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
		26 March 2002

HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)


 


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

Introduction

1. Freemans Plc (“Freemans”) carries on the business of selling goods by mail order. To facilitate the carrying on of that business Freemans occupies, amongst other warehouses, substantial premises adjacent to the railway station at Peterborough, Cambridgeshire. Those premises (“the Premises”) include a large warehouse in which there is an area called “the Bulk Carton Store” (“the Store”). The freehold owner of the Premises is the Council of the City of Peterborough (“the Council”). The Premises were demised by the Council’s predecessor, the body corporate described as the Mayor, Aldermen and Citizens of the City of Peterborough (“the Corporation”), to Freemans by a 99 year lease made in 1968.
2. The freehold title to Peterborough railway station and the railway tracks leading to it, along with the areas of land immediately adjoining the railway tracks, is currently vested in Railtrack Plc (“Railtrack”). The property vested in Railtrack in the vicinity of Peterborough railway station includes a culvert (“the Culvert”) which, as originally constructed, ran from a point within the land owned by Railtrack to the West of the Down Stamford, or Down Slow, line at a manhole called Manhole 4 via Manholes 3, 2, 1A and 1 to a point on the far side of the railway from the Premises in Maskew Avenue at which it entered a water company sewer. The exact nature of Manhole 1A is a matter to which I shall have to return. In circumstances which I shall describe later in this judgment the line of the Culvert was extended Westwards from Manhole 4 to a new manhole, Manhole 5, on the Premises in the vicinity of the Store.
3. The floor of the Store as originally constructed comprised a concrete slab over which was laid a layer, 15 millimetres thick, of a substance called FAMA. FAMA is a magnesite industrial flooring of a type commonly used in buildings constructed in the 1960s. FAMA was made out of sawdust, a substance called “Swedish Talc”, the exact composition of which is a trade secret, and granite fillers bound together with magnesium oxychloride. It was tough and extremely resistant to oil attack, but was susceptible to damage from water. In the event of contact with water the wood element in FAMA would react like wood and swell and degrade.
4. In about 1994 Freemans was interested in upgrading the quality of the floor in the Store to a Category 2 Industrial Floor. The original system for handling goods within the Store was a tow chain system. Freemans wished to introduce a Very Narrow Aisle (“VNA”) racking system in order to increase the storage capacity of the Store. As part of such a VNA system it was necessary to introduce a new type of truck, manufactured by a company called Boss, to handle goods which would now be stacked up to 7 metres high. In order to enable this new type of truck to be operated safely in an extended position at height, so that the trucks did not have to be brought down to ground level each time they moved, and at speed, it was necessary to upgrade the aisles in the floor of the Store to the standard of evenness of a Category 2 Industrial Floor.
5. Freemans sought advice concerning the upgrading of the aisles in the Store from a company called, at that time, W.M. Wright & Son (Lincoln) Ltd., and now called Park Street Properties (Lincoln) Ltd. I shall call that company in this judgment “Wright”, no matter what name it actually had at the time of which I am speaking. Wright was the First Defendant in this action. It was alleged that the advice which Wright gave, to lay a screed of a substance called “Jaypol” in the aisles, was incorrect and that Jaypol was not fit to be used as a screed over FAMA because Jaypol was applied as a wet topping and the water content attacked the wood element in the FAMA. It was also alleged that Wright had warranted that Jaypol was a suitable substance to be applied over FAMA so as to provide a Category 2 Industrial Floor and had provided a guarantee of the screed of Jaypol which it applied valid for ten years. It was contended that Wright was in breach of the warranty alleged, and liable under the guarantee, because the aisles in the Store showed defects which were said to be attributable to the debonding of the Jaypol from the FAMA. It was also alleged that Wright had not undertaken properly the work of applying the Jaypol over the FAMA in the aisles of the Store. Shortly before the commencement of the trial terms of settlement were agreed between Freemans and Wright whereunder Wright agreed to pay to Freemans sums totalling £350,000.
6. Jaypol was manufactured by a company called Jaychem (Bourne) Ltd. (“Jaychem”). Jaychem was originally the Second Defendant in this action. However, Jaychem is in liquidation and it has taken no part in this action for some time past.
7. The problems which were encountered with the aisles in the floor of the Store after the application of Jaypol over FAMA had begun to manifest themselves a considerable time prior to July 1997. Various repairs had been undertaken to the floor. Prior to July 1997 the latest in time of the repairs had been completed in October 1996. On 8 July 1997 a flood occurred at the Store. It was Freemans’ case in this action that the cause of the flooding was a blockage or blockages in the Culvert for which Railtrack is liable to it in law. It was alleged that the loss which Freemans suffered as a result of the flood was damage to the floor of the Store. Further instances of flooding at the Store occurred on 23 October 1998 and 9 August 1999. Again the cause of the flooding was alleged to have been a blockage or blockages in the Culvert. Each of the further instances of flooding was itself alleged to have caused further damage to the floor of the Store. While the occurrence of the instances of flooding to which I have referred was not in dispute, Railtrack denied that it was liable in law to Freemans in respect of any damage caused by the floodwater on any of the three occasions which I have mentioned. It was also denied that any financial loss additional to that resulting from the application of Jaypol over FAMA was caused in any event, because, so it was contended, the consequences of the application of Jaypol over the FAMA and the subsequent trafficking of the floor by the trucks used by Freemans were that the floor in the aisles would have needed to be repaired or relaid after about seven years anyway. All that followed from the floods, so it was said, was that the physical damage to the floor became more severe sooner and thus accelerated the date as at which full-scale repair was necessary. Put simply, the submission was that the floor was doomed from the moment the Jaypol was laid and did not become any more doomed as a result of the instances of flooding.

The potential liability of Railtrack for deficiencies in the Culvert

8. The case advanced on behalf of Freemans, as opened by Mr. Peter Coulson Q.C., was that if, as he contended, the cause of the floodwater which entered the Store on 8 July 1997, 23 October 1998 and 9 August 1999 was a blockage or blockages in the Culvert, Railtrack was liable in respect of any damage done by such floodwater as a result of the effect of Section 68 of Railway Clauses Consolidation Act 1845 (“the 1845 Act”), or as a result of the terms of an agreement made in early 1968 between Railtrack’s predecessor, British Railways Board (“BRB”) and the Corporation (“the BRB Agreement”), or in nuisance. On the face of its statement of case Freemans also contended that Railtrack was liable to it in negligence and/or as a result of “Assumption of Responsibility”. In opening Freemans’ case Mr. Coulson indicated that, in practical terms, given how the law of nuisance has developed, the allegations that Railtrack had been negligent added nothing to the alleged cause of action in nuisance, and the allegation of “Assumption of Responsibility” was not intended to amount to an assertion of some further cause of action, but simply to demonstrate that Railtrack attempted, albeit unsuccessfully, to perform the obligations which Freemans contended were placed upon Railtrack by law in relation to the Culvert.
9. Mr. Kirk Reynolds Q.C., who appeared on behalf of Railtrack, submitted, in opening Railtrack’s case, that, on proper construction of s.68 of the 1845 Act, and in the light of the relevant history of the development of the railways in Peterborough and subsequent events, it was not open to Freemans to rely upon s. 68 as giving rise to the duties on Railtrack for which Freemans contended. He further submitted that, if the provisions of s.68 of the 1845 Act might otherwise have been relevant, the effect of the BRB Agreement was that the Corporation gave up whatever rights it might otherwise have had under s.68, alternatively the Corporation agreed to indemnify BRB, and thus Railtrack as the statutory successor of BRB, against any liabilities which would otherwise have been owed to the Corporation. Mr. Reynolds submitted that, as against Railtrack, Freemans could not be in any better position than the Corporation. In relation to the alleged liability in nuisance Mr. Reynolds submitted, first, that the effect of the BRB Agreement was that the Corporation had contracted out of any right which it might otherwise have had to complain of interruption of the drainage from the Premises onto the adjacent land belonging to BRB. He submitted that the giving up by contract of any right which there might otherwise have been to complain of nuisance in the form of causing flooding of a part of the Premises by failing to keep the Culvert clear was binding upon Freemans and was something upon which Railtrack could rely as the statutory successor of BRB. Further and in any event, Mr. Reynolds submitted that liability in nuisance depended, amongst other things, upon knowledge of the hazard which amounted, potentially, to the nuisance. He submitted that on the facts Railtrack had no knowledge of the existence of a blockage in the Culvert until two blockages were found in April 2000, and no reason to undertake the investigations which led to the finding of those blockages until it in fact undertook those investigations.
10. Before embarking upon a consideration of the evidence as to the knowledge of Railtrack as to the condition of the Culvert at times relevant to this action and as to what steps Railtrack took to ensure that the Culvert was properly maintained and unobstructed, it is convenient to consider the issues of law arising as between Freemans and Railtrack in the light of facts which are not in dispute.
11. Historically there were three railway lines at Peterborough the construction of which is relevant to the matters which I have to decide. Each line was constructed pursuant to the provisions of a private Act of Parliament. The first in time of the relevant Acts of Parliament was The Midland Railway (Syston to Peterborough) Act 1845. That was followed by The Great Northern Railway (Deviations between London and Grantham) Act 1847. Considerably later a company called Peterborough Wisbech and Sutton Railway Company was authorised by Peterborough, Wisbech and Sutton Railway Act 1863 to construct a third line, which has been referred to during the course of the trial as “the Branch Line”. It was common ground that each of the relevant private Acts of Parliament incorporated the provisions of the 1845 Act. The purpose of the latter statute seems principally to have been to function as a set of standard provisions which could be incorporated by reference into the many private Acts of Parliament which were promoted from the 1840s onwards as the rail network in the United Kingdom was developed. Section 1 of the 1845 Act, insofar as it is still in force, provides that:-

“…This Act shall apply to every railway which shall by any Act which shall hereafter be passed be authorized to be constructed, and this Act shall be incorporated with such Act; and all the clauses and provisions of this Act, save so far as they shall be expressly varied or excepted by any such Act, shall apply to the undertaking authorized thereby, so far as the same shall be applicable to such undertaking, and shall, as well as the clauses and provisions of every Act which shall be incorporated with such Act, form part of such Act, and be construed together therewith as forming one Act.”

