England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H. H. JUDGE HOWARTH - SALFORD DISTRICT REGISTRY TECHNOLOGY & CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 16th February 2001

LORD JUSTICE SCHIEMANN:

This is the judgment of the Court.

Introduction

1. Before the court is an appeal from orders made by HH Judge Howarth on 28 July and 17 August 1999. As we understand it, the evidence had been given in November 1998, Final Submissions were in January 1999, a written judgment was handed down on 7 May 1999 and it appears that the Judge was asked on 28 July to make various further findings by way of elucidation of his judgment which he did then and there. For the hearing of this appeal those further findings have been treated by all sides as incorporated in the judgment.
2. The main issue in this appeal is whether an owner of a block of flats is liable to his neighbour for damage done by water which, without negligence on the part of the owner, has escaped under pressure from a 3" diameter service pipe under his control. That strict liability is said to arise under the rule in Rylands v Fletcher (1868) LR 3 HL 330 on the basis that what the owner was doing amounted to a non-natural user of land.
3. On Monday 28 September 1992 a disused railway embankment owned by Stockport MBC ["Stockport"] partially collapsed. The collapse exposed, and left unsupported, a high pressure gas main owned by British Gas plc ["BG"]. Spoil from the collapse fell onto an adjacent golf course owned by Reddish Vale Golf Club ["the Golf Club"]. BG took immediate steps to avert any risk of damage to the gas main by restoring support. In so doing, it incurred expense, agreed in the sum of £93,681.55, on remedial works. The Golf Club claimed to have suffered significant losses as a result of damage and the disturbance to its golf course.
4. Both BG and Golf Club sued Stockport to recover their losses. They both alleged that Stockport was liable (a) under the rule in Rylands v Fletcher, (b) in nuisance, and (c) in negligence. BG also alleged that Stockport had interfered with its right of support for the gas main.
5. After a trial lasting 8 days, His Honour Judge Howarth, sitting as a Judge of the Technology and Construction Court in Salford, gave judgment in favour of BG and the Golf Club against Stockport. The essential findings of fact made by the learned Judge, most of which were common ground at trial, are set out below.
6. The embankment collapsed as a result of having become saturated with water at the point of collapse. The embankment had been constructed in the 19th century by a railway company using local clay and sandy soils.
7. An 11 storey block of flats, owned and managed by Stockport, known as Hollow End Towers lies to the east of the embankment, north of the point of collapse. It was built for Stockport on filled ground in the 1960s. The whole area to the east of the embankment was used for landfilling by Stockport in the 1950s, prior to development. Between Hollow End Towers and the embankment lies a natural valley, which was also landfilled and then grassed over.
8. Water was supplied by the statutory undertaker from the mains under the control of the water undertakers to the bottom of Hollow End Towers. At the bottom of the Tower, the water undertakers' main comes to an end. Water thereafter passes through a 3" internal diameter asbestos cement water pipe ("the service pipe") which is owned by and under the control of Stockport. The service pipe and the water passing through it were of no benefit to either claimant.
9. The water which saturated the embankment at the point of collapse had emanated from a crack in the service pipe. The internal area of the cross section of the service pipe is between 16 and 36 times as great as the internal area of an ordinary domestic supply pipe leading to an average single house from a water main under the road.
10. The fracture in the service pipe occurred below the tank room floor which is in the basement of the tower block. The tank room contains two large tanks which hold 1000 gallons of water each into which tanks runs mains water from the pipe. The water from these tanks is pumped into tanks on the roof of the tower block. The 66 flats in the block receive their water supply from those roof tanks.
11. In the week-end prior to the collapse, water was seen to emanate from a "spring" in the grassed over area between Hollow End Towers and the embankment. The learned Judge made no express finding about the way in which water emanating from the fractured water pipe found its way to the "spring". It seems that the water gradually soaked up the area which had been filled until it could no longer act as a sponge. Then the water exited at the "spring".
12. The water then ran onto and then down a pathway, which led onto a linear pathway running along the top of the embankment. The linear pathway was a leisure facility constructed by Stockport in 1979. They had acquired the embankment from the railway authority. Both pathways were made of compacted stone and thus were relatively impervious to water. Additionally, by reason of the effects of use over time, both pathways had become slightly concave. For those reasons, the water did not simply percolate into the embankment at the point of issue, nor did it drain into a French drain running alongside the linear pathway. Instead, it ran some 200m along the linear pathway and then percolated into the embankment via a crack in the ground, in sufficient quantity and in such a manner as to cause a collapse of the embankment at that point. Vast quantities of water must have escaped through the fracture in the service pipe.
13. The void left by the collapse exposed a 27 metre length of 16" high pressure gas main which was unsupported for the whole of that length. If a fracture had occurred in the gas pipe, gas would have escaped and a devastating explosion might have resulted. Prompt action had to be taken in the interests of public safety. It was taken by BG at its own expense.
14. The debris from the landslip covered a large area of the tenth green of the golf course and caused various other items of damage on or under the golf course.
15. Damage of the relevant type was a broadly foreseeable consequence of the fracture.

