Escape of water — Burst of rising main — Damage to plaintiffs’ goods — Nuisance — Whether strict liability — Whether exception to rule in Rylands v Fletcher — Whether negligence necessary — Claim dismissed
The defendants, who are estate agents, acquired 50 South Road, Southall, London, for the purposes of their business. Planning permission was refused for the necessary material change of use and, pending the outcome of a planning appeal, the defendants gave consent to the plaintiffs to occupy and use the ground floor. The plaintiffs are retailers in saris and went into occupation in May 1986 paying a weekly rent.
The rising main ran up the inside of an external wall, behind the plaster in the upper floors, to the second floor. It had a stopcock at ground-floor level and there were stopcocks on each of two branches that led supplies from the rising main to the first and second floors; there was otherwise no stopcock, above the ground floor, on the rising main itself. In January 1987 the rising main burst at the first-floor level and the plaintiffs’ stock was severely damaged. They claimed damages against the defendants in nuisance or under the rule in Rylands v Fletcher (1868) LR 3 HL 330. They contended that the case of Sedleigh-Denfield v O’Callaghan [1940] AC 880 made an occupier of a building liable where he adopted or continued a nuisance, such as a pipe liable to burst because it could not be turned off, and that this case overruled a line of authorities that established an exception, in the circumstances of bringing water into a building, to the strict liability rule of Rylands v Fletcher.
Held The claim was dismissed.
In the context of the duty owed by the defendants, it was irrelevant whether the plaintiffs had a lease or a licence. The case of Sedleigh-Denfield v O’Callaghan had nothing to do with the line of authorities that established an exception to the strict liability rule of Rylands v Fletcher. The cases of Peters v Prince of Wales Theatre Ltd [1943] KB 73, Prosser (A) & Son Ltd v Levy [1955] 1 WLR 1224 and Kiddle v City Business Properties Ltd [1942] 1 KB 269 established an exception to the rule of Rylands v Fletcher where water is brought on to premises with the consent of the plaintiff: there can be no liability under the rule unless the plaintiff can show the defendant has been negligent.
In negligence the burden of proof is on the plaintiff; in this case there was no ground for allowing the plaintiffs to reverse that burden: Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 distinguished.
Prior to the plaintiffs’ going into occupation, the defendants had turned off the ground-floor stopcock. There was no negligence on their part in turning on that stopcock when the plaintiffs moved in, and neither were the defendants negligent in failing to contemplate a burst main on the upper floors.
John Nicholls (instructed by Clyde & Co) appeared for the plaintiffs; and Anthony Speaight (instructed by E D C Lord & Co, of Hayes, Middlesex) appeared for the defendants.