12. The terms of s.68 of the 1845 Act, so far as is presently material, are as follows:-

“The company shall make and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway; (that is to say,)

Such and so many convenient gates, bridges, arches, culverts, and passages, over, under, or by the sides of or leading to or from the railway, as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made; and such works shall be made forthwith after the part of the railway passing over such lands shall have been laid out or formed, or during the formation thereof;…

Also all necessary arches, tunnels, culverts, drains, or other passages, either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway, or as nearly as may be; and such works shall be made from time to time as the railway works proceed;…

Provided always, that the company shall not be required ...to make any accommodation works with respect to which the owners and occupiers of the lands shall have agreed to receive and shall have been paid compensation instead of making them.”

The terms “the company” and “ the railway” were defined in s.3 of the 1845 Act as meaning, respectively:-

“ “the company” The expression “the company” shall mean the company or party which shall be authorized by the special Act to construct the railway;

“the railway” The expression “the railway” shall mean the railway and works by the special Act authorized to be constructed.”

It would seem that the rights created by s.68 of the 1845 Act to use accommodation works are in the nature of an easement created by statute – see Midland Railway Company v. Gribble [1895] 2 Ch 129; South Eastern Railway Company v. Cooper [1924] 1 Ch 211 – with the difference that the section required that the provider of the accommodation works maintain them after they had been created.
13. A provision the 1845 Act to which Mr. Reynolds drew my attention in support of his argument was s.73. That section is in the following terms:-

“The company shall not be compelled to make any further or additional accommodation works for the use of owners and occupiers of land adjoining the railway after the expiration of the prescribed period, or, if no period be prescribed, after five years from the completion of the works, and the opening of the railway for public use.”

14. The first of the three railway lines which I have mentioned to be constructed at Peterborough was that of Great Northern Railway Company (“GNR”). The land required for the construction of the relevant part of what is now the East Coast Main Line was conveyed to GNR by the Lord Bishop of Peterborough by a conveyance dated 4 April 1851.
15. Next in time of the lines to be constructed was that of Midland Railway Company (“Midland”). The land necessary for the construction of the relevant part of that line was conveyed also by the Lord Bishop of Peterborough by a conveyance dated 7 November 1851.
16. Finally, the land required for the construction of the Branch Line was conveyed to Peterborough Wisbech and Sutton Railway Company (“PWSR”) by the Ecclesiastical Commissioners by a conveyance dated 2 August 1877.
17. Prior to the construction of what has become the East Coast Main Line there was, it seems to be common ground, a stream which flowed across the route of that railway line. On the evidence put before me that stream drained, through a network of ditches, an area variously estimated at about one square kilometre or two square kilometres. For present purposes I do not think it necessary to make any finding about which of these estimates is correct, because, whichever is correct, the area drained included the area on which the Store now stands. As part of the works associated with the construction of the GNR line and the Midland line the stream was culverted so as to run under the two lines of these companies. When the line of PWSR was constructed it appears that the culvert was extended so as to run under that line also.
18. It seems that Midland first took over PWSR and then itself merged with GNR. Whether this is correct or not is not especially important to the argument which Mr. Reynolds advanced in relation to the effect, so far as this case is concerned, of s.68 of the 1845 Act, because on any view all railways in Great Britain were taken into public ownership as a result of the passing of Transport Act 1947 and their property and undertakings were vested in British Transport Commission (“BTC”). In due course the operation of the railways in Great Britain, and the ownership of the property necessary for such operation, became vested in BRB. As I have already recorded, the ownership of the railway lines in the vicinity of Peterborough station with which I am concerned is now vested in Railtrack.
19. From the heyday of the network in the late Victorian period, the utilisation of the railways progressively declined until by the early 1960s it was felt that consideration needed to be given to a systematic rationalisation of the railways of the country. Dr. Richard Beeching acquired a certain notoriety at the time in respect of his role in evaluating which lines should no longer remain open for traffic. As a result of a consideration of its viability in the context of Dr. Beeching’s overall assessment of the railways, a decision was made to close the Branch Line. That meant that the land upon which the Branch Line had previously run, and in particular the sidings of the line at Peterborough station, became surplus to the requirements of BRB.
20. By a conveyance dated 10 November 1966 and made between (1) BRB and (2) the Corporation BRB conveyed to the Corporation an area of land described as “ALL THAT piece of land formerly the site of Wisbech Sidings in the City of Peterborough containing an area of Ten Acres Seven Hundred and Fifty-five square yards or thereabouts as the same is more particularly delineated on the plan hereunto annexed and thereon coloured blue All such premises being hereinafter called “the property””. The conveyance provided that the Corporation was “TO HOLD the same unto the Corporation in fee simple SUBJECT to and with the benefit of a Twenty-one inch diameter culvert passing under the property as shown by a red line on the said plan”. By clause 3 of the conveyance it was provided that:-

“THE Corporation HEREBY RELEASE the Board from all obligations (if any) as to the maintenance of the said culvert and indemnify the Board from their liability (if any) in respect thereof.”

21. After it had acquired the land the subject of the conveyance dated 10 November 1966 from BRB the Corporation sought to incorporate that land with other land which it owned and to develop the whole as Westwood Industrial Estate. The Premises are a part of Westwood Industrial Estate. The Store lies on that part of the Premises which was formerly part of Wisbech Sidings and was the subject of the conveyance dated 10 November 1966. For the purposes of facilitating the development of Westwood Industrial Estate, and in particular of that part of it which comprises the Premises, the Corporation sought permission from BRB to make a connection into the Culvert for the purposes of surface water drainage. At that point, so it seems, the development of the Premises as a warehouse for Freemans was in prospect. The response of BRB to the approach from the Corporation was set out in a letter dated 22 December 1967 written by Mr. F. Beaney, BRB’s District Estate Surveyor, to the Town Clerk of the Corporation. That letter was in the following terms:-

“WESTWOOD INDUSTRIAL ESTATE: RAILWAY CULVERT.

Referring to Mr. Smallman’s letter of the 27^th October, I put his views to the Board’s Solicitor, and following the advice given, the Chief Civil Engineer has re-drawn the terms and conditions upon which a connection to the railway culvert can be agreed. These conditions are as follows:-

1. All work to be carried out and completed to the satisfaction of the Board’s Chief Civil Engineer.

2. The Board’s fences, drains and other services where disturbed to be restored to a condition not inferior to that in which they are found before the works are commenced.

3. The roadway surfaces and embankment slopes, where disturbed, to be restored to a condition not inferior to that in which they are found before the works are commenced.

4. The Board to be indemnified and held harmless against any losses, costs, damages, expenses, claims, or liabilities, which they may incur, sustain, or be put to by reason or in consequence of the works.

5. All costs occasioned by reason of the construction, alteration or use of the works, including the costs of safeguarding all running lines, to be borne by the Corporation.

6. The Board not to be held responsible for any damage or injury which may be caused to the works by subsidence or any other reason.

7. After commencement, the Corporation to ensure that the work affecting the Board’s interest is carried out and completed without delay.

8. Fourteen days’ notice of intention to commence work to be given to the Divisional Civil Engineer, King’s Cross Station, London N.1. quoting reference T.7010/60.

In the previous correspondence, we have been dealing with a request to dispose of storm water from a particular area of the Freeman development. In agreeing to this request, it is felt that it would not be unreasonable for the Board to have an undertaking to the effect that the drainage area will be restricted to that shown coloured purple on the City Engineer’s Drawing No. 5140, which was sent to me on the 21^st July,1967, under reference RNM/JB/290/B. In addition, the Board would like a further undertaking that should the eventual flow from the area concerned prove to be beyond the capacity of the culvert, the responsibility for the necessary additional and/or alternative works would rest entirely with the Corporation.

I shall be pleased to receive formal acknowledgement of the Engineering Conditions and the undertakings referred to in the previous paragraph.”

22. The Corporation’s Town Clerk replied to the letter from Mr. Beaney dated 22 December 1967 in a letter erroneously dated 18 January 1967 but in fact written in 1968. The text of the letter was as follows:-

“Further to my letter of 28^th December, I have now been able to clarify the position with the City Engineer and I write formally to confirm that the conditions set out numbers 1 to 8 in your letter of 22^nd December are acceptable and give undertakings in respect of the matters specified in the penultimate paragraph of that letter.

The City Engineer will be in touch with you again on any technical matters arising and for my part I would just like to thank you for your assistance in disposing of the issue in such an amicable way.”

23. It was in the exchange of the letters dated, respectively, 22 December 1967 and 18 January 1967, that, as was common ground between the parties before me, the BRB Agreement was contained. The plan which was referred to in the letter dated 22 December 1967 was put in evidence and showed the area coloured purple to comprise, in substance, the area of the Store.
24. Mr. Reynolds drew to my attention the decision of the Court of Appeal in Rhondda and Swansea Railway Company v. Talbot [1897] 2 Ch 131, and in particular the remarks of Lindley LJ at page 137 that:-

“The accommodation works which the company may be required to make are such accommodation works as are required at the time the land was taken, having regard to its then use, and not accommodation works which may be required when the character of the land, and perhaps the nature of the neighbourhood, is entirely altered years afterwards.”

