England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St. Dunstan’s House, 133-137, Fetter Lane, London, EC4A 1HD
		24 June 2002

HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)


 


H.H. Judge Richard Seymour Q. C. :

Introduction

1. This action arises out an incident on 8 February 1997 when a 36” water main (“the Main”) belonging to the Claimant, Thames Water Utilities Ltd. (“Thames”), running along Lisson Grove, London NW1, burst, causing, so it appears, flooding to properties in the vicinity. The burst occurred, as is common ground, following damage to the Main caused during the course of the execution by the Defendant, Digginwell Plant and Construction Ltd. (“Digginwell”) of works of cable laying, which involved the need to excavate a trench across Lisson Grove in the neighbourhood of Hayes Place in order to connect two cables previously laid along the west side of Lisson Grove and along the south side of Hayes Place, respectively. Digginwell was carrying out the work to which I have referred as a contractor to a company called MK International Ltd. (“MKI”).
2. There have been previous proceedings between Thames and Digginwell arising out of the incident to which I have referred. As I understand it, the claim made on behalf of Thames in those proceedings was for damages in respect of the alleged cost of repairing and reinstating the Main following the damage which it sustained. Those proceedings were compromised. At one stage in the present action it was pleaded on behalf of Digginwell that the commencement and subsequent settlement of the earlier proceedings provided it with a complete defence to the claim made in the present action. That contention has not been pursued. The relevant pleas in the Amended Defence were struck out by consent by an order made on 7 December 2001. The relevance of the previous proceedings to the present action is simply that the evidence in chief of Mr. Tony Mullarkey on behalf of Digginwell at the hearing before me took the form of a witness statement which exhibited, and verified, his witness statement in the previous action, while the evidence in chief of Mr. Patsy Redmond, another witness called on behalf of Digginwell, was a statement in which Mr. Redmond stated that he had seen the statement of Mr. Mullarkey in the earlier action and agreed with its contents.
3. By Section 209(1) of Water Industry Act 1991 it is provided that:-

“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.”

No relevant exception in favour of Thames in relation to damage caused by flooding as a result of the incident on 8 February 1997 was contained in Water Industry Act 1991 s. 209 and it is alleged in the Particulars of Claim that Thames was liable to pay, and did pay, sums totalling £767,121 to four claimants which asserted that they, respectively, had suffered damage. In this action Thames claims that it incurred costs amounting to a further £20,741.97 in respect of what were called in the Particulars of Claim “Litigation Payments”. As is apparent from the terms of Water Industry Act 1991 s. 209(1), the liability of Thames under that subsection to those suffering damage as a result of the escape of water from the Main after it burst on 8 February 1997 was strict and did not depend upon whether Thames had been at fault in any way in relation to the circumstances in which the escape of water occurred.

4. By Section 209(5) of Water Industry Act 1991 it is provided that:-

“Nothing in subsection (1) above affects any entitlement which a water undertaker may have to recover contribution under Civil Liability (Contribution) Act 1978; and for the purposes of that Act, any loss for which a water undertaker is liable under that subsection shall be treated as if it were damage.”

5. For present purposes the material provisions of Civil Liability (Contribution) Act 1978 are as follows:-

“1(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)…

(4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established…

(6) References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage;..

2(1) Subject to subsection (3) below (not material), in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question…

6(1) A person is liable in respect of any damage for the purposes of this Act if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability whether tort, breach of contract, breach of trust or otherwise).”

6. While the nature of the case could, perhaps, have been made somewhat clearer in the formulation of the Particulars of Claim, the basis upon which it is contended that Digginwell is liable to make contribution to the sums which it is alleged Thames paid to those claiming against it in respect of flood damage following the incident on 8 February 1997 (to which claimants I shall refer in this judgment as “the Victims”) is that Digginwell owed a duty of care in tort to the Victims in relation to its operations which led up to the burst of the Main, and that it was in breach of that duty of care. That has to be the correct conceptual basis for a claim for contribution under Civil Liability (Contribution) Act 1978. The questions of whether Digginwell owed some duty directly to Thames, and, if so, whether it was in breach of that duty in relation to the incident on 8 February 1997 do not arise. But for the points raised by way of defence on behalf of Digginwell it would not have been necessary to make these rather elementary observations.
7. By the end of the hearing before me it was common ground that the effect of the provisions of Civil Liability (Contribution) Act 1978 ss. 1, 2(1) and 6(1) was that, if Digginwell had been in breach of a duty of care owed to the Victims and had thereby caused the damage in respect of which the Victims had made claims against Thames, it was liable to make contribution to the sums paid by Thames to the Victims to the extent of 100% unless Thames itself had owed a duty of care to the Victims of which it had been in breach and had thereby caused the same damage, or part of it. In the event that Thames had itself owed a duty of care to the Victims of which it had been in breach and had thereby caused the same damage, or part of it, it was agreed that it was appropriate to apportion the liability for the damage between Digginwell and Thames. It was accepted by Mr. Colin McCaul, who appeared on behalf of Digginwell, that for the purposes of Civil Liability (Contribution) Act 1978 s. 2(1) the “responsibility” of a person for “the damage in question” was responsibility at law by reason of some culpable breach of duty to pay compensation for such damage.

The statements of case of the parties

8. There was not in terms any plea in the Particulars of Claim that Digginwell owed any duty of care to the Victims. Rather there was a simple plea that “The water main was fractured as a result of the negligence of the Defendant by itself and/or its servants or agents.” The particulars of that plea given in the Particulars of Claim were:-

“(a) Failed to make any request from the Claimant of the details in respect of the existence and/or position of the water main;

(b) Failed to use any or any adequate detection methods to locate the existence and position of the Claimant’s water main;

(c) Failed to excavate with sufficient care or diligence the area in question so as to ensure that no damage was done to the water main;

(d) Failed to first notify the Claimant of its intention to carry out works in the vicinity of the water main;

(e) Failed to first excavate by hand;

(f) Failed to leave sufficient working space around the water main;

(g) Failed to take any or any sufficient precautions to ensure that the water main was not damaged during the course of the said works;

(h) Failed to ascertain the position and depth of the water main before causing or permitting works to be carried out in the vicinity of the water main;

(i) Causing or permitting works to be carried out in the vicinity of the site when there was a foreseeable risk that the water main would be damaged thereby.”

9. For present purposes the material pleas in the Re-Amended Defence were these:-

“8. It is denied that the Defendant or any of its servants or agents was negligent in any of the respects alleged or at all and that the fracture of the main was caused by negligence on its part.

9. The fracture of the main was caused wholly or in part by the negligence and/or breach of statutory duty of the Claimant.

Particulars

(a) Failing to maintain and provide accurate information as to the location of the main;

(b) Failing to disclose or warn that the main was located only about an inch beneath the concrete bed;

(c) Failing to heed the previous incident in a neighbouring street (Harewood Avenue) on 21^st September 1996 when another contractor (McNicholas) damaged a water main under that street in similar circumstances and ensure that full and accurate information was provided to the Defendant as to the course and depth of the 36 inch main under Lisson Grove and/or to take any adequate steps to ensure that this was fully known to the Defendant;

(d) In breach of its statutory duty under section 17 of the Metropolis Water Act 1852 and/or negligently failing to mark the true Course and Situation of the 36 inch main, or cause it to be marked, on its plan of the area and/or to furnish accurate particulars thereof to the Defendant and/or in breach of its statutory duty under section 198 of the Water Industry Act 1991 and/or negligently failing to keep a true and accurate record of the location of the main and/or make such a record available to the Defendant and/or negligently failing to record the location of the 36” water main belonging to the Claimants as soon as reasonably practicable after locating it in the street and/or placing it in the street and/or being informed of its location;

(f) Failing to heed from the depth of the main and/or from that earlier incident and/or its experience generally that the breaking up of the concrete in Lisson Grove would entail a risk of thereby fracturing the 36 inch main and to take any or any adequate steps to bring this to the attention of the Defendant and/or to ensure that it was fully aware of that risk.

