Scottish Court of Session Decisions

The Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii) enacts—Section 328—“The Corporation shall make provision for draining in a suitable manner the portions of the turnpike roads within the city and the public streets, and may with that object construct or continue, in or under any of the said roads or streets, one or more ordinary or special public sewers, and may from time to time alter, renew, or add to such sewers as to them shall seem proper, and may carry or continue the said sewers into or through any lands or heritages within the city, and may repair, maintain, and cleanse the said sewers.…” Section 335—“The Master of Works may, by notice given in manner hereinafter provided to the proprietor of every land or heritage adjoining or near to any turnpike road within the city, or to any public or private street or court, require him, as far as not already done, to construct on such land or heritage in a suitable manner, and from time to time to alter, renew, add to, repair, and maintain, one or more private sewers for the purpose of draining such land or heritage.… and may also by such notice require any proprietor of a land or heritage adjoining any such road, street or court to connect such private sewer or sewers with the common or public sewers, and by these means, so far as consistent with the levels, effectually to drain the said lands and heritages to the entire satisfaction of the Master of Works.” Section 364 provides for application being made to the Dean of Guild before any building is erected or altered, and provides, inter alia, that along with such application there must be produced “a plan and sections of the land on which such building is or is intended to be situated, and of any turnpike road within the city, or any public or private street or court adjoining thereto, and of the sewers in such road, street, or court, and of the private sewers formed or intended to be formed and connected there with.…” Section 367—“The Dean of Guild shall not grant a warrant to erect or alter any building unless or until he is satisfied that the plan and sections which are signed with reference to such warrant … make satisfactory provision with respect to the several matters specified in this section, viz., … that the level of the lowest storey in the building is such as to admit of complete drainage into an adjoining public or common sewer. …”

The St George Co-operative Society, Limited, 40 Gladstone Street, Glasgow, brought an action of damages against the Corporation of the City of Glasgow in respect of the flooding of their premises with sewage,

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owing, as they alleged, to the fault of the Corporation in failing to provide a sufficient sewage system.

The facts are given in the interlocutor infra of the Sheriff-Substitute.

The pursuers pleaded, inter alia—“2. The defenders being bound to provide for the efficient draining of the city, and having failed to do so, and the pursuers having thereby suffered loss and damage, the defenders are liable for same. 3. The defenders being owners of said sewers are bound to prevent the contents thereof from escaping into and damaging the property of the pursuers, and having negligently failed to do so are liable to them for the loss and damage sustained. 6. The connection of the pursuers' drains with the defenders' sewers having been sanctioned by the Dean of Guild in proceedings to which the defenders' Master of Works was a party, the defenders are liable for damage caused by regurgitation from the sewers through the said drains, and are barred from pleading that the level of the drains is insufficient.”

The defenders pleaded, inter alia—“3. The flooding complained of not having been caused by the negligence of the defenders, decree of absolvitor should be granted. 4. The defenders having complied with their statutory duty, and having provided thereunder a suitable system of drainage as condescended upon, are not responsible for the flooding complained of and should be assoilzied. 5. The said floodings being due to the levels at which the pursuers have laid their said drains, the defenders should be assoilzied. 6. Separatim, the flooding complained of having been due to abnormal and unprecedented rainfall, as condescended upon, was the result of vis major, and the pursuers' alleged loss arising therefrom being a damnum fatale, the defenders should be assoilzied.”