He also submitted, on the authority of the decision of Kelly CB in Colley v. The London and North Western Railway Company (1880) 5 Ex D 277, that the effect of s. 73 of the 1845 Act is that no action lies after the expiry of the five year period for which that section provides in respect of the alleged insufficiency of accommodation works. However, it appears from the decision of the Court of Appeal in Dixon v. Great Western Railway Company [1897] 1 QB 300, to which Mr. Coulson referred me, that s.73 is only of effect if some accommodation works have been carried out. If none have been done, the effect of s.68 is that the obligation for which that section provides falls to be performed in perpetuity unless and until it has in fact been performed. Mr. Coulson relied upon the decision in the case to which he referred me as authority for the proposition that, in the circumstances of the present case, the obligation of Railtrack to maintain the Culvert was perpetual. Mr. Reynolds and Mr. Coulson agreed that, if Railtrack owed to Freemans an obligation to maintain the Culvert by virtue of s. 68 of the 1845 Act, Railtrack was strictly liable in respect of any failure to perform that duty.
25. Mr. Reynolds’s first submission in relation to s. 68 of the 1845 Act was that, whatever may have been the position when the GNR line or the Midland line at Peterborough was first constructed, once the PWSR line had been built no obligation was owed to PWSR under s. 68 in relation to drainage, or any other matter, because the land occupied by PWSR was itself “the railway”, so PWSR could not be within the class of “owners and occupiers of lands adjoining the railway” for whose accommodation the works for which s. 68 provided were to be carried out. In closing Railtrack’s case Mr. Reynolds did not really pursue this submission. He did not abandon it, but he submitted that it was academic in the light of his second submission in relation to s.68, to which I shall come. It seems to me that in fact his first submission in relation to s.68 is misconceived. The definition of the expression “the railway” in s. 3 of the 1845 Act as “the railway and works by the special Act authorized to be constructed” shows, in my judgment, that the expression “the railway” as used in the 1845 Act is not used in the popular sense to which one became accustomed when there was only one operator of standard gauge railways in Great Britain as meaning the place where trains run, but in the sense of the particular railway the construction of which was authorised by the particular private Act of Parliament with which one was concerned. Consequently, in my view, there is no reason to construe the reference to “the railway” in s.68 in such a way that where different railway companies constructed adjacent lines each did not potentially owe to the other obligations of the kind for which s. 68 provided. In practical terms, in the light of the comments of Lindley LJ in Rhondda and Swansea Railway Company v. Talbot at page 137 of the report which I have quoted above, it may be that each company would have derived little benefit from being owed such obligations, but that does not mean that the 1845 Act should be construed in a way which meant that the companies had no entitlement at all to the benefit of such obligations. I therefore reject Mr. Reynolds’ first submission in relation to s. 68 of the 1845 Act.
26. The next submission which Mr. Reynolds made in relation to s. 68 of the 1845 Act was that, whatever may have been the position while GNR, Midland and PWSR had separate existence, once they had all merged, and at the latest after all operators of standard gauge railways had been nationalised and their property vested in BTC, any rights which any of GNR, Midland and PWSR had as against the others in relation to land in the vicinity of Peterborough station, and in particular the area in which the Store now is, were extinguished. Mr. Reynolds was unable to point to any authority for that submission, but he prayed in aid the law in relation to easements. He submitted, correctly, in my judgment, that it is well established that an easement ceases to exist in the event that the freehold interests in the dominant tenement and the servient tenement come into common ownership. On the strength of that submission he invited me to apply the same principle to the circumstances before me, by analogy. He submitted that the application of the principle for which he contended to the 1845 Act was justified as a matter of construction of s.68, or as a matter of implication into the 1845 Act. It seems to me, with all respect to Mr. Reynolds, that the analogy which he invited me to draw is inexact. In the case of an easement one party, the owner of the dominant tenement, has a right which is binding on one other party, the owner of the servient tenement. If one person becomes the owner of both the dominant tenement and the servient tenement, there is no longer any need for the easement for so long as there is unity of title. If, at some stage after there has been unity of title, the owner of the united tenements decides to dispose of some part of his holding, he can parcel up that of which he disposes as he chooses and he can associate with his disposal whatever package of rights, if any, he wishes. S. 68 of the 1845 Act creates statutory rights which are expressed to endure in perpetuity. The 1845 Act did not in terms contemplate the situation in which land the owner and occupier of which initially had the benefit of s. 68 would cease to have that benefit, at least in practical terms, because the ownership of the relevant land would pass to the operator of the railway which owed the relevant obligations, but then the land would be disposed of to some third party. However, it is clear, in my judgment, that s. 68 was intended to benefit a class of persons, namely all of the owners and occupiers of land adjoining the railway who needed to have the relevant particular works undertaken for their accommodation as at the date the land required for the particular railway was taken. It is also clear, in my judgment, that the relevant railway company could avoid the need to undertake accommodation works if it agreed to pay compensation to the owners and occupiers of lands which would otherwise have been entitled to the benefit of such works, that is to say to all of those who would otherwise have been entitled to the benefit of the particular works, but, subject to that, accommodation works, once undertaken, were to be maintained in perpetuity. On ordinary principles it would seem that there is no reason why a party entitled to the benefit of accommodation works which have been provided should not be able to give up that benefit by contract. It is clear from the terms of s. 68 itself that the right to have accommodation works undertaken could be given up by contract before the accommodation works had been carried out. However, subject to the possibility that the right to enjoy accommodation works could be given up by contract, in my judgment, that right, having a statutory origin, could only be extinguished in circumstances for which statute provided. Mr. Reynolds’s submission involves implying into the 1845 Act a provision to the effect that the right to enjoyment of accommodation works should cease to exist in the event that the relevant “railway” and land having the benefit of accommodation works came into the same ownership. I can see no justification for any such implication. I therefore reject this submission of Mr. Reynolds.
27. Mr. Reynolds did not place any reliance on the terms of clause 3 of the conveyance dated 10 November 1966 made between BRB and the Corporation. He did, however, submit that the effect of the making of the BRB Agreement was that the Corporation gave up whatever right it might otherwise have had under s. 68 of the 1845 Act in return for the rights granted by BRB under the BRB Agreement. He further submitted that by the BRB Agreement BRB granted to the Corporation an easement of drainage. The significance of the latter submission was that it led on, if well-founded, to the additional submission that under the general law of easements the owner of the servient tenement was under no obligation to keep in repair the subject matter of the easement. On the contrary, as an incident of the easement the owner of the dominant tenement had a right to enter upon the servient tenement to undertake any necessary works at his own expense. In support of the latter submission Mr. Reynolds relied on the decisions of the Court of Appeal in Newcomen v. Coulson (1877) 5 Ch D 133, in particular a passage in the judgment of Sir George Jessel MR at page 143, and Duke of Westminster v. Guild [1985] 1 QB 688, in particular passages in the judgment of the court delivered by Slade LJ at pages 700-701 and 702-703. The former was a case about construction of a roadway as an incident of the exercise of a right of way, while the latter was concerned with the maintenance of drains through which there was an easement of drainage.
28. Mr. Coulson also sought, initially, to rely on the BRB Agreement, but as imposing on Railtrack an obligation to keep the Culvert in repair. Mr. Coulson did not really address the issue of how any such obligation, if, on proper construction of the BRB Agreement, such was assumed by BRB, was enforceable by Freemans. When this point was raised, he effectively abandoned any reliance on the BRB Agreement other than as evidence that the rights conferred on the owners of land adjoining the GNR line and the Midland line by s.68 of the 1845 Act were, on the construction for which he contended, still being recognised by BRB. He did not accept that the effect of the BRB Agreement was to create an easement. Although not fully articulated, his submission seemed to be that an easement could only be granted by deed. He also submitted that an easement ran with the land, and that it was plain that such was not the case in this instance because the origin of the alleged easement was not the conveyance dated 10 November 1966.
29. I do not accept Mr. Reynolds’s submission that the effect of the making of the BRB Agreement was, amongst other things, that, if it had not done so already, the Corporation thereby gave up whatever rights it would otherwise have had under s. 68 of the 1845 Act. I am inclined to think that in fact the Corporation had forgone any such rights by virtue of the terms of clause 3 of the conveyance dated 10 November 1966, but, as I have said, Mr. Reynolds did not place any reliance on that provision. It does seem to me that, as Mr. Reynolds submitted, under the BRB Agreement the Corporation was seeking and obtaining a right which it would not, or might not, have had under s. 68 of the 1845 Act, namely to make a connection to the Culvert for the purpose of draining the area of the Store in a developed state, as opposed to a right simply to allow water to flow from the area of the Store into an open-ended Culvert. However, it does not follow from that, in my judgment, the Corporation was giving up the right it had under s.68 of the 1845 Act that BRB should maintain the Culvert. The fact that the Corporation was to have permission to make a connection to the Culvert as then existing had no necessary impact on the Culvert. It is plain from the terms of the BRB Agreement that it was not envisaged that the resultant flow of water through the Culvert would be increased beyond its then capacity. The fact that express provision was made in the BRB Agreement for the eventuality that the capacity of the Culvert might need to be increased, and that, if that should happen, the cost should be met by the Corporation, indicates, it seems to me, that what was envisaged was that existing rights and obligations in relation to the Culvert would be unaffected by the making of the BRB Agreement.
30. While I accept Mr. Reynolds’s submission as to what consequences would have followed had the BRB Agreement amounted to the grant of an easement, in my judgment it is plain that the BRB Agreement did not have that effect. By Law of Property Act 1925 s. 1(2)(a) an easement for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute, such as an easement of drainage created by grant, is an interest in land. Consequently, by virtue of Law of Property Act 1925 s. 52(1), it can only be created by deed. As the BRB Agreement was not contained in a deed there can be no question of the rights granted under it being a legal easement. When pressed, Mr. Reynolds accepted that. He submitted that by the BRB Agreement BRB agreed to grant an easement, and that such agreement for an easement amounted in equity to the grant of an easement. He submitted that it was obvious that, as part of the BRB Agreement the Corporation was intended to have a right to use the connection to be made to the Culvert to pass water into the Culvert, and that that amounted to an easement of drainage. I have no doubt that by the BRB Agreement BRB gave the Corporation permission insofar as the Corporation needed it, to pass water through the new connection to be made to the Culvert into the Culvert. However, Mr. Reynolds was not able to say why that permission should be viewed as the grant of an easement, as opposed to the giving of a contractual licence. Unless the rights arising under s.68 of the 1845 Act to use the Culvert had been given up by the Corporation, no easement in respect of the use of the Culvert was necessary in any event. In fact, in my judgment, the BRB Agreement was an ordinary contract made for good consideration and gave rise to rights of a purely contractual nature. In essence the nature of the rights granted by BRB to the Corporation under the BRB Agreement was that the Corporation was to be at liberty to construct a connection to the Culvert at its own expense and thereafter the Corporation and those authorised by it should be permitted to use that connection for the purpose of draining into the Culvert water from the area shown coloured purple on the drawing of the City Engineer numbered 5140 referred to in Mr. Beaney’s letter dated 22 December 1967. That it was contemplated that not only the Corporation but also those authorised by it should be able to use the connection for drainage purposes appears from the reference in Mr. Beaney’s letter to “the Freeman development”. It is plain, it seems to me, that BRB understood perfectly well that the Corporation was engaged in the development of an industrial estate the units in which it intended to let, and in particular that it intended to let the area intended to be drained in the first instance to Freemans. However, none of that was sufficient at the time the BRB Agreement was made to confer any right on Freemans to enforce any right directly against BRB, and the recent legislative change in this area of the law made by Contracts (Rights of Third Parties) Act 1999 has not had retrospective effect. Consequently it does not seem to me that it is open to Freemans to rely as against Railtrack on the terms of the BRB Agreement. By parity of reasoning it is not open to Railtrack to rely as against Freemans upon the terms of the BRB Agreement. In the end Mr. Reynolds’s submission that Railtrack could rely as against Freemans on the terms of the BRB Agreement amounted to no more than an assertion that if Freemans could rely on the BRB Agreement as against Railtrack, Railtrack must be able to rely upon it as against Freemans.
31. Mr. Reynolds did submit that, on proper construction of the BRB Agreement, BRB did not undertake any obligation to maintain the Culvert. Moreover, he submitted, by the express terms set out in Mr. Beaney’s letter dated 22 December 1967, all costs occasioned by the use of “the works” permitted by the BRB Agreement were to be borne by the Corporation and the Corporation was to indemnify BRB against “any losses, costs, damages, expenses, claims, or liabilities, which [BRB] may incur, sustain, or be put to by reason or in consequence of the works.” In his written submissions Mr. Reynolds contended that, in the BRB Agreement, the expression “the works”, in contrast to the expression “the work”, which also appeared, meant the Culvert and not just the work of making the connection to it. The latter, he submitted, was what was meant by the expression “the work”. In his verbal closing submissions Mr. Reynolds abandoned his submission as to the meaning of the expression “the works” in the BRB Agreement and submitted instead that the expression “the works” meant the connection as completed and not the whole of the Culvert. In his verbal submissions Mr. Reynolds contended that, the BRB Agreement being silent as to obligations to repair the Culvert, it was an implied term that either party should have the right to maintain the Culvert. He submitted that it was necessary to imply such a term to make the grant of the permission to pass water from the new connection into the Culvert effective. He also submitted that the implication of such a term was justified as representing the actual, but unexpressed, bargain of the parties. He further submitted that, on proper construction of paragraph 5 of Mr. Beaney’s letter dated 22 December 1967, read with paragraph 4, it amounted to a clause excluding the liability of BRB, and thus Railtrack, in respect of nuisance in relation to any blockage of the Culvert.
32. I did not find the distinction which Mr. Reynolds sought to draw between the use of the expression “the works” and the use of the expression “the work” in the BRB Agreement convincing in either version for which he contended. While “the work” referred to in numbered paragraph 1 of Mr. Beaney’s letter dated 22 December 1967 must, I think, be the work of constructing a connection to the Culvert as then existing from the area of what is now the Store, it would seem that that must also be the meaning of the expression “the works” in numbered paragraphs 2 and 3. The expression “the works” in numbered paragraph 6 might refer equally well to the construction of the connection or to the connection as completed, but was unlikely to refer to the Culvert as a whole with the new connection, for it would seem unnecessary to deal in the BRB Agreement with the exclusion of the liability of BRB for damage to its own property. The possible liability of BRB for damage to the new connection could arise equally well during construction as afterwards. The expression “the work” is used in numbered paragraphs 7 and 8 in such a way as to indicate that that which is referred to is the work of constructing a connection to the Culvert as then existing. The result is that there does not appear to be any consistency of usage in the paragraphs so far considered, with the expression “the work” being used interchangeably with the expression “the works”. The question, then, is should the expression “the works” when used in numbered paragraphs 4 and 5 of Mr. Beaney’s letter be construed as being used in either of the particular senses for which Mr. Reynolds contended. I see no warrant for so construing it. Both numbered paragraph 4 and numbered paragraph 5 make perfectly good sense if construed as referring to the work of making a connection to the Culvert as then existing. Indeed numbered paragraph 4 makes more sense commercially if construed in that way, for while one can understand that the Corporation might be prepared to indemnify BRB in respect of matters arising as a result of the undertaking by the Corporation of the construction operations which it wished to carry out to effect a connection to the Culvert as then existing, it is not particularly likely, however convenient to Mr. Reynolds’s present argument, that the Corporation should have been prepared to indemnify BRB in respect of liabilities of BRB which were not related to those operations, but simply to allowing water to pass through the new connection. It seems wildly improbable that the Corporation should have been prepared to indemnify BRB in respect of BRB’s liabilities in relation to that part of the Culvert beyond the new connection. In numbered paragraph 5 of Mr. Beaney’s letter the expression “the works” when used in the context of “the use of the works” must refer to works in a condition to be used, and thus must refer to the connection which was to be made pursuant to the BRB Agreement once completed, but it seems to me to be quite clear that it does not refer to the Culvert beyond the new connection. The works in fact executed were to construct on part of the land the subject of the conveyance dated 10 November 1966 what was called in the trial Manhole 5 and to lay a concrete culvert from that point to Manhole 4 on land remaining in the ownership of BRB.
33. Whatever the meaning of the expression “the works” in numbered paragraph 4 of Mr. Beaney’s letter, on no view did Freemans give any indemnity to BRB in respect of anything relevant to anything which I have to decide.
34. There is, in my judgment, no warrant for implying into the BRB Agreement the term as to entitlement to maintain the Culvert for which Mr. Reynolds contended. The BRB Agreement dealt with the terms upon which BRB was prepared to permit the Corporation to make a connection to the Culvert as then existing. Whatever the position was concerning obligations to maintain the Culvert immediately before the making of the BRB Agreement was simply left unchanged by the making of that agreement.
35. Mr. Reynolds did submit in his written opening that:-

