R v Hancock [1985] UKHL 9 (27 February 1985)

R.H.M. BAKERIES (SCOTLAND) LIMITED
v.
STRATHCLYDE REGIONAL COUNCIL

LORD JUSTICE-CLERK (Wheatley).—In this action the pursuers claim reparation from the defenders on the grounds that they sustained damage as a result of the defenders’ failure in duties to them. The cause of the damage is said to have been flooding of the pursuers’ premises as a result of the bursting and collapse of a sewer which was in the occupation and under the control of the defenders. The nature of the damage was the deleterious effect which this had on food ingredients and packing materials stored in the pursuers’ premises. The pursuers’ case on record and as argued before the sheriff was three-pronged, namely (1) nuisance at common law, (2) breach of the defenders’ statutory duty under section 2 of the Sewerage (Scotland) Act 1968, and (3) compensation under section 20 of the said Act. The sheriff sustained the defenders’ plea to the relevancy (no. 1) and dismissed the action. The pursuers appealed to the sheriff principal who recalled the interlocutor of the sheriff and allowed the parties proof before answer on the claim based on nuisance at common law and under section 2 aforesaid. He sustained the defenders’ second plea-in-law to the extent of excising the pursuers’ averments relative to the claim under section 20 of the Act, a claim which was not pursued before him and which is now out of the case. It is against the sheriff principal’s interlocutor thereanent dated 2nd November 1982 that this appeal has been taken.

The pursuers’ averments in relation to the two outstanding grounds of fault averred are perfunctory. In their account of what occurred they simply say in cond. 2 that during the week ending 30th September 1978 their premises were flooded; that earlier in September 1978 a sewer in the occupation and control of the defender had collapsed; that the flooding of their premises was caused when heavy rain fell on 28th and 29th September; and that the said sewer in Paton Street did not effectively drain the street. In their answers thereto the defenders admit that on 13th September 1978 a sewer in Paton Street/Duke Street burst and some flooding was caused thereby. They state that the cause of the collapse of this sewer is unknown. They “believe to be true” that during the week ending 30th September 1983 the pursuers’ premises in Paton Street were flooded. They go on to aver that about the same time another nearby section of the same sewer burst and that this sewer had priority of repair. They then set out averments about the steps which were taken to repair this other sewer, following which repair of the sewer in Paton Street began. They aver that overpumping had to continue and that the flooding complained of by the pursuers actually occurred on 28th September when there was particularly heavy rainfall and the pumps were unable to cope with the increased amount of water. They then go on to aver:

“The defenders used all reasonable skill and care to minimise and avoid damage and inconvenience to all parties including the pursuers as a result of the repair work necessary for reinstalling the said sewer”.

The pursuers’ averments of fault are equally perfunctory. In cond. 3 they aver that the collapsed sewer in Paton Street constituted a nuisance at common law (the qualifying adjective “potential” in relation to nuisance was deleted); that the flooding was caused by this nuisance; and that the defenders being in occupation of the sewer in their capacity as local authority responsible for it are strictly liable for any loss arising from the existence of the said nuisance. The foregoing averment of what constituted the nuisance is admittedly wrong. The flooding was the nuisance and the flooding was caused by the collapsed sewer.

So too the averments in relation to the alleged breach of section 2 of the Act. All that is said is that in terms of that section it was a duty of the defenders to maintain all sewers vested in them; that the said sewer was so vested; that this statutory duty was absolute; that the defenders failed to maintain this sewer; that the flooding complained of was caused by this failure; and that the defenders were accordingly in breach of their statutory duty under the said section.

The defenders’ averments on the two grounds of fault tabled are simple denials, subject to certain explanations and averments which are relevant to a defence of negligence but not to one of nuisance. The position is accordingly this. The pursuers maintain that at common law they have a valid claim for damages based on nuisance, and that their bare averments are habile to instruct such claim. Likewise the pursuers contend that the duty on the defenders under section 2 was an absolute one and that the bare facts averred by them are sufficient to establish a breach of that absolute duty. The defenders dispute these standards and maintain that the respective standards of duty are such that the bare averments of the pursuers are inadequate in form and lacking in specification. I need only add that the defenders admit that the flooding damaged quantities of food ingredients and materials at the pursuers’ premises, and that the pursuers’ loss is accurately stated as £10,250, the sum sued for. Accordingly, if the pursuers can establish on the pleadings alone a breach of duty on the part of the defenders in either respect causing the damage averred, decree de plano can be granted.

The defenders’ stance at common law was stated by their senior counsel in the debate before this court in these terms:

“Liability in nuisance at common law requires an escape of a deleterious substance from one property to another causing damage to the latter, which escape arose from the use of that property, which in turn means that it was caused or created by an act or omission of the adjoining occupier. Accordingly, it was not sufficient simply to aver that there was an escape, that the escape physically moved from one property to another and that the escape caused damage. There had to be an averment of the source or authorship of the damage. There was no such averment here, and accordingly the case at common law was irrelevant.”

This argument received acceptance from the sheriff who gave effect to it, but it was rejected by the sheriff principal, who accepted the argument of pursuers’ counsel that an averment of source or authorship was not required. It was because of matters of fact which he said the pursuers had to prove, and which were either denied or not admitted, that the sheriff principal allowed proof before answer on this aspect of the case.

The law of Scotland in relation to nuisance was extensively canvassed and set out in the opinion of the court in the case of Lord Advocate v. Reo Stakis Organisation Ltd. 1981 S.C. 104. That is a decision binding on this court, and rather than repeat that law in detail I simply adopt it and content myself by making two references to the opinion delivered by Lord President Emslie. At p. 108 of the report it is said:

“we go further to declare that in our opinion the law of nuisance applies without exception to provide a remedy for any relevant damage suffered by neighbouring occupier as the result of any type of use of adjoining subjects by the occupier thereof.”

Later on in the opinion endorsement is given to the opinion of Lord President Cooper sitting in the Outer House in Watt v. Jamieson 1954 SC 56. Again I do not require to rehearse that opinion in detail. I need only refer to one passage where Lord Cooper expounded what he considered to be the modern view of nuisance. After reviewing the authorities he said (at p. 57):

“From these and other pronouncements I deduce that the proper angle of approach to a case of alleged nuisance is rather from the standpoint of the victim of the loss or inconvenience than from the standpoint of the alleged offender; and that, if any person so uses his property as to occasion serious disturbance or substantial inconvenience to his neighbour or material damage to his neighbour’s property, it is in the general case irrelevant as a defence for the defender to plead merely that he was making a normal and familiar use of his own property. The balance in all such cases has to be held between the freedom of a proprietor to use his property as he pleases, and the duty of a proprietor not to inflict material loss or inconvenience on adjoining proprietors or adjoining property, and in every case the answer depends on considerations of fact and of degree.”

In Gourock Ropework Co. Ltd. v. Greenock Corporation 1966 S.L.T. 125, Lord Fraser, sitting in the Outer House, said at p. 127:

“nuisance is established if material damage is caused to one’s property by deleterious substances coming from the property of another person”

He rejected a proposition put to him by counsel that prima facie the owner of the property from which the deleterious substance comes is responsible for the nuisance, although he may in some cases escape liability if he can discharge the onus of showing that some other person is liable. He did so, however, only because that proposition placed the prima facieresponsibility on the owner and not the occupier. Clearly he was accepting the proposition quoad the occupier. In the foregoing expositions of the law of nuisance what is under consideration is the use of the property, not the negligent use.

Against that background of the law I consider the common law issue. In my view the circumstances averred by the pursuers are sufficiently relevant to constitute nuisance and to give rise to the prima facie responsibility for that nuisance being on the defenders who had possession and control of the sewer, without averments of negligence or lack of reasonable care on their part, or naming the person whose actions caused the sewer to collapse. It is not in dispute that the defenders were in possession and control of the sewer. That, however, would not necessarily establish absolute liability on the defenders. It would have been open to them to seek escape from that liability by averring and proving that some other person or some other thing over which they had no control, such as an act of God or the action of third party, was responsible for the nuisance created. Further, in view of other considerations which will be considered in the other branch of the case, it might also have been open to them as a defence, as an exception to the general rule, to aver and prove that what caused the nuisance to occur was simply the existence of the sewer in intact form which they had created by their implementation of a duty which they were obliged to carry out by virtue of a compelling statutory provision. No such exculpatory defences have been pleaded. This approach seems to me to be in accord with the general concept of nuisance in Scots law, particularly when the injured party is only in a position to aver the occurrence and its deleterious consequences, when it is not averred that he had linked himself to the service which had been created by legislative direction, and when he is not in a position to know of the particular act or default which caused the damage which led to the nuisance. There was therefore no legal requirement on the pursuers to aver and prove the authorship of the damage to the sewer, or the particular negligence which caused the damage, and so the basis of the defenders’ attack on the relevancy of the pursuers’ case at common law is ill-founded.

In the light of these considerations I have come to the conclusion that not only have the pursuers tabled a relevant case of nuisance at common law but the defenders have not stated any relevant defence to the prima facie case which the pursuers have established. No issue of fact and degree or plus quam tolerabile is raised. Accordingly, as damages are admitted if liability is established, I am of the opinion that there is no need for a proof on this aspect of the pursuers’ case, that the pursuers’ second plea-in-law should be sustained and that decree de plano should be granted.

If that be correct view, that would suffice to dispose of the action, but I must also deal with the pursuers’ second case under section 2 of the Sewerage (Scotland) Act 1968. [His Lordship quoted the section and continued.] Counsel for the defenders submitted that the case under section 2 was irrelevant because of the absence of any averments of negligence on their part causing the collapse of the sewer since the standard of duty imposed upon them under the section was only to take reasonable care to maintain. Counsel for the pursuers submitted that the terms of the section imposed on the defenders an absolute duty in the fullest sense of that term to maintain the sewer, and that the fact that the sewer collapsed was in itself sufficient without any averments of negligence to instruct a failure in duty to maintain. Counsel for the defenders proposed that there are certain statutory duties which when imposed on a public body in what appear to be absolute terms, have to be interpreted simply as a duty to exercise reasonable care, and that this was one of them.

