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Chalmers v Aberdeenshire Council ? Aberdeen Sheriff Court, 28 November 2008


The Pursuer sought damages for alleged negligence on the part of the Defenders and also damages for alleged nuisance. A drainage ditch at the side of a public road ran alongside the Pursuer's fields. The Defenders were the local authority responsible for the management and maintenance of the road and ditch in terms of the Roads (Scotland) Act 1984. The Pursuer alleged that the form and construction of the ditch resulted in significant flooding of his fields. The parties did not agree about the causes of the flooding and the steps to be taken to improve the situation. At Debate, the Defenders argued that averments in 3 passages in the Pursuer's pleadings should be excluded from the Record. They argued that, by including those averments, the Pursuer was trying to get the Court to make findings that the Defenders had duties to carry out certain work on a statutory basis and findings as to how the work should be carried out. He was inviting the Court to make a finding that the Defenders should carry out this work in order to comply with their statutory duties when it was not competent for the Court to do so. The Sheriff Court did not have the power to review the decisions of a local authority or to instruct a local authority on how to carry out its statutory function - only the Court of Session could exercise that supervisory jurisdiction.The passages were not necessary for the Pursuer to establish his case. The Pursuer argued that a Proof before Answer should be fixed and no averments should be excluded from probation. The averments that were attacked by the Defenders had been included to support the Pursuer's case based in negligence. Without those averments, the Pursuer would be subject to the criticism that his pleadings had failed to give notice of how the Defenders' duties should have been fulfilled. The Sheriff rejected the Defenders' submission and allowed a Proof before Answer without deletion of any of the Pursuer's averments. In any action for negligence, it was appropriate for the Pursuer to set out the duty or duties that he claimed were incumbent on the Defenders and the way in which he claimed those duties had been breached. The averments complained of were relevant and it was appropriate for the Pursuer to give the Defenders full and proper notice of the steps that he claimed could or should have been taken to resolve the problem. The Defenders had not averred that their approach to the dispute involved a policy decision to act, or not act, in any particular way. If they had, it would have been beyond the power of the Sheriff Court to review that decision.