10. Further or alternatively, the bursting of the main was caused wholly or in part by the negligence of the Claimant.

Particulars

(i) Failing to take any or any effective measures to shut off the water supply and/or to do so with reasonable promptness;

(ii) Failing to heed from the previous incident in Harewood Avenue and/or from the case of itself v Videotron and McNicholas and the decision therein and/or from its experience generally that the water supply needed to and should be shut down by it with reasonable promptness.”

10. There was no express plea in the Re-Amended Defence as to whether Digginwell owed any duty of care in tort to the Victims. If Digginwell did owe such a duty of care, the pleas which I have quoted in paragraphs 9 and 10 of the Re-Amended Defence do not seem relevant to anything other than causation or the level of contribution which it would be appropriate to award. It is difficult to avoid the conclusion that the Re-Amended Defence was pleaded without recognising correctly the nature of the case that had to be met. Unless it were considered that the matters set out in paragraphs 9 and 10 of the Re-Amended Defence amounted to a defence, if proved, all a plea of, in effect, “You were negligent too” in response to a claim for contribution does is to invite attention to the need to evaluate the respective faults of both parties in relation to the losses suffered by the Victims.
11. In his written closing submissions on behalf of Digginwell Mr. McCaul accepted, at paragraph 2(1), that Digginwell “owed a duty of care to what have been and will hereafter be referred to as “the victims” of the flood to prevent damage to their property”. At paragraph 2(2) of his submissions Mr. McCaul formulated the duty admitted as a duty “to take reasonable care when carrying out digging in the carriageway so as not to cause foreseeable risk of such damage”.
12. At paragraph 3(3) of his written closing submissions Mr. McCaul abandoned his reliance upon the contention that Water Industry Act 1991 s. 198 created a statutory duty breach of which gave rise to a private cause of action. However, he continued to maintain that Metropolis Water Act 1852 s. 17 did create a statutory duty for breach of which a remedy was available in private law. In his closing submissions Mr. Michael Daiches, who appeared on behalf of Thames, accepted that Metropolis Water Act 1852 s. 17 did create a statutory duty for breach of which a cause of action lay in private law. However, he went on to submit, in a written additional argument:-

“2. C submits that the 1852 Act was impliedly repealed by The Water Act 1989 (the amending Act passed on the privatisation of the water industry, and which was the predecessor of the consolidating Water Industry Act 1991).

3. If a later Act makes contrary provision to an earlier, Parliament is taken to intend the earlier to be repealed – see Bennion: Statutory Interpretation (3^rd edition) Section 87, page 225, and Supplement, at page S20. See also Re Mineral Resources Ltd, Environment Agency v. Stout [1999] 1 All ER 746.

4. Sections 20 and 165 of the 1989 Act are the equivalent provisions of sections 18 and 198 of the 1991 Act.

5. The combined effect of sections 20(10) and 165(7) of the 1989 Act is that the only remedy available for a breach of section 165 is an enforcement order under section 20.

6. The provisions of section 17 of the 1852 Act are inconsistent with sections 20(10) and 165(7) of the 1989 Act if and insofar as the former Act enables a person to bring a private law action for breach of the statutory duty imposed by section 17.

7. Accordingly, to the extent that there is an inconsistency between section 17 of the 1852 Act, and sections 20 and 165 of the 1989 Act, Parliament must be taken to have intended to repeal the 1852 Act.”

In his oral submissions Mr. Daiches modified his client’s position to the extent that he only contended for an implied repeal of Metropolis Water Act 1852 s. 17, not the whole Act, and only in relation to Thames, not in relation to the World at large.

13. In the circumstances the issues raised in paragraphs 4 and 5 of the Re-Amended Reply do not seem exactly central. Those paragraphs were in these terms:-

“4. As to the breaches of statutory duty alleged at paragraph 9 of the Re-Amended Defence, the Claimant will contend that it did not owe any private law duty to the Defendant in relation to the section 17 of the Metropolis Water Act 1852 and/or section 198 of the Water Industry Act 1991. In the case of the former statute, the policy of Parliament was that the only remedy for enforcement should be the penalty imposed by section 16. In the case of the latter statute, the policy of Parliament was that the only remedy for enforcement should be an enforcement order made pursuant to section 18.

5. In the premises, the Claimant will contend that Parliament intended to exclude any private law duty of care which might arise by reason of any omission by the Claimant (which is not admitted) to perform the relevant statutory duties.”

The issues to be tried

14. By an order which I made on 7 December 2001 I directed that all issues of liability, including all questions of breach of duty, by either party, and all questions of causation be tried separately from the other issues in this action. This trial has been concerned with those issues of liability and causation.

Metropolis Water Act 1852 s. 17

15. Before turning to consider the events leading up to, and of, 8 February 1997 it is convenient to deal with the question of Metropolis Water Act 1852 s. 17 and whether that section is still in force as against Thames.
16. In the form in which Parliament has, over the years, consciously amended it, Metropolis Water Act 1852 s.17 is in the following terms:-

“Every company shall, within one year after the passing of this Act, cause a map to be made of the district within which any mains or pipes shall have been laid down or formed by them on a scale not less than six inches to a mile, and shall cause to be marked thereon the course and situation of all existing mains and pipes and shall, within six months from the making of any alterations or additions, cause the said maps to be from time to time corrected, and such additions made thereto as may show the line and situation of all such mains and pipes as may be laid down or formed by them from time to time…; and such map, or a copy thereof, with the date expressed thereon of the last time when the same shall have been so corrected as aforesaid, shall be kept in the principal office of each company, and shall be open to the inspection of all persons interested in the same within the said district, who shall be at liberty to take copies of or extracts from the same.”

17. By Water Act 1989 s. 165(1) it was provided that:-

“Subject to subsections (4) and (5) below, it shall be the duty of the Authority and of every water undertaker to keep records of the location of –

(a) every resource main, water main or discharge pipe which is for the time being vested in the Authority or, as the case may be, that undertaker; and

(b) any other underground works, other than a service pipe, which are for the time being vested in the Authority or, as the case may be, that undertaker.”

18. By Water Act 1989 s. 165(7) it was provided that:-

“The duties of a water undertaker under this section shall be enforceable under section 20 above by the Secretary of State.”

19. Water Act 1989 s. 20 made provision for the Secretary of State or an official called “the Director” to make orders containing “such provision as is requisite for the purpose of securing compliance” amongst other things with statutory requirements enforceable under that section. By Water Act 1989 s. 20(10) it was provided that:-

“Where any act or omission constitutes a contravention of a condition of an appointment under this Chapter or of a statutory requirement enforceable under this section, the only remedies for that contravention, apart from those available by virtue of this section, shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting such contravention. ”

20. The submission of Mr. Daiches, shortly stated, was that Water Act 1989 s. 165(1) duplicated the provisions of Metropolis Water Act 1852 s. 17, that Water Act 1989 s. 165(7) made it clear that the remedy for a breach of the obligation imposed by Water Act 1989 s. 165(1) intended by Parliament was under Water Act 1989 s. 20, it appeared from the terms of Water Act 1989 s. 20(10) that an order under that section was intended to be the only available remedy, thus Metropolis Water Act 1852 s. 17, under which there was a cause of action for breach of statutory duty, was inconsistent with what Parliament intended to achieve by Water Act 1989 s. 165 and was impliedly repealed. With great respect to Mr. Daiches it seems to me that that submission is misconceived. In my view it is clear from the terms of Water Act 1989 s. 20(10) that a remedy under that section, where available, was not intended to preclude any other remedy which there might otherwise be in respect of the matter complained of under some other statute or arising because what amounted to a breach of a requirement to which Water Act 1989 s. 20 applied also gave rise to other rights. Thus far from the duplication, such as it was, of the provisions of Metropolis Water Act 1852 s. 17 by those of Water Act 1989 s. 165(1) leading to the conclusion that the former was impliedly repealed, the provisions of Water Act 1989 s. 20(10) made it clear, in my judgment, that it was intended that any remedies available in respect of a breach of the provisions of Metropolis Water Act 1852 s. 17 should continue to be available notwithstanding that such breach might also amount to a breach of the provisions of Water Act 1989 s. 165(1). Thus I hold, in the light of Mr. Daiches’s concession that a cause of action for breach of statutory duty was, while it was in force so far as his clients are concerned, available for a breach of the provisions of Metropolis Water Act 1852 s. 17, that it is still available. I am not certain that, but for the concession of Mr. Daiches, I should have reached the conclusion that a breach of the provisions of Metropolis Water Act 1852 s. 17 was actionable in private law as a breach of statutory duty, but in the light of the concession that is not a matter which I need consider further.
21. Potentially the duties imposed on Thames by the provisions of Metropolis Water Act 1852 s. 17 were owed to anyone who might be prejudiced by the failure of Thames to comply with those duties. The most obvious category of such persons would be those who exercised the right to inspect and take copies of the maps which are required under that section to be maintained. Mr. McCaul submitted that the category of those to whom the duties were owed extended to those who did not themselves seek to exercise the rights to inspect or take copies of, maps, but who might be caused loss if inaccurate information was provided to someone else. That submission does not seem to me to be well-founded. The duties imposed by Metropolis Water Act 1852 s. 17 upon those to whom it applies are to maintain accurate maps of mains and pipes showing the line and situation of all such mains and pipes and to allow anyone interested to inspect and take copies of such maps. It is not a duty to take care to protect from damage the property of occupiers of premises covered by the relevant maps by supplying accurate information to those whose activities might cause such damage if inaccurate information was provided. On the other hand, it seems fairly clear that Thames was obliged in its own interest to maintain accurate maps showing the line and situation of all its mains and pipes so as to facilitate it in carrying out its own functions.

