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David & Doreen Stewart v Aftab Ahmed Malik ? Ayr Sheriff Court, 29 April 2008


The Pursuers and Appellants were the joint proprietors of a first floor flat. The Defender and Respondent was the heritable proprietor of the shop which was located directly below the flat. The Defender had arranged for alteration works to be carried out to the shop. The works were subject to a building warrant issued by South Ayrshire Council, but were not carried out in accordance with the building warrant. A load bearing wall had been removed without the construction of a central support column. There was insufficient support to the walls of the flat and this caused damage to the Pursuers' property. The Pursuers raised proceedings for recovery of damages. They offered to prove that the contractors instructed by the Defender did not put the central support column in place, as they were required to do by the building warrant, and, as a result, the Pursuers had suffered loss. The Defender effectively accepted that this was the case but argued that, as the work had been carried out on his behalf by an independent contractor, he could not be held responsible. There were a number of well defined exceptions to that general rule, one of which was where the contractor was carrying out an inherently hazardous operation. At debate, the Sheriff had sustained the Defender's plea in law to the effect that the Pursuers' averments were irrelevant and had dismissed the action. The Pursuers appealed and tendered a Minute of Amendment adding averments to the effect that the removal of the load bearing wall was an inherently hazardous operation as the wall supported the weight of the structure above. The Pursuers also sought to add a new plea in law to the effect that, as the works involved an inherently hazardous operation, the Defender was liable for the acts and omissions of his contractors. The Sheriff Principal allowed the Pursuers to add the additional plea in law and amend their pleadings. The Defender argued that the Pursuers' case was still irrelevant. A distinction had to be made between operations which were inherently hazardous or particularly dangerous and operations which could be carried out safely but which only became dangerous or hazardous if not carried out properly by competent contractors. In the latter case, there was no personal liability on the employer. The works were not per se particularly dangerous or inherently hazardous and they only became hazardous when they were not carried out properly. Even if the Pursuers proved everything they offered to prove, they were bound to fail. The Defender submitted that the Pursuers' averments as amended were capable of the interpretation that “inherently dangerous operation” referred to the negligent manner in which the contractors had carried out the works. After considering a numberof authorities, the Sheriff Principal decided that, reading the Pursuers' pleadings as a whole, and, in particular, having regard to the new plea in law added by way of amendment, the Pursuers' case was that the removal of a load bearing wall and the insertion in its place the new support beams and a central supporting column was in itself an inherently hazardous operation. What is “inherently hazardous” is a matter of fact. While it was attractive to consider the Defender's submission that, if a building warrant had been obtained, the local authority did not consider the operation inherently hazardous, that was not determinative of the issue in the Sheriff Principal's opinion. He concluded that the Pursuers were entitled to a Proof before Answer.