England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
(TECHNOLOGY AND CONSTRUCTION COURT)
His Honour Judge Behrens
[2013] EWHC 1940 (TCC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 May 2014

Lord Justice Moore-Bick :

1. This is an appeal against the order of His Honour Judge Behrens, sitting as a Deputy Judge of the High Court, dismissing the appellant's claim against the respondent for loss and damage caused by an escape of concrete from a building site into one of its public sewers.
2. The appellant, Northumbrian Water Ltd, is a statutory sewerage undertaker which provides sewerage services in the area of Newcastle-upon-Tyne. One of its sewers runs under Newgate Street, close to the city centre. The respondent, Sir Robert McAlpine Ltd, is a construction company which at the time in question was carrying out redevelopment works on a site adjacent to Newgate Street. The redevelopment of the site required the sinking of a large number of concrete piles to support a new building. Shafts were drilled using an earth auger and filled with concrete to create piles. The site had been redeveloped on a number of previous occasions, most recently in the 1970s when a significant amount of excavation was carried out, and before work started ground conditions were extensively investigated. The nature and extent of the investigations led the respondent to believe that there were no unidentified obstructions below ground level that were likely to be affected by, or interfere with, the works, but unfortunately that was not the case. At some earlier date a private sewer which connected to the public sewer running under Newgate Street had been laid under part of the site at a depth of over 3 metres below ground level. It was not shown on the appellant's current plans of the sewer system, but it did appear on a plan dating from 1908 held in the Newcastle Discovery Museum which was later found by one of the respondent's employees following up a private enquiry. At least part of the drain had survived the previous redevelopments and was still connected to the public sewer.
3. In the course of drilling the shaft to form pile No. 215 an open connection was created with the surviving drain. Whether the auger broke into the drain or simply passed close to an existing fracture to enable the connection to be made is unknown and does not matter for present purposes. When concrete was poured to form the pile it was able to escape from the shaft into the drain and thence into the appellant's sewer, where it set and caused a partial blockage. The appellant brought these proceedings to recover the substantial expense it had incurred in removing the obstruction.
4. The appellant sought to recover its loss in nuisance and negligence. It alleged that the respondent had failed to take reasonable care to identify the existence of underground services formerly present at the site and had failed to take adequate precautions to ensure the safety of the public sewer. At the trial one of the principal issues was whether the concrete found in the sewer had come from the respondent's works, but the judge found that it had and there is no appeal from that finding.
5. The judge dismissed the claim in negligence. He was not persuaded that the respondent should have searched the archives in the Discovery Museum (which contained the only plan showing that a previously unknown drain had once been laid beneath the site, all or part of which might therefore still be present), or that it should have carried out additional investigations of any kind. Nor was he persuaded that the respondent or its sub-contractor had been negligent in carrying out the piling work. The judge also dismissed the claim in nuisance. Having considered the decisions in Cambridge Water Co. v Eastern Counties Leather Plc [1994] 2 AC 264 and Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, [2004] 2 AC 1, he considered that the events constituted an isolated escape of materials from the site for which liability could arise only under the rule in Rylands v Fletcher (1866) L.R. 1 Ex. 265, (1868) LR 3 HL 330, on which the appellant placed no reliance. For good measure he held that the damage caused to the sewer by the escape of concrete was in any event not foreseeable in the sense used in Overseas Tankships (UK) Ltd v Miller Steamship Co. Pty (The 'Wagon Mound' (No. 2)) [1967] 1 A.C. 617.

