Water escaping from service pipe owned and under control of defendant council – Nearby disused railway embankment becoming saturated and collapsing – Claimants suffering losses – Whether council liable by way of strict liability under rule in Rylands v Fletcher (1868) LR 3 HL 330 – Whether use exempt from strict liability rule as ordinary domestic use – Judge finding council liable – Appeal allowed
On 28 September 1992 a disused railway embankment owned by the claimant council partially collapsed as a result of having become saturated with water. The water had escaped from a 3-inch-internal-diameter asbestos cement water pipe (the service pipe) owned and under the control of the defendant council. The service pipe supplied a nearby 11-storey block of flats, known as Hollow End Towers, which was owned and managed by the council. The collapse exposed, and left unsupported, a high-pressure gas main owned by the first claimant, Transco plc. In the interests of public safety, Transco took immediate steps to restore and support the gas main at an expense of £93,682. Debris from the collapse fell onto an adjacent golf course owned by the second claimant, Reddish Vale Golf Club. The golf club claimed to have suffered significant losses as a result of damage and the disturbance to its golf course. Transco and the golf club issued proceedings against the council to recover their losses, alleging that they were liable, inter alia, by way of strict liability under the rule in Rylands v Fletcher (1868) LR 3 HL 330, as the council’s actions amounted to a non-natural user of land.
The judge found that if there had been one pipe of ordinary domestic size each serving one flat in the 11-storey block of flats and only one of them had broken, that could have been said to be an ordinary use of land. He held that by choosing to supply the flats by way of 3-inch-diameter service pipe, the council had created an extraordinary danger for their own purposes and thus the exception to strict liability in Rylands v Fletcher of ordinary domestic use was of no assistance. Accordingly, the judge held the council to be liable. The council appealed.
Held: The appeal was allowed.
The mere fact that the accumulation of water could foreseeably give rise to damage if the water escaped did not fix the accumulator with strict liability in the event of an escape. Nor did the fact that the escape was not from a dwelling. It was clear that strict liability did not arise where a defendant was lawfully using his land “for any purpose for which it might in the ordinary course of the enjoyment of land be used” (Rylands v Fletcher), for the supply of services of electricity, gas or water by commonplace methods (Dunne v North Western Gas Board [1964] 2 QB 806 and Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264), or by doing “those acts necessary for the common and ordinary use and occupation of land and houses”, provided he is acting reasonably (Cambridge Water). The supply of water through the service pipe fell within those categories. There was nothing before the judge to suggest that the pipe was in any way unusual in its dimensions when seen in the context of the supply of water to the block of flats.
Robert Sterling (instructed by the solicitor to Transco plc) appeared for the first claimant; Ian Foster (instructed by O’Neill Morgan Patient, of Stockport) appeared for the second claimant; Mark Turner QC and Stephen Davies (instructed by Berrymans Lace Mawer, of Manchester) appeared for the defendants.
Thomas Elliott, barrister
