Description
Outer House case concerning damage to an Indian restaurant in Glasgow following the demolition of the floors above by Glasgow City Council.
The Council demolished the first, second and third floors of a tenement on North Street in Glasgow in the autumn of 1996 after serving notice (under s13 of the Building Scotland Act 1959) on the owners. However, on 6 November part of the gable wall and chimney (exposed after the demolition) collapsed in high winds and fell through the roof of the Koh I Noor restaurant which formed the ground floor of the tenement.
The owners of the restaurant sought damages from the Council claiming that the Council knew or ought to have known that, after completing the works, they had left the former mutual dividing wall in a condition which presented a foreseeable danger to people and the adjacent property in the event of high winds.
Morag Wise QC (sitting as a temporary judge) found that it was a clear case of common law breach of duty. Whilst the Council had initially acted under the 1959 Act, after it had made the decision to demolish part of the building, a relationship was created between them and the neighbouring proprietors that gave rise to a common law duty of care.
The decision to demolish had been taken by a director of Building Control at the Council. However, he also decided to delete tying works (reducing the contract sum by about £12,000) to the exposed wall from the contract despite having received a survey report indicating that it would not be safe to leave the wall without tying or other stabilisation works. Morag Wise QC came to the conclusion that the Council knew that without carrying out gable stabilisation works there was a material risk of harm to people or property in the vicinity of the wall.
The Council's argument that they should be free of responsibility for the collapse as they had written to the restaurant owners indicating that future maintenance of the structure would be their responsibility was rejected. There was no evidence of the restaurant owners having been advised that the exposed wall lacked stability and had not been tied. The restaurant owners were entitled to assume that the Council had carried out the work in a manner that did not create a new structural instability.
The Council's further contention that any liability had been extinguished by limitation in terms of the Prescription and Limitation (Scotland) Act 1973 was also rejected. The Council were relying on the fact that the limitation period began on the date they completed the works and left the site knowing the wall lacked stability. However, the court found that in this case the loss and damage occurred when the masonry fell through the roof of the restaurant on 6 November. Before that no relevant proceedings could have been taken.
