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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10087
Experience:  30 years as a practising solicitor.
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Water leak from upstairs property has damage our flat, we had

Customer Question

water leak from upstairs property has damage our flat, we had not yet taken out insurance
Submitted: 11 months ago.
Category: Scots Law
Customer: replied 11 months ago.
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Customer: replied 11 months ago.
The rented flat above had a leak which lasted for approx 3 weeks after our tenant initially reported the problem to them.
It was fixed after we got our plumber to investigate the problem and took photos of the findings, presented these to the owner/agent and they got someone into fix. A sink drain had come out of the soil stack. It is now known that the landlord's agent had a plumber in fixing the other end of this pipe (approx 1 metre away but not visible) at the sink a few days before our tennant knew the leak was present. The plumber claims the pipe was not fitted correctly into the soil stack in the first place and thats why it then came out. An oversite meant we had not taken out insurance, so we can't claim on our policy and then leave it to the insurance companies to fight out, do we have recourse against the owner or plumber. The owner says he is not negligent and therefore not liable. This needs to reflect Scottish law.
Expert:  JGM replied 11 months ago.
Thank you for your question.
I am a solicitor in Scotland.
You can't sue the owner in the absence of negligence on the part of the owner and there doesn't appear to be any evidence of that.
If you can find out who incorrectly fitted the pipe that caused the leak then you could pursue a case against that person assuming your own plumber is quite clear in his evidence that it wasn't fitted correctly.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 11 months ago.
Hi
Thanks for the response.
So you are saying his insurance would not cover it?
I have been told by citizens advice today that they are legally responsible regardless of negligence, and suggest a small claims court action.
My plumber that discovered the problem was of the opinion that the landlords plumber who recently changed the sink waste should have realised that the pipe was then loose and checked the other end before leaving the job.
Are cases like Rylands v Fletcher not supportive to making the owner or his insurer liable.
Looking online there is much conflicting information on weather negligence is contributor factor to the liability.
Regards
Stuart
Expert:  JGM replied 11 months ago.
Citizens Advice is wrong (again!) I'm afraid. In Scots law negligence has to be established. Rylands v Fletcher is an English law case and has been disapproved in many jurisdictions, including Scotland.
Customer: replied 11 months ago.
Can you confirm details of any cases which prove your opinion?
Do you have any other suggestions as the damage to the kitchen will probably exceed £10,000..
regards
Stuart
Expert:  JGM replied 11 months ago.
Here is a case that demonstrates the position. http://www.scotcourts.gov.uk/search-judgments/judgment?id=c6ad8aa6-8980-69d2-b500-ff0000d74aa7
Customer: replied 11 months ago.
Hi,
The pursuer who's property was damaged and was the source of the escape/fire sued for negligence 2 parties who he claims contributed to the fire starting and they were both proven negligent in different proportions.
Negligence here is proven, but if it was not then the pursue would then be liable for all damage to the whole building.
The situation is also different as an escape of water has come directly from the above property and not from our property as in this example.
Please advise?
Expert:  JGM replied 11 months ago.
There is a case which might help you. I am trying to work out a way of getting it to you as it is from 1864 and is not easily available online as far as I am aware. The case is called Campbell v Kennedy and the court held that negligence was required to establish liability but it also said that negligence could be inferred from the circumstances and the case would appear to be similar to your own. That being the case you could attempt proceedings based on that case. If your damage is £10,000 you will not be able to raise small claim proceedings as the small claim limit in Scotland is £3000. You will have to raise an ordinary action and use a solicitor. Check to see if you have insurance for such an action or if you may qualify for legal aid. If not you will have to fund the action in the first place and claim expenses if you are successful. It may be that if you lay out the claim and the authority to the third party insurance company they will settle with you. That is the best case I can come up with and I will try to send it to you.
Expert:  JGM replied 11 months ago.
Here is the case.
Expert:  JGM replied 11 months ago.
It starts at the foot of the first page as it is a scan from the original case book from 1864.

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