Counsel for the defenders based his argument on the proposition, which was said to be well vouched by authority, that where a nuisance is the inevitable consequence of the carrying out in a particular place or within particular limits of operations authorised by statute to be carried out there, then the general principles are that there is no liability in law for nuisance, which is to be impliedly permitted by statute. That is what was said by Lord Keith in the Outer House in the case of Rae v. Musselburgh Town Council 1973 S.C. 291. It is a principle, presumably based on public policy and public interest, which was recognised in English law as far back as 1878 in Geddis v. Proprietors of Bonn Reservoir (1878) 3 App. Cas. 430 by Lord Blackburn at p. 455, and recently reiterated by Lord Fraser in the House of Lords in the case of Department of Transport v. North West Water Authority [1984] A.C. 336. It was accordingly necessary for the pursuers to aver in terms the manner in which the defenders had failed to maintain the sewer in terms of the section and to relate that failure to the flooding which caused the damage. This they had failed to do, and the case under section 2 was accordingly irrelevant. So ran the argument.

Counsel for the pursuers accepted that the English authorities cited to the court established that, so long as reference is made in the statutory provisions to the avoidance of nuisance, a public body is not liable, in the absence of averments of negligence, for damage resulting solely from the existence of the thing which Parliament had caused that public body to create. This was said to be based on considerations of public policy and natural justice. It was maintained, however, that this law did not apply to Scotland in view of earlier Scottish authorities such as Lord Shaw’s dictum in Hanley v. Magistrates of Edinburgh 1913 S.C. (H.L.) 27 and that the absence of reference to nuisance in section 2 rendered many of the English authorities inapplicable. In any event, it was submitted that even if the policy applied in Scotland, it could only apply to the damage caused simply by the existence of the thing which Parliament had caused to be created and did not apply to damage caused by the failure of the statutory duty to maintain it thereafter.

I do not consider that the above law does not apply to Scotland: Lord Fraser in the Outer House in Tontine Hotel (Greenock) Ltd. v. Greenock Corporation 1967 S.L.T. 180 made a careful and detailed examination of the Scottish and English cases and came to the conclusion that the English authorities, although not binding on him, represented law which did not conflict in principle with the law of Scotland. A close scrutiny of Lord Shaw’s speech in Hanley satisfied him that it did not in its ratio decidendi conflict with the tract of English authority therein referred to Lord Keith in Rae v. Musselburgh Town Council endorsed Lord Fraser’s opinion thereanent and I respectfully agree. It would be passing strange if a legal doctrine which modifies an ex facie absolute duty on the grounds of public policy and natural justice found acceptance in the law of England but not in the law of Scotland. And I do not consider that the absence of any reference to “nuisance” in the statutory provisions can basically affect the public policy/natural justice argument.

The question is whether that line of defence, which would apply to a sewer constructed under section 1 of the 1968 Act or its predecessors, applies to a section 2 situation in relation to the duty imposed by “shall maintain”. Lord Fraser in the Tontine Hotel case held that the terms of section 103 of the Public Health (Scotland) Act 1987, which included reference to maintain and which were there under consideration, only imposed a duty to take reasonable care not to cause a nuisance, despite the apparently absolute use of those terms. If that be so, and if that construction equally applies to section 2 here, then clearly the pursuers have not tabled appropriately relevant averments on this branch of the case. I note in passing that while Lord Keith in Rae agreed with Lord Fraser’s exposition of the law in Tontine Hotel, the duty to maintain was not an issue in the case before him.

With all due respect I do not consider what Lord Fraser said in relation to section 103 of the 1897 Act can be accepted as applicable to section 2 of the 1968 Act. I do not think that the reasoning which provides an answer to a section 1 case has equal application to a section 2 situation. It is one thing to say that public policy and equity dictate that a local authority should not be held liable for damage caused simply by the existence of something which Parliament has obliged them to do, but another thing to say that a local authority should be similarly excused for not doing what Parliament in ex facieabsolute terms has obliged them to do, namely maintain the sewer which has been constructed. This duty is in no way conditioned or qualified except under reference to section 4. That reference, however, is only of relevance here to the standard of maintenance required, namely to be maintained in condition which made it effective for its use. Ex facie of the situation, it was not effective for its use, and prima facie there was a breach of section 2. However, I do not consider that this results in the absolute type of duty for which the pursuers contended. Here again the qualification which I considered to apply in the common law case seems to me to be applicable. In my opinion the use of the imperative “shall maintain” in section 2 without any relevant qualification creates a prima facie case or presumption that a sewer which has burst and collapsed had not been maintained in an effective manner. That prima facie case or presumption can be rebutted, however, if the defenders table averments and prove that the bursting and collapsing of the sewer were caused by factors outwith their control and so not due to failure to maintain on their part.

That defence cannot be applied in this case because the defenders have not tabled averments to constitute it. The pursuers are thus left in the position that all they have to show is that there were present facts and circumstances which created the presumption that there had been a breach of statutory duty. Their averments of fact, bare as they are but not disputed, are in my view sufficient to do so. Here again there is situation where no proof is required to establish a branch of the pursuers’ claim, and on this branch also they are entitled to have their second plea-in-law sustained and decree de plano granted. In the result, therefore, I would recall the interlocutor of the sheriff principal dated 2nd November 1982, sustain the second plea-in-law for the pursuers, repel the defenders’ pleas-in-law and grant the pursuers decree de plano.

LORD ROBERTSON .—This is an appeal from the sheriff court at Glasgow in an action for payment of £10,250 on account of loss sustained by the pursuers as result of flooding of premises belonging to them in Paton Street, Glasgow, in September 1978. According to the pursuers’ averments the flooding followed the collapse earlier in that month of a sewer under the occupation and control of the defenders. After heavy rainfall the said sewer in Paton Street did not effectively drain the street. The sewer, which collapsed on 13th September was a main brick sewer.

The pursuers maintain the action on two grounds, viz.: (1) nuisance at common law; and (2) breach by the defenders of their statutory duty under section 2 of the Sewerage (Scotland) Act 1968.

So far as (1) is concerned the pursuers aver that the collapsed sewer was a nuisance at common law. The flooding was caused by the said nuisance. The defenders were in occupation of said sewer in their capacity as local authority responsible for said sewer. They were accordingly strictly liable for any loss arising from the existence of said nuisance.

Under (2) it is averred that, in terms of said section 2 of the 1968 Act, the defenders had a duty to maintain all sewers vested in them. Said duty was absolute. The defenders failed to maintain the said sewer which collapsed; the flooding was due to the defenders’ failure to maintain the said sewer. The defenders were therefore in breach of their statutory duty under said section 2 and were therefore liable to the pursuers for their losses arising from said flooding.

The pursuers also had in their pleadings a statutory case based on section 20 of the 1968 Act, but it was held irrelevant by the sheriff and this was not challenged on appeal.

In their pleadings the defenders admit: (1) their sewer in the Paton Street area burst, causing flooding; and (2) the pursuers’ premises in Paton Street area as result flooded in the week ending 30th September 1978. They aver that the precise cause of the sewer’s collapse was not known. They explain that there was other extensive flooding requiring to be coped with and that they used all reasonable skill and care to minimise and avoid all damage and inconvenience to all parties, including the pursuers.

The sheriff dismissed the pursuers’ case as irrelevant. On appeal the sheriff principal allowed the appeal, recalled the sheriff’s interlocutor and allowed proof before answer. The arguments are very fully and clearly set out in the notes of the sheriff and the sheriff principal.

Although the pleadings are meagre and imprecise, parties were agreed that they were sufficient to support the arguments presented. Although the nuisance case in the pleadings rests upon an averment that “the collapsed sewer constituted a potential nuisance at common law”, it was not disputed that it was the flooding into the pursuers’ premises that was the nuisance and that the flooding was caused by the collapse of the sewer. But, according to the argument for the defenders, the cause of the collapse of the sewer was not averred, or was it averred that the collapse was due to some action by the defenders or that they failed to take appropriate action once they knew, or ought to have known, of it. So it was not said the flooding was the result of the defenders’ use of their property. It was not said that the defenders’ use of the sewer was objectionable in any way, or that the cause of the collapse of the sewer was attributable to them. To be relevant the nuisance case at least required to be based upon action of the defenders. There did not require to be knowledge of the nuisance on the part of the defenders, but there had to be some act or omission by them. (Sedleigh-Denfield v. O’Callaghan [1940] AC 880per Lord Wright at p. 906.) The pursuers must aver and prove the authorship of the nuisance, not merely the facts of the loss and damage suffered. The nuisance might have been caused by a third party or a trespasser (cf. Gourock Ropework Co. Ltd. v. Greenock Corporation ); or by an act of God.

In my opinion the sheriff principal reached the right conclusion upon this part of the case and I refer to, and adopt, his reasoning thereanent. The law on this matter has recently been the subject of review by the First Division in Lord Advocate v. Reo Stakis Organisation Ltd. supra. I respectfully agree with the opinion of the court in that case, and in particular with the passage at p. 108 where it is observed that “the law of nuisance applies without exception to provide remedy for any relevant damages suffered by neighbouring occupier as the result of any type of use of adjoining subjects by the occupier thereof.” This seems to me to cover the present case where the damage suffered by the pursuers resulted from the use of the adjoining subjects—the sewer—by the defenders. That the damage resulted from the collapse or breakage of the sewer, and that it happened without the knowledge of the defenders does not seem to me to affect the principle. It is not disputed (a) that the sewer was in the occupation and control of the defenders; (b) that the sewer collapsed; and (c) that the flooding and damage to the pursuers’ premises was the direct result of the collapse of the sewer. It is not in my opinion necessary for the pursuers, as a matter of relevancy to go on and aver the cause and authorship of the collapse or that the defenders knew about it or were negligent. (See Giblin v. Middle Ward District Committee of Lanarkshire County Council 1927 S.L.T. 563, per Lord Moncrieff at p. 564.) This is not to say that, depending on the circumstances, a defence might not be open to the defenders. In Gourock Ropework Co. case, the defenders (the contiguous proprietors) were able to avoid liability by establishing that the subjects from which the nuisance emanated were not in their possession and control. So too a statutory authority might avoid the consequence of damage to a neighbouring property by their carrying out the creation of subjects which they were under duty to construct under statute. So in the absense of negligence, the statutory body would not be liable for damage done to neighbouring property (Hammond v. Vestry of St Pancras (1874) L.R. 9 C.P. 316; Smeaton v. Ilford Corporation [1954] Ch. 450;Rae v. Musselburgh Town Council 1973 S.C. 291).

