley's evidence but they are valuable as I have said in supporting the credibility of what he said and its reliability and accuracy. They are not in any sense contradicted. They demonstrate a careful system.

[29] Quigley was an engineer of considerable experience and he spoke of some of his certificated qualifications (Nos 6/9 to 6/11). He had some 33 years of experience. Even during the proof he was attending training courses. Interestingly he did not go on site after the November fracture. That was left to others. He was critical of the defenders' attitude to and disregard of his advice. As an example exists No 6/3 at page 11 where a white copy remains due to the defenders' refusal to sign the book. Quigley was mainly complaining of trafficking and earth piling on the line of the Transco pipes. The site book has many examples of this, eg No 6/1 pages 25 and 29. By May 1998 just after the first fracture his advice appears to have been heeded when steel plates were laid to protect the pipes (6/2 page 13) but by November of the same year things were as bad as before (6/2 page 51) and the Susiephone sheet and maps were given out. It is recorded there were no maps on site. This was just before there was a need for the major pipe diversion. By February 1999 there was no improvement (6/3 page 9). I have already referred to 6/3 page 11 when trafficking and piling was still a problem.

[30] Let me now consider two important productions lodged by the pursuers. The first is No 6/4 of process which is a yellow card and which I have called the Susiephone card. Although it is dated 2007, one like it was in force at the time. It is a document which allows someone with planning permission for a site to get ready access on a freephone number to free Gas information. It was spoken to at length and in detail by Mr Quigley. It must have been a matter known to any competent site engineer or architect. The card is two sided. On the front it offers information on all utilities pipeline operators. On the reverse are some twenty safety instructions of which the most relevant and important here are 1, 2, 5, 9, 10, 18 and 20. Importantly it refers to a health and Safety document HS(G)47 which is No 6/7 of Process. Again that must have been known to any competent site engineer or architect.

[31] I have been satisfied by Mr Quigley that at least twice he gave copies of 6/4 to the defenders or those who purported to represent them. He first gave one on 3 March 1998 (No 6/1 page 25) to Jeff Amis when he complained to the defenders of heavy plant trafficking on the gas main. I accept his undisputed evidence vouched by the site book. Amis signed the white copy given him. Quigley was entitled to treat Amis as the defenders' representative. He told Quigley he would put the yellow card in the defenders' site office (a portacabin). Quigley was in effect carrying out his duty under clause 20 of No 6/4. Quigley went on to describe how he had "pegged out" the line of the gas pipe for the defenders on various occasions before the November 1999 fracture using radio detection by means of an RE400 device described in No 6/7 of process. He had spray painted the line and pegged it. This was to make building easier for the defenders and to prevent them building houses on top of a gas pipe. Quigley said the defenders did not listen to his advice. That evidence was not contradicted and I accept it for that reason and because I do not think the evidence led for the defenders disclosed that they had any proper appreciation of the need for safety over gas. There was no evidence the defenders ever used the Susiephone procedure and the pursuers only knew they were on site after the 1998 fracture. Having given them the yellow Card Quigley said that he saw it more than once in the Site Office on the Notice Board.

[32] Whether the defenders read it and acted on its commonsense advice is a matter of speculation. Astonishingly Mr Kavanagh said that he did not know if his engineer or architect had seen No 6/7 of Process which gives detailed advice on avoiding danger from underground services. The lack of evidence from the defenders can only lead to speculation as to what information by maps or observation they had when they were working on the site in general and latterly when they came to excavate and lay out a car park at the site of the November fracture.

[33] I hold it proved from the document itself and Quigley's evidence that No 6/7 is a statement of good practice. It describes the need to use a locating device to find a gas pipeline underground and how the depth would vary (para 130). Quigley said, and I accept him, that the only safe method was to dig by hand to reach a pipe and it was unsafe to rely on plans. He also said, and again I accept him, that if topsoil was to be excavated it should not be done with a "tooth" bucket but with a "razor" one. On farmland he said the depth of the gas pipe could vary.

[34] Quigley said, and again I accept his uncontroverted evidence, that the defenders gave him no risk assessments for their work. He spoke to the "corner meeting" and walking the line. These are not relevant to the November 1999 events but they do show the attitude of the defenders to the site. I refer to this elsewhere. As I have repeatedly said, I have no doubt that the defenders must have had professional people on site who could have given evidence about the Yellow card and the HSE advice. However, I did not hear their view.

[35] Much was made in evidence about what was called the meeting at the corner. The date of this is not clearly established nor precisely where was the corner. The best that can be said is that the meeting was after the 1998 fracture and at a time of year when the weather was cold. I am satisfied that the purpose of the meeting was to rectify what could have been a disastrous situation. The pursuers had discovered that the defenders had built houses down the line of a gas supply and on or near the top of it.