On 21st October 1920 the Sheriff-Substitute ( Thomson) pronounced the following interlocutor:—“Finds in fact (1) that the pursuers are proprietors of a four-storey tenement with basement at the corner of St George's Road and Gladstone Street, Glasgow, and lessees of a tenement at 274 St George's Road, Glasgow; (2) that the streets are public streets, and that the said properties drain into the north and south public sewers which are vested in the defenders the Corporation of the City of Glasgow; (3) that on 12th July 1919, during a heavy rainfall, the said sewers were inadequate to carry away to their proper outflow into the river Kelvin the rain water and sewage which they had received in their course, and in consequence great quantities of foul sewage matter regurgitated from said sewers into the drains and thence into the basements of said properties, flooding the basements and causing great inconvenience, and also loss and damage to the extent of the sum sued for, viz., £1082, 17s.; (4) that similar floodings from the same sewers, and due to the same cause, had taken place in the said premises in June 1911 and November 1912 and in May and July 1917, and that pursuers duly advised defenders thereof on all these occasions and claimed compensation, but that defenders repudiated liability and refused to make compensation; (5) that the said rainfall on 12th June 1919 was not unprecedented either in intensity over a short period of minutes or in quantity over a period of hours, but had been occasionally exceeded in Glasgow as well as in other parts of Scotland, and that it might and ought to have been anticipated by the Corporation as not unlikely to occur at any time: (6) Finds further in fact that pursuers' said buildings at the corner of St George's Road and Gladstone Street were reconstructed in 1896, and that a petition for leave to proceed with and complete the work was lodged in the Dean of Guild Court with the relative plans, and was served upon the Master of Works (who is an official in the service of defenders) conform to statute; that the plan showed the present connections of the drains from the basement with the north public sewer; that the Master of Works stated no objections to any part of the work; that the Dean of Guild Court granted its decree of lining sanctioning the proposed works, and that in due course the connections were made with the sewers and have since been maintained; that the premises at 274 St George's Road were connected with the said south sewer before the pursuers had taken them on lease: (7) Finds that said north sewer was constructed by the defenders in or about 1875 and said south sewer in or about 1868 and are vested in the Corporation, who are charged by statute, and in particular by the Glasgow Police Act 1866 and section 328 thereof, to ‘make provision for draining in a suitable manner the portions of the turnpike road within the city and the public streets,’ and are given the requisite powers therefor, and by the said statute the said Master of Works can compel proprietors to drain their buildings by connecting them with the public sewers: Finds in law that defenders by failing to make due and adequate provision for carrying away through the sewers the contents thereof, and by allowing the foul contents thereof to regurgitate into and to flood the pursuers' said properties committed an actionable wrong for which they are liable to make reparation, and in respect the defenders admit that assuming their liability the sum sued for is reasonable, decerns against defenders for payment to the pursuers as craved: Finds the defenders liable in expenses.…”

Note.—“The salient facts are not, I think, in dispute. The pursuers' premises were on the occasion complained of, as they had been on previous occasions, badly flooded by foul sewage which had regurgitated from the public sewers.

The regurgitation was a result of an unusually heavy rainfall, which, however, was by no means unprecedented either in Glasgow or in other places in Scotland and England. This is amply proved by the tables of rainfalls spoken to in evidence. Such a rainfall might and ought to have been anticipated by defenders, who are charged with the duty of draining the roads, and are bound to provide adequate means to carry off even unusually heavy

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rains. The rainfall in question, although heavy, was by no means catastrophic.

The sewers had failed the defenders before in heavy rains, and of this they had received many complaints—repeated complaints—from proprietors of flooded premises. They contented themselves with doing nothing except repudiating liability.

They say (but it is not common sense) that the street surfaces were sufficiently drained, and they had therefore discharged the only duty laid upon them. They certainly had an express statutory duty to drain the streets, and they made their sewage system the vehicle for the discharge of this duty, but to tolerate a defective system which through its inadequacy had repeatedly flooded and damaged other people's properties with a mixture of rain water and sewage was a legal wrong sounding in damages. It would have been a wrong to pour their sewage upon the property of others deliberately and intentionally. It seems equally wrong to have allowed the same thing to happen through their continuance of a defective system which had been found in the past to produce, and was likely in future to produce, the same result.

It was argued that the pursuers by connecting their drains with the public sewers in 1897 agreed to the risk of regurgitation and its consequences. This argument is uncconvincing. The pursuers were bound to drain their property. The Corporation's servant the Master of Works could compel them to drain into the public sewers. The Dean of Guild sanctioned their doing so, and did so without objection from the Master of Works, who saw and was satisfied that the connection of their drains to the sewers had been properly executed. They had at the time no means indeed of knowing whether there was any risk at all, and with adequate provision against quite probable contingencies there would have been no risk to them or to the other proprietors in this extensive and populous district who like them have connected their drains to the sewers in question.

Accordingly I think the pursuers' claim is good, and 1 give decree for the sum sued for, the amount if the claim is well founded in law not being now in dispute.”

