Crolla v Hussain and Ascension Construction Limited, Edinburgh Sheriff Court, 8 October 2008

The Pursuers/Appellants were heritable proprietors of a first floor tenement flat. The Defender/Respondent was the proprietor of the property below. He had arranged for Ascension Construction Limited to carry out works to his property and they were convened as third parties to the action. The Pursuers claimed that the works had caused serious cracking in their property. Their case was based negligence by the third party, for which they claimed the Defender was responsible, and also on nuisance created by the Defender. The Pursuers relied on an exception to the general rule that an employer is not vicariously liable for wrongs committed by an independent contractor employed to provide services. They argued that this rule did not apply when the contractor was carrying out an inherently dangerous operation. At Debate, the Defender had attempted to persuade the Sheriff to reject this exception as having no basis in Scots Law. He argued that, in any event, the Pursuers had not pled a relevant case within the exception and that the action should be dismissed. The Sheriff had rejected both arguments and had allowed a Proof Before Answer. The Defender appealed that decision. A number of authorities were considered and the Defender argued that these showed that the exception did not exist and, on that basis, an employer was not liable for the negligence of a contractor. Alternatively, if the exception was recognised in Scots Law, the Pursuers had not pled a relevant case. A distinction had to be made between operations which were inherently hazardous or particularly dangerous and those which could be carried out safely by competent contractors and only became hazardous when not carried out properly. In this case the Pursuers had not relevantly pled that the operation was necessarily hazardous. The Defender sought dismissal of the action. The Pursuers contended that the Sheriff was entitled to hold that, if a heritable proprietor instructed work on his property and that work necessarily carried a risk of damage to neighbouring property, he would remain personally liable for damage resulting from the negligent execution of the works, even if the works were carried out by an independent contractor. That liability was not an exception to the general rule as it was not being contended that the employer was liable for the negligence of his contractor, rather that he himself was under a duty of care and he remained subject to that duty even if he chose to delegate the execution of the works. This position was recognised in a number of Scottish decisions and was consistent with Scots Law. The Pursuers also argued that it was not a fair reading of their pleadings, taken as a whole, to say that risk only arose in the event of negligent execution of the works. The Sheriff Principal found in favour of the Pursuers. In his view, the case did not fall to be regarded as an exceptional example of vicarious liability for the negligence of an independent contractor. It should be regarded as an exception to the general rule that there is no liability on the employer for the fault of an independent contractor, however. This was a case involving withdrawal of support. If a proprietor was under an obligation to support his neighbour's property and he instructed contractors to carry out work which, properly conducted, would not give rise to a risk to his neighbour's property, he would not be liable for damage arising from the negligence of the contractor. If, however, the work necessarily carried risk, he could not escape liability by binding the contractor to take effective precautions. This principle formed part of the Law of Scotland. The Sheriff Principal had greater difficulty with the Defender's second argument. On a strict reading of the relevant averments, the Pursuers appeared to set out a case of vicarious liability for the fault of the Third Party, which was not the true basis for seeking to attach liability to a proprietor who instructs operations involving withdrawal of support. Considering other averments in the Pursuers' pleadings, however, a Proof Before Answer should be allowed. The Pursuers would also be entitled to rely on the case of nuisance, regardless of doubts over the relevancy of the case based on negligence.