[36] Nobody took any note of this meeting but it is probable that after it Mr Quigley drew the rough map No 7/3 of process. It bears the date 1 December 1998 and is not to scale. It was explained by Quigley that it related to the Medium Pressure Main in the area of Plots 1 to 2. The yellow line which existed and had to be abandoned was overbuilt by two plots and the rear gardens of six more. It was explained by Quigley that the red line was the new main for these houses. In fact this area built down the line of an access road in the development which was later called Penders Wynd. The top green line points roughly North West (this plan is not-orientated). It is probable that the corner where parties met was where the red and yellow lines meet at the top of the plan. From other evidence it is clear that this rough sketch plan is in the area of phase one. The corner became a street corner. It is probable that the meeting was towards the end of 1998. Kavanagh's concern at the time was what it was going to cost to divert the gas. Subsequent correspondence (Nos 7/9 and 7/10) relate to that work. It cost over ฃ14,000. It may be that Quigley did point to the north east where the pipe went but I hold that was in no sense any representation for less an accurate description of where the pipe went to the north east.

[37] It is important to note that No 7/3 does not show the area of the compound and site hut where the 1999 fracture occurred the following year.

[38] Kavanagh, however, said in cross-examination that this was the plan he relied on to show that there was no gas pipe in the compound area. I regard this evidence as astonishing. Map 7/3 was for the diversion. There is no evidence whatever that in 1998 the defenders had any plan far less a detailed one for works in the compound area. Even in 1999 it is not entirely clear to me what they were going to do. It is unclear when the portacabin seen in the photos was put on the site. I saw no plan of the November 1999 work. Moving on, Kavanagh said a digger was to scrape for a compound and a car park. The CAT Orange coloured machine was owned apparently by James Shankland & Co and driven by a man called Hill. Kavanagh said he told Hill what to do viz "...pull the soil back and put down hardcore and stone...". Almost at one the gas "...went up like a volcano...and the driver ran away...". The emergency services and Transco were called. At no time had the defenders checked the area or advised the pursuers of the works.

[39] There is a further detail about this meeting which I should notice. Kavanagh said that Quigley pointed to where a pipe ran to the west in the area to the north and the shoe factory. He said he relied on that verbal indication and gesture. I assume by that he (Kavanagh) meant there was no pipe in the compound area. It may be that he was referring to the short green line shown for example in Map 7/3 on which he relied. It has to be noted that the green line goes nowhere.

[40] This precise point was not really focussed with Quigley. He did not deny he may have pointed to the north. The green line was only a guideline. It was shown as being there to enable the pursuers' team to connect up the diversion. The green pipe did not run in the direction shown on the sketch plan. In any event Quigley knew, and said so, that any pipe running towards the Bata factory was "dead". His final position was that he would never give a verbal indication of where a pipe was. He would always find then mark it.

[41] I prefer Quigley's evidence about this for reasons I have already given. He was a very experienced and certificated man. His practice was always to walk the line and find the pipe with his RD400 then spray and peg it. It is inconceivable he would have made any representation as to where the pipe went from the point where the (new) red line connected to it. The whole point of the meeting and the rough map was the diversion. I do not accept that Kavanagh did or was entitled to rely on anything said then as indicating there was no pipe near the compound where the fracture occurred a year later. Any works there were not the subject of discussion. If he did rely on these matters he was most unwise to do so.

[42] I have made reference in various places to the maps produced for the proof. The evidence about these was not always very clear. However I am satisfied that all of the earlier maps were little more than rough indications and were never intended to be an accurate indication of the line of a pipe far less at what depth it might be in what was open farmland. (The line was shown to the defenders by Quigley when he walked the site). They are almost all defenders productions but nobody was adduced to speak to them apart from Kavanagh. I deal with them in no particular order.

[43] No 7/17 is dated April 2005 well after events. It shows the west area as built with the access road Pender's Wynd written. It was at the top of that road near where it bends back to Skerrington, that I have held to be the probable site of the "corner meeting". The map shows no pipe lines. The "corner" is also seen on 7/18 Photo G.

[44] No 7/15 is a drawing of a discrete part of the site done for the purpose of "diversion" of the main. The plan was drawn by Quigley as he explained in his evidence. It shows the overbuilding on the yellow line and the need to divert to the red. The plan is not to scale and is in no sense accurate or intended to be. It's date is December 1998.

