Civil engineering firm did not breach duty of care to tenants of contaminated housing development

Angela and Robert McManus alleged that they had suffered personal injury by inhaling harmful substances that were present on the site of the housing development. The predecessor company of the defender, Scott Wilson Scotland Ltd, was responsible for investigating the contamination of the site prior to development.

The case was heard in the Outer House of the Court of Session by Lord Clark.

Use of solvents on the site

The land on which the housing development, known as “the Watling Street development”, was built was originally developed from farmland at the beginning of the 20th century. It was used as an iron and steelworks between 1912 and 1939 and was then used by the Ministry of Supply after the Second World War to deal with clothing and surplus equipment from demobilised soldiers.

It was likely that solvents would have been used in the treatment of the soldiers’ clothing. In addition, between 1947 and the late 1970s or early 1980s the site was occupied by companies working from a light engineering factory manufacturing a range of products and carrying out processes which were understood to have required solvents to be used.

Outline planning permission for the site was granted to the Scottish Development Agency in the 1980s following a geotechnical investigation of the soil and rock. By that time, it was suspected that the former uses of the site meant that the ground had been contaminated by substances, and a condition for full permission was that the applicant was required to conduct an investigation of the soil conditions over the entire site, and then remove or render harmless any areas of contamination.

The defender was contracted to develop the site in 1990. It worked with a regional chemist appointed by the SDA to investigate the site and then hired other contractors to carry out remediation works to reduce the risk of harm to an acceptably low level consistent with residential use of the site.

The pursuers, who became tenants in the subsequently constructed development, were said to have suffered neuropsychiatric symptoms as a result of exposure to vapours contaminated by solvents. They submitted that the defender had performed the role of environment consultant for the site, and knew or ought to have known that there was a high degree of probability that ground at the site would be contaminated by these various solvents and other organic compounds.

The pursuers also submitted that the defender had failed to investigate and advise on the nature, concentration and distribution of contamination of the site by solvents in the manner and to the extent that a reasonably competent environmental consultant would have done. The defender had become involved in the activities that gave rise to the risk, and thus came under a duty to act reasonably in respect of that risk.

The defender submitted that it was not appointed to act as an environment consultant but as a consulting engineer. It had relied upon the guidance of properly qualified chemists and specialists in each circumstance. Further, the pursuers were not so clearly and directly affected by the defender’s conduct that they ought to have reasonably been in their contemplation.

Exercised reasonable care

In his opinion, Lord Clark examined the nature of duty of care in the circumstances, saying: “In my opinion, where a firm of civil engineers has been engaged to carry out specified work relating to contaminated land, on a site which is intended to be developed for housing, and where the contaminants may foreseeably be such as to cause injury to those who will reside in housing on the site, the firm owes a duty of care to those who later become residents.”

He continued: “It is true that there are factors which might be argued to point towards a lack of proximity, including that the defender was engaged by various entities, asked to carry out work only of a specific nature, gave reports which were largely factual and contained caveats, and that at least some of the work was carried out long before any development of housing.

“Nevertheless, given the nature of the potential contaminants and the seriousness of the injuries they could cause and the fact that a significant number of individuals could be exposed to potential harm on a site where housing development was intended, there is a sound basis for concluding that there was sufficient proximity and that a duty of care was owed by the defender to the pursuers.”

However, on examination of whether that duty had been breached, he said: “The defender plainly relied upon the Regional Chemist to interpret the significance of the industrial history and followed the approach recommended by the Regional Chemist. When more information came to light from the Regional Chemist, the need for sampling and analysis became more evident.

“The various uses of areas of the site and the fact that all of the processes carried out were not known actually underpinned the methodology and the eventual choice of remediation approach: the removal of all contaminated made ground from the site. I therefore accept that the defender delivered the scope of the services agreed and did not fail to exercise reasonable care.”

He continued: “The pursuers contended that although the defender relied on the Regional Chemist for advice about the remediation suite, it remained the defender’s responsibility. I do not accept that view; the Regional Chemist was separately appointed by the SDA. While the proposal was a joint one, the extent of the input from the defender was clearly described. Contrary to the submission for the pursuers, the defender did not present the Regional Chemist’s advice as its own.”

In relation to an ambiguity regarding whether a later-discovered contaminant was actually removed from the site, he said: “It is correct that the evidence was not absolutely clear as to whether the contaminated soil found at this stage was altogether removed, but on the other hand the pursuers failed to prove, or even suggest, that it was not removed. Moreover, all of the material indications are that this was fully intended to be done; there is nothing to indicate that it was not carried out.”

He concluded: “For those reasons alone, I therefore conclude that the pursuers have failed to establish any breach of duty in this regard. In addition, the pursuers did not identify in evidence what actual measures or steps the defender ought to have taken in any review of the site investigation or remediation strategy. It was not clear from the evidence precisely what targeted investigation the pursuers were suggesting ought to have been either recommended or carried out.”

As a result, Lord Clark granted decree of absolvitor to the defender.