Negligence – Nuisance – Sewerage undertaker – Duty of care – Causation – Claimant’s property suffering surface water flooding – Claimants alleging flooding caused by negligent fitting of “Tideflex” valve by defendant statutory sewerage company – Whether defendant erring in installation of valve – Whether property would have flooded without valve being installed – Claim dismissed
The claimants were the freehold owners of a property known as 1, Davenport Road, Felpham which was close to the sea, low-lying and prone to flooding. In June 2012, the claimants’ property was damaged by surface water flooding. The claimants commenced proceedings claiming damages for negligence and/or nuisance against the defendant local statutory sewerage undertaker. They contended that the flooding had been caused by the defendant negligently fitting a “Tideflex” valve (a flow-restricting non-return valve) to its drainage system, the effect of which had been to significantly reduce flow through the pipe, which in turn led to water backing up behind the valve and causing flooding of the property.
The claimants argued, among other things, that the defendant had paid inadequate attention to the storm water system near the property and had failed to ensure that it operated properly and had decided to install the valve against an incorrect background. Moreover, the defendant had failed to maintain the valve properly. Furthermore, a reasonable statutory sewerage undertaker in the position of the defendant would have carried out a risk assessment regarding the installation of the valve which would have demonstrated problems in the potential installation that needed further consideration. In the circumstances, but for the installation of the valve, the property would not have flooded.
The defendant argued, among other things, that a duty in negligence could not arise from the performance of its statutory functions under the Water Industry Act 1991. Further, the defendant was entitled to interfere with the claimants’ drainage in order to protect its apparatus from the sea under the so-called “common enemy defence”.
Held: The claim was dismissed.
(1) The defendant owed the claimants a duty of care in nuisance and negligence, the standard of which was that of the reasonable water authority. Although the defendant was a statutory sewerage undertaker, a duty in negligence could arise out of the performance of its statutory functions: Dobson v Thames Water Utilities Ltd [2007] EWHC 2021 (TCC) applied. Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2003] PLSCS 268; [2004] 2 AC 42 and Ward v Coope [2015] EWCA Civ 30; [2015] EGLR 27 followed. Dwr Cymru Cyfyngedig (Welsh Water) v Barratt Homes Ltd [2013] EWCA Civ 233; [2013] PLSCS 93 and Nicholson v Thames Water Utilities Ltd [2014] EWHC 4249 (QB) distinguished.
(2) The court was not persuaded by the “common enemy defence”. By installing the valve, the defendant was not erecting a defence for the protection of its own land but rather was installing it for the protection of the claimants’ land and the claimants’ complaint was not that in protecting its own land the defendant had caused flooding to the property but that the installation of the valve had been undertaken negligently. Moreover, the common enemy principle was subject to the long-established rule that the ordinary course of water could not lawfully be changed or obstructed for the benefit of one class of persons to the injury of another: Arscott v Coal Authority [2004] EWCA Civ 892; [2004] PLSCS 171 considered.
(3) In the present case, the defendant should have carried out an assessment of the effect of installing the valve. It had failed to do so and in so doing was negligent. Further, the evidence supported the claimants’ submissions as to a history of poor maintenance. A reasonable statutory undertaker in the position of the defendant would have carried out an assessment of the risk of installing the valve. Any such assessment would have established that it posed a substantial restriction to the surface water flows and ought not to have been installed unless and until a proper evaluation of the respective risks had been undertaken and an informed judgment made. That had not been done. However, the totality of the evidence led the court to conclude that it could not be satisfied on the balance of probabilities that, but for the installation of the valve, the property would not have flooded. Accordingly, although the defendant had been negligent in fitting the valve, the claimants had failed to prove that the valve had been the cause of the flooding and consequent damage.
Neil Moody QC (instructed by Kennedys) appeared for the claimants; Clifford Darton and Paul Powlesland (instructed by Mayo Wynne Baxter Solicitors, of Sussex) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Oldcorn and another v Southern Water Services Ltd
