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Marcic v Thames Water Utilities Limited

12 February 2002
The issues

Public utilities – Human Rights – nuisance.

The facts

The Claimant’s house was damaged by flooding following a failure by Thames Water to carry out repair works to sewers near to the property. Following Glossop -v- Heston (1879) the Judge decided that the Claimant had no cause of action at common law or any action for breach of statutory duty. However, there was a claim for a breach of a Claimant’s Article 8 Convention Rights for the period after the implementation of the Act. Damages were awarded in respect of that period of time. Both parties appealed.

The decision

1. The Judge was correct in finding that the Claimant had no action for breach of statutory duty.

2. The sewers were adequate when constructed. They had become inadequate because of their increased use over the years.

3. Applying Goldman -v- Hargrove and Leakey -v- National Trust, Thames had a duty to the Claimant to take reasonable steps to prevent the discharge of surface and foul water onto the Claimant’s property since they were operating the system for profit, in circumstances where they knew or should have known of the hazard. They were in no better position than a land-owner on whose property a hazard had accumulated by the act of a trespasser or by nature.

4. There was nothing in Glossop to prevent a claim in nuisance and at common law. This action was not a veiled attempt to make the Defendant perform a statutory duty. Thames had not demonstrated that it was not practicable for it to prevent the nuisance. They had argued that they had a system of resource-dependent priorities. The Court did not accept that a body with the Defendant’s resources could rely on lack of resources to justify doing nothing. Anyway, their system of priorities was not reasonable. What the Court (perhaps unfortunately?) referred to as the “Leakey” Defence could not therefore be made out. Accordingly, Thames was liable for the nuisance over the entire period of the claim.

The right to damages displaced any right under the Human Rights Act but otherwise the Court agreed that there had been an infringement.

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