On the nuisance branch of the case, it is unnecessary to go further, because no explanation of any kind is offered for the nuisance suffered by the pursuers, and the facts are admitted. In these circumstances I am of the opinion that the pursuers are entitled to succeed on their common law case, and, as no defence is stated and no explanations proffered, I cannot see how there can be any outcome other than to uphold the pursuers’ pleas-in-law and grant decree de plano for the agreed sum.

The pursuers’ second case is based upon section 2 of the Sewerage (Scotland) Act 1968. In terms of section 1 of this Act the defenders have a statutory duty to provide such public sewers as may be necessary for effectually draining their area of domestic sewage, surface water, and trade effluent. [His Lordship quoted the terms of section 2 and continued.]

The pursuers’ case on the pleadings and in argument was that this section imposed an absolute duty to maintain the sewer which burst. The fact that it collapsed and burst showed that it was not maintained properly. The defenders were therefore liable for breach of statutory duty.

For the defenders, it was argued that section 2 should be read as imposing upon the defenders an obligation only to take reasonable care to maintain the sewers. The courts had long recognised that this was the proper reading and in England there were many cases where the courts had held that the duty placed upon the local authorities was not absolute, but only to take reasonable care. The legal position in England was summarised in the recent case in the House of Lords of Department of Transport v. North West Water Authority [1984] A.C. 336. The courts in England had accepted the principle that for reasons of public policy it was not equitable that public authority should be made liable for carrying out duties conferred upon it by Parliament, which results in damage to another party, in the absence of negligence and failure to take reasonable care. In Scotland this principle had been accepted in Tontine Hotel (Greenock) Ltd. v. Greenock Corporation 1967 S.L.T. 180.

In my opinion it is important to keep clear the distinction between works carried out by statutory authorities in furtherance of their statutory duties (a) in “creating”, for instance, sewers and (b) in “maintaining” them after their creation. In the initial “creating” of such works it is easy to affirm that the authority should not be liable to compensate those suffering damage by the carrying out of works authorised and ordered by Parliament, except in the event of the work being done negligently. The nuisance or damage may be an inevitable consequence of the carrying out of operations authorised by statute. In that event there is no liability for any damage or nuisance, which is taken to be impliedly permitted by the statute. The party executing the work will escape liability for the nuisance unless he failed to use all due care and diligence (Rae v. Musselburgh Town Councilsupra, per Lord Keith at p. 296). But once the work has been completed the duty on the authority is to “maintain”. What then? It seems that the only case in Scotland where it has been held that an apparently absolute duty to “maintain” in such circumstances is nonetheless to be regarded as being limited to a duty to take reasonable care not to cause a nuisance is Tontine Hotel (Greenock) Ltd. v. Greenock Corporation . In that case Lord Fraser, sitting in the Outer House, followed the aforementioned English authorities in holding that in terms of section 103 of the Public Health (Scotland) Act 1897 the local authorities’ duty to “cause their sewers to be so constructed, maintained, kept and cleaned as not to be a nuisance” did not incur liability for failure to maintain unless a lack of all due care and diligence could be averred and proved. In other words, there could be no liability without negligence. But the words of section 103 of the 1897 Act are different from those of section 2 of the 1968 Act.

In my opinion there is a clear distinction between (a) liability for a nuisance caused by the carrying out of a statutory duty, which has been authorised by statute, and (b) liability for a nuisance caused by a failure to carry out a statutory duty. If on the facts there has been a failure to maintain a sewer, resulting in nuisance and damage, then this has been the result not of carrying out a statutory duty, but of failing to do so.

On the question of construction of “maintain” in section of the Sewerage (Scotland) Act 1968, I agree with the observations of Lord Dunpark, which I have had the advantage of reading in draft. The word is unqualified and its natural meaning is “to keep in being,” “to preserve unimpaired”. I think that it indicated an absolute duty. In that event in the circumstances of this case there can be no qualification in respect of the nuisance created by the failure to maintain following upon the carrying out of a statutory duty. And as the facts are admitted, I can see no relevant defence stated.

I agree entirely with the opinion of the sheriff principal, but I disagree with his conclusion that a proof is required. I would refuse the appeal, sustain the pursuers’ pleas, repel those of the defenders, and grant decree de plano for the sum agreed.

LORD DUNPARK .—The pursuers’ claim for damages is based upon two separate grounds, viz.: (1) nuisance at common law, and (2) nuisance created by failure to perform a statutory duty, namely, the duty to maintain their sewers imposed by section 2 of the Sewerage (Scotland) Act 1968. I take the common law case first.

The relevant averments are in cond. 3:

“The collapsed sewer in Paton Street constituted a potential nuisance at common law. Said flooding was caused by said nuisance. The defenders being in occupation of said sewer in their capacity as local authority responsible for said sewer are accordingly strictly liable for any loss arising from the existence of said nuisance.”

These averments are inaccurately framed. The flooding was the nuisance and the flooding was caused by the collapsed sewer; but in ans. 2 the defender do not seem to dispute that the flooding was caused by the collapsed sewer. The defenders submit that these averments, taken pro veritate, are insufficient to impose liability at common law. I agree.

The definition of nuisance given by the Lord President (Cooper) in Watt v. Jamieson 1954 SC 56, at p. 57, was recently approved and applied by the First Division of this court in Lord Advocate v. Reo Stakis Organisation Ltd. 1981 S.C. 104. The definition was this:

“if any person so uses his property so as to occasion serious disturbance or substantial inconvenience to his neighbour or material damage to his neighbour’s property, it is in the general case irrelevant as a defence for the defender to plead merely that he was making a normal and familiar use of his own property. The balance in all such cases has to be held between the freedom of a proprietor to use his property as he pleases, and the duty on proprietor not to inflict material loss or inconvenience on adjoining proprietors or adjoining property; and in every case the answer depends on considerations of fact and of degree.”

In both these cases the defenders had undoubtedly “used” their property—in Watt by inserting a gas heater in a house and in Reo Stakis by executing piling operations on property, which the pursuer alleged had caused subsidence to adjacent property. Indeed all the nuisance cases in our books relate to damage caused by a certain use; but not every type of user involves strict liability for nuisance. As Lord President Cooper said:

“the answer depends on considerations of fact and of degree”.

The question here is whether the existence of this sewer is use of property which involves strict liability for nuisance. I do not consider that it should properly be so regarded.

The sewer is vested in the defenders by virtue of section 16 of the Sewerage (Scotland) Act 1968. The defenders have a statutory duty “to provide such public sewers as may be necessary for effectually draining their area of domestic sewage, surface water and trade effluent” (sec. 1) and also the duty of maintaining them (sec. 2). The installation of this sewer did not cause the flooding of the pursuers premises. What caused the flooding was the collapse of the sewer. The pursuers do not aver that the defenders did anything to cause its collapse.

The Reo Stakis case established the principle that liability is strict for nuisance caused by piling operations ordered by the owner of adjacent property. It is not authority for the proposition that there is strict liability for nuisance regardless of the cause thereof. In Miller v. Robert Addie & Sons Collieries Ltd. 1934 S.C. 150, the pursuer’s case was based on strict liability for the escape of gas from a domestic service pipe based upon the principle of Rylands v. Fletcher (1868) LR 3 HL 330, but it could have been argued on nuisance. This court held that landlord was not liable for injury caused by the escape of gas from a service pipe into adjacent premises without proof of negligence. The ratio decidenci was, in my opinion, that the introduction of an ordinary service pipe for gas for domestic use was not a non-natural use of land involving strict liability for the escape of gas (see also McLaughlan v. Craig 1948 S.C. 599, and the opinion of the Lord Justice-Clerk (Thompson) in R. Wylie Hill & Co. Ltd. v. Glasgow Corporation 1951 S.L.T. (Notes) 3, both of which, however, were negligence, not nuisance, cases).

I know of no authority in Scotland for the proposition that the proprietor of heritable property is strictly liable for all damage caused by leakage of water from domestic service pipes or internal appliances. In Watt v. Jamieson 1954 SC 56, at p. 57, the Lord President said:

“I cannot accept the extreme view that in order to make a relevant case of nuisance it is always necessary for the pursuer to aver that the type of user complained of was in itself non-natural, unreasonable and unusual. Especially when (as in this case) the so-called ‘locality’ principle applies, it must be accepted that a certain amount of inconvenience, annoyance, disturbance and even damage must just be accepted as the price the pursuer pays for staying where he does in a city tenement. The critical question is whether what he was exposed to was plus quam tolerabile when due weight has been given to all the surrounding circumstances of the offensive conduct and its effects. If that test is satisfied, I do not consider that our law accepts as a defence that the nature of the user complained of was usual, familiar and normal. Any type of use which in the sense indicated above subjects adjoining proprietors to substantial annoyance, or causes material damage to their property, is prima facie not a ‘reasonable’ use”

(my emphases). I interpret that passage as meaning no more than this—that a heritable proprietor who causes damage amounting to nuisance to his neighbour’s property by some positive act, such as the introduction of some domestic appliance, solely for his own use and convenience cannot escape strict liability for that nuisance on the ground that what he did was a natural, reasonable or usual use of his property.

In my opinion a real distinction falls to be made between the act of the private proprietor for his own benefit only and the supply of an essential service for the benefit of the public at large, such as water, gas, electricity or sewers. In the former case the proprietor is strictly liable for any nuisance caused by his act, but I am not persuaded that it is the law, or even sensible, that a public authority providing statutory public service should also be held liable for a nuisance caused by an escape of the substance supplied, which escape, for aught yet seen in this case, could not have been prevented by the exercise of the utmost care on their part.

For these reasons, in the absence of any suggestion that the defenders were negligent, I would sustain the defenders’ first plea-in-law to the extent of excluding from probation the averments in art. 3 of the condescendence.