The claim in negligence

6. Although Mr. Singer put the claim in nuisance at the forefront of his argument, it is convenient to consider the claim in negligence first.
7. It was not in dispute that the respondent owed the appellant a duty to take reasonable care to avoid causing damage to its property in the vicinity of the works, including the sewer. The critical question was whether it had done so. Although in its particulars of claim the appellant made several allegations, they all came down to the same complaint, namely, that the respondent had failed to take proper measures to investigate the site and to identify the existence of the disused drain. Foremost among its criticisms was the failure of the respondent to search the archives in the Discovery Museum and to discover the existence of the 1908 plan on which the drain was shown, although the appellant also alleged that the piling work had not been carried out with reasonable skill and care. In the event the latter complaint was not pursued at trial and the case depended entirely on the adequacy of the measures taken by the respondent to investigate the site before starting work.
8. The judge was not satisfied that the respondent had failed to exercise reasonable skill and care in that respect. In particular, he was not persuaded that it should have searched the archives in which the 1908 plan was later found or that it should have carried out any investigations in addition to those which it had undertaken. The site had been extensively redeveloped in the 1970s, which made it unlikely in the respondent's eyes that any earlier drains had survived. The judge had heard evidence from the respondent's employees responsible for investigating the ground conditions and noted that no expert evidence had been called to support the appellant's case that the respondent had failed to exercise reasonable skill and care in that regard.
9. In my view the judge was right to dismiss the claim in negligence. Although the respondent's witnesses accepted that there was a recognised risk, when pouring concrete into a shaft of this kind to create a pile, that some might escape into voids in the sub-soil, there was no reason in this case to think that it might migrate beyond the borders of the site, much less into a sewer under the adjoining road. The 1908 plan was discovered only after a search lasting several hours of the museum archives by one of the respondent's employees, a search which was itself instigated only by an unforeseen problem which had by then occurred involving an apparently unconnected sewer. In its particulars of claim the appellant had advanced no other criticism of the respondent's site investigations and consistently with that had not sought to call expert evidence in support of its case that it had fallen short of the standard to be expected of a reasonably competent contractor. In my view the judge was entitled on the evidence before him to reject the contention that a reasonably competent and careful contractor would have searched local museum archives for several hours to ascertain whether a drain had existed on the site a hundred years earlier and might have survived the previous redevelopment even though it had not been detected by normal investigation measures.

The claim in nuisance

10. Mr. Singer for the appellant submitted that the judge was wrong to regard the escape of concrete in this case as an isolated event, because it occurred during, and as part of, continuing construction operations. He submitted that in those circumstances the claim in nuisance should succeed regardless of negligence on the respondent's part, because nothing more than physical damage to the appellant's sewer was required to render the respondent liable. In support of that submission he relied on the decisions in Clift v The Welsh Office [1998] 4 All ER 852 and Hoare & Co. v McAlpine [1923] 1 Ch. 167. However, in so far as it was necessary to establish fault, he relied on the fact that the respondent's own witnesses had accepted that there is a risk when carrying out piling operations of this kind that concrete may escape into voids in the ground adjacent to the shaft.
11. Mr. Mitchell for the respondent submitted that liability arises in nuisance only if the defendant is at fault in the sense that his conduct has been unreasonable. He argued that redeveloping a site in a built-up area of a city using the methods adopted in this case did not involve an unreasonable use of the land, at any rate in the absence of any reason to suppose that it would interfere with the use and enjoyment of their land by neighbouring owners. In his submission the escape of concrete into the appellant's sewer was an isolated and unforeseen event for which the respondent was not to be held liable. Insofar as Clift v The Welsh Office held otherwise, it must be regarded as having been overruled by Transco v Stockport. Hoare v McAlpine was a different type of case altogether because it concerned damage due to vibration emitted over a period of time by protracted pile-driving operations.
12. The tort of nuisance involves an interference by one occupier of land with the use or enjoyment of the land, or of rights or interests in land, of another and where a claim is made in damages, damage is an essential ingredient of the cause of action. As Mr. Singer pointed out, the two leading modern cases in this area of the law to which extensive reference was made in the course of argument, Cambridge Water and Transco v Stockport, were cases concerning the rule in Rylands v Fletcher (1868) LR 3 HL 330. Nonetheless, the speeches in both cases contain important observations of the highest authority on the law of nuisance generally and it is therefore necessary to refer them at some length.
13. Cambridge Water concerned an action by the owners of a borehole used to extract drinking water against manufacturers of leather who used a chlorinated solvent for the purpose of degreasing pelts. Solvent seeped into the ground beneath the defendants' premises and was conveyed by percolating water into the plaintiffs' borehole rendering the water unfit for human consumption. The plaintiffs brought an action against the defendants claiming damages on the basis of negligence, nuisance and the rule in Rylands v Fletcher. The claims in negligence and nuisance were dismissed by the trial judge on the grounds that the defendants could not reasonably have foreseen that such damage might occur. The judge also dismissed the claim based on the rule in Rylands v Fletcher on the grounds that the use of the solvent constituted a natural use of the defendants' land. The plaintiffs appealed only against the dismissal of their claim based on the rule in Rylands v Fletcher, so the House was not directly concerned with the claim in nuisance. Nonetheless, the principles governing liability in nuisance were relevant, because the defendants contended that foreseeability of harm was an essential ingredient of the cause of action in nuisance and thus of a claim based on the rule in Rylands v Fletcher.
14. Underpinning their Lordships' decision was the finding that the defendants could not reasonably have foreseen that spillages of solvent in small quantities of the kind that had occurred would cause damage of the kind suffered by the plaintiffs. Lord Goff (with whom the other members of the House agreed) described the position as follows at page 292B-D:

" . . . a reasonable supervisor at E.C.L. would not have foreseen, in or before 1976, that such repeated spillages of small quantities of solvent would lead to any environmental hazard or damage - i.e., that the solvent would enter the aquifer or that, having done so, detectable quantities would be found down-catchment. Even if he had foreseen that solvent might enter the aquifer, he would not have foreseen that such quantities would produce any sensible effect upon water taken down-catchment, or would otherwise be material or deserve the description of pollution. I understand the position to have been that any spillage would have been expected to evaporate rapidly in the air, and would not have been expected to seep through the floor of the building into the soil below. The only harm that could have been foreseen from a spillage was that somebody might have been overcome by fumes from a spillage of a significant quantity."

15. The defendants' submission that liability under the rule in Rylands v Fletcher depended on foreseeability of damage if an escape of the relevant substance were to occur made it necessary in Lord Goff's view to consider whether foreseeability of damage was an essential element in the law of nuisance: see page 297E-G. He noted at an early stage in his analysis that although liability for nuisance has generally been regarded as strict, it has been kept under control by the principle of reasonable user. Thus, he said at page 299D-F:

"Of course, 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."

16. Lord Goff then turned to consider whether foreseeability of harm of the relevant type is an essential element of liability in nuisance. Having noted that the case was concerned with liability for the creation of a nuisance, he said at page 300E-G:

"Here, as I have said, it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the past 60 years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence. For if a plaintiff is in ordinary circumstances only able to claim damages in respect of personal injuries where he can prove such foreseeability on the part of the defendant, it is difficult to see why, in common justice, he should be in a stronger position to claim damages for interference with the enjoyment of his land where the defendant was unable to foresee such damage."

a conclusion which he considered was supported by the decision in The 'Wagon Mound' (No. 2). The historical relationship between the law of nuisance and the rule in Rylands v Fletcher led Lord Goff to conclude that foreseeability of damage is a prerequisite to the recovery of damages under that rule and that the rule in Rylands v Fletcher is to be understood as extending the law of nuisance to cases of isolated escape.

17. In Transco v Stockport the claimant's gas main was left unsupported and exposed to a serious risk of fracture when water leaking from a broken pipe installed by the defendant to serve a block of flats washed away the soil below it. The accident occurred without any negligence on the part of the defendant. The claimant sought to recover from the defendant the cost of the remedial work under the rule in Rylands v Fletcher. One of the principal questions for their Lordships was whether the rule should continue to form part of English law or whether situations of the kind to which it is directed should be governed by the general law of negligence and nuisance. However, in the course of his speech Lord Hoffmann made some observations about the law of nuisance which bear on the present case. Thus, in paragraphs 26 and 27 he said:

"26. But a conclusion that an occupier of land has no right to discharge water or filth (Tenant v Goldwin (1704) 2 Ld Raym 1089 ) or chemicals ( St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642) upon his neighbour's land is not inconsistent with a rule that he will be liable in damages only for damage caused by a discharge which was intended or foreseeable. Indeed, that is the general rule of liability for nuisance today: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617. Liability in nuisance is strict in the sense that one has no right to carry on an activity which unreasonably interferes with a neighbour's use of land merely because one is doing it with all reasonable care. If it cannot be done without causing an unreasonable interference, it cannot be done at all. But liability to pay damages is limited to damage which was reasonably foreseeable.