Strict liability under the rule in Rylands and Fletcher

16. It would be possible to have a legal principle that, whether or not A is negligent, A is responsible for damage which is caused to B by things escaping from A's land onto B's land. That however does not represent our law. We have as a general or default position that, absent proof of more, A is not responsible. However, to that default position there are a number of exceptions. Some are created by Statute. One example of that is now contained in s.209 of the Water Industry Act 1991 which provides:-

"Where an escape of water, however caused, from a pipe vested in a water undertaker causes loss or damage, the undertaker shall be liable, except as otherwise provided in this section, for the loss or damage" .

17. It is common ground that this section has no direct application to the pipe with which we are concerned. Nor is it argued that the existence of this section gives a clear indication of what public policy should be in relation to service pipes not vested in a water undertaker. So we must look to the case law. Each such case is inevitably decided on its own facts. In some those facts have been held to justify the imposition of absolute liability; in others it was regarded as inappropriate to impose such a liability. The judgments are expressed at a certain degree of abstraction and, while the verbal formulation of the relevant principles has varied, it is clear that, in general, strict liability has been held to attach only to out of the way or unusual actions by a landowner in accumulating water onto his land.
18. In dismissing the appeal in Rylands v Fletcher Lord Cairns L.C. said this at p.338:

"... the principles on which this case must be determined appear to me to be extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so, by leaving, or by interposing, some barrier between his close and the close of the defendants in order to have prevented that operation of the laws of nature.... On the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below the ground in quantities and in a manner not the result of any work or operation on or under the land, and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequences of that, in my opinion, the defendants would be liable.

……

The same result is arrived at on the principles referred to by Mr. Justice Blackburn in his judgment, in the Court Exchequer Chamber, where he states the opinion of that Court as to the law in these words: "We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.... it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued , and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequence. …"

19. In Western Engraving Company v Film Laboratories Ltd. [ 1936] 1 AER 106 this Court was concerned with a claim by plaintiff engravers occupying factory premises on first floor of a building in Wardour Street London against the defendants who occupied factory premises immediately above them which they used for the washing of cinematograph film. This work needed the use of large quantities of circulating water in a closed apparatus, a boiler and a number of containers including carboys. On several occasions water escaped from the defendants' premises and damaged property in the plaintiffs' premises. The County Court Judge had decided the case against the defendants but it was not clear on what basis. This Court said that he could have decided it either on the basis of negligence or on the basis of Rylands v Fletcher. Slesser L.J., without calling on the respondents or reserving judgment said at page 108:

"I do not think ... that this is a case where it can be said that the conducting and user of the water on the defendants' premises was really for the general benefit of the defendants and of the plaintiffs, and was a normal user for the purposes for which the land was occupied by both of them. Rather do I think that this is a case where the defendants have used water in a particular and peculiar way for their own purposes, and for their own purposes have allowed it to be in this film circulating bath, and have filled carboys with water; and it has been allowed to be there in order that they can carry on their industry, which necessitates the use of water. In other words, I am of the opinion that this is a case which falls within the general principle of Fletcher v Rylands and not within the exceptions to that principle."