“28. D3 [that is, Railtrack] submits that this correspondence [namely that which constituted the BRB Agreement], read as a whole and in context, allocates all responsibility for the maintenance of the Culvert to the Corporation (and thus to the Corporation’s lessee, C).”

However, he did not seek to make good the contention that, by some means upon which he did not elaborate, Freemans became bound to accept, as against Railtrack, responsibility for the maintenance of the Culvert. What he did submit was that, on proper construction of the BRB Agreement, by virtue of the giving on the part of the Corporation of the indemnity to which I have referred, and the agreement on the part of the Corporation to pay the costs identified in paragraph 5 of Mr. Beaney’s letter dated 22 December 1967, the Corporation had contracted out of the ability to make any claim in respect of nuisance arising from a failure on the part of BRB to maintain the Culvert. In other words, his submission was that those two provisions amounted to an exclusion clause. He submitted that Freemans was bound by the consequences of such exclusion clause. I do not consider that submission to be well-founded. It is no doubt correct that, if Mr. Reynolds’s submission as to the proper construction of that for which the BRB Agreement provided were correct, it would not be open to the Corporation to make any claim against BRB or Railtrack in respect of nuisance caused by a failure on the part of BRB or Railtrack to maintain the Culvert because of circuity of action. However, I do not accept his submission as to the proper construction of that for which the BRB Agreement provided. Even if I did, it would not follow from that that anyone deriving an interest in the Premises, or more particularly the area of the Store, through the Corporation would be in the same position. The seeking and giving of the indemnity rather suggest the contrary, if Mr. Reynolds’s submission as to the construction of the indemnity were correct. Unless it was contemplated that there were circumstances in which someone deriving an interest in the Premises through the Corporation could have a claim against BRB it is difficult to see what reason there could be for stipulating for an indemnity rather than, for example, a simple provision that the Corporation should not have any claim against BRB arising out of the exercise of the right of drainage for which the BRB Agreement provided.
36. In his written opening Mr. Reynolds submitted that:-

“33. D3 submits that any claim based on nuisance can only operate subject to the express terms of the agreement entered into in 1967-8. As already stated, that agreement contains an indemnity by the Corporation (which is binding on the Corporation’s lessee, C) which gives D3 a defence to any claim based on nuisance which might otherwise have existed at common law.”