The mains in Lisson Grove

22. It was common ground that the Main is a cast iron pipe which was probably laid in about the 1860s. It is one of three water mains belonging to Thames which lie under Lisson Grove. The Main lay at a depth of some 17 inches below the surface of the highway, under a surface layer of tarmac some 4 to 6 inches thick and a concrete layer some 12 to 13 inches thick. The other water mains in Lisson Grove were, respectively, a 4 inch diameter main (“the 4 inch Main”) and a 9 inch diameter main (“the 9 inch Main”).

Maps of the mains in Lisson Grove

23. The lines and situations of the Main, the 4 inch Main and the 9 inch Main were all indicated upon maps maintained by Thames. Those maps indicated that the location of the Main was roughly along the line of the western kerb of Lisson Grove, although it is in fact approximately along the centre line of the road, if slightly to the west of that line. The maps showed the locations of the 4 inch Main and the 9 inch Main more correctly. The 4 inch Main ran close to, or under, the eastern pavement in Lisson Grove, while the 9 inch Main ran slightly to the east of the centre line of Lisson Grove.
24. Copies of two maps showing the lines of the 4 inch Main, the 9 inch Main and the Main were produced by Digginwell on disclosure. One showed the area from just to the south of Hayes Place northwards. It bore upon it a reference TQ2781N, which I think was simply the reference of the Ordnance Survey map sheet covering the area, and a stamp “15 AUG 199”. I was invited by Mr. Daiches to draw the inferences that the stamp “15 AUG 199” indicated a date, that the date which it indicated was 15 August 1996, and that consequently the map had been supplied by Thames on or about 15 August 1996. Why this might matter I shall explain later in this judgment. Mr. McCaul disputed the inferences for which Mr. Daiches contended. He submitted that I should conclude that the map was supplied by Thames to MKI in response to a request made on or after about 18 October 1996 and thereafter passed on to Digginwell.
25. There was no direct evidence of any request made of Thames by MKI or Digginwell for a map of the water mains in Lisson Grove. Mr. David Middlemiss, who is employed by Thames as a Technical Adviser working in the Asset Data Services division, was called to give evidence amongst other things that Thames had no record of any request for such a plan made by MKI or Digginwell. I accept that evidence.
26. Mr. McCaul relied, in support of the conclusion which he invited me to draw, on various documents, copies of which were put before me. Some of these documents were notices given by or on behalf of MKI pursuant to the provisions of New Roads and Street Works Act 1991 in relation to the laying of the cables in the course of excavating a trench for which the Main was damaged. The others were either requests made by MKI for information as to the location of the services of other utility companies or documents providing information as to the works proposed. The statutory notices were each dated 18 October 1997, while the requests for, or documents providing, information bore dates between 6 and 15 November 1997. The second of the two maps to which I have referred did not bear any reference or stamp upon it. It showed the area immediately to the south of the first plan.
27. On the state of the evidence before me I am quite unable to reach any reliable conclusion as to when or in what circumstances Digginwell came into possession of the two maps to which I have referred. I have no idea when or in what circumstances the stamp “15 AUG 199” was applied to the first of the maps or what it might signify, beyond almost certainly being a date some time in the 1990s. I am not able to accept either the submissions of Mr. Daiches or those of Mr. McCaul as to the inferences for which they respectively contended. Insofar as it may matter, therefore, whichever of the parties for any purpose sought to rely upon the maps to which I have referred as having been provided to Digginwell at, before, or after, some particular date has failed to prove its case.
28. It was apparent that the lines of the Main, the 4 inch Main and the 9 inch Main shown on the two maps did not marry up the ones with the others. Those shown on the more southerly map were somewhat to the east of the lines shown on the more northerly map. While that is undoubtedly not a desirable state of affairs, it does not seem to me that it is particularly relevant to any issue which I have to decide. I think that it was drawn to my attention by Mr. McCaul as an illustration of the rather lax, as he would have it, approach of Thames to the maintenance of accurate records of the locations of its mains.
29. Neither of the two maps produced by Digginwell on disclosure bore upon its face any form of disclaimer wording. Mr. Middlemiss gave evidence as to the practice of Thames in relation to the updating of maps of the routes of its mains and as to the basis upon which Thames provides copies of maps of its mains to enquirers. His evidence was that all paper copies of Thames maps provided to enquirers have stamped upon them the words:-

“The position of apparatus shown on this plan is believed to be correct but Thames Water Utilities Limited accepts no responsibility in the event of any inaccuracies. The actual position of such apparatus and of service pipes which are not shown on the plan must be established on site.”

He also said that a similar disclaimer appeared on copies of plans provided in electronic form by Thames. Why no form of disclaimer appears on the copies of the plans of water mains produced by Digginwell on disclosure is unclear. I am not sure that the issue whether the maps provided to Digginwell did contain, or should have contained, some disclaimer is particularly important. The scale of the maps is such that the lines of the mains marked cannot be precisely accurate. Moreover, it was, I think, accepted on behalf of Digginwell, at least by Mr. Tony Mullarkey in his cross-examination, that it was understood that the lines of services shown on maps such as those maintained by Thames were approximate.