20. Scott L.J. said at page 109:

"where for manufacturing purposes water is brought on to various parts of the floor for the purpose of the manufacturing occupier of that floor and not for any common purpose with any other occupier of the building, you must presume that the principle in Fletcher v Rylands applies. I do not think that is an ordinary user of the house such as is the case when water is present for the common domestic use of different tenements".

21. In Collingwood v Home & Colonial Stores Ltd. [1936] 3 All E.R. 200 this court had to consider an appeal at the instance of the plaintiff whose premises had been damaged by water which had been used to extinguish a fire which had originated in his neighbour's grocery store by reason of some unknown defect in the electrical wiring which had arisen without negligence on the part of the neighbour. Lord Wright, M.R. said of the principle in Rylands v Fletcher "that the principle does not apply to what may be described as the reasonable or ordinary use of premises". He referred to "electric wiring which everybody, or most people, nowadays have in the houses which they occupy whether for domestic use, or for the purposes of trade as the defendants did" and continued :-

"There is nothing in the installation of such wiring which, to my mind, brings this case within the principle of Rylands v Fletcher. It is perfectly true that electricity, like gas and water, may be regarded from one point of view as a dangerous thing, and the principle of Rylands v Fletcher has been applied to persons who carry, in their property or in their mains, gas, water or electricity. [He gave some examples] but in all these cases there was nothing comparable to the ordinary domestic installation of electric wiring for the ordinary comfort and convenience of life. In all these cases these dangerous things were being handled in bulk and in large quantities; they were being carried in mains, and, ...... "the gas" - or the other substances - "constitutes an extraordinary danger created by the appellants for their own purposes", and it followed that they acted at their own peril. There was a carriage or an accumulation of the dangerous thing. These cases undoubtedly come within the principle of Rylands v Fletcher, but they seem to me to be very different in principle and in result from the case of the ordinary domestic pipes or gas for water or for wiring electricity...."

22. A post-war case is Dunne v North Western Gas Board [1964] 2 Q.B. 806. There gas under pressure had escaped owing to a crack in the gas main (which crack had occurred and remained unperceived without negligence), had travelled along sewers and eventually exploded causing damage. The defendants were sued, inter alia, on the basis of the rule in Rylands v Fletcher. The judgment was delivered by Sellers L.J. who said at page 832:

" Gas, water and also electricity services are well-nigh a necessity of modern life, or at least are generally demanded as a requirement for the common good, and one or more are being taken with considerable dispatch to every village and hamlet in the country with either statutory compulsion or sanction. It would seem odd that facilities so much sought after by the community and approved by their legislators should be actionable at common law because they have been brought to the places where they are required and have escaped without negligence by an unforeseen sequence of mishaps. A sequence of events may be just as unforseeable and unavoidable, and as extraneous to an individual or a supplier of services, as an act of God is recognised to be."

23. The law in relation to the escape of liquids has most recently been summarised in Cambridge Water Co. v Eastern Counties Leather plc [1994] 2 AC 264 where Lord Goff of Chieveley, delivering a speech with which the other members of the Committee concurred said this at page 299ff:

".... although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible for the creation of a nuisance, even so that liability has been kept under control by the principle of reasonable user - the principle of give and take as between neighbouring occupiers of land, under which "those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action" see Bamford v Turnley (1862) 3 B.S. 62, 83 per Bramwell B.. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour's enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it. Strikingly, a comparable principle has developed which limits liability under the rule in Rylands v Fletcher. This is the principle of natural use of the land. ...