I turn now to consider the statutory case made by the pursuers. It is based upon a certain construction of section 2 of the Sewerage (Scotland) Act 1968, namely, that that section imposed upon the defenders an imperative duty to maintain all their sewers in an efficient state at all times. [His Lordship quoted the terms of section 2 and continued.] In construing this section as imposing an absolute duty upon the defenders the sheriff principal, towards the end of his note, commented on it as follows:

“It respectfully seems to me the terms of section 2 in regard to the duty of maintenance is absolute and is not restricted in any way. As at present advised, I do not see why Parliament did not mean the section to have effect in its expressed terms. I humbly do not think its construction is assisted by a consideration of other statutes of an earlier generation in different terms. The implication to be derived from express statutory words such as ‘not to be a nuisance’ in a statutory maintenance provision in an earlier Act, has no bearing, in my respectful view, on section 2 of the 1968 Act.”

The appellants’ contention is that, despite its apparent terms, section 2 should be read as impliedly qualifying the ex facie absolute duty to maintain all their sewers to that of taking reasonable care to maintain them, It was submitted that prior to 1968 section 103 of the Public Health (Scotland) Act 1897, although ex facie imposing an absolute duty to maintain sewers so as not to be a nuisance, had been construed as requiring proof of negligence and that this construction was supported by a long line of English authority.

The Sewerage (Scotland) Act 1968 repealed section 103 of the Public Health (Scotland) Act 1897 which contained the clause:

“The local authority shall cause their sewers to be so constructed, maintained, kept and cleansed as not to be a nuisance”.

Counsel for the appellants submitted that it was established law in England that under the equivalent section of the Public Health Act 1875 (i.e.section 19) a local authority was not liable for nuisance caused by it in the performance of its statutory duties in the absence of negligence. For reasons which I give later I am not satisfied that the principle of “no liability for nuisance without negligence” was of general application under the English Act to damage caused by defective, as opposed to indequate, sewers. I note in passing that the power to construct sewers conferred by section 103 of the 1897 Act has been converted by section 1 of the 1968 Act into a duty “to provide such public sewers as may be necessary for effectually draining their area of domestic sewage, surface water and trade effluent”, and that the duty to maintain and cleanse their sewers, which was also to be found in section 103 of the 1897 Act, is now imposed by section 2 of the 1968 Act. The terminology is different and the phrase “so as not to be a nuisance” is not included in section 2.

As Lord Keith said in the Outer House case of Rae v. Musselburgh Town Council 1973 S.C. 291, at p. 295:

“There can be no doubt that in this chapter of the law Scottish cases decided prior to the Tontine Hotel case present a most unsatisfactory picture, containing as they do no clear statements of principle, while the position in England was described by Upjohn, J. (as he then was) as a ‘rough sea of contradictory authority’.”

Lord Keith considered that the terms of section 19 of the Public Health Act 1875 were identical for all practical purposes with those of section 103 of the 1897 Act. At p. 297 Lord Keith said this, quoting Romer J. in Stretton’s Derby Brewery Co. Ltd. v. Mayor of Derby [1894] 1 Ch. 431, at p. 442:

“‘But it has long since been held—and I take it to be now settled—that by reasonable construction of an Act such as this the liability in circumstances like the present [the emphasis is mine], though in form not limited, is in fact limited to cases where the public authority had been guilty of negligence, or, as it is sometimes expressed, of want of reasonable care and diligence.’ I have to add that this appears to me an entirely reasonable position for the law to adopt. Where by statute local authority has been required to provide particular service to the community, and an individual has connected himself to the system and availed himself of its advantages, it would, in my view, be unreasonable to hold that the local authority was liable to that individual for some failure in the service which could not have been avoided by the exercise of all due care and diligence.”

I believe this to be an accurate statement of the law of England, which was applied by Lord Keith in the case of Rae. It is, however, to be noted that the pursuer in that case complained that the sewer to which the drains in his house were connected was inadequate for the effective draining of that house and that it was at times flooded as a result. Those were the circumstances to which Lord Keith referred and there seems to be no doubt that in such circumstances in England the statutory authority would be held not liable for nuisance without negligence. At p. 296 Lord Keith says this:

“The general principles are that where the nuisance is an inevitable consequence of the carrying out in a particular place or within particular limits of operations authorised by statute to be carried out there, then there is no liability at law for the nuisance, which is taken to be impliedly permitted by the statute.”

In Geddis v. Proprietors of Bann Reservoir (1878) 3 App. Cas. 430 at p. 455 Lord Blackburn stated the principle thus:

“For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone”.

But that is not to say that no action in nuisance per se will lie against a statutory body for not doing what the legislature has required them to do, i.e. to maintain.

It has repeatedly been said that the non-liability of a statutory body for nuisance depends upon the construction of the relevant statute or statutes (see e.g. Winfield and Jolowicz on Tort (11th ed.), pp. 386–7). There is a line of English authority vouching the proposition that sewerage authority will not be liable for damage done by flooding through the inadequacy of the sewerage system without negligence. Denning L.J. (as he was then) in Pride of Derby and Derbyshire Angling Association Ltd. v. British Celanese Ltd. [1953] Ch. 149, at p. 190, explained the reason for this:

“when a local authority take over or construct a sewage and drainage system which is adequate at the time to dispose of the sewage and surface water for their district, but which subsequently becomes indequate owing to increased building which they cannot control, and for which they have no responsibility, they are not guilty of the ensuing nuisance. They obviously do not create it, nor do they continue it merely by doing nothing to enlarge or improve the system.…It is very different, however, where the local authority themselves do the increased building, or permit it to be done, because they are then themselves guilty of the nuisance.”

It is apparent from what Denning L.J. said on pp. 187 to 189 that the appellants were submitting that the defenders should not be found liable by reason of nonfeasance. I note that both Evershed M.R. at p. 176 and Denning L.J. at p. 188 confined the proper application of that principle in England to road maintenance, although the principle of “no liability for non-feasance” seems to me, from the English cases that I have read, to have been applied much more widely than that. The distinction between misfeasance and nonfeasance has never been, in my opinion, part of Scots law (see Strachan v. Aberdeen District Committee (1894) 21 R. 915, per Lord President Robertson at p. 919).

In the Derby case Lord Denning cites cases at p. 188 in which public authorities have been held liable for nonfeasance. One of these is Baron v. Portslade Urban District Council [1900] 2 Q.B. 588 where the Lord Chancellor pointed out the distinction between the duty of local authority under section 19 of the Public Health Act 1875 to keep the sewer so that it will not be a nuisance or injurious to health and the remedy provided by section 299, which in some cases had been held to be the only remedy available to parties complaining of nuisance. The section 299 remedy seems to me to be appropriate where there is a continuing nuisance which the sewerage authority is doing nothing to abate (see, e.g.Strachan v. Aberdeen District Committeesupra, at p. 919). The averments made in the present case are not in that category.

In Smeaton v. Ilford Corporation [1954] Ch. 450 Upjohn J. (as he then was) reviewed the authorities relating to inter alia liability for nuisance caused by inadequate sewers. That was such a case and at p. 478 the judge held that the corporation was not liable for nuisance without negligence in the case of flooding caused by inadequate sewers. At p. 473 he refers to the opinion of Lord Esher M.R. in Robinson v. Mayor and Corporation of the Borough of Workington [1897] 1 Q.B. 619 at p. 621, where he distinguishes between drains which were out of repair and drains which were inadequate for the effectual draining of the district. There is, in my opinion, real distinction between the case where the inevitable result of performing the statutory duty would result in damage from time to time and the case where the damage has resulted from failure to carry out a statutory duty to maintain (see Upjohn J. at p. 477).

Stretton’s Derby Brewery Co. v. Mayor of Derby [1894] 1 Ch. 431 is another case of nuisance caused by a sewer becoming insufficient by increase of drainage where the corporation were held not liable under section 19 of the Public Health Act 1875 without negligence.

The only two English cases which I have found in which a sewerage authority were absolved from liability for nuisance in the absence of negligence as result of choked sewers are Hammond v. Vestry of St Pancras (1874) L.R. 9 C.P. 316 and Bateman v. Poplar District Board of Works (1887) 37 Ch.D. 272. In the first of these the policy rule was expressed thus—that it was contrary to natural justice to say that Parliament intended to impose upon public body liability for a thing which no reasonable care and skill could obviate (see Brett J. at p. 322). The duty imposed by the relevant Act is, in my opinion, indistinguishable from the duty imposed by section 19 of the Public Health Act 1875, yet Brett J. seemed to find it ambiguous. The facts of that case are, however, very different from the facts of the present case. In Hammond the jury had found that the defenders did not know of the existence of the brick drain under the plantiff’s premises which became blocked, causing flooding in the plaintiff’s premises, and that they could not have known by the exercise of reasonable care that it was obstructed (see p. 317). It is one thing to say that sewerage authority should not be found liable for flooding caused by a drain which was beneath private premises and which they did not know existed and quite another to say that it should not be liable for flooding caused by failure to maintain a main sewer. North J. regarded the facts in Bateman as afortiori of Hammond because no one, not even the plaintiff, knew of the existence of the drain which had become a sewer by virtue of effluent from other houses draining into it.

The only Scottish case in which a local authority has been found not liable without negligence for nuisance caused by the collapse of a sewer is Tontine Hotel (Greenock) Ltd. v. Greenock Corporation . In that case Lord Fraser was persuaded by the English authorities to which he refers to apply the principle of no liability without negligence. I note that he drew no distinction between the English cases applying the principle in relation to the inadequacy of the sewerage system and those cases, for example, Hammond and Bateman, which were caused by blocked drains. I take the view that Hammondand Bateman were very special cases which turned on their own facts. However, in Lambert v. Corporation of Lowestoft [1901]1 Q.B. 590 to which Lord Eraser referred, it was decided under the relevant sections of the Public Health Act 1875 that the sewerage authority was not liable for a road accident caused by a defective sewer without proof of negligence. Lord Alverstone C.J. purported to follow Bateman, Stretton’s Derby Brewery,which was based on the inadequacy of the sewer, and Thomson v. Mayor of Brighton [1894] 1 Q.B. 332 where an accident was caused by the defective condition of the roadway around a manhole cover and the road authority were held not liable on the nonfeasance principle. Lord Alverstone drew no distinction between injury occasioned by the execution of the statutory duty and nuisance caused by the failure to perform a statutory duty. At p. 594 he said:

“it is now clearly established that under ordinary circumstances no action lies for injury occasioned by the execution of a statutory duty unless it has been negligently performed.”

