Kennedy v Glenbelle [1996] ScotCS CSIH_5 (12 January 1996)

Kennedy v Glenbelle [1996] ScotCS CSIH_5 (12 January 1996)

The court held that the pursuers' averments in art 9 of the condescendence were sufficient to go to proof before answer as they alleged a deliberate act by the second defenders in instructing and directing the removal of a load-bearing wall, knowing this would cause damage, thus amounting to culpa for nuisance. However, the averments in art 10 were irrelevant as they did not add a distinct ground of liability beyond nuisance or negligence. The court adhered to the Lord Ordinary's interlocutor allowing proof before answer on nuisance and negligence, but excluding art 10 (fault) from probation.

Citation
[1996] ScotCS CSIH_5
Parties
Pursuer: Kennedy; First Defender: Glenbelle Ltd; Second Defender: Second Defenders (firm of consulting engineers)
Jurisdiction
Scotland
Judgment Date
12 January 1996
Procedural Posture
Civil Appeal / Reclaiming Motion (appeal) Against Interlocutor on Relevancy and Specification
Outcome
Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to.
Legal Topics
Nuisance, Negligence, Culpa, Liability for Building Operations, Support of Property
Delict Property Law Nuisance Negligence Culpa Liability for Building Operations Support of Property

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Parties

Kennedy

Pursuer

Glenbelle Ltd

First Defender

Second Defenders (firm of consulting engineers)

Second Defender

Procedural Posture

Civil Appeal / Reclaiming Motion (appeal) Against Interlocutor on Relevancy and Specification

Legal Issues

  1. 1 Whether the averments against the second defenders (consulting engineers) are relevant to establish liability for nuisance and/or fault in delict for damage caused by removal of a load-bearing wall.
  2. 2 Whether liability for nuisance in Scots law requires proof of culpa (fault), and what forms of culpa are actionable.

Ratio Decidendi

The court held that the pursuers' averments in art 9 of the condescendence were sufficient to go to proof before answer as they alleged a deliberate act by the second defenders in instructing and directing the removal of a load-bearing wall, knowing this would cause damage, thus amounting to culpa for nuisance. However, the averments in art 10 were irrelevant as they did not add a distinct ground of liability beyond nuisance or negligence. The court adhered to the Lord Ordinary's interlocutor allowing proof before answer on nuisance and negligence, but excluding art 10 (fault) from probation.

Court Disposition

Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to.

Orders

  • Proof before answer allowed on averments of nuisance (art 9) and negligence (art 11) against the second defenders.
  • Averments of fault in art 10 of the condescendence excluded from probation.