The McNicholas incident

30. It was common ground that on 21 September 1996, some four and a half months before the incident on 8 February 1997, another contractor undertaking excavation work in Lisson Grove, McNicholas, had hit the Main and caused it to burst. That had resulted in a serious episode of flooding. That incident revealed that the line of the Main in a location some 5 metres from the location of the incident on 8 February 1997 was different from that shown on the plan maintained by Thames. It also revealed that the Main ran at a shallow depth. Those were circumstances upon which much reliance was placed on behalf of Digginwell by Mr. McCaul. The point made was that Digginwell had been provided with copies of maps of the mains in Lisson Grove kept by Thames and had been misled as to the likely location of the Main, notwithstanding that Thames by then knew that the location of the Main shown on the map was inaccurate. Thus, said Mr. McCaul, if there had been any disclaimer to the effect that “The position of apparatus shown on this plan is believed to be correct..” on any of the maps provided to Digginwell, the assertion as to belief would have been incorrect. Although the incident involving McNicholas pleaded in the Re-Amended Defence was said to have occurred in Harewood Avenue, a street which runs parallel to Lisson Grove, the position in fact appears to be that McNicholas was excavating in both roads in September 1996, that 36 inch water mains ran under both roads, and McNicholas hit them both, that in Harewood Avenue on 20 September and that in Lisson Grove on 21 September.
31. Until his retirement on 31 March 1997 Mr. Royston Frost was employed by Thames as Operations Controller for Customer Field Services. He was the duty supervisor at the time of the incident when McNicholas hit the Main on 21 September 1996. He was also the duty supervisor on 8 February 1997 when Digginwell hit the Main. Mr. Frost was called to give evidence on behalf of Thames at the hearing before me. I regret to have to say that I found Mr. Frost to be an unsatisfactory witness. He was reluctant to admit that, as a result of the incident on 21 September 1996 when McNicholas hit the Main in a location some five or six metres north of where Digginwell hit it on 8 February 1997, he personally knew that the Main was in a location different from that in which it was shown on Thames’s maps and that it was at a much shallower depth than one would ordinarily expect. As his own evidence was that mains as large as 36” are rarely hit, I find it inconceivable that he did not understand precisely at the time of the McNicholas incident that the location of the Main was incorrectly shown on Thames maps and was at a very shallow depth. Further, while he accepted that these facts would have been known, and their significance understood, within Thames within hours of the McNicholas incident, he sought, wholly implausibly, to suggest that he personally did not recall these matters when dealing with the effects of the striking of the Main by Digginwell on 8 February 1997. He did not in terms make this assertion, but his account of his involvement amounted to taking refuge in what he asserted was Thames’s standard procedure for dealing with damage to water mains. That procedure involved shutting down all the water mains in the area in which any escape of water had occurred in the order of the smallest diameter first, and then progressively shutting down larger mains until the escape ceased. That procedure is nonsensical if all the indications are that it is the largest diameter main which has been hit. In my judgment it was, or should have been, obvious to anyone who was aware of what had been revealed by the occurrence of the McNicholas incident as to the location and depth of the Main in Lisson Grove that the circumstances of the striking of the Main by Digginwell on 8 February 1997, to which I am about to turn, indicated that the overwhelming probability was that it was the Main which had been hit. Mr. Frost would have it that, despite his involvement in the McNicholas incident, he gave no thought on 8 February 1997 to the possibility that it was the Main which had been struck. To follow blindly on 8 February 1997 the standard procedure to which I have referred without considering the probability that it was the Main which had been hit seems to me to involve incompetence of a high order on the part of Thames generally, and Mr. Frost in particular.

8 February 1997

32. A witness statement by Mr. Kevin McGlinchey, made, it seems, to loss adjusters acting on behalf of Digginwell’s insurers some time shortly after 8 February 1997, was put in evidence under the provisions of Civil Evidence Act 1995. That witness statement included this passage:-

“On arriving on site at Lisson Grove 7.30am, I checked stats drawings to ascertain what utilities were present. I found on the stat drawings 1 24” gas main and 1 180mm gas main (polyethylene). I also found 3 water mains 4”, 9” and 36” trunk and numerous LV and HV cables.

I proceeded to scan the road on radio and power mode, and mark utilities found. I was unable to find all utilities as indicated on drawings. I proceeded with my transmitter (genny) on induction mode to find the line of any other utility. I placed my transmitter on water and gas valves in the immediate facility and proceeded to trace the lines of the mains. I located 3 separate mains. The first reading was approximately 1M from the kerb southbound, the third reading was on the white line. These two readings were found by inducing a signal on water valves. A second signal was found between the first and third signal. I proceeded to mark the signals.

Signal 1 water Blue

Signal 2 gas yellow

Signal 3 water Blue.”

33. Mr. McGlinchey was not called to give live evidence, and so he could not be cross-examined. His evidence as to having maps (which he called in his witness statement “stat drawings”) which showed the supposed locations of the Main, the 4 inch Main and the 9 inch Main was not, initially, accepted on behalf of Thames, although at the trial Mr. Daiches acknowledged that he could not really dispute the evidence. As I have already recorded, maps such as were described by Mr. McGlinchey were produced on behalf of Digginwell on disclosure. No suggestion was made that the maps had been obtained after the incident on 8 February 1997, so it seems to me that the probability must be that Mr. McGlinchey’s evidence on this point is correct and I accept that evidence.
34. Mr. McGlinchey’s evidence about scanning the road using a “genny” was not easy to understand if one simply looked at what he said. Fortunately, the position was clarified by evidence called on behalf of Thames. Those who attend to deal with burst water mains are termed by Thames Network Services Technicians (“NSTs”). Mr. John Shield was the NST who was first upon the scene of the fracture of the Main on 8 February 1997. He was joined a little later by Mr. Kris Varsani, another NST. I have already explained the role of Mr. Frost. Mr. Shield, Mr. Varsani and Mr. Frost each gave evidence more or less in identical terms about scanning for buried services in a road before digging any trench or hole, which clarified the position. What Mr. Shield said at paragraph 11 of his witness statement dated 5 February 2002 was this:-

“I have also noted some of the comments made by the Digginwell staff in locating the mains prior to the commencement of [sic] by using cat and genny operating equipment. These comments are made in the witness statements in the previous proceedings and also in the two contemporaneous statements provided on discovery. It is possible to have located the position of the 4” and 9” mains prior to the start of works. However, it would not have been possible for the 36” main to be located by this method. The cat and genny is a piece of equipment which allows the presence and direction of metal mains to be located. It works by placing one piece of equipment over part of the main above the surface, i.e. a valve or standpipe. This generates an electro-magnetic field in the main, which is located by the second piece of equipment. This would have been possible for the 4” and 9” main due to the relative proximity of the valves/standpipes etc to the incident. However, the only places where the equipment could have been placed on the 36” mains were approximately 1-1½ miles on either side of the incident. It is highly unlikely that the Defendant’s operatives would have walked this far and, in any event, the signal would not have been carried that far back to the site of the incident to allow the 36” main to be located. It would appear that they located the 4” and 9” mains and a main operated by the gas transporter, Transco. However, I would think it unlikely that they attempted to locate the actual position of the 36” main. ”

35. Mr. Shield told me in cross-examination that there were blue marks on the road in the vicinity of where Digginwell had been working when he arrived at the site of the fractured Main on 8 February 1997. Mr. Varsani in his evidence in cross-examination seemed to confirm the presence of markings on the road, although he was somewhat more vague. That evidence of the presence of markings, which I accept, supports the evidence of Mr. McGlinchey of using a “cat and genny” scanning device in the way described by Mr. Shield, Mr. Varsani and Mr. Frost in their respective witness statements, of detecting by means of it the 4 inch Main and the 9 inch Main and marking the road, and of not finding the Main. I am confident that the evidence of Mr. McGlinchey in his witness statement concerning the use of a scanning device on 8 February 1997, and of the results of so doing, is accurate, and I accept it.
36. Mr. Mullarkey was the foreman of the gang working in Lisson Grove on 8 February 1997 at the time of the fracture of the Main. In his witness statement dated 27 May 1999, made in connection with the previous proceedings to which I have referred, but which he adopted as his evidence in chief at the trial before me, Mr. Mullarkey said:-

“3. During the previous couple of weeks ducting had been laid down the middle of Lisson Grove and Harewood Row. It was therefore the intention to connect the two lines of ducting at the junction of Lisson Grove/Shroton Street [a street almost directly opposite Hayes Place] and involved laying it across the junction. It was a busy junction and the work had to be carried out at the weekend in order to minimise disruption to traffic.

4. I arrived on site around 8.30 a. m. having picked up a compressor beforehand. There were four people in the gang since two of the gang needed to work the STOP/GO boards in order to control the traffic. The site had been marked up prior to our arrival by Kevin McGlinchey, who was Digginwell’s professional tracer. We also had a CAT machine with us that we used to locate cables whilst digging the trench into which the cables were laid. We also had a drawing showing the location of the Thames Water mains with us. As far as I recall the Thames Water drawing showed that there was a large 36” main in the pavement and a small 9” main in the road. Kevin McGlinchey had identified the mains services in the road and in the pavement. The 9” main was shown on the drawing in the middle of the road and we assumed that to be correct. The main that had been identified by Kevin McGlinchey in the pavement we thought was the 36” main, ie the larger one.