In my opinion a distinction falls to be made between liability for a nuisance caused by a statutory body as the inevitable result of the performance of its statutory duty and liability for the creation of a nuisance due to the failure of a statutory body to perform its statutory duty.

Dunne v. North Western Gas Board [1964] 2 Q.B. 806, referred to by Lord Fraser in Tontine, was a case in which there was a gas explosion as a result of a gas main becoming fractured due to a leak from water mains and the gas becoming ignited in a manner unascertained. Paragraph 42 of Sched. 3 to the Gas Act 1948 stated:

“Nothing shall exonerate an Area Board from action…for any nuisance caused [the emphasis is mine] by them”.

The court held that the gas board did not cause the explosion. The court held that the gas board did not cause the explosion. The Gas Act 1948 does not seem to me to impose any duty to maintain gas pipes, although it imposes the duty to supply gas.

The case of Green v. Chelsea Water Works (1894) 70 L.T. 547 was a case of a water pipe bursting. There was a statutory obligation to supply water, but it does not appear from the report what were the statutory duties of maintenance. It does appear that the defendant company was only authorised to construct and maintain certain water works, and I can find no absolute duty to maintain the pipes which they constructed. I regard the case of Glossop v. Heston and Isleworth Local Board (1879) 12 Ch.D. 102 as an unsatisfactory case upon which to found the principle that under section 103 of the Public Health (Scotland) Act 1897 a local authority is not liable for nuisance caused by the collapse of sewer without negligence. In the first place Glossop relates to the pollution of a stream as a result of inadequate drainage. Secondly, it has been interpreted as not being “an action based on a private wrong, but an action for a mandatory injunction to compel the defendant board to carry out their statutory duty to provide proper system of sewerage, relief which could only be obtained by prerogative writ of mandamus” (see Parker J. in Jones v. Llanrwst Urban District Council [1911] 1 Ch. 393 at p. 405). Thirdly, it has all the aroma of a nonfeasance case, and I observe that it was so treated in the argument submitted to the Court of Appeal in the Pride of Derby case at p. 157 (see also Robinson v. Workington Corporation [1897] 1 Q.B. 619, per Lopes L.J. at p. 622).

My researches have failed to reveal any case which satisfies me that under section 103 of the Public Health (Scotland) Act a local authority in Scotland was not liable for a nuisance created by flooding from a collapsed sewer as apposed to an inadequate sewerage system. Indeed, I interpret the last sentence of the opinion of Lord President Inglis in Steel v. Commissioners of Police of Gourock (1872) 10 M. 954 at p. 958 as indicating that a sewerage authority would be liable for nuisance under section 73 of the Public Health (Scotland) Act 1867 without proof of negligence.

I may say that it is only with the greatest hesitation that I differ from Lord Fraser in finding that the relevant English authorities do not require me to read into the obligation imposed by section 103 of the Public Health (Scotland) Act 1897, namely, to keep their sewers so as not to be a nuisance, the qualification which has been implied in some cases in England. In the Tontine case Lord Fraser referred to the relevant Scottish cases. I respectfully agree with his comments upon them. In none of them did the court construe section 103 of the Public Health (Scotland) Act 1897 as imposing upon a sewerage authority the absolute duty to maintain their sewers in an efficient state. On the other hand, they do not support the proposition that the duty imposed by that section is no more than a duty to take reasonable care to maintain their sewers.

Senior counsel for the appellants founded on the first two propositions stated by Lord Fraser of Tullybelton in Department of Transport v. North West Water Authority [1984] A.C. 336 but these are related to nuisance which is attributable to the performance of a statutory duty. The position in England seems to me to be that a statutory body performing its statutory duty can escape liability for nuisance only by showing that the nuisance is the inevitable result of that performance (see, e.g., Romer L.J. in the Pride of Derby case at p. 193 and Lord Watson in Metropolitan Asylum District v. Hill (1881) 6 App. Cas. 193 at p. 212). This case is not concerned with the supply of a service authorised or even required by statute but with statutory duty to maintain sewers. I therefore approach the construction of section 2 of the Sewerage (Scotland) Act 1968 with an open mind.

The appellants’ contention is that, despite its apparent terms, section 2 should be read as impliedly qualifying the ex facie absolute duty to maintain all their sewers to that of taking reasonable care to maintain them. The question is whether section 2 imposes upon the defenders an absolute duty to maintain their sewers in an efficient state or whether the ex facie absolute terms of the section must be impliedly qualified by the introduction of the words “take reasonable care to maintain” or words to that effect. There is no definition of “maintained” as there was in Millar v. Galashiels Gas Co. 1949 SC (HL) 31. So the question remains “what is meant by ‘maintain’ in section 2?”

Definitions of “maintain” given in the Shorter Oxford English Dictionary, inter alia, are:

“To keep in being: to preserve unimpaired (a state of things): to keep (a road, a building) in repair”

(see also Lord Jamieson in Lanarkshire County Council v. National Coal Board 1948 S.C. 698 at p. 715). In Radstock Co-operative and Industrial Society v. Norton-Radstock U.D.C. [1967] 3 W.L.R. 588 at p. 602, Ungoed-Thomas J. seems to me to construe the ex facie absolute duty of maintenance imposed upon local authorities by section 23 of the Public Health Act 1936 without qualification as a duty to keep their sewers in proper condition, but that comment was plainly made obiter. The context in which the word appears is all-important. If, when Parliament enacted the Sewerage (Scotland) Act 1968 and repealed the Public Health (Scotland) Act 1897, it believed that sewerage authorities were not liable under section 103 of the 1897 Act for nuisance caused by the collapse of a sewer per se, it may be that section 2 ought to be construed in the same sense; but my difficulty is that I do not know what the legislature thought in 1968. It may well be that it regarded the Tontine case as settling the law. If Parliament had merely re-enacted the maintenance part of section 103 in the same words, I should perhaps have felt obliged to construe section 2 of the 1968 Act as having the effect which Lord Eraser gave to section 103 in the Tontine case; but the words are different. There is no reference to nuisance. The duty to maintain is unqualified. Moreover, the section opens with the phrase:

“Subject to section 4 below”

and the terms of section 4 require the authority, if they close, alter, replace or remove any sewer vested in them, to provide a sewer equally effective for the use of any person who is lawfully using the sewer for any purpose prior to the closure, alteration, replacement or removal. This suggests to me that the legislature intended that the duty imposed by section 2 was a duty to maintain all sewers in an effective state for use by all persons using them. If that construction is correct I can think of no possible defence to a case of nuisance based on flooding caused by the collapse of any sewer in the absence of interference by a third party. I appreciate that this places all sewerage authorities in the position of insurers to all persons who are damaged by sewage escaping from a collapsed sewer on to their property so as to create a nuisance. In fact that construction of the section would seem to involve all local authorities in liability for all damage caused by flooding from defective, as opposed to inadequate, sewers, albeit the flooding is insufficient to amount to nuisance. If my construction of section 2 is sound and public policy requires the owners of property damaged by such flooding to carry their own insurance against such damage, without recourse to the local authority, then it must be for the legislature to provide expressly for that result.

Senior counsel for the appellants submitted that, if we construe section 2 of the Sewerage (Scotland) Act as imposing an absolute duty and we took the view that the collapse of the sewer averred was caused by a failure to maintain, there was nothing to inquire into. I read ans. 2 for the defenders as admitting that the flooding of which the pursuers complained was a consequence of this sewer collapsing. On my construction of section 2 the defenders are liable to the pursuers in reparation therefor. As we were informed that the damages, if payable, were agreed at £10,250, I agree with your Lordship in the chair that the second plea-in-law for the pursuers should be sustained and decree de plano pronounced for payment by the defenders to the pursuers of the sum of £10,250.

The defenders appealed to the House of Lords. The appeal was heard on 19th, 20th and 21st November 1984.

At delivering judgment on 24th January 1985,—

LORD FRASER OF TULLYBELTON .—My Lords, This appeal raises a question as to the principle on which the owner or occupier of land in Scotland (the defender) is liable at common law for damage to his neighbour’s land caused by an agency, in this case sewage, which escapes from an artificial work on the defender’s land. A secondary question arises as to the liability of a defender which is a public authority acting under statutory powers.

The appellants (defenders), are a local authority responsible for sewerage in a large area of Scotland including Glasgow. I shall refer to them as “the local authority”. The respondents (pursuers) are a company which operates a bakery in Paton Street, Glasgow. I shall refer to them as “R.H.M.” On 28th September 1978, there was heavy rainfall in Glasgow and R.H.M.’s bakery in Paton Street was flooded. The cause of the flooding was that a main brick sewer in Paton Street, which was under the operation and control of the local authority, had collapsed about a fortnight earlier and had not been repaired, so that on 28th September it did not effectively drain the area. The precise cause of the collapse is not known. The case has been argued throughout, on both sides, on the footing that the bakery was flooded not only by rainwater from the street, but also, and indeed mainly, by sewage from the blocked sewer, although that is not specifically averred. R.H.M. claim damages from the local authority at common law and also under the provisions of the Sewerage (Scotland) Act 1968. In their common law case, they do not aver that the damage to their bakery was caused by any fault on the part of the local authority, either in failing to take reasonable care to maintain the sewer, or in failing to repair it promptly after it had collapsed, or in any other way. Their case at common law on record is that the flooding was, or possibly was caused by, a nuisance for which the local authority was “strictly liable”. Their case under the Sewerage (Scotland) Act 1968 is that by section 2 of that Act the local authority were under a duty to maintain the sewer, and that “said duty [was] absolute”. A faint attempt was made by Mr Murray, who appeared for R.H.M., to argue that his pleadings were sufficient to found a case of fault at least by relying on the brocard res ipsa loquitur. In my opinion the attempt was hopeless on the pleadings as they stand, and we were not moved to allow them to be amended. The pleadings are not well drawn. Nevertheless, inelegant as the pleadings are, the judgments of both courts below show that there has never been any doubt about the issues between the parties. The first issue is, and has always been, whether the local authority are liable at common law for the damage caused by flooding, even if it occurred without fault on their part, or whether they are only liable if they were to some extent at fault. The second issue is, and has always been, whether the local authority are liable for breach of the provision of the Sewerage (Scotland) Act 1968, section 2 requiring them to maintain the sewer, even if they have used all reasonable care and skill to maintain it. A third issue, which depended on section 20 of that Act, was raised in the initial writ, but the averments relating to it were held by the sheriff and the sheriff principal to be irrelevant, and that matter was not reopened in the Second Division or in this House.

