Inner Houses refuses appeal against dismissal of Motherwell tenants’ contaminated land action

About this case:

• Citation:
  [2026] CSIH 21
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Ericht

Simon Pelosi and others had sought damages against their landlord, Lanarkshire Housing Association Ltd, for damage caused by contaminants present in the land at the development, which they averred amounted to breaches of section 113 of the Housing (Scotland) Act 1987 and schedule 4 paragraph 1 of the Housing (Scotland) Act 2001. The lord ordinary held that the tenants’ cases failed on both breach of duty and causation as there were other competing causes of harm and the tenants’ evidence was insufficient to discharge the burden of proof.

The appeal was heard by Lord Doherty, Lady Wise, and Lord Ericht, with R D Sutherland, advocate, appearing for the pursuers and reclaimers and Johnson KC and McKinley, advocate, for the defender and respondent.

Different view of the evidence

From 1900 to the 1970s, the site of the Watling Street development was occupied by the Motherwell Iron and Steel Works and thereafter by other industrial manufacturers. In the 1990s the site was redeveloped for housing with the first tenants moving in in 1999. The redevelopment was constructed in part on “made ground” containing remnants of the materials present when the site was industrialised, including persistent chemicals with potential hazards to human health including asbestos, ash, semi-volatile organic compounds and polycyclic aromatic hydrocarbons.

At the proof, 13 tenants gave evidence of their experiences living in the development and expert evidence was led on contamination and toxicology. The lord ordinary preferred the evidence of the defender’s expert and held that the tenants’ expert evidence relied upon there being undiscovered hotspots which might cause a level of risk. Further, there was no evidence that any of the tenants had suffered cancer, let alone whether any such disease was caused by the contaminants.

The tenants invited the court to take a different view of the factual evidence to that taken by the lord ordinary. They submitted that the onus of proof could be satisfied by the tenants’ individual witness evidence alone, and there was no reasonable or rational ground on which the lord ordinary could have concluded other than that a tenant had suffered injury by reason of the contamination in the soil. Further, the lord ordinary erred in considering that the criteria for determining whether land was “contaminated land” for the purposes of Part 2A of the Environmental Protection Act 1990 was of any relevance to the issues of whether there had been a breach of the landlord’s statutory duties, and if so, whether that had caused loss to the tenants.

Senior counsel for the landlord submitted that the tenants had failed to identify any reason to disturb the lord ordinary’s findings in fact, and the limitations of their evidence had not been taken into account in their challenge to his finding that the tenants had failed to discharge the burden of proof.

Entitled to test

Lord Ericht, delivering the opinion of the court, said of the reliability of the tenants’ evidence: “The onus of proof could not have been satisfied by looking solely at the factual evidence of the individual tenants’ experiences and health issues. The lord ordinary required to consider all the evidence in the case. He was entitled to test their evidence against other evidence, including their medical records. He was entitled to have regard to the evidence of Professor Eddleston on that issue. No objection was taken to Professor Eddleston’s evidence at proof. His evidence about health anxiety and note-taking by GPs was based on his experience as a clinician and was within his expertise.”

Turning to the toxicology reports, he added: “The lord ordinary’s statement reflected the position of the experts on both sides. It was a view which he was entitled to reach on the evidence. In their joint statement, the medical experts stated, ‘We also acknowledge that there is a lack of experimental evidence from human volunteers regarding the symptoms from multiple exposures at the same time.’ The evidence of the tenants’ expert Professor Douglas was that if anything existed in the literature about people living in houses exposed to low level contamination, he would have been aware of it. The only example of synergy which Professor Eddleston could provide related not to living in houses but to the combined effect of asbestos and smoking causing cancer.”

Considering whether the lord ordinary erred in considering the criteria for contaminated land in the Environmental Protection Act 1990, Lord Ericht said: “This ground of appeal criticises the lord ordinary for according the 1990 Act categories ‘any relevance’. The tenants make that criticism despite themselves having led evidence about the categories. The lord ordinary had to consider the evidence which the tenants (and landlord) led about the categories. He was entitled to consider it when assessing the expert evidence, and to form the views about that evidence which he formed.”

He concluded on the possibility of multiple causes: “In circumstances where there are two or more possible causes, only one of which involves breach of duty, the onus is on the pursuer to show that the breach made at least a material contribution. There is no error of law in the lord ordinary’s opinion. He correctly identified that the tenants’ case is one in which there is more than one potential cause for the harm said to have been suffered.”

The appeal in the principal case was therefore refused, with similar orders to be made in the related cases.