Drains unable to deal with increased demand – Foul and drained water escaping from drains – Liability of statutory undertaker – Water Industry Act 1991
Watching a roadside puddle grow into a fair sized lake ceases to be a joke when the water reaches your front door, with worse to come if the foul water sewer can no longer cope.
With an ever-increasing number of properties thus affected, there was predictably wide news coverage of the claimant householder’s successful claim for damages (still to be assessed) in Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 64; [2002] 07 EG 122 (CS). The legal aftermath (possibly including a reconsideration by the House of Lords) promises to be long and problematic: all the more reason perhaps for registering a few salient points.
1. Before the Court of Appeal, Mr Marcic succeeded both at common law and under the Human Rights Act 1998. The common law claim, which had failed in the court below, was for a nuisance arising out of an allegedly negligent failure to match the capacity of a once adequate sewer to the far heavier demands now being made of it. Subject to what the House of Lords may eventually have to say, allowing the common law claim can be seen as a bold, and doubtless controversial, extension of the so-called measured duty of care. Whether this has placed excessive strain upon the leading cases of Goldman v Hargrave [1967] 1 AC 645 and Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 is briefly considered in
2. Having allowed the common law claim, the Court of Appeal saw little need to deal at length with the company’s appeal on the human rights issue. The reason lay in the provisions against double recovery contained in section 8(3) of the 1998 Act. Nevertheless, the appeal was firmly dismissed, and the consequences should not be underestimated. In a case where, for one reason or another, a common law claim does not lie, the claimant may still be able to point to a violation of his Convention rights to respect for his home (Article 8) and to peaceful enjoyment of his possessions (Article 1 of the First Protocol). He will be pleased to learn that, in the view of the Court of Appeal, applying Guerra v Italy (1998) 26 EHRR 357, such a violation can, in certain circumstances, result from a failure to act.
Related articles:
Drains unable to deal with increased demand – Foul and drained water escaping from drains – Liability of statutory undertaker – Water Industry Act 1991
Watching a roadside puddle grow into a fair sized lake ceases to be a joke when the water reaches your front door, with worse to come if the foul water sewer can no longer cope.
With an ever-increasing number of properties thus affected, there was predictably wide news coverage of the claimant householder’s successful claim for damages (still to be assessed) in Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 64; [2002] 07 EG 122 (CS). The legal aftermath (possibly including a reconsideration by the House of Lords) promises to be long and problematic: all the more reason perhaps for registering a few salient points.
1. Before the Court of Appeal, Mr Marcic succeeded both at common law and under the Human Rights Act 1998. The common law claim, which had failed in the court below, was for a nuisance arising out of an allegedly negligent failure to match the capacity of a once adequate sewer to the far heavier demands now being made of it. Subject to what the House of Lords may eventually have to say, allowing the common law claim can be seen as a bold, and doubtless controversial, extension of the so-called measured duty of care. Whether this has placed excessive strain upon the leading cases of Goldman v Hargrave [1967] 1 AC 645 and Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 is briefly considered in PP 2002/123.
2. Having allowed the common law claim, the Court of Appeal saw little need to deal at length with the company’s appeal on the human rights issue. The reason lay in the provisions against double recovery contained in section 8(3) of the 1998 Act. Nevertheless, the appeal was firmly dismissed, and the consequences should not be underestimated. In a case where, for one reason or another, a common law claim does not lie, the claimant may still be able to point to a violation of his Convention rights to respect for his home (Article 8) and to peaceful enjoyment of his possessions (Article 1 of the First Protocol). He will be pleased to learn that, in the view of the Court of Appeal, applying Guerra v Italy (1998) 26 EHRR 357, such a violation can, in certain circumstances, result from a failure to act.
Related articles:
Undrained malady Estates Gazette 30 March 2002, p97 (John Murdoch)
What lies beneath Estates Gazette 1 June 2002, p132 (John Murdoch).
