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Appeal by Simon Pelosi and others against Lanarkshire Housing Association LTD (Court of Session)
Court Summary (Anonymized)
Factual and Procedural Background
The Development was constructed on a former industrial site and occupied from 1999. Multiple tenants (the Plaintiffs) brought separate actions against the landlord (Company A) alleging personal injury from contaminants in made ground at the site. The Plaintiffs relied on statutory obligations in section 113 of the Housing (Scotland) Act 1987 (with Schedule 10) and section 27 and Schedule 4 of the Housing (Scotland) Act 2001 to show the houses were not reasonably fit for human habitation. A proof on 11 actions was heard together; the trial judge found for the Defendant and dismissed the Plaintiffs' claims ([2024] CSOH 56). The Plaintiffs appealed; the appeal was heard by a panel including Judge Ericht, Judge Doherty and Judge Wise, with the opinion delivered by Judge Ericht.
Legal Issues Presented
- Whether the Defendant breached its statutory duties under the Housing (Scotland) Act 1987 (s.113 with Schedule 10) and the Housing (Scotland) Act 2001 (s.27 with Schedule 4) to ensure houses were reasonably fit for human habitation.
- If breach was established, whether the alleged contamination caused the tenants' injuries (causation) on the balance of probabilities, including whether principles such as material increase in risk (McGhee) were engaged.
Arguments of the Parties
Plaintiffs' Arguments
- Their individual witness evidence of symptoms, commonality of complaints and timing supported that contamination rendered properties unfit; the matter was essentially res ipsa loquitur.
- The trial judge failed properly to consider or give weight to the toxicology report of Expert Flaks and related expert evidence, and erred in accepting much of Defendant's expert evidence (including Expert Eddleston).
- The trial judge should not have relied on Part 2A Environmental Protection Act 1990 criteria or workplace exposure limits when assessing residential risk; low-level or synergistic exposures and hotspots could nonetheless make properties unfit.
- Where contaminants increased risk (including cancer risk or exacerbation of pre-existing conditions), principles in McGhee and related authorities supported liability without proof of direct causation in each specific case.
Defendant's Arguments
- The trial judge correctly applied statutory tests and established legal principles; Plaintiffs failed to identify any proper basis to disturb primary findings of fact (citing authorities on the appellate court's restricted role).
- The burden of proof lay on Plaintiffs; their factual witness evidence alone could not discharge it without reliable scientific/toxicological support.
- The trial judge reasonably preferred the Defendant's environmental and medical experts (Expert Firth and Expert Eddleston) and was entitled to treat Part 2A modelling and workplace limits as relevant background evidence.
- McGhee and Bonnington principles did not assist the Plaintiffs given multiple possible causes and the absence of proof that the Defendant's breach materially contributed to the harms complained of.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Morgan v Liverpool Corporation [1927] 2 KB 131 | Definition of when a house is not reasonably fit for human habitation (risk of injury to occupier's health or person). | Adopted as the test Plaintiffs had to satisfy to prove breach of statutory duty. |
| Clerk & Lindsell on Torts; Kay's Tutor v Ayrshire and Arran Health Board 1987 SC (HL) 145 | Principles on causation: event must be shown to be capable of causing harm and then shown to have caused the particular harm on balance of probabilities. | Used to frame the two-stage causation test applied to Plaintiffs' claims. |
| McGhee v National Coal Board [1973] 1 WLR 1 | Where an employer's breach materially increased the risk of harm, liability may follow (material increase in risk principle). | Considered and rejected as applicable to Plaintiffs' case because multiple possible causes existed and material contribution was not established. |
| Wilsher v Essex AHA [1988] AC 1074 | Where multiple potential causes exist, pursuer must show breach materially contributed to damage. | Applied to require Plaintiffs to establish material contribution where other potential causes were present. |
| Petroleum Co of Trinidad and Tobago Ltd v Ryan [2017] UKPC 30 | Causation principles where multiple factors may cause harm; relevance to inference of causation from increased risk. | Relied on as authority illustrating limits of inferring causation without evidence of material contribution. |
| Thomas v Thomas 1947 SC (HL) 45 | Standard for appellate interference with factual findings. | Invoked to describe limited circumstances in which appellate court may disturb trial judge's findings of primary fact. |
| Henderson v Foxworth Investments [2014] UKSC 41 (2014 SC (UKSC) 203) | Appellate review principles for factual findings. | Used to support the approach that appellants must show a material error of law or plainly wrong factual findings to overturn trial findings. |
| McCulloch v Forth Valley Health Board [2021] CSIH 21, 2021 SLT 695 | Appellate standard for interfering with trial factual findings. | Cited as part of the authorities on the restricted role of appellate court on facts. |
| Henderson v Benarty Medical Practice [2023] CSIH 1 | Appellate review of factual findings. | Relied on in setting the test for disturbance of trial findings. |
| McGraddie v McGraddie 2014 SC (UKSC) 12 | Principles on appellate interference with findings of fact. | Included among authorities confirming the standard of review. |
| Carlyle v RBS [2015] UKSC 13 (2015 SC (UKSC) 93) | Appellate standards and review of factual conclusions. | Referenced in support of limited appellate role on primary facts. |
| Todd v Claperton 2009 SLT 837 | Example authority on habitability in context of physical harm from property use. | Referred to by Plaintiffs in submissions about fitness for habitation; considered but not applied to alter outcome. |
| Rendlesham Estates plc v Barr Ltd [2015] 1 WLR 3663 | Authority referenced on property habitability and damage causation. | Relied on in Plaintiffs' submissions; court did not accept it altered the statutory or evidential position. |
| Bonnington Castings v Wardlaw [1956] AC 613 | Liability where single causal process is shown to include a tortious element. | Distinguished by the court as applicable only where a single causal link exists; not analogous to the present multi-cause case. |
Court's Reasoning and Analysis
The court proceeded from the statutory tests in the 1987 and 2001 Housing Acts and the established tort principles on breach and causation. Plaintiffs bore the burden to prove, on the balance of probabilities, that (a) the properties were not reasonably fit for human habitation because of contamination (the Morgan test) and (b) the contamination caused their particular injuries.
The trial judge evaluated factual witness evidence together with scientific and medical expert evidence. On environmental evidence the trial judge preferred Defendant's environmental expert (Expert Firth) to the Plaintiffs' modelling experts (Expert Quint and Expert Brian) and found that exceeding screening or assessment criteria did not by itself prove a risk to human health. The judge found no adequate evidential basis for asserting undiscovered additional hotspots.
On toxicology and causation the trial judge preferred Defendant's medical expert (Expert Eddleston) to Plaintiffs' expert evidence (Expert Douglas and the report of Expert Flaks). The trial judge found Plaintiffs' witnesses credible but in parts unreliable; he gave weight to contemporaneous medical records and expert critique. The judge concluded the evidence did not establish that contaminants were capable, on the balance of probabilities, of causing the tenants' complaints or that the contamination had materially contributed to them. The court affirmed the trial judge's careful balancing of competing expert views and rejected submissions that McGhee-style inference of causation applied on these facts.
Holding and Implications
APPEAL REFUSED
Holding: The appeal was refused. The appellate court adhered to the trial judge's interlocutors dismissing the Plaintiffs' claims and ordered similar outcomes in related cases, reserving questions of expenses.
Implications: The direct effect is that the trial judge's factual findings and dismissal of the Plaintiffs' claims are affirmed and the Plaintiffs' appeals fail. The court applied existing statutory and causation principles to the evidence before it and did not find cause to depart from established authorities; no new legal precedent was established beyond the application of those principles to these facts.
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