Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 62
CA65/11	OPINION OF LORD HODGE in the cause ICL TECH LIMITED, ICL PLASTICS LIMITED and STOCKLINE PLASTICS LIMITED Pursuers; against JOHNSTON OILS LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: Dean of Faculty, Q.C., K . Springham; HBM Sayers

Defenders: M.G. Thomson, Q.C, R Pugh; Simpson & Marwick

13 April 2012

[1] On 11 May 2004 a leak of gas caused an explosion at the factory owned and occupied by ICL Plastics Limited at Grovepark Mills, Maryhill, Glasgow. The explosion caused the roof of the premises to collapse and resulted in the deaths of nine people. Forty five people were injured or exposed to injury. Each of the three pursuers, which have the same registered office, operated a business at those premises at that time. One of the injured was an employee of ICL Tech Limited, Mr Archibald Lindsay. He sued the three pursuers and in 2009 obtained a joint and several decree for £175,000 together with the taxed expenses of process. The pursuers also were obliged to repay state benefits which he had received.

[2] In this action against Johnston Oils Limited ("Johnston") the pursuers seek relief from their liability on the basis that Johnston is:

"a person who, if sued, might also have been held liable in respect of the loss and damage on which the action was founded"

(Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, section 3(2)). This is one of many actions which the pursuers have raised against Johnston and parties have taken it to debate as a test case.

[3] ICL Plastics Limited had occupied the premises since 1969. At that time Calor Gas (Distributing) Co Ltd ("Calor") supplied a bulk storage tank for liquid propane gas ("LPG") in the yard of the premises. The gas provided fuel for an oven in the coating shop of the premises. A steel pipe, which was not taped, took the LPG from the tank into the building. The pipe travelled from a regulator beside the tank vertically into the ground and then horizontally underground. The buried pipe entered the premises and ran through an unventilated basement area before it travelled vertically to the ceiling of the ground floor of the premises, ran along the ceiling and then came down to connect with the oven on the ground floor.

[4] The leaking of propane gas from the buried pipe outside the building, its accumulation in the unventilated basement area where it mixed with the air, and its contact with a source of ignition caused the explosion. It was later discovered that the underground pipe had corroded and cracked close to the point where it entered the building. Leaking gas had entered the basement area as the hole in the wall of the building where the pipe entered did not have an effective seal around the pipe. The pursuers averred that those who laid the pipe (who were not Johnston) had used an unsuitable soil, which was corrosive, to form and fill the pipe track and had used as backfill material which contained large pieces of concrete which bore directly onto the pipe.

[5] Until about February 1998, when ICL Plastics Ltd first engaged Johnston as its supplier, Calor supplied LPG to the premises. In March 1998 Johnston installed a new LPG tank in the yard and replaced that tank in November 1998. In April 2002 Johnston changed the regulator on the LPG tank. On each of those three occasions Johnston carried out gas pressure tests to ensure that the pipe was not leaking. Johnston's staff also visited the yard on many occasions to replenish the LPG tank.

[6] The pursuers' case of fault against Johnston may be summarised as follows. Johnston was a supplier of a hazardous product, which was flammable when mixed with air. It was known within the LPG industry that LPG pipes, if made of steel and left unprotected, were susceptible to corrosion over time. It was therefore known within that industry that such pipes should be given a protective coating or wrapping and that suitable material should be used to backfill trenches. By 1974 the Liquid Petroleum Gas Industry Technical Association had made those working in the LPG industry aware of the need for buried pipes to be surveyed for leakage. By 1986 LPG suppliers were aware that they had a responsibility to ensure that LPG users knew of the importance of inspecting underground pipes, if necessary by excavating those pipes. Further, by 1981 it was known in the LPG industry that service pipes should not be installed in unventilated spaces and that the pipes should be sleeved where they entered buildings to prevent gas from an external leak from passing into a building. Johnston was, it was averred, under a duty to take reasonable care for the safety of people in or in the vicinity of the premises, such as Mr Lindsay, in relation to the LPG which it supplied.

[7] The pursuers averred that the exercise of that duty of care required Johnston (a) to warn them of the need to inspect and, if required, excavate the underground pipe, and (b) to advise of the risks associated with an LPG pipe in an unventilated space and the risk of gas getting into the premises if the pipe was not sleeved where it entered the building.

[8] The pursuers also averred that Johnston was in breach of the statutory duties imposed by regulations 4 and 5 of the Dangerous Substances and Explosive Atmospheres Regulations 2002; but counsel did not address those averments in the debate.