5. At about 9 a.m. on the 8^th February 1997 we started work by excavating a trench for the ducting and identifying the services in the road near the pedestrian crossing. We were slowly working our way across the road with jackhammers and the CAT in order to locate the services. However, as we got further out into the road, the road surface got thicker and it was not possible to use jackhammers. At about 12 noon we started excavating the middle of the road with the intention of working around the 9” main that had been marked up. We were working carefully to try and avoid that main and locate its position. The surface of the road is made up of a surface layer of tarmac, approximately 4 to 6 inches thick followed by a concrete layer of approximately 12 or 13 inches. The jackhammers are not capable of breaking through this concrete layer. Therefore, we were using the JCB and had starting [sic] excavating approximately 2 feet to the side of the marked up main, which, as I have said, we assumed to be a 9”main. Unfortunately, that was incorrect and the main was in fact a much larger 35 [sic] inch main. Furthermore, the top of the main was actually embedded into the concrete layer of the road surface by 2 or 3 inches. As a result, as the JCB pecker began to work its way through the concrete layer, its vibration caused a compression fracture of the main. If the main had been a 9 inch main, as identified on the drawing, we would have been well clear of it and the JCB’s vibration would not have caused any damage to it.

6. At, approximately, 12.10 pm before we had broken through the concrete layer of the road surface water started to appear in the trench and we immediately stopped work. We contacted Vincent Sugrue, Digginwell’s London Agent, to inform him of the situation. The JCB driver had a mobile ‘phone which we used to do that. Vincent Sugrue arrived on site at, approximately, 12.50 p.m. and took charge. I understand that Vincent Sugrue reported the incident, via Digginwell’s office, immediately to Thames Water. However, as I recall, Thames Water personnel did not arrive on the site for a couple of hours. Kevin McGlinchey arrived on site shortly after Vincent Sugrue at about 1.30 p.m.

7. Initially the water leaking from the main was not too bad. Whilst it was enough to bubble onto the road surface it was flowing away down a drain. In order to try and prevent the damage to the main getting worse, we placed the pecker of the JCB on the point where the main had fractured. However, as the afternoon progressed the pressure of water in the mains gradually made the leak worse until at approximately 3.30 or 4 pm the water had got to the stage where it was flowing across the road. Thames Water personnel had by this time been on site for a couple of hours but as I recall were having difficulty locating the valve to turn off the water main.”

37. In cross-examination it became clear that the present recollection of Mr. Mullarkey of some of the detail of his involvement in the works undertaken by Digginwell on 8 February 1997 was not good. After a long series of questions and answers in relation to where he and his gang had been working and where they had started work on 8 February 1997 it emerged that he had been mistaken, by a reference made to a plan of the area of Lisson Grove at the commencement of the series of questions, as to the road junction across which it was intended to excavate the trench. It also appeared from the evidence of Mr. McGlinchey to which I have referred that Mr. Mullarkey was mistaken in his belief that the Main had been located and marked in the pavement. However, he was fairly definite in his evidence that at the start of the day’s work he had looked, albeit briefly, at a package of drawings which had been provided for his use, and had used a scanning device to check, so far as he could, that the markings of the locations of services made by Mr. McGlinchey over the eastern part of Lisson Grove, which was the part in which it was intended to excavate the trench on 8 February 1997, was accurate. I accept that evidence. The intention was to undertake the excavation of the trench over the other part of Lisson Grove the following day.
38. Mr. Mullarkey told me that he and his gang located and exposed, by hand digging, the 4 inch Main, a telecommunications duct, and various electric cables. They then proceeded with the excavation. They were expecting to find the 9 inch Main roughly in the middle of the road. Some two feet short of the point at which the location of the 9 inch Main had been marked by Mr. McGlinchey they encountered a big box of hard concrete. How Mr. Mullarkey identified that box of concrete was not explored in detail in the evidence. From paragraph 5 of Mr. Mullarkey’s witness statement dated 27 May 1999 and the evidence of Mr. Redmond, to which I refer later in this judgment, it seems that it was the difficulty of breaking it up, rather than any difference in colour or texture, which caused the gang to become aware of the increasing thickness of the concrete. Certainly it was not suggested to either Mr. Mullarkey or Mr. Redmond that the area of the box or case of concrete was identifiable simply by looking at it once the tarmac surface of the road in Lisson Grove had been removed. I accept the evidence of Mr. Mullarkey which I have set out in this paragraph.
39. The discovery of the box of thicker concrete did, Mr. Mullarkey told me, cause them to pause. He decided to tackle the area of hard concrete from two sides. He told me, and I accept, that he considered that the box extended for some two feet on either side of the marked location of the 9 inch Main. How he reached that conclusion was not explored in evidence, and it may be that he simply assumed that as the eastern side of the box had been encountered some two feet short of the marked line of the 9 inch Main, the likelihood was, if the function of the thicker concrete was to provide some protection for the 9 inch Main, that it extended the same distance on the other side. If that was his reasoning, it seems to me eminently sensible in the absence of any reason to suppose that the box protected something other than the 9 inch Main and in the absence of any means of identifying the area of thicker concrete simply by looking at the surface of it.
40. The area of thicker concrete was, so Mr. Mullarkey and Mr. Redmond told me and I accept, too hard for hand-held tools, specifically jackhammers, to make much impression. Consequently the pecker on the JCB was used. The idea was to nibble away at the concrete from both sides so as to weaken it and gradually to expose what lay beneath it or to be in a position to decide to pass the duct which was to be installed in the trench underneath whatever was below the concrete. To reach the western side of the supposed extent of the block or box the pecker of the JCB was extended over an area of intact roadway to a point some four feet or so from the open excavation on the eastern side of Lisson Grove. After undertaking this operation of chipping away at the supposed edges of the concrete block for some 45 minutes to one hour water appeared around the pecker. I accept this evidence.
41. I accept the evidence of Mr. McGlinchey that the pecker was some twelve inches long and that part of the shaft of the pecker was still visible above the surface of the roadway after water began to appear around the pecker.
42. Mr. Mullarkey clarified in cross-examination what he meant in saying in his witness statement dated 27 May 1999 that Thames personnel had not arrived on the site until a couple of hours after the fracture of the Main. He said that he had intended to refer to the Thames personnel who undertook the repair of the Main, not the NSTs.
43. Mr. Patsy Redmond gave evidence in chief in a witness statement dated 20 September 2001 which supported the account of Mr. Mullarkey in his witness statement dated 27 May 1999 in every particular. However, in cross-examination his evidence seemed to an extent confused and erroneous. He placed the site of the trench which Digginwell personnel were excavating at the time of the fracture of the Main some metres to the south of the junction between Lisson Grove and Hayes Place at which it was common ground the fracture of the Main had actually occurred.
44. Mr. Redmond did say that he came to the site from another job, arriving at about 10.00 a.m., after work had started. He had had no previous involvement with that particular job. He thought that the 4 inch Main had been exposed just before he arrived and lay some 500 millimetres below the level of the top of the road surface. He considered that a trial hole must have been excavated in order to expose the 4 inch Main. At the time he reached the site of the works he thought that the trench which Digginwell was to excavate had progressed a distance of a couple of metres from its starting point on the eastern side of Lisson Grove. He said that he arrived at breakfast time. A petrol saw had been used to cut a line some 3 or 4 inches deep in the tarmac surface of the road. I accept the evidence of Mr. Redmond which I have summarised in this paragraph.
45. After breakfast, Mr. Redmond said, his instructions were that the JCB was to be used to break out the concrete layer below the tarmac. He said it had been found that the thickness of the concrete layer below the tarmac surface of the road was getting progressively greater as it moved towards the centre of the road. Because the continued use of jackhammers was thought to be too slow a method of breaking out the concrete the pecker on the JCB was to be used. In a general way this evidence was consistent with that of Mr. Mullarkey, but on points of detail as to exactly how the excavation was undertaken I prefer the evidence of Mr. Mullarkey, the foreman of the gang with responsibility for how the work was done, to that of Mr. Redmond where there was any difference between them.
46. Mr. Redmond’s role, he told me, was to follow behind the JCB and clear away the broken concrete. He saw some marks on the surface of the road, but was vague as to what exactly they were. He said that the practice was only to excavate a trial hole where there was a marking on the road surface which indicated the presence of a buried service. Mr. Redmond explained that the method of excavation adopted was to remove the tarmac surface of the road, then to break out the concrete layer using the pecker on the JCB, and to dig out by hand below the concrete layer. He said that as the Digginwell employees were excavating the trench they came across a block of concrete in the middle of the road. They did not know what it was, but he accepted that it could have been a protective covering for the Main, which in the event was embedded in it. As it was, Mr. Redmond said, the Digginwell gang just kept chipping away at the block with the pecker of the JCB. I prefer the account of Mr. Mullarkey as to the approach adopted to dealing with the block of concrete to that of Mr. Redmond. Mr. Mullarkey’s account was both more detailed and that of the person with responsibility for making the relevant decisions. Mr. Redmond was not involved in the making of any decisions as to how the works should be carried out. Nor was he the operator of the JCB. He simply observed what happened. In the course of the operation of nibbling at the hard concrete box or block the Main was fractured. Mr. Redmond said that at first one could not tell what had been hit, that is to say, what was the size of the water main which had been hit.
47. Mr. Redmond was evidently uncertain as to when employees of Thames arrived at the site. At one point in his evidence he said that no one came until after 4.00 p.m. Later he referred to Thames employees being on site prior to the burst of the Main at about 3.30 p.m.
48. Mr. Redmond’s evidence that the trench being excavated by Digginwell was being dug from the east side of Lisson Grove towards the west side was supported, albeit somewhat uncertainly, by the evidence of Mr. Varsani. At first in his cross-examination Mr. Varsani seemed unclear whether he could say from which direction the trench was being dug. Then he said that it was being excavated from the east side of the road, but started some distance from the kerb. Then he said that the trench was being excavated from north to south. Finally his evidence was that the trench extended across Lisson Grove, but at a diagonal, not straight across. Mr. Shield did not recall there being a trench at all. In the end it did not seem to be in dispute that the trench was being excavated from east to west. Certainly I find that that was the direction of excavation.
49. Mr. Redmond’s evidence that there was a block of concrete in which the Main was at least partially embedded was supported by that of Mr. Mullarkey, but not supported by the evidence of either Mr. Shield or Mr. Varsani. Each of the latter told me in cross-examination that they thought that the thickness of the concrete layer under the tarmac surface of the road did not vary significantly across the road so far as they could see, and certainly neither recalled any indication that the Main had been embedded in concrete. Mr. Shield told me that part of his duties was to check the adequacy of the repair of the Main before it was re-charged with water. I am confident that in the course of that operation he would have noticed if the Main was partly embedded in concrete, and would have remembered that unusual feature. From the fact that he did not it seems to me that it must follow that the Main was not in fact embedded at all in concrete, whatever impression Mr. Mullarkey and Mr. Redmond may have formed. However, I do accept the evidence of Mr. Mullarkey and Mr. Redmond that in the area in which the 9 inch Main and the Main in fact lay the layer of concrete under the tarmac surface of the road was harder than that to the east.
50. Notwithstanding the evidence of Mr. Mullarkey and Mr. Redmond as to the time at which Thames employees arrived at the site, the evidence of Mr. Vincent Sugrue, given in the form of a statement served under the provisions of Civil Evidence Act 1995, was that:-