The defenders appealed, and argued— Esto that there was an imperative duty on the Corporation to drain sufficiently the public streets—Glasgow Police Act 1866, section 328—there was no such duty with regard to adjoining property drained by private sewers—Act of 1866, sections 332–335. The obligation to drain the streets sufficiently had reference to surface drainage merely, and did not apply to private sewers below the street level. Where a statutory duty was laid upon a body such as the Corporation, that body could not be held answerable for damage arising through its performance unless negligence had been proved— Geddes v. Proprietors of Bann Reservoir, 1878, L.R., 3 App Cas 430, per Lord Blackburn at p. 455–6. In the present case the streets were sufficiently drained, and if a proprietor who had connected his property with the public sewers suffered, it was because he had constructed his drains at a wrong level, or used insufficient pipes. The admitted fact of there having been previous floodings on the pursuers' premises raised a presumption of acquiescence on their part in the existing arrangements. They had taken no action, though they might easily have done so, because they recognised they had no right to claim damages. An analogous case would have been the influx of noxious gases from the sewers, but in such circumstances the Corporation could not be held liable if the owner failed to provide proper preventive appliances. Where, as here, the Corporation had carried out astatutory undertaking, and a member of the public had availed himself of it and suffered damage, the Corporation was not liable unless the statute had either expressly or by implication imposed liability for suchdamage— Canadian Pacific Railway Company v. Parke, [18991 A.C. 535, per Lord Watson at pp. 545–6; Stretton's Derby Brewery Company v. Mayor of Derby, [1894] 1 Ch 431, per Justice Romer at p. 441; Bevan on Negligence, vol. i, page 317–18. The respondents' argument based on the Public Health (Scotland) Act 1897, section 103, was countered by the terms of section 101 of the same Act. Reference was also made to Hawthorne Corporation v. Kannuluik, [1906] AC 105; Hanley v. Magistrates of Edinburgh, 1913 S.C. (H.L.) 27, per Lord Shaw at pp. 29, 30, 33 and 34, 50 S.L.R. 521.

Argued for the respondents—The Corporation had failed to provide suitable arrangements for drainage and was therefore liable in respect of both initial and subsequent negligence. The Glasgow Police Act 1866 imposed upon the Corporation an obligation to effectually drain the pursuer's property, and further there was a common law obligation not to cause a nuisance by the overflow of drainage. To allege that the respondents had acted at their own risk in connecting their private sewers, as they were entitled to do, with the public sewers was equivalent to asserting that the Corporation had immunity from liability in every case in which a citizen connected his drains with the public sewers. Every citizen was entitled to have his property efficiently drained. Where, as here, the powers conferred by statute were for the public benefit the word “may” in sections 334 and 335 was imperative— Walkinshaw v. Orr, 1860, 22 D. 627, per Lord Justice-Clerk Inglis; Gray v. St Andrews and Cupar District Committees of Fifeshire County Council, 1911 SC 266, 48 S.L.R. 409. Reference was also made to sections 342, 364, and 367 of the Act. The Act imposed upon the Corporation a duty to effectually drain the city and it had failed to do so. The evidence showed that no opposition had been offered by the Master of Works at the time when application was made to the Dean of Guild Court. It had also been proved that the rainfall on this occasion was not unprecedented. The Glasgow Buildings Regulations Act 1900 vested sewers in the Corporation (section 16), and section 43 of the same Act showed that a lining for a private house could not be obtained unless provision was made for connecting

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the drainage with the public sewer. The provision of section 44 that buildings must be of a proper height for drainage had been complied with. The Corporation were also liable under the Public Health (Scotland) Act 1897, sections 12 (2), 103, under which a general obligation rested on the Corporation as local authority to provide a sewage system. The respondents had done nothing to bring the sewage upon their premises. They had done only what they were bound to do, and it could not be reasonably argued that in connecting under the local Act their sewers with the sewer system of the city they had given up their common law rights under which the Corporation were likewise liable— Hanley v. Magistrates of Edinburgh ( cit.), per Lord Shaw at p. 30; Fletcher v. Rylands, 1866 L.R., 1 Ex. 265, 1868 L.R., 3 E. & I. App. 330.

At advising—