[45] No 7/13 consists of two large maps marked one and two. Both are dated 12 November and post-date the explosion. There is a blue line showing the medium pressure pipe. The accuracy is not warranted and the legend contains a statement that the position must be fixed on site before any plant is used. The technician Feeney who repaired the fracture had these prepared on a site drawing made by Transco's surveyors Cluttons. No depth of pipe is given. No 7/14 is also a (smaller) Transco map. It was prepared in the same way for Feeney as 7/13 and contains the same warnings. It is dated the day after the fracture. Kavanagh said he had never seen it.

[46] Let me now look at some of the earlier maps. No 7/2 of Process is dated June 1998. It appears to be a map of Wilson Bennett and Jeffrey, Chartered Architects with a Glasgow address. It purports to be for their clients the defenders. It shows phase 1, 2 and 3 housing and house types in a box. It is like 7/15 because it shows the line of diversion for phase one to rectify the problem of overbuilding. It is not clear who drew this plan. In the North West corner is a box and a cross. When shown the map Kavanagh said that it "looked familiar" and that he had put on the cross and the box to show respectively the site of the "explosion and the portacabin" (see in Photos 6/6C (7/18 D may also show it but the photo was taken much later. 6/6C is at the time of the event)). He said he may have marked it for his insurers. He may well have done these things after the event. More importantly Quigley said he put the colours on it to show the diversion. He said the handwriting on the map was not his.

[47] Next in 7/3. This is a Transco map dated December 1998 and not to scale. It appears to be Quigley's map made for the diversion at that time. It has the same colours. He said that was its purpose and I accept that evidence which was uncontroversial. Kavanagh confirmed that this map was produced after the "corner" meeting and was for the diversion. It is important to observe that this map in size and apparent scale is like 7/2 and 7/15, and like them does not relate to the area where the fracture occurred a year letter. In spite of this Kavanagh, at the proof, claimed he relied on it to show there was no pipe in the compound area. However, there is no proof whatsoever that he or anyone else looked at this drawing before Hill's digger caused the fracture. Since 7/3 does not show the compound area it would be impossible to reply on it for such a purpose.

[48] No 7/4 is plainly a conveyancing map and must at least be of even date or earlier than the 1965 Disposition of part of the area concerned. It is not a Transco map. It shows no houses, roads or other development and does not cover the whole area of the development - twenty years or more later. It may show the line of a pipe in the area of the factories to the north. What is interesting is what Kavanagh said about it in cross-examination which I paraphrase thus. He said he "relied on" this small scale plan and on the basis of it his architects would get information, contact Transco and service the plots. He then said they proceeded to build as he had no reason to think there was gas in "that area". This simply cannot be accepted. In the first place the map does not show the phase one area where they did build and then had to await the diversion. In the second place there is no evidence that any architect contacted Transco. They only came to the site after the April 1998 fracture. At that time the sub-contractor building on site (Hillan) vanished. In my view this evidence and the map show without any doubt the confused and chaotic way the defenders approached the development. I would be amazed if any competent architect relied on such a document.

[49] Finally in the defenders productions there is No 7/5 dated March 1998 which is a Transco map, to scale, and relating to the factory units to the North West. It shows no housing development. It does show an M.P. Main in an area near to where the November fracture happened (described as "ground to be seeded"). It is a Quigley map and contains no warranty. It relates to diversionary works for the industrial units in the north which Quigley in part undertook. It is without question that the defenders had this map in their files. They produced it. It was their subcontractor Trigon who built the Industrial Units. In cross-examination Kavanagh said he had "seen it before" and that at the time of the fracture in 1999 it was in their files.

[50] The other map referred to by many of the witnesses was lodged by the pursuers. It is No 6/5 (in two parts 6/5 dated November 1998, which is large and 6/5A, undated, which is small and shows part of the area in 6/5). I infer the pursuers had this map in their files. How they got it is unclear as it emanates from the defender's architects. Neither map shows with any clarity or legend any gas pipelines and 6/5 shows plans of phase 1, 2 and 3 houses with phase 4 in a separate field to the south east. Very little was made of this map. Plot 4 shown on it was probably the site of the "corner meeting". The dotted line in 6/5A may show where the defenders overbuilt the pipe, and may approximate to the yellow line in No 7/3. Feeney may have been given both plans in 6/5 to enable him to instruct Cluttons to prepare the post fracture maps. His memory of this was unclear as the defenders were reluctant to give him any map. Kavanagh referred to it to show what plots Casa Mia built and for the site of the "corner meeting" and the diversion works.