“At approximately 12.10pm on Saturday 8^th February 1997 I received a telephone [call] from the Ganger Man Tony Mullarkey who was working at Lisson Grove to say that he had hit some kind of water main.

I immediately made a telephone call to the Office and asked them to telephone the Water Board and give them the address of the hit and then made my way to the site, I was only 5-10 minutes away.

I arrived on site approximately 12.20pm and saw there was some water coming up onto the road, though not very much at this stage. I also noticed that the JCB still had its pecker stuck where the water main was hit.

At 1.05pm the first Water Board van turned up. He was examining drawings for some time and some other vans turned up and they all seemed to be walking up and down looking for a valve. At this stage there still was not a large amount of water coming up.

At approximately 3.45pm the water main exploded. It was obviously [sic] then that it was a large water main.”

51. Mr. McGlinchey, in his statement to which I have already referred, gave this account of what happened from his point of view in the afternoon of 8 February 1997:-

“At approxmately 12.10pm I received a telephone call from Vincent Sugrue, a Digginwell Agent. He informed me that the gang working on Lisson Grove junction with Hayes Place had struck a water main. I asked him had the water board been informed he said yes. I also asked him do we know what size it was. He replied No, but we think it is the 9” according to the drawings.

He instructed me to return to site which is common practice. On returning to site I observed a JCB with a hydraulic hammer in the ground with water coming up around the hammer. I asked the JCB driver how deep he was. He replied “I’ve got a 12” point and I observed the face of the hammer was still visible above the ground. I advised him to leave his point where it was until the Water Board told him to remove it. Which he did.

When the Water Board representative arrived on site he was unable to identify what size water main it was and then proceeded to check his drawings and turn off valves. On doing this Thames Water Supervisor located a valve under the stabiliser jack of the JCB. He asked the JCB driver to move his jack off the valve without moving his point. On doing this the water increased twofold. The Water Board official informed Vincent Sugrue and myself that he had located another valve underneath a Volvo Estate car and asked us for our assistance to manually move the car. Unable to move the car physically we proceeded to knock on local residential properties to ascertain the owner of the vehicle with no avail and informed the Water Board. The Water Board informed us that they would contact the police to get the vehicle moved.

At approximately 3.45pm the water main exploded.”

52. The evidence of Mr. Shield was that he received a call to attend at the site of the fracture of the Main at about 12.20 – 12.25 p.m. In his witness statement dated 5 February 2002 at paragraph 4 he went on:-

“At approximately 12.35 – 12.40 p.m. I arrived at the site. I discovered a pecker operated by the Defendant with its digging point in the road. Water was emerging from around the digging point and rising out of the ground to a depth of about 1 foot. At this stage I was not able to establish what had been hit by the pecker but considered it to be a main of some size given the amount of water that was flowing. However, the flow at this stage did not appear to suggest that the 36” main had been hit. The Digginwell staff were still on site at this stage. When attending at a site there is a procedure, which all NST’s follow when shutting down mains. The procedure is to shut down the smallest main first, up to the largest main. In this case the smallest was the 4” followed by the 9” and then the 36”. The procedure is set out because it can never be said with any certainty what main has been damaged. In some cases a 9” main can produce as much flow as a 36” main. Also, given that the site of the damage is usually deep in water it is often very difficult to ascertain what has actually been damaged. Additionally, the shut down of a 36” main requires a great deal more organisation, additional employees and authorisations before it can be shut down.”

53. In cross-examination Mr. Shield made clear that what he had meant when he spoke, in the paragraph from his witness statement which I have quoted in the previous paragraph of this judgment, of water rising out of the ground to a depth of about one foot was that water was spraying from the fracture to a height of about one foot.
54. I have already mentioned the procedure within Thames of which Mr. Shield gave evidence. Although not written down, the procedure was apparently well-understood. It was spoken to also by both Mr. Varsani and Mr. Frost. Each of these gentlemen was cross-examined about that procedure. I formed the clear impression from what each of them, and Mr. Shield, said that the procedure in question is followed rigidly and inflexibly, without any serious attempt being made by an NST attending a burst, or by any supervisor, to assess which main might actually have been damaged.
55. According to his evidence in cross-examination, which on this point I accept, Mr. Shield had with him when he went to Lisson Grove on 8 February 1997 what he referred to as “TQ” plans, that is to say, Ordnance Survey maps of Lisson Grove marked up to show the supposed line and situation of each of Thames’s water mains in the area.
56. Mr. Shield accepted in cross-examination that he made no enquiry of the Digginwell personnel in Lisson Grove as to what maps they had, or what mains they had found, even though such an enquiry would have revealed that the 4 inch Main, that which Mr. Shield directed his initial efforts to shutting down, had been exposed close to the eastern side of Lisson Grove. That seems to me to be consistent only with Mr. Shield having no interest in making any assessment of his own of which main might have been damaged because his concern was mechanistically to follow the procedure to which I have referred.
57. Mr. Shield’s evidence was that at about 12.55 – 1.00 p.m. he decided that he would need assistance to shut down the water mains in Lisson Grove and contacted the Thames Customer Centre to request such assistance. Mr. Varsani was despatched to the site. He arrived, Mr. Shield and Mr. Varsani agreed in their evidence, at about 1.45 p.m. Mr. Shield and Mr. Varsani then completed the shutting down of the 4 inch Main. Next they set about closing down the 9 inch Main. That involved locating and closing seven valves. That operation had not been completed by the time the Main burst at about 3.45 p.m. One reason why it had not been completed was that one of the valves was under a parked car and assistance had to be sought from the police to remove the offending vehicle.
58. After the burst of the Main, at about 4.00 – 4.10 p.m., Mr Shield requested assistance from more NSTs to shut down the Main. Mr. Bamworth and Mr. King arrived at about 5.10 p.m. and the Main was finally shut down at about 6.45 p.m.