It can be argued that the rule in Rylands v Fletcher should not be regarded simply as an extension of the law of nuisance, but should rather be treated as a developing principle of strict liability from which can be derived a general rule of strict liability for damage caused by ultra-hazardous operations, on the basis of which persons conducting such operations may properly be held strictly liable for the extraordinary risk to others involved in such operations.... I have to say, however, that there are serious obstacles in the way of the development of the rule in Rylands v Fletcher in this way. First of all, if it was so to develop, it should logically apply to liability to all persons suffering injury by reason of the ultra-hazardous operations; but the decision of this House in Read v J. Lyons & Co. Ltd. .... which establishes that there can be no liability under the rule except in circumstances where the injury has been caused by an escape from land under the control of the defendant, has effectively precluded any such development.

…

I incline to the opinion that, as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the Courts. If such liability is imposed by statute, the relevant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidence and scope of such liability.

.......... given that so much well-informed and carefully structured legislation is now being put in place for this purpose [sc. the protection and preservation of the environment] there is less need for the Courts to develop a common law principle to achieve the same end, and indeed it may well be undesirable that they should do so. Having regard to these considerations, and in particular to the step which this House has already taken in Read v J. Lyons & Co. Ltd. to contain the scope of liability under the rule in Rylands and Fletcher, it appears to me to be appropriate now to take the view that foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule.

…"

24. Referring to the exception to strict liability constituted by the natural use of land, he said at page 307:

"It is commonplace that this particular exception to liability under the rule has developed and changed over the years. It seems clear that, in Fletcher v Rylands itself, Blackburn J's statement of the law was limited to things which are brought by the defendant onto his land, and so did not apply to things that were naturally upon the land. Furthermore, it is doubtful whether in the House of Lords in the same case Lord Cairns, to whom we owe the expression "non-natural use" of the land, was intending to expand the concept of natural use beyond that envisaged by Blackburn J. Even so, the law has long since departed from any such simple idea, redolent of a different age; and, at least since the advice of the Privy Council delivered by Lord Moulton in Rickards v Lothian, natural use has been extended to embrace the ordinary use of land. I ask to be forgiven if I again quote Lord Moulton's statement of the law, which has lain at the heart of the subsequent development of this exception:

"It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community".

Rickards v Lothian itself was concerned with a use of a domestic kind, viz. the overflow of water from a basin whose runaway had become blocked. But over the years the concept of natural use, in the sense of ordinary use, has been extended to embrace a wide variety of uses, including not only domestic uses but also recreational uses and even some industrial uses.

It is obvious that the expression "ordinary use of the land" in Lord Moulton's statement of the law is one which is lacking in precision. There are some writers who welcome the flexibility which has thus been introduced into this branch of the law, on the ground that it enables judges to mould and adapt the principle of strict liability to the changing needs of society; whereas others regret the perceived absence of principle in so vague a concept, and fear that the whole idea of strict liability may as a result be undermined. A particular doubt is introduced by Lord Moulton's alternative criterion - "or such a use as is proper for the general benefit of the community". If these words are understood to refer to a local community, they can be given some content as intended to refer to such matters as, for example, the provision of services; indeed the same idea can, without too much difficulty, be extended to, for example, the provision of services to industrial premises, as in a business park or an industrial estate. But if the words are extended to embrace the wider interests of the local community or the general benefit of the community at large, it is difficult to see how the exception can be kept within reasonable bounds. A notable extension was considered in your Lordships' House in Read v J. Lyons & Co. Ltd. [1947] AC 156, 169 - 170, per Viscount Simon, and p. 174, per Lord Macmillan, where it was suggested that, in time of war, the manufacture of explosives might be held to constitute a natural use of land, apparently on the basis that, in a country in which the greater part of the population was involved in the war effort, many otherwise exceptional uses might become "ordinary" for the duration of the war. It is however unnecessary to consider so wide an extension as that in a case such as the present. Even so, we can see the introduction of another extension in the present case, when the judge invoked the creation of employment as clearly for the benefit of the local community, viz. "the industrial village" at Sawston. I myself, however, do not feel able to accept that the creation of employment as such, even in a small industrial complex, is sufficient of itself to establish a particular use as constituting a natural or ordinary use of land".

