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How will the courts approach the interrelation between negligence, private nuisance and claims based on the Rylands v Fletcher rule? Seán Hackett, specialist in real estate and commercial litigation at Pannone Corporate, says a recent ruling is a useful reminder of the law, and that establishing negligence is not a prerequisite to bringing a claim for damages in private nuisance.
Northumbrian Water Ltd v Sir Robert McAlpine Ltd  EWCA Civ 685,  All ER (D) 157 (May)
During construction work in Newcastle, concrete used to make building supports by Sir Robert McAlpine Ltd (McAlpine) company escaped into a sewer controlled by Northumbrian Water Ltd (Northumbrian Water). Northumbrian Water brought proceedings in nuisance and negligence. The Technology and Construction Court dismissed the claim. Northumbrian Water appealed. The Court of Appeal, in dismissing the appeal, held that the judge had not erred in dismissing the claim.
One of Northumbrian Water’s sewers (formerly a private sewer connected to the public sewer network) had been installed prior to 1908 over three metres below ground level and was located under Newgate Street. Northumbrian Water’s network plans did not record the existence of the sewer. The only plan which showed its existence was a plan found deep in the archives at the Newcastle Discovery Museum (discovered by Northumbrian Water after the event).
McAlpine was engaged in carrying out a redevelopment of the area in and around Newgate Street, an area which had previously undergone redevelopment in the 1970s when significant excavation works had been carried out.
McAlpine carried out investigations by reference to Northumbrian Water’s plans and by way of tests on site to identify the position of amongst other things, sewers within the development site. The existence of the sewer was not identified.
The redevelopment works required sinking pile foundations to support the weight of the buildings to be constructed and involved McAlpine drilling shafts into the ground into which concrete was
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