Negligence on the part of Digginwell

59. Evidence from Mr. Duncan Hurwood, whose experience seems to lie principally in pre- and post-contract surveying in connection with civil and structural engineering projects, was called on behalf of Thames in relation to whether any criticism could be made of how Digginwell went about the work of excavating the trench across the eastern part of Lisson Grove on 8 February 1997. By agreement between Mr. Daiches and Mr. McCaul expert evidence was led following the evidence of fact to which I have already referred. Mr. Hurwood had prepared a report setting out the evidence which he originally intended to give at the hearing before me which was dated 15 May 2002. In that report he had expressed the view that a publication of Health & Safety Executive entitled “Avoiding danger from underground services”, which is Health and Safety series booklet HS(G)47, represented good practice in relation to undertaking excavations in the street.
60. That publication included:-

“11. Our safe system of work has three basic elements:

(a) Plans

Whenever possible, plans or other suitable information about all buried services in the area should be obtained before excavation work starts, and the utilities should do everything reasonably practicable to ensure that such information is made available to enquirers. When this is not possible, as may be the case when emergency or other unforeseen work has to be undertaken, the excavation should be carried out as though there are buried services in the vicinity. Account should be taken of any indications that buried services exist, such as the presence of lamp posts, illuminated traffic signs, valve pit covers, etc. However, the absence of such indications does not necessarily mean that there are no buried services…

(b) Cable and pipe locating devices

Suitable cable and pipe locating devices should be used, in conjunction with any available plans, to determine as accurately as possible the position of metallic underground services in or near the proposed work area. These devices will not detect plastic pipes…

(c) Safe digging practices

Excavation work should be carried out carefully, and follow recognised safe digging practices…

12. These key elements – plans, locators and safe digging – complement each other, and all three should be used when working near buried services. Using only one may not be enough: for example, a cable may be shown on a plan as a straight line, with measurements taken from fixed objects at the time of installation, whereas in practice the cable may snake or may have been moved out of position. Reliance on the plan alone would give a false position, but this could be alleviated by the correct use of a cable locator. If several cables are close together a locator may show them as a single cable, whereas the plan would help give a more accurate picture…

Safe digging practice

25. Once a location device has been used, excavation may proceed, with trial holes dug using hand tools as necessary to confirm the position of any buried services. Special care should be taken when digging above or close the assumed line of such a service. Hand held power tools and mechanical excavators are the main causes of danger and they should not be used too close to underground services….

26. Incorrectly used hand tools are a common source of accidents but when carefully used they can normally provide a satisfactory way of exposing buried services, once the approximate positions have been determined using plans and locators. Every effort should be made to excavate alongside the service rather than directly above it. Final exposure of the service by horizontal digging is recommended as the force applied to hand tools can be controlled more effectively. In particular:

(a) spades and shovels should be used rather than other tools. They should not be thrown or spiked into the ground, but eased in with gentle foot pressure;

(b) picks, pins or forks may be used with care to free up lumps of stone etc and to break up hard layers of chalk or sandstone; and

(c) picks should not be used in soft clay or other soft soils near to buried services…”

61. It is apparent from the evidence which I have summarised above as to how Digginwell in fact approached the task of excavating the trench across the eastern part of Lisson Grove on 8 February 1997 that Digginwell, had in fact obtained maps of the buried services in that part of Lisson Grove in which it was to excavate and, through Mr. McGlinchey, it used appropriate locating devices to try to identify the lines and situations of detectable underground services. Mr. McGlinchey did in fact find the lines of the 4 inch Main and the 9 inch Main, which were the only services of Thames which were detectable using locating equipment. Mr. Mullarkey spoke of himself using a CAT scanner to identify the locations of services. The evidence was that hand digging was undertaken to reveal the 4 inch Main and other services as the excavation progressed. In his report Mr. Hurwood had expressed the view that Digginwell “undertook the very minimum prior to the excavation works, relying in all probability on laying their ducts at the shallowest of depths, over the pre-existing apparatus in Lisson Grove”. However, in the light of the factual evidence he did not pursue that criticism. About the encountering of the thick block of concrete Mr. Hurwood had said in his report:-

“In my opinion, DPACL should have anticipated that the thick concrete slab served some purpose, the probability for which was as a protection to other apparatus laid at a more shallow depth than normal. To switch from excavation by hand to excavation by machine in these circumstances was cavalier in the extreme.”

62. In the light of the evidence which had by that time been given about how Digginwell in fact approached the task of excavating the trench across the eastern part of Lisson Grove Mr. Hurwood was asked, as additional evidence in chief, to state what criticism he made of Digginwell. That apparently simple question seemed to leave him floundering. He seemed to accept that it was necessary and appropriate for Digginwell to use jackhammers, which are hand-held powered tools, to break up concrete. At one point in his evidence Mr. Hurwood appeared to accept that it was not inappropriate for Digginwell to use a mechanical excavator, the pecker on the JCB, to break up concrete. Ultimately his position, as I recorded it with his assent, was this:-

“My understanding of the evidence of Mr. Mullarkey is that, having encountered hard concrete in the course of excavating the trench across Lisson Grove, he decided to try to approach the area covered by the hard concrete from the west side of it. When he caused the JCB pecker to seek to break up concrete some 4 feet from the point the excavation had reached he ought to have recognised that the pecker had not got past the area of hard concrete and should have taken it further to the west until beyond the area of hard concrete.”

Mr. Hurwood did not explain how Mr. Mullarkey should have recognised that he had not got past the area of hard concrete.

63. I found Mr. Hurwood to be an unimpressive witness. Had his evidence been all there was in relation to how Digginwell should have approached the task of excavating across Lisson Grove, I rather think that I should not have accepted it. However, Mr. Kishan de Silva, a chartered engineer, was called on behalf of Digginwell to deal both with the matters as to which Mr. Hurwood gave evidence, and with the question of the adequacy of the response of Thames to the need to shut down the Main. It seemed to me that Mr. de Silva was an exemplar of an expert witness. He was careful and measured in his comments. He gave evidence clearly. He showed himself to have a thorough grasp of the duty of an expert witness to the Court. He was scrupulously balanced in his observations. He agreed with Mr. Hurwood that it was not inappropriate for Digginwell to use jackhammers to break up concrete, notwithstanding the guidance in the Health and Safety Executive booklet to which I have referred. He did accept that it was not appropriate for Mr. Mullarkey to use the pecker of the JCB to break up concrete on the west side of the area of the centre line of Lisson Grove because he, Mr. Mullarkey, did not know what, if anything, lay beneath the surface in that area. While I understand, and sympathise with, the decision as to how to proceed which Mr. Mullarkey made having encountered the hard block of concrete, and while I am sure that he was seeking to address responsibly the problem which confronted him, believing, quite reasonably, that what he had encountered was the 9 inch Main, in the end I am persuaded by the evidence of Mr. de Silva that it was negligent to have used the pecker of the JCB on the west side of the block of hard concrete when Mr. Mullarkey did not know what lay underneath. That use of the pecker was, on the evidence, the immediate cause of the damage to the Main.

Negligence on the part of Thames

64. It does not seem to me that the damage to the Main caused by the activities of Digginwell was attributable in any way to any breach on the part of Thames of any duty of care owed by it to the Victims.