The Judge's reasoning on Rylands v Fletcher

25. The Judge relied on what had been said by Lord Wright, M.R. in Collingwood v Home & Colonial Stores Ltd in the passages which we have quoted. He purported to adopt those principles and held that the water being handled by the council in the pipe was being handled in bulk and large quantities. He said:

"If there had been 66 pipes of ordinary domestic size (1 serving each flat at Hollow End Towers) and only one of them had broken that could be said to be an ordinary use of land. Instead we have 1 very large pipe. The Council were carrying on a service or business or Hollow End Towers, namely the letting of residential accommodation. … the placing of a 3" diameter service pipe leading to Hollow End Towers under the land is not an ordinary use of land - it is a non-natural use. It is certainly not for the general benefit of the Council and the plaintiffs. It seems to me that by choosing to supply Hollow End Towers with water in the way in which they did the Council had created an extra-ordinary danger for their own purposes. They thus acted in this way at their peril. The exception of ordinary domestic use is of no assistance to the council."

Submissions on Rylands v Fletcher

26. On behalf of Stockport Mark Turner Q.C. submitted that the rule in Rylands v Fletcher originated in a reservoir case and should be confined to extreme cases. Storage of water in service pipes in circumstances such as the present takes place up and down the country in properties both privately and publicly owned, both those used for domestic and those used for industrial purposes. User in cases such as the present where there is a service pipe for a normal building inside which were being carried on normal activities should not attract strict liability and should be regarded as a natural user. Alternatively, such user , or perhaps more narrowly the provision of municipal housing, should be regarded as being carried on for the benefit of the community and, for that reason, should not attract absolute liability. He relied on the judgment of this court in Dunne from which we have cited.
27. He submitted that the judge below had fallen into error by unconsciously concentrating throughout his judgment on what he termed "ordinary domestic user". He pointed out that the cases do not indicate that the phrase "non-natural user" embraces all commercial activities. Indeed Collingwood itself was a case where the successful defendants' premises were a grocery store.
28. He submitted that it was irrelevant whether or not the parties to the litigation had both themselves received some benefit from the system and the container in which the water was collected.
29. On behalf of the respondents, counsel submitted that the judge was right for the reasons which he had given. It was submitted that the judge had found that the damage was foreseeable and that in those circumstances there should be strict liability. It was submitted that whether a particular use could be described as a non-natural use was a question of fact and that this court should not interfere with the judgment below unless it was perverse.
30. It was submitted in the alternative that Stockport should be held liable by reason of artificially accumulating in the valley the water which had escaped from the crack in the service pipe.

Our conclusions on Rylands v Fletcher

31. A number of points arise from the long line of decisions of those which we have cited are examples.
32. The mere fact that the accumulation of water can foreseeably give rise to damage if the water escapes does not fix the accumulator with strict liability in the event of an escape.
33. Nor does the mere fact that the escape is not from a dwelling.
34. Strict liability does not arise where the defendant is 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, and Cambridge Water), 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).
35. The supply of water to flats in a tower block through a pipe below the basement of the tower seems to us, in current conditions, to fall 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 a tower block of a type of which there must be hundreds if not thousands of examples round the country. Nor was this suggested to us. Whether the law imposes strict liability on the supplier of services in that context is a question of law and not a question to which the trial judge is better placed to give an answer than this court.
36. We reject the submission that Stockport should be held liable for artificially accumulating water in the valley once it had escaped from the pipe. The whole basis of strict liability is the deliberate accumulation of water in the place from which it escaped. There was no deliberate accumulation of water in the valley which had been infilled. Such an accumulation was never intended. On the assumption that we are right in holding that the accumulation of water in the service pipe cannot found liability under Rylands v Fletcher it must follow that the fact that the water thereafter accumulated in the filled valley cannot found such liability.

Negligence

37. The Judge found at page 145 that

"When the water started to pour out of the "spring" in considerable quantities on Saturday 26 September 1992 and was observed by the Council's agent, the park ranger, nothing was done except to report it to North West Water. When the crack was observed next day nothing was done either. If the water had at either of those times been diverted into manhole C it would have been taken away to safety and there would in all probability have been no landslip".