The challenge at debate

[9] Johnston initially raised a number of legal issues but in the event Mr Malcolm Thomson QC sought to debate only the issue of the standard of care which the pursuers had to plead. He submitted that Johnston had not installed the pipeline and that the pursuers' case rested on an assertion of a duty of care resulting from its specialist knowledge. His submission was that in order relevantly to maintain such a duty arising from specialist knowledge the pursuers had also to aver that no reasonably competent LPG supplier exercising ordinary care would have failed to give the warning and advice. He referred to Hunter v Hanley 1955 SC 200, Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, Gold v Haringey Health Authority [1988] QB 481, and Wattleworth v Goodwood Road Racing Co Ltd [2004] PIQR P25. He also referred to Miller v Robert Addie & Sons' Collieries Ltd 1934 SC 150 and McLaughlan v Craig 1948 SC 599.

[10] The Dean of Faculty, who represented the pursuers, submitted that the relevant standard of care was the ordinary standard, namely that of the reasonable man. A supplier of LPG was not a professional person instructed to carry out a task according to the standards of his profession. There was no identifiable professional body which set standards of quality, behaviour and integrity from which one could identify a responsible body of professional opinion. The pursuers' case was simple: Johnston was the supplier to the pursuers of a dangerous product, namely an explosive substance; it had the means of knowledge of the dangers which pursuers faced; it therefore had a duty in the exercise of reasonable care to warn and advise the pursuers who did not have that knowledge. He referred to Jackson & Powell on Professional Liability (7^th ed.) at paras 1.004-1.009, Kirkcaldy District Council v Household Manufacturing Ltd 1987 SLT 617, and Gloag & Henderson (10^th ed.) at paras 27.08 and 27.09. Where a person was dealing with a dangerous product he required to show a higher degree of care to avoid injuring others: Dominion Natural Gas Co Ltd v Collins [1909] AC 640 and Read v J. Lyons & Co Ltd [1947] AC 156.

Discussion

[11] The issue raised in the debate was confined to the standard of care which the law requires of a supplier of LPG, who has not been engaged to provide advice but who has or ought to have specialist knowledge of a risk or risks associated with gas-transporting equipment on his customer's premises, which he has not installed. At this stage of the proceedings the question is whether the averments are fundamentally irrelevant if the pursuers do not aver that no ordinarily competent supplier of LPG exercising ordinary care would have failed to give the warning and advice.

[12] I do not think that this case is about the dichotomy between the standard test for negligence by reference to the reasonable man (or the man on the Clapham omnibus) on the one hand and the Hunter v Hanley test on the other. For the reasons which I set out below it seems to me that Johnston should be judged by the standard of the reasonably competent supplier of LPG but that it is ultimately for the court to determine what the duty of reasonable care required of such a supplier. I am not persuaded that the absence of the averments, which Mr Thomson desiderates, renders the pursuers' case irrelevant.

[13] Hunter v Hanley, as is well known, was a case of alleged medical negligence. It established a standard of care in professional negligence from which we have not since departed although, as I discuss in paragraph [15] below, it has been qualified by subsequent case law. The First Division's decision in that case involved a shift from a criterion of "gross negligence" in such cases to a formulation of the duty of care which recognised both the uncertainty in medical diagnosis and treatment and also the need to encourage developments in medical science and practice. Robert Howie QC when he was a young lawyer argued in an article, "The standard of care in medical negligence" (1983 JR 193-223), that the concept of gross negligence, although buried, ruled the Scots law of medical negligence from the grave. While I consider that it is too late, even if it were desirable, to resurrect "culpa lata" in this field, his discussion highlighted the extent to which the law has deferred to the views of medical experts.

