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No strict liability in nuisance for damage which is unforeseeable

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

Nicole Downey examines this Court of Appeal decision confirming that there is no general rule imposing strict liability in nuisance claims where physical damage is caused to property.  A claimant needs to prove that the damage to his land was reasonably foreseeable and was caused by the defendant’s unreasonable use of its land. 

In this case, the escape of concrete from a building site into a sewer on neighbouring land was not reasonably foreseeable and the works did not amount to an unreasonable user of land. The court dismissed Northumbrian Water’s claim for the costs of removing the concrete.

Facts

Sir Robert McAlpine Ltd (“McAlpine”) carried out construction works which included sinking a number of concrete piles to support a new building. McAlpine had carried out extensive ground investigations which did not identify anything that was likely to be affected by the piling works.

There was in fact an underground private drain within the site which connected into a Northumbrian Water sewer which was on neighbouring land. This drain was not identified by McAlpine’s investigations. It was not shown on Northumbrian Water’s plans, but was identified on a plan dating from 1908 which was subsequently discovered in the archives of a local museum.

During the piling works, concrete escaped from one of the piling shafts into the drain and then into Northumbrian Water’s sewer, where it set and caused a blockage.

Northumbrian Water incurred substantial expense in removing the concrete from their sewer and sought to recover its loss from McAlpine in nuisance and negligence.

The Court of Appeal decision

The court unanimously dismissed Northumbrian Water’s appeal.

The claim in negligence

Northumbrian Water claimed that McAlpine was liable in negligence for failing to take reasonable care to identify the existence of the underground services present at the site (that is, the drain which connected to their sewer). As the only evidence of the existence of this drain was contained in the 1908 plan in a local museum’s archives, their claim was that McAlpine was negligent in failing to carry out a search of those archives.

McAlpine’s employees responsible for investigating the ground conditions gave evidence at trial. They said, amongst other things, that the site had been extensively redeveloped in the 1970s, which made it unlikely that any earlier drains had survived.

Moore-Bick LJ giving the leading judgment dismissed the claim in negligence.

Northumbrian Water had not called any expert evidence to support their case that McAlpine’s ground investigations had fallen short of the standard to be expected of the reasonably competent contractor.

He rejected Northumbrian Water’s contention that a reasonably competent contractor would have searched a local museum’s archives for several hours to check whether a drain had existed on the site a hundred years earlier and which might have survived the previous site redevelopment in the 1970s even though it had not been detected by normal investigation measures.

The claim in nuisance

Northumbrian Water also claimed that McAlpine was strictly liable in nuisance on the basis that the piling works had caused physical damage to their sewer.

Moore-Bick LJ rejected Northumbrian Water’s contention that McAlpine were strictly liable simply because their sewer had suffered physical damage due to the concrete which had escaped from the building site. 

He considered that the two leading House of Lords cases, Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] and Transco Plc v Stockport MBC [2003], made clear that there is no general rule imposing strict liability in nuisance where something escapes from a defendant's land and causes physical damage to neighbouring property.

McAlpine was not liable for the following reasons:

1. The principle of reasonable user

Liability in nuisance is kept under control by the principle of reasonable user, as per Lord Goff’s statement in Cambridge Water:

“… liability has been kept under control by theprinciple of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which “those acts necessary for the common and ordinary use and occupation of land… may be done”…

The effect is that if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it.”

This principle of “give and take” involves consideration as to whether a party’s enjoyment of his land has been unreasonably interfered with and whether this interference or damage is foreseeable.

Moore-Bick LJ found that McAlpine’s redevelopment of the site was normal and reasonable and that there was no evidence that the construction of the concrete piles was unusual or likely to cause harm to any neighbouring landowners.

2. Foreseeability of harm

Moore-Bick LJ said that Cambridge Water and Transco made clear, that a defendant will only be liable in nuisance for damage of a type which he could reasonably foresee.

He relied on Lord Goff’s statement in Cambridge Water, that foreseeability should apply in nuisance as it does in negligence. It would be illogical and unfair for a claimant who had suffered personal injuries to have to prove that the injury was foreseeable when a claimant who had suffered property damage in nuisance did not have to do so.  

There was a risk that some concrete might escape from the piling shafts into voids in the sub-soil.  However there was no reason to think that concrete might migrate beyond the site, much less into a sewer under an adjoining road.

He considered that McAlpine could not have foreseen the possibility that concrete could have escaped into Northumbrian Water’s sewer. Accordingly, McAlpine was not liable because the physical damage which had been suffered to the sewer was not reasonably foreseeable.

Comment

The law of nuisance is frequently misunderstood. From a property insurer’s perspective this decision is to be welcomed as it provides greater clarity on the nuisance liability test.

The Court of Appeal has made clear that there is no general rule in nuisance that a person will be strictly liable for physical damage caused to his neighbour’s land. The two control mechanisms of reasonable user and foreseeability of damage apply. These control mechanisms operate to make liability in nuisance similar to that in negligence.

This decision continues the prevailing judicial approach of limiting the imposition of strict liability in common law and aligning the law of nuisance closer to negligence.

The key difference between negligence and nuisance is that in nuisance, if the defendant’s use of his land was unreasonable then he will be liable for any foreseeable damage caused irrespective of whether he has taken all reasonable care to avoid such damage occurring. Liability in nuisance is strict in that the defendant can be liable even if he has taken reasonable care (and not been negligent).

Contact

For further information please contact Nicole Downey, Director, on 0161 603 5065.

By Nicole Downey

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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