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Northumbrian Water Ltd v Sir Robert McAlpine Ltd, Court of Appeal, 20 May 2014

6 June 2014
The issues

Nuisance – damage caused to adjacent landowner’s sewer.

The facts

Northumbrian Water provided sewerage services in Newcastle-Upon-Tyne. One of its sewers ran under Newgate Street, close to the city centre. Sir Robert McAlpine Ltd was a construction company carrying our redevelopment works on a site next to Newgate Street. That work required the sinking of large numbers of concrete piles.

Before the works were carried out, ground conditions were extensively investigated, leading the construction company to believe that there were no unidentified obstructions below ground level likely to be affected by the works. However, at some earlier date, a private sewer had been connected to the public sewer running under Newgate Street at a depth of three metres below ground level. It was not shown on Northumbrian Water’s plans, but it did appear on a plan dating from 1908 held in the Newcastle Discovery Museum.

After drilling the shaft, concrete was poured to form the pile, which was able to escape for some reason from the shaft into the drain and then into Northumbrian Water’s sewer, where it set and caused a blockage. They brought an action alleging loss in nuisance and negligence.

The judge dismissed the claim in negligence and nuisance. Northumbrian Water Appealed.

The decision

Negligence
Northumbrian Water alleged that the company had not taken proper investigative measures. Notably, they should have searched the archives in the Discovery Museum.

The judge, having heard evidence from those responsible for investigating the ground conditions, having regard to the extensive redevelopment in the 1970s did not think that it was reasonable to put that duty onto the company. The Court of Appeal agreed. It was not arguable that a reasonably competent and careful contractor should have searched the local museum archives for several hours to ascertain whether a drain had existed on a site 100 years earlier.

Nuisance
The tort of nuisance involved an interference by one occupier of land with the use or enjoyment of the land, or of rights or interest in the land of another and where a claim was made in damages, damage was an essential ingredient to the cause of action. The two leading modern cases in this area of the law were Cambridge Water, and Transco v Stockport. Both involved the rule in Rylands v Fletcher, but both contained important observations on the law of nuisance generally.

Three important principles could be found in the speeches of Lord Goff in Cambridge Water, and Lord Hoffman in Transco.

First, although liability and nuisance have traditionally been regarded as strict, in the sense that it did not depend on negligence being proved, if the defendants use of his land was reasonable, he would not be liable for interference with his neighbour’s enjoyment of his land.

Second, unless the case could be brought within the rule in Rylands v Fletcher, the defendant was not liable for the damage caused by an isolated escape, i.e. one that was not intended or reasonably foreseeable.

Third, foreseeability of the type of harm suffered by the claimant was necessary for the defendant to be liable in damages for nuisance. In this case, the use to which the land occupied by the company was being put was the construction of a new building. Such redevelopment in an urban setting could not be regarded as other than normal and reasonable, unless it involved the use of unusual methods of working. The judge had been right to find that the company had not been negligent in failing to discover the existence of the drain and it followed that the escape of concrete into the water company’s sewer was not reasonably foreseeable. The court could not accept the claimant’s argument, relying on Clift v The Welsh Office, which was a fundamentally different type of case, that there was a general rule imposing strict liability in respect of nuisance causing physical damage to property. That was inconsistent to Transco and Cambridge Water.

Appeal dismissed.

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