R.H.M. Bakeries (Scotland) Ltd v Strathclyde Regional Council

In Scots law, liability in damages for nuisance caused by an escape from artificial works on neighbouring land rests on culpa. The owner or occupier is not an insurer merely because the escape caused material damage. The rule of strict liability in Rylands v Fletcher forms no part of Scots law.

A pursuer need not identify the precise fault. The circumstances may justify an inference of fault and place an evidential burden on the defender to provide an innocent explanation. A statutory duty to maintain sewers, expressed alongside duties to inspect and repair, requires reasonable care and diligence. It does not guarantee that every sewer will remain effective in all circumstances.

A bakery was flooded after heavy rain because a main brick sewer, operated and controlled by the local authority, had collapsed about a fortnight earlier and had not been repaired. The precise cause of the collapse was unknown. The bakery claimed the agreed sum of £10,250 for nuisance at common law and breach of section 2 of the Sewerage (Scotland) Act 1968, without averring fault.

The sheriff dismissed the action as irrelevant. The sheriff principal allowed proof before answer on the two remaining grounds. The Second Division granted decree de plano, holding by majority that the common-law case was relevant and unanimously that the statutory case was relevant.

The issues before the House were whether Scots nuisance law imposed liability without fault and whether section 2 imposed an absolute duty to maintain sewers.

1. Appeal allowed unanimously and action dismissed. Lord Fraser of Tullybelton delivered the leading speech. Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Templeman agreed with his reasons.

2. Per Lord Fraser, culpa is the essential basis in Scots law for an award of damages where an agency escapes from artificial works and damages neighbouring land. Ownership or occupation alone does not make the defender an insurer. The rule of strict liability stated in Rylands v Fletcher (1868) LR 3 HL 330 has no place in Scots law.

3. Kerr v The Earl of Orkney (1857) 20 D 298 was properly understood as resting on fault, notwithstanding language in one opinion which appeared to impose strict liability. That construction accorded with the wider Scottish authorities. Watt v Jamieson 1954 SC 56 established that normal and familiar use is not by itself a defence to nuisance, but did not remove the requirement of fault. Lord Advocate v Reo Stakis Organisation Ltd 1981 SC 104 likewise rejected a special immunity for building operations, rather than establishing liability without fault.

4. A pursuer need not aver the precise defect or act which caused an escape. It would ordinarily be relevant to aver that an artificial work which the defender had to maintain collapsed, that a properly maintained work would not ordinarily collapse, and that the collapse evidenced a failure to maintain it. The defender would then bear the burden of explaining the event consistently with an absence of fault, ordinarily by showing an independent third-party act or damnum fatale. The bakery's actual pleadings, however, expressly asserted strict liability and did not state such a fault-based case.

5. Per Lord Fraser, section 2 of the Sewerage (Scotland) Act 1968 did not impose an absolute duty to maintain sewers. Its accompanying duties to inspect and repair indicated that some disrepair was contemplated. Consistently with the statutory authorities, the provision required the local authority to exercise reasonable care and diligence. As the bakery pleaded only an absolute obligation, its statutory case was also irrelevant.

1. House of Lords: Allowed the local authority's appeal unanimously, sustained its plea to relevancy and dismissed the action.

2. Second Division of the Court of Session: Recalled the sheriff principal's interlocutor and granted decree de plano for £10,250. It held by majority that the common-law nuisance averments were relevant and unanimously that the section 2 averments were relevant.

3. Sheriff principal: Recalled the sheriff's dismissal, excluded the claim under section 20 of the Sewerage (Scotland) Act 1968, and allowed proof before answer on nuisance and section 2.

4. Sheriff: Sustained the local authority's plea to relevancy and dismissed the action.