Causation of the loss of the Victims

65. It is plain from the evidence to which I have referred earlier in this judgment that the loss allegedly sustained by the Victims was not directly caused by the initial damage to the Main caused by the negligence of Digginwell, but rather by the escape of water following the burst of the Main at about 3.45 p.m. on 8 February 1997. The issue therefore arises whether Digginwell should be treated as having caused that burst, or whether the real cause of the escape of water was the failure of Thames to close down the Main before 3.45 p.m. Mr. Daiches accepted that Thames owed a duty to the Victims, analogous to the duty considered in Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, to take reasonable care to eliminate hazards of which it was aware arising from its equipment.
66. Although a theory as to what caused the burst of the Main at about 3.45 p.m. was canvassed in the witness statements of Mr. Shield and Mr. Varsani, namely that it was the removal of the pecker from the position in which it had rested after the first appearance of water, the evidence of Mr. Mullarkey, which I accept on this point, is that the pecker was not removed until after the burst. I do not find on the evidence that the burst itself was occasioned by any action on the part of Digginwell after the initial damage to the Main.
67. As I have already indicated, Mr. de Silva was called on behalf of Digginwell to give expert evidence in relation not only to the approach of Digginwell to the works which it was to carry out on 8 February 1997, but also in respect of the quality of the response of Thames once the initial damage to the Main had occurred. So far as the latter issue is concerned Professor Edward Evans was called to give evidence on behalf of Thames. Mr. de Silva and Professor Evans both sought to assist the Court and had long and productive discussions to reduce the scope of the matters in difference between them. Mr. Hurwood also participated in those discussions and seems to have made a valuable contribution to them. Among the matters agreed between Professor Evans and Mr. de Silva were:-

“23. In the light of the September 1996 incident, Thames Water should have updated their plans to show the correct location of the 36” main and its depth below surface level or alternatively added a note at the site of the 1996 incident.

24. By November 1998 Thames Water had not updated their drawings to show the correct location of the 36” main or its depth below ground level…

32. The proper procedure to be adopted by a water company on being advised of damage to a water main is as follows:-

NST (or an inspector) attends site

NST makes an assessment of the mains that have been damaged, considers the implications including:

the number of properties at risk of loss of supply,

type of customers likely to be affected (eg the sick, elderly, disabled, hospitals, schools and other vulnerable sections of the population),

the risk of flooding and third party damage, and

forms an assessment of the appropriate course of action.

NST calls control centre to discuss his assessment and agrees a plan of action, including requesting assistance as necessary;

NST implements agreed plan of action whilst continuing to monitor the position and reviewing and amending the plan in the light of any changes in the circumstances.”

I accept the evidence contained in those parts of the agreement between Professor Evans and Mr. de Silva which I have set out. That evidence seems to me to represent what is just plain common sense. It is in rather marked contrast to the rigid and inflexible approach adopted by Thames on the basis of its received procedure. That someone attending the scene of an occurrence of damage to a main should try to assess what has been damaged, and then seek to mitigate the consequences of that damage, strikes me as blindingly obvious.

68. It proved to be common ground that shutting down the Main on 8 February 1997 would not have resulted in any, or any significant, disruption to water supplies to consumers in the area of Lisson Grove because it would have been possible to maintain supplies by using other mains in the area. The Main is a trunk main, feeding smaller mains, and those smaller mains could have been provided with water from other trunk mains.
69. In the light of the evidence to which I have referred which was agreed between Professor Evans and Mr. de Silva, the issues in respect of the part of the case concerning the quality of the response of Thames to the occurrence of damage to the Main on 8 February 1997 were fairly uncomplicated factual questions.
70. I accept the evidence of Mr. Shield that he arrived at the scene of the damage in Lisson Grove at about 12.35 – 12.40 p.m. What he ought then to have done was to make a sensible assessment, using all information which he ought to have brought with him, or could obtain by enquiry or inspection on site, of what it was which was likely to have been damaged and of what needed to be done in order to minimise the risk of any further escape of water from whatever it was which had been damaged. It is plain to me that had Mr. Shield been equipped on arrival with an up to date map of Thames’s mains in Lisson Grove, he would at once have appreciated, had he thought about it, that the location of the water spurting out of the roadway was above the known actual position of the Main. He would further have noticed that the depth of the pecker in the roadway indicated that what had been hit was at a shallow level. Those indications would have pointed to the strike as having been on the Main. Consequently, the appropriate decision was to shut down the Main. On the evidence any disruption of water supply to consumers caused by the decision to shut down the Main could have been avoided by activating alternative routes of supply. The likely consequences of an escape of water from a burst of the Main made it obvious, it seems to me, that the appropriate course was to eliminate the most probable source of danger. While the Main lay close to the 9 inch Main, the latter was at a considerably greater depth and thus less likely to have been damaged. If Thames had wanted to make assurance doubly sure, the 9 inch Main could have been shut down at the same time as the Main. However, in my judgment, had Mr. Shield had all relevant information in the possession of Thames and been interested in evaluating it sensibly, the only possible conclusion was that it was the Main which needed to be closed down. The correctness of the decision to close down the Main would have been emphasised had Mr. Shield noticed that the 4 inch Main had been revealed in the excavation of the trench at some distance from the point from which water was emerging. Enquiry of Mr. Mullarkey would have confirmed that there was no reason from the progress of the excavation to suppose that the 4 inch Main might have been damaged when it was exposed. Had Mr. Shield asked himself the question which he ought, in my judgment, to have asked, in the light of the information which ought to have been available to him, then when he contacted Thames Customer Centre at about 12.55 – 1.00 p.m., he would not have asked for additional assistance to shut down the 4 inch Main, but for additional assistance to shut down the Main. In other words, he would have asked for an additional three men to be sent to the site, and not just for one man. Had Mr. Shield requested an additional three men, there is no reason to suppose that it would have taken any longer for the men requested to arrive than it did take when, at about 4.00 p.m., following the burst, he did ask for two more men to be sent, namely about an hour to an hour and ten minutes. The requisite manpower would thus have been available on site to start to shut down the Main by about 2.10 p.m. While there was some evidence that two men could start to shut down a 36” main, although they could not complete the task, there was no evidence that one man on his own could achieve anything worthwhile. I therefore conclude that the commencement of the shutting down of the Main would have had to await the arrival of additional manpower on the site. It is possible that the three men necessary to help to achieve the shutting down of the Main would not all have arrived together, but one or more might have arrived before the other or others. Mr. Varsani arrived at the site some 45 minutes or so after Mr. Shield first asked for help. However, it seems to me to be right, as when two further men were asked for after the burst they did arrive together, to suppose that if three men had been asked for at about 1.00 p.m., they would all have come together. Once the requisite manpower was available on site, it seems to me to be realistic to suppose that it would have taken them as long to shut down the Main as it in fact did, namely about an hour and thirty-five minutes. On that basis the Main would have been shut down by about 3.45 p.m. Consequently, in my judgment, the cause of the loss allegedly sustained by the Victims was not the damage initially caused to the Main by Digginwell, but the failure of Thames to act promptly, on the basis of correct information as to the location and depth of the Main, and without being blinkered by its rigid procedure, once Mr. Shield arrived at the site of the damage to the Main. Even if it were excusable for Mr. Shield not to be aware of the location and depth of the Main, on my findings Mr. Frost did actually know of these matters. I find it wholly inexplicable why he did not share his knowledge with Mr. Shield at the earliest possible moment.

Conclusion

71. In the result, I find that, although the initial damage to the Main on 8 February 1997 was caused by the negligence of Digginwell, the cause of the loss allegedly sustained by the Victims was the failure of Thames to shut down the Main as promptly as it ought to have done had it maintained, in the light of knowledge obtained as a result of the McNicholas incident, a correct record of the location and depth of the Main, or had Mr. Frost shared with those responsible for dealing with the incident on 8 February 1997 the knowledge which he actually possessed, and had it undertaken a proper evaluation of the information available as to the probable source of the water visible in the roadway at about 12.40 p.m. on 8 February 1997. Thus the “damage” allegedly sustained by the Victims is not “the same damage” as that caused by the negligence of Digginwell, and Thames is not entitled to contribution from Digginwell under Civil Liability (Contribution) Act 1978 to the sums which it has apparently paid to the Victims. Further, in the circumstances, it seems to me that Thames was in breach of its duty to eliminate hazards arising from its equipment which Mr. Daiches accepted, and that that breach of duty was the sole cause of the losses allegedly suffered by the Victims.