Archive for August, 2014

Down the drain?

The law relating to nuisance and negligence has developed over the years not least in the arena of neighbours.  However, it has been kept within the confines of reasonablenesss – described by Lord Goff in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 as “the principle of give and take as between neighbouring occupiers of land”.  He said “…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.”  However, said Lord Goff, “it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee”.

Against the above legal background, the Court of Appeal recently considered problems caused to a water company when concrete, being poured to create piles on a neighbouring construction site, escaped via an unknown drain into a nearby sewer (Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Cov 685).  McAlpine had inspected plans, including the sewage plans, of its site before commencing its works.  It also relied upon extensive investigations conducted for an earlier development on the site.  Neither investigation revealed an early private drain under part of the site which connected into the water company’s sewer.  Its existence did, however, come to light much later when an inspection of old plans held in a museum was undertaken during preparation for this litigation.

The water company issued proceedings for the substantial costs incurred in removing the blockage.  The judge at first instance dismissed the water company’s claims for nuisance and negligence.  The company appealed.  Giving the appeal court’s judgement, Lord Justice Moore-Bick held McAlpine had not been shown to have “fallen short of the standard to be expected of a reasonably competent contractor” nor should it have “foreseen the possibility that concrete might escape the confines of the site and find its way onto neighbouring land”.  Although the case turns very much on its own particular facts and circumstances, Lord Moore-Bick’s judgement does contain a useful resume of the law of nuisance and negligence.

Contact Hatherleigh Training if you wish to hear more.