38. As Mr Sterling accepts, B.G. had at no time pleaded a case on these lines or asked the Judge to find Stockport liable on this basis. The Judge, we understand, suggested during closing submissions that the case might be put that way. However it was pointed out on behalf of Stockport that the evidence had neither been led nor cross-examined on this basis and an objection was made that this basis of liability should be raised at such a late stage in the trial. The point was not then further pursued. Apparently between January, when final submissions were made, and May, when Judgment was delivered, the Judge forgot the objections to this line of argument forming a basis of the judgment. Before us Mr Sterling did not seek to rely on any finding of negligence.
39. Mr Foster, while he had a separate submission in relation to negligence to which we shall shortly come, did not submit that the judge was entitled, in the circumstances of the way the present case had been pleaded and presented on behalf of the Golf Club, to find negligence arising out of a failure by Stockport to act during the two days preceding the collapse.
40. Mr Turner made detailed and plausible criticisms of this particular finding by the Judge. However, in the light of the positions adopted by Mr Sterling and Mr Foster there is no need for us to say more than that we agree that this finding of negligence was not open to the Learned Judge.
41. We turn therefore to the alternative way in which Mr Foster submits that there is a case in negligence. This is raised in the Golf Club's respondent's notice.

Negligence by filling

42. Mr. Foster submitted that it was the duty of a person who interferes with a natural stream to establish that the drainage which replaces it is at least as adequate as that which nature provided: Greenock Corporation v Caledonian Railway [1917] AC 556 at 569 - 70. He submitted that it might be that properly understood this principle went to causation but that this principle was also relevant in relation to the onus to proof in relation to negligence in the sense that a person who interfered with a natural stream was on the face of it liable but could escape liability if he could show that he had taken reasonable care. He submitted that that there being no evidence advanced by Stockport that the "system" of drainage within the land filling was as adequate or sufficient as that which nature had provided, it ought properly to have been held to be negligent.
43. There is no indication that the filling in of the ravine has caused any problems over the last few decades. What drainage remained was as adequate as that which nature had provided to deal with natural precipitations. As the Judge indicated on 28 July when he was quizzed about his judgment there was no evidence of negligence. While we accept that it was foreseeable that, if there was an escape without negligence from a service pipe such as happened in the present case then there might well be damage to the neighbours, we do not accept that the filling in of the ravine was negligent. If there was any liability it could only be on the basis of strict liability. For the reason which we have already given there is no strict liability for the consequences of an escape from a service pipe in circumstances such as the present.

Nuisance

44. The judge, having found Stockport liable to each of the claimants on the basis of Rylands v Fletcher, nevertheless went on to consider a number of other ways in which the claimants presented their cases. He found that Stockport was liable in nuisance as well as under the doctrine in Rylands v Fletcher. In the absence of fault, or liability under Rylands -v- Fletcher, Stockport could only be liable if it created, adopted or continued the nuisance as a result of unreasonable use of its land. We can see no way in which Stockport could be held liable on this basis. The nuisance was the escape of water. That was neither created, adopted nor continued by Stockport. Nor, by a parity of reasoning with our conclusions in relation to Rylands -v- Fletcher liability was Stockport making any unreasonable use of its land. That being so, we do not consider that, liability to the Golf Club having been rejected under Rylands-v-Fletcher or negligence can in the circumstances of the present case, be founded upon some other basis under the general heading nuisance.

