Negligence – Nuisance – Claimant sewerage undertaker employing defendant contractor to carry out works on site – Piling subcontractor carrying out piling works – Sewage spilling onto neighbouring premises – Claimant carrying out corrective work – Claimant bringing proceedings against defendant in nuisance and negligence – Whether claimant establishing claims – Whether claimant mitigating loss – Claim dismissed
The claimant was the statutory sewerage undertaker operating in the North East of England and appointed by the Secretary of State pursuant to the Water Industry Act 1991. The claimant operated a public sewer, which passed under Newgate Street in Newcastle upon Tyne. The defendant was a construction company that was developing a site near Newgate Street, close to premises occupied by the Co-Operative Group (the Co-op).
On 23 January 2008, the defendant’s piling subcontractor carried out piling works and poured concrete in order to create pile 215. Some of the concrete escaped. Unbeknown to the claimant and the defendant, there was a private drain in the vicinity of pile 215 and around the end of January 2008, the Co-op informed the claimant that sewage was backing up into its premises. An investigation by the claimant revealed that concrete had entered its public sewer in Newgate Street. The claimant carried out works to the public sewer to remove the concrete, which were completed in May 2009 at a cost of £318,032. The claimant brought proceedings against the defendant in nuisance and negligence to recover that sum.
The claimant argued that the concrete discovered to have been deposited in the Newgate Street sewer had entered from the defendant’s site, having been poured into the voids on the site on 23 January 2008 by its piling subcontractor. The defendant denied liability, contending that, prior to starting work on the development, it had carried out extensive research to discover and avoid damaging any of the public services in the vicinity. The existence of the private drain had been unknown to both parties and could not have been discovered by reasonable diligence. In any event, even if it had been discovered, it was not clear that it would have made any difference and the claimant should have acted more quickly to mitigate any loss.
Held: The claim was dismissed.
(1) As regards the claim in negligence, the claimant had failed to establish that the investigation and the piling operation had not been carried out with reasonable care. The allegation of negligence accordingly failed. In respect of the claim in nuisance, the obligation on the defendant was not absolute. It was an obligation to take reasonable care to investigate the utility services in the area, and in the execution of the works. No evidence had been produced which criticised the investigation in fact carried out by the defendant or its agents or which criticised the piling operation carried out by the piling contractor. There was no expert evidence as to the level of investigation that might be expected in a development of this size or which criticised the piling operation. It was not obvious that the defendant ought to have carried any further research beyond that which was in fact carried out. The relevant question was not whether the damage was foreseeable, but whether it was reasonably foreseeable, which was fact sensitive. The only way the sewer could have been damaged was through a connection such as a drain connecting the sewer to an area close to where the concrete was being poured. Thus the relevant question was whether the existence of the drain was reasonably foreseeable. It had not been established that the existence of the drain was reasonably foreseeable. It followed that the damage to the sewer was not reasonably foreseeable: Transco Ltd v Stockport Metropolitan Borough Council [2004] 2 AC 1; [2003] PLSCS 261; [2003] 48 EG 127 (CS) applied; Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 distinguished.
(2) The duty on an innocent party to mitigate its loss was not onerous. Furthermore the burden was on the defendant to show precisely what steps the innocent party should have taken and that those steps would have reduced the loss the innocent party would have suffered. The defendant had failed on both of those issues and the court was not satisfied that it was reasonable for the claimant to have discovered the existence of the concrete before the middle of February 2008 or that the removal would have been any less expensive to remove the concrete if it had been discovered earlier. In all the circumstances, the claims in negligence and nuisance failed. Had it been necessary to decide the point, the claimant had not failed to mitigate its loss.
Andrew Singer (instructed by Northumbrian Water Ltd) appeared for the claimant; Jonathan Mitchell (instructed by DLA Piper UK LLP) appeared for the defendant.
Eileen O’Grady, barrister