Damages, if any, were agreed at £10,250, which is the sum sued for. I assume that that sum was agreed before the action was raised; if so, that may explain, though it cannot justify, the inappropriate form of R.H.M.’s first plea-in-law, which purports to state the sole legal basis of the claim. It is simply that “the defenders [the local authority] being due and resting owing to the pursuers in the sum sued for, decree should be granted as craved”. The sheriff (Horsfall) sustained the local authority’s plea to the relevancy of R.H.M.’s pleadings, and dismissed the action. The sheriff principal (Dick, Q.C.) recalled the sheriff’s interlocutor, sustained the defenders’ plea that the averments relating to the third issue (which concerned section 20 of the Act of 1968 and which I have already mentioned) were irrelevant and allowed a proof before answer on the other two issues. The Second Division (Lord Justice-Clerk (Lord Wheatley), Lord Robertson and Lord Dunpark) allowed an appeal from the sheriff principal, held the defences irrelevant and granted decree de plano for the sum sued for. The Division held by majority (Lord Dunpark dissenting) that R.H.M.’s averments of nuisance at common law were relevant and unanimously that their averments of breach of section 2 of the Act of 1968 were relevant.

I consider first the question of liability at common law.

The argument in this House resolved itelf largely into an analysis of the legal basis of the decision in Kerr v. The Earl of Orkney (1857) 20 D. 298, and later Scottish cases in the same field. Inevitably the argument touched also upon the decision of this House in Rylands v. Fletcher (1868) LR 3 HL 330 and later English cases in the same field. But no question of English law is raised in this appeal so far as it relates to common law, and I disclaim any intention of deciding one.

The decision of the Second Division on the common law case was based mainly on two recent decisions in the Court of Session—Lord Advocate v. Reo Stakis Organisation Ltd. 1981 S.C. 104 and Watt v. Jamieson 1954 SC 56—and I shall have to refer to them later. But it is convenient to start with Kerr v. The Earl of Orkneysupra, which for long has been regarded as a landmark decision in this field. Unfortunately the legal basis on which it rests has been the subject of much discussion and, I humbly think, some misunderstanding. The facts were that the defender, the Earl of Orkney, had built a dam on his land in Ayrshire across a stream on which the pursuer had a mill about half-a-mile lower down. Four months after the dam had been completed, there were several days of heavy rain, the dam burst, the waters in the pond behind it escaped and the stream, augmented by those waters, swept away the pursuer’s house and his mill. Not surprisingly the defender was held to be liable in damages to the pursuer. The question is as to the exact basis on which he was found to be liable. The Lord Ordinary (Lord Ardmillan) clearly rested his decision in favour of the pursuer on the ground that the defender was at fault. He said at p. 301:

“It is the undoubted fact that the embankment thus constructed by the respondent burst within four months of its completion, and the pent up waters, breaking through the barrier, swept the [pursuer’s] house and mill away. This fact occurring in reference to recent work, constructed by private party for his own pleasure, must be held to throw on the respondent [the Earl] the burden of explaining the fact on some footing consistent with the strength and sufficiency of the work. In the opinions of Lord Fullerton and Lord Jeffrey in the case of Macaulay v. Buist & Co. (1846) 9 D. 245 and in the opinion of Lord Moncrieff in the case of Samuel v. The Edinburgh and Glasgow Railway Co. (1850) 13 D. 312, sufficient authority will be found for the proposition, that a private party constructing a work under no statutory powers, but at his own hand, must, if that work give way, and causes injury, explain the cause of it on some footing consistent with his discharge of his own duties in regard to it.”

The opinion of Lord Fullerton in Macaulay v. Buistsupra, at p. 248 contains as clear a statement of the doctrine of res ipsa loquitur (though of course without using that name) as can be found anywhere. The case arose out of an accident in a coalmine where a miner had been killed by a scaffold and machinery giving way. Lord Fullerton after referring to the evidence said:

“Now, what is the fair inference of fact which any man of ordinary sense would draw from this account of the accident? What but that the machine was in some essential particular defective? When a man is ordered by his employer to mount a ladder, and before he has got half way up, the ladder goes to pieces; or when half-a-dozen of men are put upon a scaffold, and the unavoidable consequence is the fall of the scaffold, what is the fair and natural conclusion, but that the one and the other were defective. To say that in such a case the sufferers, in order to make out the responsibility of their employers, are bound to prove the specific defect which occasioned the failure, would be in many cases an absolute denial of justice.”

Lord Jeffrey concurred in Lord Fullerton’s view. The other opinion relied on particularly by the Lord Ordinary in Kerr v. The Earl of Orkney was that of Lord Moncrieff in Samuel (1850) 13 D. 312 which is also clearly founded on culpa;

When Kerr v. The Earl of Orkney reached the Inner House, the Lord Justice-Clerk (Hope) began his opinion with a general statement which seems to lay down a rule of strict liability and has been so understood in some later cases. The Lord Justice Clerk said at (1857) 20 D. 298, p. 302:

“[The] principle is—that if a person chooses upon a stream to make a great operation for collecting and damming up the water for whatever purpose, he is bound, as the necessary condition of such an operation, to accomplish his object in such a way as to protect all persons lower down the stream from all danger; he must secure them against danger. It is not sufficient that he took all the pains which were thought at the time necessary and sufficient.”

The only exception which he would have admitted was a damnum fatale, or act of God. But later in his opinion he appears to rest it upon the view that the defender was at fault. He said that the defender had not even taken the precaution of getting advice from a skilled engineer and emphasised that the dam had given way “immediately after its construction”. These observations would have been unnecessary unless they were intended to show that the defender had been at fault. There is, I think, considerable doubt about the true basis of the Lord Justice-Clerk’s opinion. However that may be, two of the other members of the Division, Lord Wood at p. 304 and Lord Cowan at p. 306, expressed their agreement with both the Lord Ordinary and the Lord Justice-Clerk, implying that they regarded them as being in agreement. Having regard to what I consider to be the unambiguous reliance of the Lord Ordinary on culpa as the basis of his opinion, I think that must also have been the basis of the opinions of at least the majority in the Second Division, namely the Lord Justice-Clerk, Lord Wood and Lord Cowan. The fourth member of the court, Lord Murray, merely expressed general agreement with the others. In these circumstances I am of opinion that the true basis of the decision in Kerr v. The Earl of Orkney was culpa on the part of the defender.

That conclusion is much fortified by finding that in Chalmers v. Dixon (1876) 3 R. 461, 464, the Lord Justice-Clerk (Moncrieff) after saying that the case of Kerr v. The Earl of Orkney was “very similar” to Rylands v. Fletcher (1868) LR 3 HL 330 said this:

“A good deal has been said as to the necessity of proving culpa. I think that culpa does lie at the root of the matter. If a man puts upon his land a new combination of materials, which he knows, or ought to know, are of a dangerous nature, then either due care will prevent injury, in which case he is liable if injury occurs for not taking that due care, or else no precautions will prevent injury, in which case he is liable for his original act in placing the materials upon the ground.”

Lord Gifford at p. 468 also thought “that culpa is at the foundation of liability”. The case was concerned with damage by noxious fumes from a bing of refuse from an ironstone pit. The defender was held liable without proof of specific fault, the Lord Justice-Clerk remarking at p. 464 that “Fault is necessarily implied in the result”.

We were referred to several other decisions in Scotland in which culpa was held to be the basis of the defender’s liability for damage caused to a neighbour’s property. Two of those cases arose from damage by water escaping from burst pipes—Campbell v. Kennedy (1864) 3 M. 121 and Moffat & Co. v. Park (1877) 5 R. 13—and two arose from escapes of gas from pipes—Miller v. Robert Addie & Sons’ Collieries Ltd. 1934 S.C. 150 and McLaughlan v. Craig 1948 S.C. 599.

Campbell v. Kennedy is notable for a particularly clear affirmation of culpa as the essential basis of liability by the owner of property to the owner of neighbouring property. The proprietor of an upper flat was held liable to the occupant of a shop underneath for damage caused by the negligence of the former in allowing a water pipe in the flat to be in a defective state. Lord Justice-Clerk Inglis at p. 126 said:

“The brocard which sets forth the duty of a proprietor is, sic utere tuo ut alienum non laedas; and the only ground on which the owner of property can be made liable is a breach of tht obediential obligation. But there can be no such breach, without fault of some kind, either of omission or commission. I cannot, therefore, hold that the mere fact of ownership, upon which the interlocutor [of the Lord Ordinary] proceeds, is in itself a ground of liability.”

Lord Neaves at p. 125 said:

“My view of the law is, that the possession of property infers certain duties, and that a proprietor is bound to follow a reasonable and prudent course of administration, so as not to injure his neighbours. But it is quite a different thing to say that if, notwithstanding this prudent management, an injury is caused to the property of a neighbour, a proprietor is responsible. There are obligations which arise ex contractu,and quasi ex contractu, and ex delicto, and quasi ex delicto, but I never heard of an obligation rising merely ex dominio.”

In McLaughlan v. Craig 1948 S.C. 599 Lord President Cooper emphatically rejected the proposition that an owner of property acted at his peril, which he described (at p. 610) as “that ‘coarse and impolitic idea’”—a description which he borrowed from Lord Simonds in Read v. J. Lyons & Co. Ltd. [1947] AC 156, at p. 181, who in turn attributed it to Holmes J. in America.

To that considerable tract of Scottish decisions, I may add much academic writing including Glegg on The Law of Reparation in Scotland, 4th edn. (1955), p. 19, Sheriff Hector McKechnie’s article on Reparation in Vol. 12 of the Encyclopeadia of The Laws of Scotland (1931), and Professor D. M. Walker on The Law of Delict in Scotland, 2nd edn. (1981), p. 975 et seq.

