Northumbrian Water Ltd v Sir Robert McAlpine Ltd

Nuisance – Liability – Damage – Respondent redeveloping urban site – Shafts drilled and filled with concrete to create piles to support new building – Concrete escaping into old private sewer under site and from there into public sewer maintained by appellant – Whether respondent liable to appellant in nuisance or negligence – Whether foreseeability of damage relevant to liability in nuisance – Appeal dismissed The appellant was a statutory sewerage undertaker that provided sewerage services in the area of Newcastle-upon-Tyne. One of its sewers ran under Newgate Street, close to the city centre. In the course of carrying out a redevelopment on a nearby site, the respondent construction company sank a large number of concrete piles to support a new building, which involved drilling shafts and then filling them with concrete. Concrete escaped from one of the shafts into an old private sewer beneath the site and from there into the Newgate Street public sewer, where it set and caused a partial blockage. Before commencing the works, the respondent had conducted extensive ground investigations which had led it to believe that there were no unidentified obstructions below ground level that were likely to be affected by or interfere with the works. However, these investigations had not revealed the presence of the private sewer more than 3m below the surface, nor was that sewer shown on the appellant’s current plans of the sewer system. The sewer did appear on a plan dating from 1908 held in the Newcastle Discovery Museum, which one of the respondent’s employees later found while following up a private enquiry. The appellant brought a claim against the respondent in negligence and nuisance to recover the substantial expense incurred in removing the obstruction. It contended that the respondent had failed to take reasonable care to identify the existence of underground services formerly present at the site or to take adequate precautions to ensure the safety of the public sewer. Dismissing the claim in the court below, the judge held: (i) in relation to the claim in negligence, that the respondent had not been negligent in failing to search the archives of the museum, had not been required to carry out any additional investigations and had not carried out the piling work negligently; and (ii) in relation to the claim in nuisance, that the events constituted an isolated escape of materials from the site for which liability could arise only under the rule in Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330, on which the respondent did not rely; moreover the escape of concrete and the consequent damage was not foreseeable: see [20130 EWHC 1940 (TCC); [2013] PLSCS 213.The appellant appealed. Held: The appeal was dismissed. (1) The judge had correctly found that the respondent was not in breach of the duty that it owed to the appellant to take reasonable care to avoid causing damage to the appellant’s property in the vicinity of the works, including the sewer. Although there was a recognised risk, when pouring concrete into a shaft, that some might escape into voids in the subsoil, there was no reason in the instant case to think that it might migrate beyond the borders of the site, much less into a sewer under the adjoining road. The judge had been entitled to reject the contention that a reasonably competent and careful contractor would have searched local museum archives for several hours to ascertain whether a drain had existed on the site a hundred years earlier and might have survived previous redevelopment even though it had not been detected by normal investigation measures. The appellant had advanced no other criticism of the respondent’s site investigations. (2) Although liability in nuisance had traditionally been regarded as strict, in the sense that it did not depend on proof of negligence, a defendant would not be liable for interference with his neighbours’ enjoyment of their land if his own use of his land was reasonable. Unless the case could be brought within the scope of the rule in Rylands v Fletcher, a defendant was not liable for damage caused by an isolated escape, which was not intended or reasonably foreseeable. Foreseeability of harm of the type suffered by the claimant was necessary for the defendant to be liable in damages for nuisance: Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1993] EGCS 211 and Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61; [2004] 2 AC 1; [2003] 48 EG 127 (CS) applied. There was no general rule imposing strict liability in respect of nuisance causing physical damage to property. In that regard, there was a fundamental difference between, on the one hand, interference with the enjoyment of land over a significant period of time, in circumstances where it must have been apparent to the defendant that the works were interfering with the claimants’ enjoyment of their property or causing physical damage to it, and, on the other, an unforeseeable and undetected escape: Clift v Welsh Office [1998] 4 All ER 852, Andreae v Selfridge & Co Ltd [1938] Ch 1 and Hoare v McAlpine [1923] 1 Ch 167 distinguished. The redevelopment of land by the new construction of a new building was a normal and reasonable use of land in an urban setting, unless it involved the use or unusual methods of working. There was no suggestion that constructing concrete piles by the method adopted by the respondent was unusual or liable to create problems for neighbouring landowners. There was no reason why the respondent should have foreseen the possibility that concrete might escape the confines of the site and find its way onto neighbouring land. It followed from the judge’s findings on negligence that the escape of concrete into the appellant’s sewer was not reasonably foreseeable. Consequently, the respondent was not liable to the appellant in nuisance. Andrew Singer (instructed by the legal department of Northumbrian Water Ltd) appeared for the appellant; Jonathan Mitchell (instructed by Hill Dickinson LLP, of Sheffield) appeared for the respondent. Sally Dobson, barrister