Public water supply — Escape of chemical — Seepage into the ground — Water polluted as a result over a course of years — Whether person responsible for using chemical liable to abstractor of water — Whether strict liability — Appeal court finding for strict liability — Appeal to House of Lords allowed
The appeal raised the issue whether the appellant, Eastern Counties Leather plc (ECL), was liable in damages to the respondent, Cambridge Water Co (CWC), for the contamination of water available for abstraction at CWC’s borehole at Sawston Mill, near Cambridge. ECL had used a particular solvent (PCE) at its tanning works in Sawston, about 1.3m from the borehole, since the 1960s. Spillage which took place up to 1976, seeped through the floor into the soil below. It was unforeseeable that such quantities would have produced a material effect upon water taken down catchment or would otherwise have deserved the description of pollution. However, in the 1970s scientists were able to measure compounds in water, such as PCE, and in 1982 the UK brought in a regulation limiting PCE to a level which conformed to an EEC directive relating to water quality intended for human consumption (80/778/EEC). The spillage from ECL’s works has collected into the chalk aquifers under adjoining land and thence towards Sawston Mill, which could be continuing to the present day. At first instance the judge dismissed claims against ECL in nuisance and negligence. In the Court of Appeal however, ECL was held strictly liable in reliance, inter alia, on the plaintiff’s right to abstract percolating water beneath his land as “natural right incident to the ownership of of his own land…”: see [1992] EGCS 142.
Held The appeal was allowed.
1. In the present context a right to abstract percolating water meant no more than that the owner of land could, without a grant, lawfully abstract it; his right to do so being protected by the law of tort.
2. However, there was no natural right to percolating water as there could be to water running in a defined channel.
3. In order to consider the question in the present case in its proper legal context, the court had to look at the nature of liability in relation both to the law of nuisance and the rule in Rylands v Fletcher (1868) LR 3 HL 330 and to consider the relationship between the two heads of liability.
4. The law was settled that foreseeability of harm was a prerequisite of the recovery of damages in private nuisance as in the case of public nuisance.
5. As a general rule it was more appropriate for strict liability in respect of high-risk operations to be imposed by Parliament than by the courts. That was of particular relevance in the case of environmental pollution regarding which public bodies, both national and international, were taking steps towards establishing legislation to promote the protection of the environment.
6. Further, foreseeability of damage should be regarded as a prerequisite of the liability in damages under the Rylands v Fletcher rule.
Philip Vallance QC, David Hart and Ian Shiels (instructed by Berrymans) appeared for the appellants, Eastern Counties Leather plc; Piers Ashworth QC and Lawrence West (instructed by Barlow Lyde & Gilbert) appeared for the respondent, Cambridge Water Co.