[51] Sufficient for the maps, but what is to be taken from all of this. In my view the later maps have no relevance and the earlier ones in 1998 were only related to the diversion and not to the car park excavation in the compound in 1999 which caused the fracture. The earlier ones have no warranty and are not to scale. They only illustrate the diversion and nothing else. In no sense are they representations of where gas pipes may have been in the compound area.

[52] Finally I want to deal briefly with the photographs. Each party lodged a set, the pursuers No 6/6 and the defenders 7/18. The defenders photos were taken long after the events and were much directed to finding the exact place of the "corner meeting". It may be that they do show that place but for reasons I have already given I do not think that is important. The pursuers' photos were taken at the time of the fracture in 1999. Photos B and D appear to me to be consistent with the fractured pipe being the depth spoken to and measured by Layden. Photos H, I and L probably show the offending digger as seen by Layden. If they do, it is a substantial heavy vehicle. The photos do not show what kind of bucket is fixed. The hole where the fracture happened is deep. It is perfectly possible to conjecture that a toothed bucket could have caused it.

[53] I want to look briefly at the only case cited to me viz Morrison's v Rome. There is no argument that it is, and remains, authority for the proposition that in negligence a pursuer is only entitled to succeed upon proof of the case he avers and not on grounds of fault not pled or focussed. The reporter's rubric accurately expresses the decision.

[54] It is worth looking briefly at what happened. The pursuers owned a building in Kilmarnock which was to be altered by the defenders. The building had to be secured, shored up and stabilised to do this. Before beginning work the defenders inspected it. They used a system of supports and jacking to do so which was the accepted method. Within days of the supports being put in place the building partially collapsed and on Local Authority instructions was demolished. That had a consequence that there was no possible inspection of the works.

[55] The pursuers sued relying on the general Conditions of Contract and on specific failures over shoring and jacking. In the outer House the case failed on the evidence about shoring and jacking. The evidence of experts and others showed that proper and traditional methods had been used by people of skill and using good materials many of which survived the collapse and were used subsequently. The error of the Lord Ordinary was to regard the terms of the Contract as being in absolute terms.

[56] It is of some interest to note that in dealing with the case of fault the Lord Ordinary rejected any approach based on Hunter v Hanley 1955 SC 200 (see pages 177/8). His view on this was in general confirmed as correct in the Inner House.

[57] In my opinion the decision of this present case before me is clear particularly because of the lack of evidence from the defenders. It is true that the onus is on the pursuers and the defenders only have to meet the case averred. However, gas is an inherently dangerous and unstable substance. Life, limb and property can be at risk. I am of the view that in general someone who goes on to land where they know gas pipes exist, and proceeds to excavate and build has a duty of care in general not to damage the supply or to act in a way which would compromise safety or disruption of a legitimate supply to others.

[58] On the facts I have found I am very critical of the way the defenders went about the house building. They may well have employed competent people but I never heard from them. They ought to have been aware that gas supply would be in the area they purchased. Even if they were not by April 1998 the first fracture alerted them to it. With their planning permission they must have been aware of the Susiephone Service. It is established beyond a peradventure that Quigley gave them more than once the yellow Safety Card which would have led them to the Safety Procedures Booklet (No 6/7). They had an architect and engineer. They ought to have known of the detector RD400 and the hand dig procedure. The conduct of the defenders received many warnings from Quigley and Barclay.

[59] In these circumstances I find it proved that they had a duty not to damage the pipes. They had already overbuilt one and had to undergo an expensive diversion. I hold it was their duty to tell the pursuers what they were excavating for a car park in the compound, and ask them to mark out the line of the pipe and themselves to locate it by hand digging before any work with heavy plant began. Unsurprisingly the defenders did none of these things.

[60] I have no doubt if they had told Quigley he would have come and found the pipe. After all, he had found all the others. As I have already held it was absurd for Kavanagh to suggest he could rely on the "corner meeting" over a year before or any of the early rough maps.

[61] For these reasons the defenders are liable in reparation. A faint argument was made on contributory negligence. I reject that, even though there was some doubt - latterly and after the fracture where the line of the pipe was. The defenders never informed the pursuers of the works and did not rely on any map showing any pipe near to the area in question. For completeness I should add that I heard an argument that no other contractor had given evidence that they would have resorted to hand digging. The practice of others is not in point in a case like this. Such an argument was rejected in Morrisons v Rome. What is the rule for medicine has no place in construction works.

[62] I will grant decree in terms of the joint minute sustaining the pursuers' second plea-in-law and third pro tanto. It is not necessary to deal with the first plea-in-law. I will repel the defenders first to fifth pleas-in-law and sustain the sixth pro tanto in respect of the joint minute. I will put the case out By Order on (a date to be fixed) for a hearing on expenses.

 

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