The doubt about whether culpa is the essential basis in Scots law for the liability of the proprietor of land to a neighbour arises from the fact that the English decision in Rylands v. Fletcher (1868) LR 3 HL 330, has sometimes been referred to as if it were authoritative in Scotland. In my opinion, with all respect to eminent judges who have referred to it in that way, it has no place in Scots law, and the suggestion that it has is a heresy which ought to be extirpated. The facts in Rylands v. Fletcher were very similar to those in Kerr v. The Earl of Orkney which had been decided ten years earlier but which does not seem to have been referred to in the argument. In Rylands v. Fletcher this House applied a rule of strict liability to the duties owed by a landowner to his neighbours. The rule was stated at its highest by Lord Cranworth at p. 340. It is not necessary for the present purpose to enquire fully into the historical reasons for applying that rule although it appears from Vol. 8 of Sir William Holdsworth’s A History of English Law, 2nd edn. (1937), at pp. 446, 465, that it was based on the medieval principle that a man acts at his peril, and incurs absolute liability for damage caused by an act which comes within one of the forms of action, even though the damage is the result of pure accident. That principle which is (or was in 1868) still applicable to acts which infringed another person’s possession of land never formed part of Scots law, where liability has, I think, always depended on culpa.

There are observations in several reported cases to the effect that the law of nuisance is the same in Scotland as it is in England, apart from the distinction between public and private nuisance which is recognised in England but not in Scotland. Such observations were made, for example, in Fleming v. Hislop (1886) 13 R. (H.L.) 43, at p. 48, by Lord Fitzgerald with whom Lord President Clyde expressed agreement in Slater v. A. & J. McLellan 1924 S.C. 854. Lord Fitzgerald’s observation was, in my respectful opinion, perfectly accurate in the context in which it was made, where the presence or absence of culpa was not in issue, and it does not bear upon the present problem. Counsel for the respondents referred to Giblin v. Middle Ward District Committee of the Lanarkshire County Council 1927 S.L.T. 563, where Lord Moncrieff in the Outer House seems to have treated gas in pipes as a dangerous thing to be kept by the supplier of the gas at his peril, and for the escape of which he will be liable even without fault. In so far as the decision was based upon that ground, it cannot stand with the later decisions in Miller v. Robert Addie & Sons’ Collieries Ltd. 1934 S.C. 150 and McLaughlan v. Craig 1948 S.C. 599.

The only decision which might create some difficulty on this part of the appeal is Caledonian Railway Co. v. Greenock Corporation 1917 SC (HL) 56, where several members of this House referred to Kerr v. The Earl of Orkney (1857) 20 D. 298 and approved of the first part of Lord Justice-Clerk Hope’s opinion, cited above, in which he seemed to apply the rule of strict liability to a person who interferes with the flow of stream. In the Caledonian Railway case the defenders, in order to improve a public park had altered the course of a burn by enclosing the burn in a culvert and filling in the valley which the burn had previously flowed. There are certainly dicta in some of the speeches which could be read as supporting a rule of strict liability—see Lord Finlay, L.C., at pp. 60–61. Rylands v. Fletcher was mentioned but not relied upon for the decision; indeed, it was distinguished by Lord Finlay, L.C., at p. 63, on the grounds that it related merely to the storage of water and did not affect the question of liability for interference with the course of a natural stream. But there are other parts of the speeches which can be read as founding liability on culpa. For example, in the last paragraph of the Lord Chancellor’s speech, at p. 63, he said that the Lord Ordinary had rightly found “that the appellants in constructing the culvert ought to have foreseen the possibility of such an occurrence and to have provided against it”. But whatever may be the basis of the decision in the Caledonian Railwaycase, the decision is not directly applicable to the facts of the instant appeal, which are not concerned with diverting the flow of a natural stream. Accordingly, I do not consider that it is an authority which inhibits your Lordships from deciding that the local authority in this appeal will only be liable if they are shown to have been at fault. It may be that that case should be regarded as laying down a special rule applicable only to the case of person who interferes with the course of a natural stream. If so, it is contrary to a general principle of the law of Scotland and, in my opinion, the rule should not be extended beyond the precise facts of that case.

I come now to the two recent decisions which were mainly relied upon by the Second Division. The first of these is Watt v. Jamieson 1954 SC 56 which was a decision by Lord President Cooper sitting in the Outer House. Having regard to his rejection of strict liability in McLaughlan v. Craig in 1948, it would be surprising if he had accepted that principle in Watt in 1954. But I do not think that he did any such thing. The facts in Watt, which I take from the rubric, were that “in an action of damages brought by the owner of a flat in a tenement against the owner of flat in an adjoining tenement, the pursuer averred that damage had been caused to his flat through the discharge into a vent in the mutual gable of sulphur-impregnated water vapour from a gas water heater installed by the defender in his flat. In answer to the pursuer’s plea of nuisance, the defender maintained that the action was irrelevant in respect that the user complained of involved only a normal, natural and familiar use of dwelling-house property in a burgh.” All that the case decided was that it was not a relevant defence to say that the defender’s use of his property was a normal and familiar one. But the Lord President went on to say, at pp. 57–58:

“It appeared to me that the defender’s argument failed to give due weight to the fact that nuisance as a cause of action is a comparatively modern development, at least in Scots law, and the argument, especially when founded upon the older authorities, tended to confuse nuisance as a cause of action with culpa and the special aspect of culpa which is generally described as the rule in Rylands v. Fletcher (1868) LR 3 HL 330. The modern view of nuisance is, I think, more accurately founded upon such cases as Broder v. Saillard (1876) 2 Ch.D. 692, Fleming v. Hislop (1886) 13 R. (H.L.) 43, and Sedleigh-Denfield v. O’Callaghan [1940] AC 880, and this modern view is formulated in such textbooks as Salmond on Torts (11th edn.), p. 259, and Burn-Murdoch on Interdict, p. 228. From these and other pronouncements I deduce that the proper angle of approach to a case of alleged nuisance is rather from the standpoint of the victim of the loss or inconvenience than from the standpoint of the alleged offender; and that, if any person so uses his property as to occasion serious disturbance or substantial inconvenience to his neighbour or material damage to his neighbour’s property, it is in the general case irrelevant as a defence for the defender to plead merely that he was making a normal and familiar use of his own property. The balance in all such cases has to be held between the freedom of a proprietor to use his property as he pleases and the duty on a proprietor not to inflict material loss or inconvenience on adjoining proprietors or adjoining property; and in every case the answer depends on considerations of fact and of degree…The critical question is whether what he was exposed to was plus quam tolerabile when due weight has been given to all the surrounding circumstances of the offensive conduct and its effects. If that test is satisfied, I do not consider that our law accepts as a defence that the nature of the user complained of was usual, familiar and normal. Any type of use which in the sense indicated above subjects adjoining proprietors to substantial annoyance, or causes material damage to their property, is prima facie not a ‘reasonable’ use.”

But the fact that the proper approach is from the standpoint of the victim does not mean that the question of fault on the part of the alleged offender can be completely disregarded, so as to make him an insurer—see the third of the modern cases cited by Lord Cooper, Sedleigh-Denfield v. O’Callaghan [1940] AC 880per Viscount Maugham at p. 887, and especially per Lord Atkin at p. 896, where he said this:

“For the purpose of ascertaining whether as here the plaintiff can establish a private nuisance, I think that nuisance is sufficiently defined as a wrongful interfence with another’s enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour’s property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word ‘use.’ This conception is implicit in all the decisions which impose liability only where the defendent has ‘caused or continued’ the nuisance.”

(Emphasis added.) Sedleigh-Denfieldwas a case where the victim was suing for damages. In a case when the only remedy sought was interdict the position might be different; I think that a defender might be liable to be interdicted from using some artificial work on his land, even although he had no personal responsibility for putting it there in the first place and had not begun to use it, if there was reason to believe that he was likely to use it in the future. But that question does not arise here. Accordingly, I do not regard Lord President Cooper’s opinion in Watt v. Jamieson 1954 SC 56 as giving any support to the view that a defender is liable for damages for nuisance merely ex dominioand without fault on his part.

The other recent case relied on by the Second Division is The Lord Advocate v. Reo Stakis Organisation Ltd. 1981 S.C. 104 where damage had been caused to the pursuer’s building by pile-driving for the foundations of new building on a site close by. The pursuer claimed damages against inter alias, the proprietors of the neighbouring site, on the ground of nuisance. The defenders argued that the case of nuisance was irrelevant because, they said, building operations were in a special position. The First Division rejected that argument for the first defenders, and the Lord President (Lord Emslie) delivering the opinion of the court said at pp. 142–143:

“The single question for us is whether, as the first-named defenders contend, the pursuer’s second plea-in-law should be repelled at this stage without inquiry. To justify the taking of that step would require us to affirm that if an occupier of land sustains damage of any kind, including damage to his buildings, as the result of building operations carried on by his neighbour, no remedy will be available to the injured party under the law of nuisance, no matter how great his loss, save in the exceptional circumstance that the building operations in question were themselves ‘extravagant’ in the sense in which counsel for the first-named defenders defined that adjective. We are not prepared to affirm that this is the law and we go further to declare that in our opinion the law of nuisance applies without exception to provide a remedy for any relevant damage suffered by a neighbouring occupier as the result of any type of use of adjoining subjects by the occupier thereof.”

In my opinion, all that the Lord President was saying was that building operations were in no special position and that (as he said at p. 143) “the law of nuisance applies to damage caused by building operations just as it does to damage caused to a neighbour by other types of use of adjoining property”. The passage gives no support whatever to the contention that nuisance gives rise to liability even if culpa is not proved.