As I have remarked, Mr. Reynolds did not seek to expound upon the assertion that whatever the Corporation had agreed with BRB was somehow binding on Freemans.
37. It was common ground that the effect of the decision of the House of Lords in Sedleigh-Denfield v. O’ Callaghan [1940] AC 880 was that an occupier of land owes an obligation to adjacent occupiers not to cause or permit water to flow from the land which he occupies onto the land which they occupy as a result of a blockage in a drain on his land of which he has knowledge. It was also common ground that the law of nuisance has advanced somewhat since that decision, in particular via the decision of the Privy Council in Goldman v. Hargrave [1967] 1 AC 645. In the latter case approval was expressed of what was, when delivered, the dissenting judgment of Scrutton LJ in Job Edwards Ltd. v. Birmingham Navigations Co. Proprietors [1924] 1 KB 341. In the course of his judgment Scrutton LJ made clear his view that liability in nuisance depended, amongst other things, on whether the occupier alleged to be liable had either knowledge or the means of knowledge of the existence of the nuisance. Mr. Reynolds accepted that that formulation was correct, and that it was enough to render Railtrack potentially liable to Freemans in nuisance, if the points which I have considered earlier in this judgment failed, that Railtrack had the means of knowledge of a blockage of the Culvert. It was common ground that the modern law as to what is required of an occupier of land on whose property a hazard, of which he has knowledge or the means of knowledge, arises which, if unchecked, is likely to cause physical damage to the property of adjoining occupiers, can be considered to have been stated accurately by Megaw LJ in Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 at page 526E-G:-

“…The Defendant’s duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man – not the average man – can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant ”

38. On the assumption that Railtrack might, subject to proof of the necessary elements of knowledge or the means of knowledge, causation and damage, be liable to Freemans in nuisance, Mr. Reynolds made the following submissions in his written opening:-

“34. Even if a claim based on nuisance is available, it is an important ingredient of the principle to be found in the cases relied upon that liability arises only when the landowner, D3, has knowledge or the means of knowledge, of the existence of the state of affairs likely to lead to damage. In the present case D3 (and, the Court will be asked to accept, even in the absence of detailed records, its predecessors) had established a system of regular visual or detailed inspections of the many culverts under its control, including the Culvert. In the absence of any complaint from C in the years immediately preceding the 1997 flood, or even as an immediate result of the 1997 flood, and in view of the great dangers and difficulties in inspecting that part of the Culvert where (as C now claims) the relevant state of affairs may have existed, it is submitted that D3 did not have the requisite knowledge to found liability. In any event, when and if D3 did acquire the requisite degree of knowledge, it thereafter attempted to deal with whatever problem might exist, through further inspections and tests, and remedial works and thereby discharged any duty which it may have had to C to deal with the state of affairs.

35. It is also relevant to consider D3’s means, not in any detailed sense, but as being broadly relevant to the consideration of what D3 should have done. D3 does not, of course plead poverty but points to the very large number of structures (including many culverts) for which it has responsibility under statute or at common law. It must decide how to devote its resources in relation to those responsibilities and prioritise expenditure. It is submitted that in devising and implementing the inspection regime D3 was taking sufficient steps to fulfil the “high obligation” referred to in the cases, especially before any complaint was received indicating that the state of the Culvert might be such as to cause flooding.

36. Further, the cases relied upon by C are to be distinguished on the ground that there is no existence [sic – probably evidence was meant] in the present case that damage was caused by water coming from D3’s land, as opposed to water already on C’s land backing up.”

I shall return to the question of “the inspection regime” mentioned in paragraph 35 of Mr. Reynolds’s written opening. However, before one can address any question of what knowledge Railtrack had at any given point in time, or of what Railtrack at any given time had means of knowledge, it is necessary to consider of what it would have been possible to have had knowledge which is relevant to the matters which I have to decide. In other words, at what point in time, on the evidence, did a blockage form in the Culvert?

The Blockages

39. The existence of a blockage in the Culvert was first positively revealed by an inspection of Manhole 2 undertaken by Mr. Paul Lawrence of Jarvis Rail, contractors engaged by Railtrack, on 11 November 1997. Mr. Lawrence was, on that occasion, making, or attempting to make, a detailed inspection of part of the Culvert. I shall return later in this judgment to the questions of what part of the Culvert Mr. Lawrence was trying to inspect and what a detailed inspection is supposed to be. For the moment what is of significance is what Mr. Lawrence found. According to the report which he made of the inspection:-

“Bwk [that is, brickwork] @ top of upside m[an]hole has now collapsed making the bore inaccessible.”

Mr. Lawrence drew a sketch of what he had found and on it he made notes, of which those relevant for present purposes were:-

“WL [Water level] The water within the MH [manhole] is 60-70mm deep and is very clear and clean. The bwk [brickwork] under water is good but the base of the MH is not visible because it is covered in hard compacted fine aggregates…

B [a point marked on the sketch] is the supposed flow route from E-W which is now totally blocked by [word illegible] C [ marked on the sketch]which is new ballast and earth which has already spilled into the manhole (approximately 0.5m²)…”

A note on an attached sheet read:-

“SILT:- Not visible @ the upside MH but see Item C regarding ballast spilling on the upside MH sketch.

In the downside MH & East of the downside MH the first 8-10 m of the bore has 15-20% loss of nominal bore due to fine compacted aggregates over the invert.”

The blockage seems to have been removed and the manhole rebuilt in about April 1998.
40. Further blockages were revealed by a survey of the Culvert undertaken by Bridgeway Consulting Ltd. (“Bridgeway”) on 7 April 2000. Bridgeway made a report of the survey (“the Bridgeway Report”) which was put in evidence. The survey was undertaken by divers who traversed the entire length of the Culvert from Maskew Avenue to Manhole 3. About Manhole 1A the Bridgeway Report said:-

“Manhole is covered completely and access was only possible to within 2 m of the manhole from the downstream side. The manhole appears to have partly collapsed and there is a timber sleeper, lodged vertically in the chamber causing a major blockage. It is possible that this is not a proper manhole but a break-in to the top of the culvert. There are loose bricks lying in the culvert.”

The Bridgeway Report identified two blockages, one just short of Manhole 1A as one came from Manhole 1, and the other at Manhole 1A. About the first of these blockages the Bridgeway Report said:-

“Culvert is blocked by brick debris that increases in size up to manhole 1A. The brickwork appears to have fallen from the collapsed culvert/manhole at 37.3m [that is, Manhole 1A]. The general condition of the culvert at this location is fair.”

Concerning the blockage at Manhole 1A the Bridgeway Report recorded:-

“The manhole appears to be located under the Construction depot sidings. The exact location has been measured underground, but due to the presence of the ballast heap, the manhole could not be located above ground by direct measurement.

It is not certain whether the location refer [sic] as “Manhole 1A” is, in fact a purpose-built manhole, a deliberate break-in to the top of the culvert for drainage purposes or an accidental break-in or collapse. If the latter, it may have occurred during track alterations to accommodate the construction depot. What is clear is that the culvert is substantially blocked at this point by timber sleepers and brick rubble.”

41. Following receipt of the Bridgeway Report, but not exactly at the speed of light, Railtrack arranged for its maintenance contractor, Jarvis Rail, to undertake the work of clearing the blockages in the Culvert and the rebuilding of Manhole 1A. The work was entrusted to Mr. Rik Easton and was carried out, according to the evidence of Mr. John Barber of Freemans, who witnessed it, on 22 and 24 May 2000. Mr. Barber gave evidence before me, as did Mr. Easton. There was no dispute as to the accuracy of the evidence of each on the undertaking of the work of clearing the debris and I unhesitatingly accept it. Mr. Easton told me that, in order to obtain access at surface level to the location of Manhole 1A it was necessary for him to ask for part of the ballast heap referred to in the Bridgeway Report to be removed. After that had been done, so he said in his witness statement dated 3 November 2001:-

“8. We dug the culvert out clearing all the debris that was found in the culvert. There was some brickwork from the manhole itself and pieces of flat stone that had probably formed part of the lid of the manhole. There was [sic] also some bricks that had fallen from the crown of the culvert. There was also a pile of silt that had built up against this debris but the real obstruction to the flow was caused by a number of blue, Freemans’ bags, one being very large, which had caught on the debris. There was also a piece of timber that was approximately 12” by 8” that was also in the base of the culvert. The debris including the bags and the timber was obstructing a good two-thirds of the bore of the culvert.

9. The silt in the culvert was cream in colour and had come from the material on the roof of the Freemans warehouse. The warehouse has a flat tar roof which is made up of a grainy limestone grit which is covered by a cohesive material. The rain washes this cohesive material into the drainage system. This silt has a considerable effect in blocking any openings around larger material that has collected in the culvert.”

Mr. Easton told me in cross-examination, and I accept, that he did not find any railway sleepers in the Culvert.
42. Mr. Barber at paragraph 56 of his witness statement dated 3 November 2001 recorded the material which he saw removed from the blockage at Manhole 1A as follows:-

“1) Flat piece of timber measuring 470 x 285 x 40 mm thick which had a quantity of nails protruding through one side.

2) Three sections of brickwork measuring 355 x 230 x 200 mm, 230 x 160 x 100 mm and 255 x 200 x 230 mm respectively.

3) Three sections of irregular shaped stone slab of maximum dimensions of 610 x 330 x 90 thick, 280 x 200 x 60 mm thick and 355 x 230 x 60 mm thick respectively.

4) One length of polythene film

5) Three empty blue plastic bags with printed Freemans logo measuring 430 x 405, 560 x 460 mm and 1120 x 660 mm respectively.”

