Court of Appeal delivers refresher course on negligence and nuisance

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.

Original news

Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685, [2014] 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.

What led to the litigation?

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 then poured and which would harden to form the piles.

Unbeknownst to McAlpine, one of the shafts was drilled into or next to the sewer in question and when the concrete was poured into the shaft the concrete entered the sewer. The concrete made its way up the sewer and into the public network causing a partial blockage to the network.

Northumbrian Water carried out works to remove the blockage at significant costs to themselves.

What were the key issues in the appeal?

Northumbrian Water sought to recover the costs of the works from McAlpine, advancing their claims in negligence and private nuisance. They alleged that McAlpine had failed to take reasonable care to identify the existence of the sewer and thereafter to take steps to protect the public network.

In respect of the claim in negligence, Northumbrian Water contended that McAlpine ought to have made a search of the Newcastle Discovery Museum archives and had they done so they would have discovered the 1908 plan and consequently the presence of the sewer. They also contended that McAlpine ought to have carried out additional investigative works over and above those which it had carried out.

Northumbrian Water contended that McAlpine were liable having committed a private nuisance.

What did the High Court rule?

The trial judge dismissed the claim in negligence. The judge determined that there was no evidence to suggest McAlpine failed to exercise the reasonable care and skill required of them in carrying out their site investigations.

In addition, the judge determined that a reasonably competent and careful contract would not have searched the Newcastle Discovery Museum archives in the circumstances of this case. The judge formed the above view against the backdrop that the area in and around Newgate Street had undergone redevelopment in the 1970’s including extensive excavation work and that that it was unlikely that any earlier sewers had survived.

The judge dismissed the claim in private nuisance. The judge determined that the events which led to the blockage of the public network constituted an isolated escape of materials from the site. Liability for an isolated escape could only arise under the rule in Rylands v Fletcher [1861-73] All ER Rep 1—Northumbrian Water had not sought to rely on the rule in Rylands v Fletcher in their claim. In any event the judge determined that the damage caused was not foreseeable.

Northumbrian Water appealed to the Court of Appeal.

What were the key issues in the appeal?

In respect of the ruling on the negligence claim, Northumbrian Water argued that the judge was wrong to determine that McAlpine were not required to make a search of the Newcastle Discovery Museum archives.

In respect of the ruling on the private nuisance claim, Northumbrian Water argued that the judge was wrong to regard the escape of concrete as an isolated event owing to the fact that it occurred during ongoing construction works. In addition, Northumbrian Water argued that the judge was wrong to determine that the damage caused had to be foreseeable—all that was required for a successful claim in private nuisance was for Northumbrian Water to demonstrate there had been physical damage.

Northumbrian Water argued that should the court determine that some element of fault had to be demonstrated as a prerequisite to a claim in private nuisance, they then relied upon the fact that McAlpine had accepted in evidence at trial that there was a risk of concrete escaping into voids in the ground adjacent to the shaft.

What was the reasoning behind the dismissal of the appeal?

As to the claim in negligence, the Court of Appeal agreed with the trial judge. There was no evidence before the court to demonstrate McAlpine failed to exercise reasonable care and skill in carrying out its site investigations—and no evidence to demonstrate McAlpine had carried out the piling works in anything other than a professional manner. While it was accepted by McAlpine that there was a risk of concrete escaping into voids in the ground adjacent to the shaft, in this case there was no reason to suspect the concrete would escape beyond the site boundary nor into the sewer in question.

Finally, in respect of the Newcastle Discovery Museum archive plan, the Court of Appeal found that on the evidence the trial judge was entitled to conclude that a reasonably competent and careful contract would not have searched the local museum archives for several hours to ascertain whether a drain may have existed which did not show up on normal investigations, particularly against the backdrop of the significant redevelopment in the area in the 1970s.

As to the claim in private nuisance, the Court of Appeal summarised the law and determined that the redevelopment works carried out by McAlpine was a reasonable use of its land, and there was no evidence to suggest the piling works had been carried out other than with reasonable care and skill.

The Court of Appeal determined there was no evidence to suggest the works had been carried out in a manner which caused unreasonable interference to Northumbrian Water and that the damage caused by the escape of the concrete into the sewer was not foreseeable.

The Court of Appeal rejected Northumbrian Water’s contention that all that was required for a successful claim in nuisance was for there to be physical damage. Private nuisance consisted of the interference in the comfortable and convenient enjoyment of land and was not related to actual damage to the land.

What does this tells us about how lawyers advising in this area should proceed?

The decision is a useful reminder of the law, that establishing negligence is not a prerequisite to brining a claim for damages in private nuisance. Focus should instead be on the defendant’s use of his land and the operations carried out in the exercise of that use.

If the use of his land is reasonable then, so long as the operations are carried out with reasonable care and skill so as to avoid as far as reasonably possible interfering with the neighbours’ use and enjoyment of their land, then there will be no liability—even though there is some interference with the neighbours’ use and enjoyment.

If, however, the use of his land is reasonable but the operations carried out on it are not carried out with reasonable care and skill so as to avoid as far as reasonably possible interfering with the neighbours’ use and enjoyment of their land, then there is prima facie liability.

Liability will only arise if the damage caused was foreseeable.

A claim can be brought within the scope of the rule in Rylands v Fletcher where there is an isolated escape, no matter that the damage caused by the escape is unintended or unforeseeable. If the claimant seeks to rely upon the rule in Rylands v Fletcher it must be pleaded. Pleading private nuisance alone will not do.

Interviewed by Nicola Laver. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published in LexisPSL Construction on 28 May 2014. 

Filed Under: Property

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