27. Rylands v Fletcher was therefore an innovation in being the first clear imposition of liability for damage caused by an escape which was not alleged to be either intended or reasonably foreseeable. . . . It is the single escape which raises the question of whether or not it was reasonably foreseeable and, if not, whether the defendant should nevertheless be liable. Rylands v Fletcher decided that he should."

18. Three important principles can be derived from the speeches of Lord Goff in Cambridge Water and Lord Hoffmann in Transco v Stockport. The first is that although liability in nuisance has traditionally been regarded as strict, in the sense that it does not depend on proof of negligence, if the defendant's user of his land is reasonable, he will not be liable for interference with his neighbour's enjoyment of his land. The second is that, unless the case can be brought within the scope of the rule in Rylands v Fletcher, the defendant is not liable for damage caused by an isolated escape, i.e., one that is not intended or reasonably foreseeable. The third is that foreseeability of harm of the type suffered by the plaintiff is necessary for the defendant to be liable in damages for nuisance.
19. In the present case the use to which the land occupied by the respondent was being put was the construction of a new building. Such redevelopment of land in an urban setting cannot in my view be regarded as other than normal and reasonable, unless it involves the use of unusual methods of working. However, there was no evidence to suggest that constructing concrete piles by the method adopted in this case was unusual or liable to create problems for neighbouring landowners. The respondent, or at any rate those for whose actions it was responsible, were aware that concrete can leak out of shafts drilled to create piles into surrounding voids in the sub-soil, but there is no reason to think that the respondent should for that reason have foreseen the possibility that concrete might escape the confines of the site and find its way onto neighbouring land. Indeed, had it not been for the disused drain, there is no reason to think that it would have done so. In my view, for the reasons I have given I think the judge was right to hold that the respondent was not negligent in failing to discover the existence of the drain and it follows from his findings that the escape of concrete into the appellant's sewer was not reasonably foreseeable. The facts therefore point to the conclusion that the respondent is not liable to the appellant in nuisance.
20. However, Mr. Singer submitted on the basis of Clift v The Welsh Office that in cases where an escape of some material from the defendant's land has caused physical harm to the claimant's land the defendant is liable in damages regardless of the foreseeability of the escape or the nature of the harm caused. In that case the owners of property claimed compensation under the section 10 of the Compulsory Purchase Act 1965 in respect of physical damage to their house in the form of the effects of dust and mud on external and internal decorations. They also claimed damages in respect of obstruction of the pedestrian access to the property and problems caused by third parties using a private road leading to their garage. All of these were caused by a major road improvement scheme in the vicinity. The claimants succeeded before the Lands Tribunal which awarded them damages of £400.
21. A number of earlier cases had established that in order to succeed in a claim for compensation under section 10 it is necessary for the claimant to show that the harm has arisen from something that would have given rise to a cause of action if done without the relevant statutory authority. The tribunal found that the respondent had taken all reasonable precautions to prevent the works having an adverse effect on the claimants' property, but that, in the absence of the relevant statutory powers, the effect of the noise, dust, mud and vibration produced by the works would have constituted a nuisance, even though the works did not constitute such an abnormal use of land due to their duration and intensity as to fall within the qualification recognised in Andreae v Selfridge & Co Ltd [1938] Ch. 1.
22. Andreae v Selfridge arose out of the redevelopment of an island site in London, part of which was occupied by the plaintiff who owned and ran a hotel. The defendant owned the rest of the site which it set about redeveloping, inevitably causing inconvenience in the form of noise and dust which had an adverse effect on the plaintiff's business. This court held that redeveloping the site using current methods was to be regarded as a normal use of the land and that, provided operations were carried on with reasonable skill and care so as to avoid as far as reasonably possible interfering with neighbours' use and enjoyment of their land, the noise and dust inevitably generated would not constitute a nuisance. The works in that case were not of an abnormal kind, but the plaintiff's claim succeeded because the defendant had failed to take all reasonable care to keep the disturbance to a minimum. The case is therefore authority for the principle that adjoining landowners must be taken impliedly to consent to a degree of inconvenience arising from the ordinary use of neighbouring properties – what Lord Hobhouse in paragraph 61 of Transco v Stockport described as the principle of reciprocity and mutual benefit. However, it was not a case involving physical damage to the plaintiff's property, which the Lands Tribunal in Clift thought provided a sufficient ground of distinction to allow an award of compensation to be made.
23. In Clift the first question of law stated for the opinion of the court was whether the tribunal was right to hold that the principle in Andreae v. Selfridge does not apply where the nuisance consists of or includes physical damage. The court held that it was. Sir Christopher Slade delivering the judgment of the court said at pages 805G-806C:

"But as Clerk & Lindsell's description of the tort of private nuisance shows, the category of private nuisance which consists of interference with one's neighbour in the comfortable and convenient enjoyment of his land is quite separate and distinct from the category which consists of causing actual damage to his land. . . . The effect of the rule in Andreae's case, so far as it extends, is to exempt an occupier from liability to his neighbour in respect of operations on his land which would otherwise constitute an actionable nuisance. As Sir Wilfrid Greene M.R. recognised, when one is dealing with temporary and normal operations, such as demolition and building, there are good reasons why, as a matter of policy, the law should expect neighbours to put up with a certain amount of discomfort and inconvenience, provided that precautions are taken to see that the nuisance is reduced to a minimum. However, we see no sufficient reason why as a matter of policy the law should expect the neighbour, however patient, to put up with actual physical damage to his property in such circumstances. Where there is physical damage, the loss should in our judgment fall on the doer of the works rather than his unfortunate neighbour. No authority has been cited to us in which it has been held that the rule in Andreae's case applies in respect of physical damage caused by a nuisance. In the absence of such authority, we hold that it does not . . . "

24. Andreae and Clift case are both examples of interference with the enjoyment of land over a significant period of time in circumstances in which it must have been apparent to the defendant that the works in question were interfering with the claimants' enjoyment of their property or causing physical damage to it, however much care was taken to avoid it. In that respect they differ from cases such as Cambridge Water and Transco v Stockport, each of which concerned an unforeseeable and undetected escape of a substance that caused damage to neighbouring property. In cases of the former kind the element of fault, to which Lord Reid referred in The 'Wagon Mound' (No. 2) at page 639F, is to be found in the foreseeability of the escape, whether that be of dust and noise, as in Andreae, or of dust and mud, as in Clift. In cases of the latter kind there is no fault in the absence of foreseeability of an escape and the defendant is not liable for damage to neighbouring land unless the case can be brought within the scope of the rule in Rylands v Fletcher. The cases are fundamentally different, as Lord Hoffmann pointed out in paragraph 27 of Transco v Stockport. I am unable to accept, therefore, Mr. Singer's submission that there is a general rule imposing strict liability in respect of nuisance causing physical damage to property, which in my view is inconsistent with the principles formulated by Lord Goff and Lord Hoffmann in the passages to which I have referred. Nor, in my view, can the appellant derive any assistance from the case of Hoare v McAlpine, in which the plaintiff's house was damaged by vibration caused by pile-driving. The judge considered that the case fell within the rule in Rylands v Fletcher and upheld the claim on that ground. In any event, that case did not involve an isolated (in the sense of unforeseeable) escape comparable to that which occurred in the present case.
25. In my view the judge was right, therefore, to hold that the claim in nuisance failed precisely because the escape of concrete from land occupied by the respondents and the consequent damage to the appellant's sewer were unforeseeable.
26. For these reasons I would dismiss the appeal.

Lord Justice McFarlane :

27. I agree.

Lord Justice Christopher Clarke :

28. I also agree.