QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Judge of the High Court)
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(1) Bryn Michael Chetwynd (2) Joanna Valerie Chetwynd |
Claimants |
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- and - |
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(1) Barry John Tunmore (2) Caroline Tunmore |
Defendants |
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Mr Wayne Clark and Mr Joe Ollech (instructed by Mills & Reeve LLP) for the Defendants
Hearing dates: 2-4, 7-11, 14-15 December 2015
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Crown Copyright ©
His Honour Judge Reddihough :
"(1) Subject to sub-section (7) below and to section 79 (including that section as applied by section 79A(9)) below, a person who abstracts water from any inland waters or underground strata (an "abstractor") shall not by that abstraction cause loss or damage to another person.
(2) A person who suffers such loss or damage (a "relevant person") may bring a claim against the abstractor.
(3) Such a claim shall be treated as one in tort for breach of statutory duty.
(4) In proceedings in respect of a claim under this section, the court may not grant an injunction against the abstractor if that would risk interrupting the supply of water to the public or would put public health or safety at risk.
(5) Except as provided in this section, no claim may be made in civil proceedings by a person (whether or not a relevant person) against an abstractor in respect of loss or damage caused by his abstraction of water.
(6) Nothing in this section prevents or affects a claim for negligence or breach of contract.
(7) This section does not apply, and no claim may be brought under this section, where the loss or damage is caused by an abstractor acting in pursuance of a licence under this Chapter and is loss or damage - (a) in respect of which a person is entitled to bring a claim under section 60 below (or would be so entitled if there were a breach of the duty referred to in that section); (b) in respect of which a person would have been entitled to bring a claim under section 60 below but for an express provision (including, for example, section 39(1A) above and section 59(C)(6) below) disapplying that duty; or (c) constituting grounds on which a person is entitled to apply to the Secretary of State under section 55 below (or would be so entitled but for sub-section (2) of that section) for the revocation or variation of that licence, but without prejudice to the application of section 48 above."
"Non-compliance with a statutory duty cannot be actionable unless the injury was of the type which the statute was passed to prevent. If a statute requires something to be done with a view to avoiding one particular type of damage, then, if non-compliance with the statute results in another form of damage, no action will lie, on the basis that the damage which occurred was not within the statute. Each case turns upon the interpretation of the statute, and this factor makes it difficult to formulate any more precise principle. The harm may not be within the ambit of the statute either: (a) because the claimant does not come within the particular category of persons contemplated; or (b) because the type of damage was not that which the statute was intended to guard against."
"The first step in establishing causation is to eliminate irrelevant causes, and this is the purpose of the "but for" test. The courts are concerned, not to identify all of the possible causes of a particular incident, but with the effective cause of the resulting damage in order to assign responsibility for that damage. The "but for" test asks: would the damage of which the claimant complains have occurred "but for" the negligence (or other wrongdoing) of the defendant? Or to put it more accurately, can the claimant adduce evidence to show that it is more likely than not, more than 50 per cent probable, that "but for" the defendant's wrongdoing the relevant damage would not have occurred. In other words, if the damage would have occurred in any event the defendant's conduct is not a "but for" cause … It is worth bearing in mind that the "but for" test functions as an exclusionary test, i.e. its purpose is to exclude from consideration irrelevant causes. The fact that the defendant's conduct is found to be a cause applying the "but for" test, is not conclusive as to whether he should be held responsible in law since the function of the causal enquiry in law is to determine which causes have significance for the purpose of attributing legal responsibility. It is sometimes said that the law seeks the causa causans (effective factor) rather than the causa sine qua non (factor(s) without which damage could not have occurred)."
"I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on the balance of probabilities that the injury would have occurred as a result of the non tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. …. If the evidence demonstrates that "but for" the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that "but for" an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the "but for" test is modified and the claimant will succeed."