The only remaining question on this part of the appeal is whether, assuming that a private person from whose drain or other artificial works sewage escapes, would not be liable without culpa being established against him, the same rule applies where the owner of the drain or sewer is a public authority. In my opinion the mere fact that the owner of the sewer is a public authority cannot by itself affect the ground on which he is liable for nuisance at common law. We were referred to two Canadian cases, Royal Anne Hotel Co. Ltd. v. Village of Ashcroft (1979) 95 D.L.R. (3d) 756, and City of Campbellton v. Gray’s Velvet Ice Cream Ltd. (1981) 127 D.L.R. (3d) 436, where it was held that when damage is caused by sewage escaping from a municipal sewer, the municipality was liable. In the Royal Anne Hotel case, at p. 761, McIntyre J. A. said at p. 761:

“The conflicting interests must be weighed and considered against all the circumstances. The social utility of the conduct complained of must be weighed against the significance of the injury caused and the value of the interest sought to be protected. But where the conduct of the defendant has caused actual physical injury to the plaintiffs’ land the mere fact that such conduct may be of great social utility, for example construction and maintenance of a sewer, will not attract greater licence or immunity. There is no reason why a disproportionate share of the cost of such a beneficial service should be visited upon one member of the community by leaving him uncompensated for damage caused by the existence of that which benefits the community at large.”

There seems to be much to commend that statement as a matter of policy. But, so far as the common law of Scotland is concerned, I do not think that the extent of the licence or immunity of a public authority, as such, is different from that of any other defender; see Hanley v. Magistrates of Edinburgh 1913 S.C. (H.L.) 27, at p. 30 per Lord Shaw of Dunfermline. The liability of a public authority, acting under statutory powers, will generally depend upon the true construction of the statute under which it is operating.

For these reasons I am of opinion that the majority of the Second Division came to the wrong conclusion on the common law case. The local authority have in my opinion succeeded in showing that the case averred against them at common law is irrelevant because it excludes any reference to fault on their part. I wish to add two further comments on this part of the case. The first is that the view that I have just expressed does not by any means imply that, in a case such as this, a pursuer cannot succeed unless he avers the precise nature of the fault committed by the defender which caused the accident. It would be quite unreasonable to place such a burden on a pursuer, who in many cases will have no knowledge, and no means of obtaining knowledge, of the defender’s fault. As a general rule it would, in my opinion, be relevant for a pursuer to make averments to the effect that his property has been damaged by a flood caused by an event on the defender’s land, such as the collapse of sewer which it was the defender’s duty to maintain, that properly maintained sewers do not collapse, and that the collapse is evidence that the defender had failed in his duty to maintain the sewer. The onus will then be on the defender to explain the event in some way consistent with absence of fault on his part. As a general rule the defences available will be limited to proving that the event was caused either by the action of a third party for whom he was not responsible, as the defender did in Gourock Ropework Co. Ltd v. Greenock Corporation 1966 S.L.T. 125, or by a damnum fatale.

My second comment is that I do not believe that there is much difference in the practical result between the law as laid down in Rylands v. Fletcher (1868) LR 3 HL 330, and the law as laid down according to my understanding of Kerr v. The Earl of Orkney (1857) 20 D. 298. On that matter, I accept the majority view expressed in the Thirteenth Report of the Law Reform Committee for Scotland (1964) (Cmd. 2348), para. 22, where they say this:

“We agree that the theory of the common law is at present doubtful, but we are impressed by the argument that it seems to make little, if any, difference in the result whether one adopts what may be called the ‘absolute liability’ theory or adheres rigidly to the fault principle.”

But as the parties have chosen to litigate the question, and as they presumably consider it to be important to them, I think they are entitled to have it decided. In my opinion it should be decided in favour of the local authority.

I come now to the case based on breach of statutory duty. The averments of R.H.M. on this matter are in condescendence 4 and are as follows:

Separatim in terms of section 2 of the Sewerage (Scotland) Act 1968, it is the duty of every local authority including the defenders, inter alia to maintain all sewers vested in them. Said duty is absolute.”

(Emphasis added.)

The material sections of the Sewerage (Scotland) Act 1968 are sections 1 and 2. Section 1 provides:

“(1) Subject to the provisions of this Act, it shall be the duty of every local authority to provide such public sewers as may be necessary for effectually draining their area of domestic sewage, surface water and trade effluent…(3) The duties imposed by the foregoing subsections shall not require a local authority to do anything which is not practicable at a reasonable cost.”

Section 2 provides:

“Subject to section 4 below, it shall be the duty of every local authority to inspect, maintain, repair, cleanse, empty, ventilate and where appropriate renew all sewers…vested in them by virtue of this Act.”

The duty imposed by section 2 to maintain sewers is not qualified by any provision corresponding to subsection (4) of section 1 which qualifies the duty to provide sewers. The argument for R.H.M. was that it was therefore absolute. The Lord Justice-Clerk did not regard the duty as absolute, but he held that R.H.M.’s averment that it was, was relevant, because the local authority had not tabled averments to constitute a defence to a different case of, in effect, res ipsa loquitur. With respect, I cannot agree with that reasoning; I no not think that anything said, or omitted to be said, by the local authority can make averments by R.H.M. relevant, if they were irrelevant when made. Lord Robertson read section 2 of the Act of 1968 as imposing an absolute duty to maintain the sewer. I doubt whether that is correct, having regard to the fact that the section also imposes duties to inspect and to repair. The former would be unnecessary if the duty to maintain was absolute, and the latter seems to imply that some degree of disrepair is to be expected and permitted, and thus to negative an absolute duty to maintain. But whether that is right or not, I am of the opinion, on the authorities, that the duty to maintain under section 2 was not absolute.

In the case of Tontine Hotel (Greenock) Ltd. v. Greenock Corporation 1967 S.L.T. 180 a somewhat similar question arose in connection with the Public Health (Scotland) Act 1897, section 103, which provides:

“The local authority shall have power to construct within their district…such sewers as they may think necessary for keeping their district properly cleansed and drained…The local authority shall cause their sewers to be so constructed maintained, kept, and cleansed as not to be a nuisance…”

I held in the Outer House in that case that section 103, notwithstanding its unqualified terms, was limited to imposing a duty on the local authority to use all reasonable care and diligence not to cause a nuisance. That decision was founded on the authority of tract of decisions in English cases relating to statutory duties imposed in terms which appeared to me to be indistinguishable from those of section 103 of the Act of 1897. The cases on which I mainly relied were Hammond v. The Vestry of St. Pancras (1874) L.R. 9 C.P. 316 and Bateman v. Poplar District Board of Works (No. 2) (1888) 37 Ch.D. 272. The other authorities were Lambert v. Corporation of Lowestoft [1901] 1 Q.B. 590, Smeaton v. Ilford Corporation [1954] Ch. 450 and Dunne v. North Western Gas Board [1964] 2 Q.B. 806. My decision in the Tontine case was not reclaimed against, and in Rae v. Musselburgh Town Council 1973 S.C. 291, Lord Keith in the Outer House expressed his agreement with my decision. In the present case the Second Division did not disapprove of that decision, but they distinguished it on the ground that it was not applicable to the duty under section 2 of the Act of 1968, the terms of which they regarded as differing materially from those of section 103 of the Act of 1897. The Lord Justice-Clerk dealt with the matter in this way. He said:

“With all due respect I do not consider what Lord Fraser said in relation to section 103 of the Act of 1897 can be accepted as applicable to section 2 of the Act of 1968. I do not think that the reasoning which provides an answer to a section 1 case has equal application to section 2 situation. It is one thing to say that public policy and equity dictate that a local authority should not be held liable for damage caused simply by the existence of something which Parliament has obliged them to do, but another thing to say that a local authority should be similarly excused for not doing what Parliament in ex facie absolute terms has obliged them to do, namely maintain the sewer which has been constructed. This duty is in no way conditioned or qualified except under reference to subsection 4.”

It seems to me that the Lord Justice-Clerk has overlooked the fact that section 103 of the Act of 1897 covers the same ground as both section 1 and section 2 of the Act of 1968; that is to say it imposed a duty to provide sewers and also duty to maintain them. Lord Robertson referred to the fact that section 103 imposed a duty to maintain, but said that the words of that section were different from those of section 2 of the Act of 1968; I agree, but I do not consider the difference to be material for the present purpose. Lord Dunpark, with whom Lord Robertson agreed, took the view that the cases of Hammond and Bateman which were the only cases in the English series which related to flooding from blocked (as distinct from inadequate) sewers, were what he described as “very special cases which turned on their own facts”. But these cases were accepted as authoritative by your Lordships House in the case of Department of Transport v. North West Water Authority [1984] A.C. 336 and I do not think it is now possible to dismiss them as decisions which turn only on their special facts. In Hammond, the relevant duty imposed on the Vestry of St. Pancras by section 72 of the Metropolis Local Management Act 1855 was duty to “cause the sewers vested in them to be constructed, covered, and kept so not to be a nuisance or injurious to health, and to be properly cleared, cleansed, and emptied…rdquo; The duty was not in terms qualified by the section, but the Court of Common Pleas held that the effect of the section was to impose a duty only to take reasonable care. Brett J., with whom Denman J. agreed, said (at p. 322):

“According to my view of section 72, therefore, the vestry or district board are not to be held liable for not keeping their sewers cleansed at all events and under all circumstances; but only where by the exercise of reasonable care and diligence they can and ought to know that they require cleansing, and where by the exercise of reasonable care and skill they can be kept cleansed.”

That decision which was accepted by this House as correct in the Department of Transport v. North West Water Authority seems to me to apply to the duty under section 2 of the Act of 1968 just as much as it did to the duty under section 103 of the Act of 1897. I am accordingly of the opinion that the duty of the local authority under section 2 of the Act of 1968 was not an “absolute duty” as averred by R.H.M. and that R.H.M.’s averments of breach of statutory duty are therefore irrelevant.

For these reasons I would allow the appeal, sustain the local authority’s first plea-in-law and dismiss the action.

LORD KEITH OF KINKEL .—My Lords, I have had the benefit of reading in advance the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it, and for the reasons he gives I too would allow the appeal and dismiss the action.

LORD BRIDGE OF HARWICH .—My Lords, For the reasons given in the speech of my noble and learned friend Lord Fraser of Tullybelton, with which I agree, I too would allow the appeal.

LORD BRANDON OF OAKBROOK .—My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Fraser of Tullybelton. I agree with it, and for the reasons which he gives I would allow the appeal and dismiss the action.

LORD TEMPLEMAN .—My Lords, For the reasons given by my noble and learned friend, Lord Fraser of Tullybelton, I too would allow the appeal and dismiss the action.

 

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