Duty of Care of Consultants to Future Occupiers of Land
There has been long running litigation in Scotland as regards “the Watling Street development” in Motherwell, where housing was built on land used as an iron and steel works from 1912-1939 and then during and after World War II by the Ministry of Supply to deal with clothing and surplus equipment from demobbed soldiers. This involved use of solvents, as did later use up to the 1980s by a light engineering company. Outline planning permission for the site was granted to the Scottish Development Agency in the 1980s. It was suspected that the former uses of the site meant that the ground was contaminated, and a condition was imposed 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.
Tenants living in the development were said to have suffered neuropsychiatric symptoms as a result of exposure to vapours contaminated by solvents. They brought a claim against Scott Wilson Scotland Limited, the company responsible for investigating the site: Angela McManus and Robert McManus v Scott Wilson Scotland Ltd [2020] CSOH 47. Lord Clark in the Outer House of the Court of Session considering the claim found there to be a duty of care to future tenants in terms of proximity. However, on the facts the defendant had relied upon the Regional Chemist to interpret the significance of the industrial history and had followed the approach recommended by the Regional Chemist. As such it was not in breach of the duty. 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 and it was not clear from the evidence precisely what targeted investigation the pursuers were suggesting ought to have been either recommended or carried out.
This illustrates how difficult such claims can be. The action had initially been brought against the main developers (City Link Development Co), their landlords (North Lanarkshire Council) and Scott Wilson Scotland. On 13 January 2016 the cases against the developers and the landlords were dismissed: McManus v City Link Development Co [2016] Env LR D1).
Further proceedings by different residents against Scott Wilson Scotland were disposed of in August 2024 when the Inner House of the Court of Session brought the proceedings to an end: Laura McClusky v. Scott Wilson Scotland Limited [2024] CSIH 26. As with other claims, this one had been stayed pursuant to a Practice Direction pending resolution of the claim against Scott Wilson Scotland. The stayed claim was dismissed on grounds of res judicata, as stated by Lord Carloway:
“The Lord Ordinary [in McManus] determined that the defenders did owe certain duties to the occupiers, notably to use the appropriate skill and competence of environmental engineers, but that they had not breached their duty. They had acted in accordance with the common and accepted practice at the time. That was what was litigated and determined. The pursuer is trying to re-litigate that issue; that she cannot do as it is res judicata… he manner in which the pursuer seeks to circumvent the plea is to make additional averments about particular solvents which should have been looked for and how they might have been dealt with. These issues were all canvassed in McManus and dealt with by the Lord Ordinary. Adding additional detail to the pursuer’s pleadings does not change the essence of what was litigated; the grounds of action remain the same.”
Stephen Tromans, Contaminated Land (Sweet & Maxwell 2018) [14-41], [16-14], [16-23].