At paragraph 58 of his witness statement Mr. Barber said that he was shown three sections of brickwork which were removed from the second blockage which measured, respectively, 255 x 230 x 230 millimetres, 255 x 230 x 75 millimetres and 200 x 115 x 65 millimetres. Mr. Graham Marshall of Freemans told me, and I accept, that the logo on each of the three Freemans’ plastic bags found in the principal blockage was one which had not been used since 1988.
43. Although there was a hint of a suggestion from Mr. Coulson that I should conclude from the fact that the design of the logo on the Freemans’ plastic bags found in the Culvert in May 2000 had been superseded in 1988 that the bags had been in the Culvert since that date, and that therefore at least the principal blockage had been in existence since that time, that analysis was not borne out by other important pieces of evidence. First, it was Freemans’ case, and the evidence of witnesses called on behalf of Freemans, such as Mr. Barber, that no one could recall any instances of flooding prior to the flood on 8 July 1997. There were some references in documents put before me which suggested that in fact there had been previous instances of flooding, but the evidence of the Freemans witnesses was firm on this point and I accept it. Second, shortly after the second instance of flooding on 23 October 1998, Mr. Barber made contact with Railtrack’s Community Relations Officer, Julie Shea, and expressed concern that the Culvert might be blocked. She put him in touch with Mr. David Durrant, who at that time was employed by another contractor engaged by Railtrack to undertake maintenance, Balfour Beatty Rail Maintenance Ltd. (“BBRM”). Although the matter was not the subject of detailed evidence, it appeared that at the material time Railtrack employed BBRM to undertake inspection and maintenance duties in connection with the operation of the railway and Jarvis Rail to undertake inspection and maintenance duties in connection with structures on railway land, such as bridges and culverts. At any rate there was some overlap in practice between the responsibilities of BBRM under its contract with Railtrack and the responsibilities of Jarvis Rail under its contract with Railtrack. Having been contacted Mr. Durrant attended at the Premises on 16 November 1998 and met Mr. Barber. Mr. Durrant was accompanied by Mr. Russ Pettitt. Mr. Durrant and Mr. Pettitt both gave evidence before me. It was common ground between Mr. Barber, Mr. Durrant and Mr. Pettitt that on 16 November 1998 a test was made of the Culvert to see whether water appeared to be flowing freely through it. This test took the form of introducing a fire hose into Manhole 5, turning it on and putting a blue dye into the water. Mr. Pettitt then checked the water flow through each manhole of which he was aware, which did not include Manhole 1A, and Mr. Barber himself observed it at the outflow in Maskew Avenue. The water appeared to each of Mr. Barber, Mr. Durrant and Mr. Pettitt to be flowing freely.
44. Mr. Durrant and Mr. Pettitt told me that they repeated the fire hose test in November 1999. By that time there had been a further flood in the Store, on 9 August 1999. This time the fire hose test caused a backing up of water in Manhole 2, suggesting, as proved to be the fact, a blockage or blockages in the run of the Culvert between Manhole 2 and Manhole 1.
45. The fact that, so it appears, there had been no floods of the Store before 8 July 1997, on which occasion, according to the evidence of Mr. Stephen Magenis, who was called on behalf of Freemans as an expert on drainage matters, a storm of an intensity rather greater than was to be expected once every five years, on average, caused flooding, is perhaps indicative of the cause of the flooding, if a blockage in the Culvert, having arisen relatively shortly before that date. Mr. Lawrence described the blockage which he found in November 1997, which was some four months after the first instance of flooding of the Store, as “new ballast and earth”. Again, the results of the fire hose test in November 1998 suggest that the Culvert was at least relatively free-flowing at that date, in contrast to the results of the fire hose test in November 1999. While the evidence to which I have referred indicates that the source of the brickwork found in the blockages in May 2000 was local collapse of the Culvert, and the source of the stone found was the collapse into the Culvert of a cover of some sort, there was not any real factual evidence as to when any such collapses were likely to have occurred. The only evidence which might bear upon that matter was that of Mr. Durrant that the ballast heap part of which had to be removed to permit Mr. Easton access to Manhole 1A in May 2000 had not existed in November 1998. The area in which the ballast heap was later placed was in November 1998 the site of a Balfour Beatty compound. Mr. Durrant told me that he had not noticed in November 1998 what later has come to be called Manhole 1A. There is a temptation to suppose that, if Mr. Durrant did not notice an opening in the Culvert in November 1998 in the location of Manhole 1A, it was not there and so the debris from the Culvert apparently caused by the making of the hole could not have been there. However, I do not feel able to reach that conclusion on the evidence of Mr. Durrant. He was not looking for Manhole 1A. He did not know that it was there, if it was there. It is far from clear where the location of Manhole 1A was in relation to the Balfour Beatty compound and how noticeable it would have been if it had been there. It is really just speculation on the evidence of fact when Manhole 1A, and the blockages associated with it, came into existence. Given the significance attached by Mr. Easton to the effect of the plastic Freemans bags as a cause of blockage, however, it seems unlikely that they could have been in the position in which they were found in May 2000 at the time of the fire hose test in November 1998.
46. I turn, therefore, to consider the expert evidence.
47. Mr. Magenis, by whom I was greatly impressed, explained in an addendum dated 5 March 2002 to his Supplementary Report that a blockage in a drain or culvert often will develop gradually. Essentially once an obstruction of some sort has occurred in a culvert any material in the water flow will build up progressively upstream of the obstruction. In particular, an obstruction which may initially permit water to flow round it or through gaps between elements of it, say between one stone and another, can become less permeable as gaps are blocked by smaller matter, such as silt. Consequently, as was common ground between Mr. Magenis and the drainage expert called on behalf of Railtrack, Mr. Andrew Taylor, one could not conclude from the results of the fire hose test in November 1998 that there was not then any blockage in the Culvert. The only necessary conclusion from the results of such test is that any obstruction was not such as to obstruct a flow of water at the rate produced by the fire hose, which seems to have been about 10 litres per second, although Mr. Taylor told me that he had based his assessment on a rate of flow of 34 litres per second. The capacity of the Culvert was agreed by Mr. Magenis and Mr. Taylor to be about 350 litres per second in an unsurcharged condition. Because of the ability of water to rise up manholes which had a greater capacity than the Culvert, the Culvert could be surcharged to a flow of about 450 litres per second without water escaping from it.
48. An exercise which Mr. Magenis undertook which seemed to me to be both important and helpful was to model the behaviour of the drainage system provided for the roof of the Store in conjunction with that of the Culvert in dealing with a storm of an intensity which on average occurred once in five years (i) on the basis that the Culvert was unobstructed and (ii) on the basis that 80% of the diameter of the Culvert was blocked. The intensity of the storm taken for the purposes of the model was that with which the drainage system at the Store was designed to cope. The results of the exercise were set out in Mr. Magenis’s Supplementary Report. What those results showed was that only three out of eighteen manholes or nodes in the Freemans’ system would flood if the Culvert were clear, whereas all bar one would flood if the Culvert was blocked to the extent assumed for the purposes of the model. Mr. Keith Hiley, who was formerly employed by Freemans as Chief Engineer at the Premises, gave evidence in cross-examination that, in his estimation, about 33% of the area of the Store was covered by water in the flood of 8 July 1997. I accept that evidence. In the light of Mr. Magenis’s modelling exercise, the validity and results of which I also accept, it would seem likely that there would not have flooding of that extent had the Culvert not been obstructed to a significant extent. It is, however, right to record that it has been agreed between Mr. Magenis and Mr. Taylor that:-

“The rainfall event on 8 July 1997 which resulted in flooding of the warehouse was a significant event likely to have been in excess of the design standard of the warehouse drainage system.”

49. It has been agreed between Mr. Magenis and Mr. Taylor that the best evidence available of the intensity of the rainfall at the Store on the occasions of the floods on 8 July 1997, 23 October 1998 and 9 August 1999 comes from readings made at a rain gauge at Etton. That gauge recorded a peak intensity of 48 millimetres per hour on 8 July 1997, a peak intensity of 5 millimetres per hour on 23 October 1998 and a peak intensity of 6 millimetres per hour on 9 August 1999. The intensities on the latter two occasions were, it seems, within the capacity of the Freemans drainage system and so the fact that some flooding occurred is suggestive of the existence of some obstruction in the Culvert at the dates of those floods. Mr. Magenis and Mr. Taylor have agreed that:-

“4. The rainfall events of 23 October 1998 and 9 August 1999 which also resulted in flooding of the warehouse were of less intensity and likely to have been less than the design standard of the warehouse drainage system.

5. Flooding in the Freeman’s warehouse on these latter events was caused from a blockage in the drainage system or from a blockage in the railway culvert or from a combination of both.

6. A rainfall event recorded on 21/10/01 exceeded the intensity of both the October 1998 and August 1999 events and did not result in flooding being experienced within the warehouse.”

No evidence has been put before me which indicates that there was any blockage in the Freemans’ drainage system on 23 October 1998 or on 9 August 1999. The fact that the system and the unblocked Culvert was able to cope with the rainfall on 21 October 2001 seems to me to point fairly clearly to a blockage or blockages in the Culvert being the cause of the floods on 23 October 1998 and 9 August 1999, notwithstanding the results of the fire hose test on 16 November 1998.
50. Mr. Magenis told me in supplemental examination in chief that in his opinion for the quantity of silt from the roof of the Store described by Mr. Easton to have reached Manhole 1A as a result of being washed off the roof would have taken some considerable time. He put the time period at in excess of five years. I accept that evidence.
51. In the result, although the evidence of the witnesses of fact who gave evidence before me leaves the matter rather uncertain, I am satisfied in the light of the evidence to which I have referred, and in particular that of Mr. Magenis, that a significant blockage existed in the Culvert at the approximate location of Manhole 1A by no later than the end of 1995. By “a significant blockage” I mean one the size of which would have meant that it was obvious to anyone who found it that it needed to be removed so as to ensure that water in the Culvert flowed freely. It seems likely that, as the originating cause of a blockage at the approximate location of Manhole 1A was a partial collapse of the Culvert and the covering of a hole, possibly a manhole, at that point, that the partial collapse a little further along the Culvert moving towards Manhole 1 occurred at the same time. On the balance of probabilities, therefore, I find that both of the blockages found and removed by Mr. Easton in May 2000 had begun prior to the end of 1995. I am also satisfied that the blockage which Mr. Lawrence found in Manhole 2 in November 1997 had been there some time before it was discovered, and on the balance of probabilities was there at the time of the first flood of the Store on 8 July 1997.