[14] In Hunter v Hanley Lord President Clyde set out (at pp.204-205) a test which was not confined to deviation from a normal or usual practice but which was intended to be more general. He stated:

"To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances ... But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

[15] To my mind this statement contains two elements. It is in part an application to the particular circumstances of medical practice of a wider rule which has long been recognised in Scots law as an incident of the provision of skilled labour: spondet peritiam artis, et imperitia culpae adnumeratur ("He is responsible for skill in his profession and want of such skill is regarded as a fault"): Bell's Commentaries (7^th ed.) I, 489, Bell's Principles, s. 153. One is not dealing with the man on the Clapham omnibus but with a medical professional. It is also in part a protection for the medical practitioner in its allowance of a range of decisions in circumstances where there may legitimately be differences of view within his profession. But even in this field it is now well recognised that the law can override the professional opinion of the most distinguished medical experts on the acceptability of a practice if, exceptionally, the court can find no proper basis for that opinion: Bolitho v City and Hackney Health Authority [1998] AC 232. The Bolitho approach has been applied not infrequently in Scotland. See Dr Murray Earle and Professor Niall Whitty in the Stair Memorial Encyclopaedia Reissue, "Medical Law" at para 172. Thus the reference in Lord President Clyde's test (above) to "acting with ordinary care" falls to be qualified by this override.

[16] The possession of specialist knowledge by a defender is not of itself sufficient to require a pursuer to plead that the defender had acted in a way that no person of reasonable skill in his profession or industry exercising ordinary care would have acted in the circumstances. In McLaughlan v Craig, which concerned the liability of plumbers for causing a gas explosion by puncturing a pipe when attempting to clear a blockage, Lord President Cooper stated (at p. 611):

"The conduct of these plumbers must be judged ab ante by reference to the standard of the reasonable care and foresight of the average competent tradesman."

[17] Similarly, in Morrison's Associated Companies Ltd v James Rome & Sons Ltd 1964 SC 160, Lord Cameron as a Lord Ordinary rejected as "a startling proposition" a submission that a builder was in the same position as a doctor. In his opinion, which the First Division upheld in relation to his conclusion on negligence, he emphasised (at pp.177-178) both that medical practitioner had to attain a standard of prescribed professional qualifications and that medicine was largely an empirical art. He observed that "methods of practice and treatment vary with the movement of professional opinion and the expansion of the horizon of scientific knowledge." By contrast, he stated, a builder or any other skilled tradesman is required to possess a reasonable degree of competence. He continued:

"As in every trade or profession, not every member of it possesses or is expected to possess the same level of skill or competence. There must be a certain standard of competence, however, and a certain standard of care displayed in its exercise. What is the measure of the standard in each case must be judged against the practice ruling in the particular trade at the particular time. I think also that, where different opinions as to method may reasonably be held by persons equally skilled in the particular trade or craft, selection of one which has in fact led to certain injurious consequences in preference to another which might have led to a different result is not necessarily proof of negligence, merely because of the occurrence of these injurious consequences, unless these consequences were within the realm of the reasonably foreseeable as certain or likely to ensue. On the other hand, error of judgment, however honestly arrived at, does not necessarily exculpate from liability for its consequences if they are injurious."

[18] Mr Thomson founded also on McNair J's formulation of the test for medical negligence in the Bolam case. It is instructive in my view to look at how the law has developed in England as the laws of Scotland and England have been assimilated in large measure in relation to the standard of care in medical negligence: "Medical Law" (above) at para 168. In Bolam McNair J stated in his direction to the jury (at p. 586)

"where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

McNair J went on the quote from Lord President Clyde in Hunter v Hanley and stated (at p. 587) that a medical practitioner

"is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art .... merely because there is a body of opinion who would take a contrary view."

[19] In Gold v Haringey Health Authority Lloyd LJ (at pp. 488-489) quoted part of first passage in Bolam which I have cited and held that there was "no possible ground for distinguishing between doctors and any other profession or calling which requires special skill, knowledge or experience." In his judgment he had earlier (at p. 486) quoted the second passage from Bolam which I have cited. He continued (at p. 489):

"In passing, I should mention that the Bolam test is often thought of as limiting the duty of care. So in one sense it does. But it also extends the duty of care, as the second of the two passages which I have quoted from McNair J's summing up in the Bolam case makes clear. The standard is not that of the man on the top of the Clapham omnibus, as in other fields of negligence, but the higher standard of the man skilled in the particular profession or calling."

In his reasoning Lloyd LJ referred to Lord Diplock's speech in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 AC 871 (at pp. 892-893) where he presented the Bolam test as bringing up to date and re-expressing the ancient rule of common law. That rule, as in Scots law, was the maxim spondet peritiam artis. In his discussion of the issue Lord Diplock also emphasised the constant advances in medical methods and knowledge, and the public interest in not confining a doctor to well-tried and established methods of treatment and in not encouraging defensive medicine. He saw the Bolam test (that is the second of the passages which I have cited in paragraph [18] above) as assisting in this regard.