Withdrawal of support

45. The Judge found, and no one challenges this, that BG had an easement of support for its gas mains. He however held that the obligation of the Council was limited to refraining from performing any positive act which would reduce support for the gas main and held that the had not done any such positive act - Judgment page 145. The judge rightly held that Stockport was under no duty to provide support, as opposed to a duty not actively to interfere with support. This was accepted by Mr Sterling. As we understood him, he accepted that if BG lost the argument under the headings of negligence and Rylands v Fletcher then they would be unable to show that there had been a positive act of interference by Stockport with BG's right to support of their mains.
46. Mr Sterling accepted that BG's gas mains were not damaged. He advanced no argument and did not point to any evidence suggesting that the mains must inevitably suffer stress if left unsupported. However he relied on the Judge's unchallenged finding that after the collapse there was a risk of a major explosion. He rightly submitted that it was clearly sensible for someone to eliminate that risk and that the most obvious person to do so was BG.
47. The Judge however held Stockport liable to BG on a different basis. He referred to Goldman v Hargrave [1967] IA.C.645 P.C., and Leakey v National Trust [1980] 1 Q.B.485 C.A.. He held that the owner of land owed his neighbour a general duty to take reasonable care to prevent damage to his neighbour's land which threatens his neighbour and of which he has knowledge or ought reasonably to have head knowledge. He stated at page 139:

"It must follow from that there must be a breach of that duty the moment that the landowner fails to take reasonable care. The only necessary damage will be the continuing jeopardy, which will inevitably adversely affect the value of his neighbour's land".

48. Mr Sterling at one point suggested that liability arose merely upon water under pressure being collected by Stockport in its service pipe. That does not seem to us to be a separate submission from those which we have already considered and rejected.
49. However he had an alternative submission under this head which was based on the proposition, which Mr Turner accepted, that where there is an escape from A's land of material foreseeably likely to cause physical damage to his neighbour B (but A did not deliberately cause that escape and there is no liability under Rylands v Fletcher or in negligence) A may owe a measured duty to B to abate the consequences of that escape - see Holbeck Hall Hotel Ltd. v Scarborough Borough Council [2000] 2 WLR 1396 and Bybrook Barn Centre Ltd v Kent County Council (Peter Gibson, Waller and Jonathan Parker LJJ, 1.12.2000 A/2000/6372 unreported).
50. Mr Sterling submitted that this measured duty arose once the water had started to cause the support to the gas mains to crumble. Once the duty had arisen it should have been performed by Stockport providing alternative means of support to the mains. He submitted that BG could at that stage have successfully brought an action for a mandatory injunction.
51. Mr Turner relied on a line of authorities which established that no action could be brought in respect of a withdrawal of support until physical damage had occurred : Darley Main Colliery v Mitchell, (1886) 11 App. Cas.127, Midland Bank plc v Bardgrove Property Services Ltd (1992) 60 BLR 5 C.A.. and Gale on Easements (16th Edition). He reminded us of the limitation problems which would arise if the right of action were to accrue before the infliction of physical damage. He submitted that the Judge's finding that financial damage would suffice was not supported by authority.
52. We accept that there is nothing inherently illogical in holding that the law requires a rejection of a case based on Rylands v Fletcher and negligence but requires an acceptance of the concept of a measured duty of care. This is clearly a lower potential level of liability to impose upon a landowner than that which would apply in the event of liability under either of the other two heads.
53. However, even if in circumstances such as the present a measured duty of care did arise, the considerations which lead us to say that it would not be right to impose liability in negligence upon Stockport also lead us to hold that there is no liability for any breach of any measured duty of care. No case has yet held that it would be right to impose any such duty before the defendant is put on notice of what he is required to do. The present case was not pleaded or argued on the basis that the events of the weekend preceding the collapse should have caused Stockport to provide the replacement support before BG did. Nor was it suggested that Stockport had ever been asked to do this or had undertaken to pay for BG doing this work.
54. In those circumstance it would not be right to hold that a cause of action had arisen. The absence of a cause of action would not in itself prevent a claimant from obtaining a mandatory quia timet injunction. However, in order to do so he would have to give a cross-undertaking in damages. At the end of the day precisely the same question would require resolution as we have had to resolve.
55. We therefore allow these appeals.
ORDER: Appeal allowed, costs below and in the Court of Appeal to Defendant. Repayment of £142,357.69 in 14 days. (Order does not form part of approved Judgment)