The knowledge and means of knowledge of Railtrack

52. It appears from the evidence led before me that Railtrack continued practices inherited from BRB in relation to the inspection of structures, including culverts, on land which it owned. Essentially those practices involved an annual visual inspection and a detailed inspection every six years. The annual visual inspection of a culvert too small for a man to walk along involved entering each manhole in the culvert, observing the condition of that manhole, and checking, so far as one could with the aid of a torch, the condition of the culvert on each side of the manhole. The detailed inspection of such a culvert every six years involved traversing the length of the culvert so as to check its condition. That exercise might involve the use of divers or a closed-circuit television inspection might be undertaken. That inspection regime seems to me to be eminently sensible and proportionate, given the many thousands of structures on Railtrack land requiring inspection, and in particular the large number of culverts. The system of regular inspection was in any event supplemented by a readiness to respond to reports of possible defects, which for some reason were called within Railtrack “public complaints”. Mr. Magenis agreed in cross-examination that the Railtrack system of annual visual inspections and detailed inspections every six years was an appropriate system, if actually put into operation properly, and I agree with that also.
53. Unhappily the evidence in the present case is that Railtrack did not operate its own system. For its own purposes Railtrack in fact treated the Culvert as two culverts. From Manhole 1 to Manhole 3 it was referred to as ECM1 188A, or BC77.1023, while from Manhole 3 to Manhole 4 it was called PMJ 75F. This division seems to have had no practical effects in the present case, but it did mean that in fact each section of the Culvert was scheduled for separate inspection. The division was made to reflect the fact that between Manhole 1 and Manhole 3 the Culvert ran underneath the East Coast Main Line, while between Manhole 3 and Manhole 4 it ran underneath the line from Peterborough to Stamford.
54. Mr. Michael Waters, who is employed by Railtrack as a Structures Maintenance Engineer, gave evidence before me that, as a result of some issue about intellectual property rights in respect of reports of inspections of railway structures carried out by BRB before privatisation, on the establishment of Railtrack only the latest inspection report in relation to any structure was handed over. The first report on any part of the Culvert copied before me was one dated 6 June 1994 in relation to ECM1 188A. That report recorded that “only downside head-wall and inspection pit located”. It was endorsed “Work needed to locate for next exam.” Whether a consequence of that report or not, Mr. Waters, in a letter dated 26 February 1996 to Mr. Donaldson of Eastern Infrastructure Maintenance Co., which was apparently an internal organisation within BRB set up in anticipation of privatisation and which had some shadowy existence after Railtrack had come into being and before Railtrack had set up contractual arrangements for inspection and maintenance of structures with outside contractors, wrote in respect of ECM1 188A:-

“Access only available at one end. Size and water depth allow examination by specialist access contractor. Detailed examination of culvert within RT boundary required…

Assuming that all the planned examinations shown are undertaken the only outstanding non compliant examination is of ECM1/77.1023 [that is, ECM1 188A]. Will you please consider the above and confirm that you are in agreement, arranging for the examination of the culvert to be undertaken. ”

A “specialist access contractor” is, it seems, a diver. “RT” is Railtrack. On the findings which I have set out above as to what there was to be found within the Culvert, and specifically within that part of it called by Railtrack ECM1 188A, had the detailed examination for which Mr. Waters was asking in the letter been carried out, the blockages in the Culvert removed by Mr. Easton in May 2000 would have been discovered and removed. While those blockages would not, in 1996, have been as significant as they, or at any rate that at Manhole 1A, later became after further accumulation of silt and the trapping of the plastic Freemans bags, if the bricks, stone and timber had been removed there would have been nothing against which an accumulation of silt could have formed or which would have prevented the plastic bags being carried along in the water flow to the end of the Culvert. For reasons which Mr. Waters was unable to explain, nothing was done after his letter either to carry out the works which he had requested or to chase up those who should have been doing them. The result was that it was not until the inspection carried out by Bridgeway over four years later that a detailed inspection of ECM1 188A was undertaken.
55. A detailed inspection of PMJ 75F was undertaken on 5 November 1997. This revealed nothing of interest about PMJ 75F because there was nothing of interest to be revealed. The person who carried out the inspection was Mr. Paul Lawrence. It was he who on 11 November 1997 attended ECM1 188A with a view to undertaking a detailed inspection of that part of the Culvert and who, following his visit, made the report to which I have referred earlier in this judgment. I have already mentioned that attached to his report was the plan which he prepared of the location of ECM1 188A. Beside Manhole 2, which was indicated with an arrow, Mr. Lawrence had written:-

“None of the 2’-0” ( bore can be located east of the upside M.H. No further access points found anywhere on or near RTP [that is, Railtrack property].”

56. All that seems to have been done following Mr. Lawrence’s inspection was to rebuild the manhole which he reported had collapsed, and to clear the debris, in about April 1998. No action was taken to complete the detailed inspection which was of necessity incomplete. It is, of course, the case that by this date the first flood of the Store, on 8 July 1997, had occurred. It is also the case that, unlike after the flood on 23 October 1998 when, as I have related, Mr. Barber did make contact with Railtrack, no communication was made with Railtrack after the flood on 8 July 1997. As I have already recorded, Railtrack did, through Mr. Durrant and Mr. Pettitt, who did in fact know where Manhole 1 was, react to the complaint made in October 1998. The fire hose test then carried out did indicate, so far as it could, that there was then no blockage in the Culvert. It was only after the fire hose test in November 1999 that there was a more definite indication that there was a blockage in the Culvert. It was only after the Bridgeway survey in April 2000 that there was positive proof that there were in fact two blockages. Thus it cannot be said that Railtrack knew of the existence of blockages other than that found by Mr. Lawrence in November 1997, and removed in about April 1998, until April 2000. However, it seems to me that for present purposes what I need to consider is what means of knowledge Railtrack had of the existence of the blockages. For the reasons which I have given, it is plain that if Railtrack had only complied with its own procedures and carried out a detailed inspection of ECM1 188A when Mr. Waters thought that that was necessary in February 1996 it would have discovered what it needed to in order to give rise to a duty to act reasonably to remove the hazard represented by the two blockages in the Culvert in the area of Manhole 1A.

What was required of Railtrack if it was to act reasonably

57. Little attention was given during the trial to the issue of what Railtrack ought reasonably to have done if it had discovered, earlier than it did, the existence of the blockages in the Culvert removed in May 2000. The whole focus of the submissions made on behalf of Railtrack in relation to reasonableness was on the reasonableness of the regime of inspection, and that, in my judgment, is a question which arises only in relation to means of knowledge. It is fairly obvious that what was required if Railtrack was to act reasonably once it had, or should have had, knowledge of the existence of a hazard in the Culvert, was what it in fact did, namely to remove it. There is no question in this case of whether Railtrack could afford the necessary works. It in fact carried them out. It just did them rather later than it should have done.
58. Mr. Reynolds’ s point in paragraph 36 of his written opening seems to me, with all respect to him, to lead nowhere. It is undoubtedly the case that a substantial part of the water which flooded the Store on 8 July 1997, 23 October 1998 and 9 August 1999 originally fell as rain on the Premises, and specifically on the roof of the Store and on the ground adjacent to the Store. However, if and to the extent that such water should have been carried away by the Culvert, but was not, it seems to me to be nothing to the point that Railtrack was, as it were, sending back to Freemans Freemans’ rain, rather than depositing on land occupied by Freemans water which had never been there before. The point is that, as a result of a hazard on Railtrack’s land water which had reached there, wherever it had originally fallen as rain, should not have been able to run onto land occupied by Freemans. It is therefore necessary to consider whether it did.

The causes of the floods

59. The evidence as to the causes of the floods on 8 July 1997, 23 October 1998 and 9 August 1999 is really that of Mr. Magenis and Mr. Taylor. While there was evidence from witnesses of fact called on behalf of Freemans that water had lain on the floor of the Store on each of the relevant occasions, that evidence did not really address the issue of where the water had come from. I am satisfied on the evidence of Mr. Magenis and Mr. Taylor, and in particular in the light of the agreements between them which I have recorded, that the principal, but not the sole, cause of water getting into the Store on 8 July 1997 was the three blockages in the Culvert which I have found existed at that time, and that the two blockages remaining after the removal of that in Manhole 2 were the sole cause of the ingress of water on 23 October 1998 and 9 August 1999. The other cause of the presence of water on 8 July 1997 was the inadequacy of the drainage system at the Store to cope with the intensity of the rainfall on that occasion.

Did the floods cause damage and, if so, to what extent?