[20] But, as I have said in paragraph [15] above, Bolitho clarified the power of the court to override even an established body of professional opinion. In that case Lord Browne-Wilkinson stated (at pp. 241H-242B) that:

"the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such an opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."

Further, (at p. 243 D-E) he stated that:

"It is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defendant's conduct falls to be assessed."

Similarly, in Sidaway a majority of their Lordships foresaw circumstances in which a court would override a medical viewpoint and hold that a doctor had to warn a patient of a risk of a medical procedure in order to obtain informed consent (Lord Bridge of Harwich at p. 900 C-G). Even in the field of medical practice, in which the court for the sound policy reasons to which I have referred attaches great weight to expert medical opinion, such opinion does not have the final word.

[21] In my view, the deference which the law shows to professional or trade opinion and practice, and its willingness to override the professional viewpoint in asserting what the duty of care requires, depend on the particular circumstances of the case. Hunter v Hanley and Bolam provide protection to the professional or skilled person where the law recognises the difficult decisions which those persons have to make and "the room for genuine differences of view on the propriety of one course of action as against another" (Phelps v Hillingdon London Borough Council [2001] 2 AC 619, Lord Clyde at p. 672). But the following of a generally accepted professional practice may not protect a defender from liability if the practice involves a foreseeable and readily avoidable risk: see, for example, Hucks v Cole [1993] 4 Med LR 393; Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296.

[22] In both jurisdictions the courts continue to apply the modern equivalent of the maxim spondet peritiam artis to the circumstances of each case. In Wattleworth, which concerned the adequacy of a safety barrier at a motor racing circuit, counsel conceded the application of that part of the Bolam test, but Davis J analysed the duty of care of the Motor Sports Association and the Federation Internationale de l' Automobile by reference to the first of the passages from Bolam which I have cited and did not refer to the second. See paras 140 and 163. He recorded (at para 140) that the application of the Bolam principle had been applied to the safety of motor sports by Steele J and that her judgment had been upheld by the Court of Appeal in Stratton v Hughes [1988] EWCA Civ 477. It is instructive to see what Steele J stated and what the Court of Appeal approved. Towards the end of his judgment in Stratton Swinton Thomas LJ, with whom the other Lords Justice concurred, recorded the evidence that it was not the practice at motor rallies to protect with bales trees close to the road as they were not regarded as a hazard. He approved the following passage in Steele J's judgment:

"Bales are not generally used round trees, to expect such would have been unrealistic, and bearing in mind that no other car struck a tree at this stage on the rally, unnecessary. The obligation on the organisers is to make the area safe by the standards of motor rallies and I am satisfied that the trees in this area were neither hazardous nor unusual such as to require baling."

This, it seems to me, is an application in relation to bodies with responsibility for motor racing safety of the first of the passages which I have cited from Bolam.

[23] The issue is not whether the defenders can be described as being members of a recognised profession. I therefore do not find Lord Allanbridge's obiter dictum in Kirkcaldy District Council (at pp. 621-622) very helpful. The concept of a profession is, as Jackson & Powell discuss in the passage to which the Dean of Faculty referred, a developing one and also porous at its boundaries. To my mind the existence of a collective organisation which sets standards and professional codes, the extent of study and qualification required of a person to enter a profession, the skilled and specialised nature of the work which it undertakes, and the developing nature of its knowledge base and practice may be some of the factors which influence the extent to which the court may show deference towards expert opinion from within that profession. But the principle of spondet peritiam artis is not confined to recognised professions; and the willingness of the court to hold, as in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145, that the following of common and accepted practice is not conclusive of compliance with the standard of care which the law requires, extends beyond defenders who do not have specialist knowledge.

[24] In this case the pursuers engaged Johnston as a supplier of LPG. I do not doubt that Johnston employed people who had a specialist knowledge relating to LPG which the pursuers' managers did not. But the pursuers did not engage Johnston's services as advisers in relation to LPG or in relation to the state of the LPG apparatus in their premises. The case may give rise to interesting questions whether it is fair, just and reasonable in the circumstances to impose the duty to advise and warn for which the pursuers argue. A common and accepted practice within the LPG industry may be a relevant consideration. But it cannot be said that without the averments for which Mr Thomson argues the action must necessarily fail. The pursuers' case in that respect is suitable for a proof before answer.

Conclusion
[25] As I have decided that the pursuers' averments are not irrelevant, I will have the case put out by order to determine further procedure.