60. The next issue which falls to be addressed is the question of whether any of the floods caused any damage, and, if so, to what extent. This is an important question in the light of the fact that it is common ground that damage to the existing FAMA floor would have been caused by the application of Jaypol. The Jaypol was laid in every aisle in the Store and along the full length of every aisle. The process of the application of the Jaypol thus had the opportunity to affect every part of the floor, and it had that opportunity before any flooding had occurred. Expert evidence as to the effects of the flooding on the FAMA floors was called both on behalf of Freemans and on behalf of Railtrack. The expert called on behalf of Freemans was Mr. George Ballard. Mr. Ballard is a consulting physicist whose main area of interest and professional expertise lies in the field of non-destructive testing. He was initially retained by Freemans in April 1999 to give advice in relation to remedial works to the floor of the Store. He seems himself to have suggested to Freemans that it should seek legal advice as to whether it was able to make any claim against any party in respect of the deficiencies in the floor which he found. He was then retained also to give expert evidence for the purposes of the litigation. The expert retained on behalf of Railtrack was Mr. David Slater, who is a materials engineer who specialises in concrete technology. He was retained simply for the purposes of the litigation, having had no previous involvement with the problems at the Store. The professional backgrounds and experience of the expert witnesses on each side was thus rather different.
61. Mr. Ballard and Mr. Slater did agree that the mechanism by which Jaypol caused damage to FAMA was that as a result of the use of water in the preparation of the FAMA floor for the laying of Jaypol, and the water content of Jaypol itself, a weak bond would be likely to be formed between the Jaypol layer and the FAMA layer. The strength of the bond was likely to be variable, and in places it might be satisfactory. However, the probability was that the bond would generally be rather weak. The weakness of the bond would result in delamination of the Jaypol layer from the FAMA layer. The weakening process would continue until the water used in the laying of the Jaypol and that contained within it dried. Mr. Ballard estimated the time which this would take at up to about six months, while Mr. Slater put it at rather longer, up to about a year. I do not consider this difference to be important. Once the water had disappeared from the damaged floor the cause of continuing damage would be the trafficking of the floor by the Boss trucks used by Freemans. Both Mr. Ballard and Mr. Slater agreed that the trafficking of the floor would reveal fairly soon the worst areas of poor bonding between the Jaypol and the FAMA. Cracking would appear and the surface of the floor would start to break up. The evidence was that such effect had begun to be apparent soon after the laying of the first area of Jaypol, and remedial works had been undertaken. Remedial works continued to be carried out until October 1996, but no further works were undertaken thereafter until after the first instance of flooding. Mr. Ballard, who had prepared a number of lengthy reports for the purposes of the action, told me in his oral evidence that he concluded that the fact that no remedial works were undertaken to the floor of the Store after October 1996 was important evidence that the effects of the application of the Jaypol to the FAMA had worked themselves out and that the condition of the floor as repaired up to October 1996 had stabilised. Thus, but for the instances of flooding, said Mr. Ballard, Freemans would have had a perfectly serviceable floor. If this analysis were correct, it followed that all of the damage sustained to the floor of the Store after October 1996 was attributable to the effects of the flooding. It is somewhat remarkable that this important analysis was not foreshadowed in any of Mr. Ballard’s voluminous writings in connection with this action. In contrast to the analysis of Mr. Ballard which I have just recorded, Mr. Slater took the view that once Jaypol had been applied over the FAMA the floor of the Store was effectively doomed. The continual trafficking of the floor by Freemans’ trucks meant that the floor would continue to deteriorate even if there had been no instances of flooding. The introduction of water onto the floor where it could penetrate through the Jaypol layer, which is otherwise impermeable, through cracks and fissures and also at the sides of the aisles in areas of racking lower than the Jaypol layer, had the effect of accelerating the occurrence of damage to the floor, and making it more severe sooner. However, in Mr. Slater’s view, all that meant was that the hour of doom was at hand sooner than it would otherwise have been. It did not mean that it became necessary to repair or to replace a floor which would not otherwise have needed repair or replacement. In my judgment it is important in deciding which view to accept, that of Mr. Ballard that all of the damage sustained by the floor after October 1996 was caused by the instances of flooding, or that of Mr. Slater, that the floor would have needed to be replaced within about seven years even if there had been no flooding, to have regard to whether the evidence supported the view of Mr. Ballard that the adverse effects of the application of the Jaypol had all been worked out by October 1996. Amongst other things it is necessary to consider the evidence as to the extent to which water covered the floor of the Store on the occasion of any instance of flooding, and the evidence as to damage to areas of the floor which were not, on the evidence, covered by water on the occasion of any instance of flooding.
62. I shall come later in this judgment to consider the detail of the evidence in relation to the matters to which I have referred at the end of the preceding paragraph. My conclusion is that the evidence did not support the analysis of Mr. Ballard. I suspect that this weakness in his analysis was appreciated by Mr. Coulson by the time he came to make his closing submissions. Mr. Reynolds, and his junior, Mr. Richard Stead, whose contribution to this part of the written and oral closing submissions on behalf of Railtrack I think should be acknowledged, drew to my attention many important points of detail in the evidence which undermined the approach of Mr. Ballard. In an effort to counter those points Mr. Coulson, and his junior, Mr. Samuel Townend, prepared a written response in which they ignored the detail put forward by Mr. Reynolds and Mr. Stead, and instead relied on very general evidence from Mr. Keith Risk and Mr. Peter Sheriff on behalf of Freemans that after the first instance of flooding “it was like a lake in the warehouse”, “there was flooding everywhere with certain small areas where the water had been very minor and you could walk the area” and “It was very wet. I say wet, the aisles themselves tended to be largely damp, there was water between the troughs, between the aisles, under the racking.” Mr. Coulson even went so far as to submit that it was unnecessary for me to make any detailed findings as to the extent to which water covered the floor of the Store after any of the instances of flooding.
63. I regret to say that I did not find the evidence of Mr. Ballard of much assistance on any disputed issue. It seemed to me that his professional discipline was less relevant to the issues which I have to consider than that of Mr. Slater, but my main concern was the dogmatic way in which he gave his evidence, in contrast to the more measured performance of Mr. Slater. What I found particularly unsatisfactory about the evidence of Mr. Ballard was his lack of attention to what I considered was the important factual evidence bearing on his expressed conclusions as to the cause of damage to the floor of the Store after October 1996. He seemed utterly convinced that on the occasion of at least the first flood, and possibly each of them – his evidence on the matter was somewhat unclear, but his point, if valid would seem to apply to each flood - the whole of the floor of the Store was under water. This was not, it seemed to me, the evidence of any witness of fact called on behalf of Freemans, not even Mr. Risk or Mr. Sheriff. Mr. Ballard’s point was that it was not possible for water to reach the top surface of aisles in which Jaypol had been laid unless it was at least 25 millimetres deep in the racking areas between the aisles, and if the water was that deep in the racking areas it must have covered the entire floor of the Store. He said that this was just a matter of common sense. No doubt it is if the hypothesis is that the relevant floor is completely flat. The obvious explanation for what the witnesses of fact said that they saw is that the floor was not completely flat, so that water lay in particular areas. I shall come to that evidence shortly. Before I do, I should like to say that I accept entirely the evidence of Mr. Slater that the effect of the laying of Jaypol over FAMA in the aisles in the Store was to damage the floor by causing a breakdown between the Jaypol and the FAMA below which layer became weakened and in places debonded. With the trafficking of the floor by the Boss trucks used by Freemans the effects of the debonding were that cracking and surface damage occurred which meant that, even in the absence of flooding, the working life of the floor was no more than about seven years. The effect of the flooding, in Mr. Slater’s view, which I accept, was to accelerate the time at which damage to the floor occurred and to exacerbate its severity. I do not think that Mr. Ballard seriously dissented from that analysis in principle, but as a result of his views as to the extent of the flooding it seemed to me that he attributed far greater significance to the effects of the flooding than the evidence of witnesses of fact justified. To that evidence I now turn.
64. There were three principal sources of evidence as to the extent to which water lay on the floor of the Store during and after the first flood on 8 July 1997. As I have already mentioned, Mr. Hiley gave evidence in cross-examination that his recollection was that about one third of the floor of the Store was flooded in the first flood. He was somewhat reluctant, for reasons one can well understand, to be very definite, but, when pressed, that was his evidence. I accept that that is his best estimate based on his recollection. Whether that estimate is at all precise does not, in my judgment, matter. What is important for present purposes, in particular given the approach of Mr. Ballard, is that a very substantial area of the floor of the Store was not covered by water.
65. In a broad general way the evidence of Mr. Hiley was supported by that of Mr. Peter Sheriff, who was also called on behalf of Freemans, looking at that evidence in the round. Mr. Sheriff is the managing director of a company called Appointed Floor Systems Ltd. (“AFSL”). His company was employed by Freemans to undertake remedial works to the floor following the flood on 8 July 1997. His evidence was that he prepared a plan, which was put in evidence, of the locations in which damage was evident on a visual inspection following the flood on 8 July 1997. Mr. Sheriff told me that his company had been engaged in repair works to the floor prior to the flood. The documentary evidence produced indicated that prior to the flood repair work had been carried out in 13 aisles and it was anticipated that work would have to be carried out in a further 18 aisles. Mr. Sheriff told me that his impression was that the condition of the floor was substantially worse after the flood than before. He did not undertake a survey as such. The nature of the damage which was evident was largely cracking. Mr. Slater told me, and I accept, that cracking in the surface of flooring material such as Jaypol is more evident if the surface is wet and deliberate wetting is a recognised way of seeking to identify the extent of cracking. I take that into account in evaluating the evidence of Mr. Sheriff as to his impression of the state of the floor after the first flood. There are 41 aisles in the Store, numbered from 1 to 41. On Mr. Sheriff’s plan those marked as requiring attention were the whole of aisles 8, 13, 39 and 41, something just under or just over half of aisles 6, 10, 12(in two sections at each end of the aisle), 14, 21, 38 and 40, about a quarter of aisles 7, 11, 16, 17, 18, 20, and lesser areas of aisles 2, 22, 24, 28 and 35. The general picture was that damage was concentrated at the sides of the Store. It appears from Mr. Sheriff’s evidence that prior to the preparation of the plan his company did work to parts of aisles 9, 15, 24, and 25.
66. A manuscript document dated 8 July 1997 prepared, according to Mr. Barber, by a Mr. O’Meara of Freemans, set out a record of aisles which had been shut as a result of flooding. There were three different records set out in the document. Two of them indicated which aisles were not operational. The third seemed to identify which specific bays in the relevant aisles were not usable. That record was: aisle 2, bays 45 to 92, aisle 5, bays 80 to 92, aisle 9, bays 82 to 92, aisle 13, bays 64 to 68, aisle 18, bays 12 to 14, aisle 24, bays 88 to 92, aisle 38, bays 14 to 58, aisle 39, bays 20 to 30, aisle 40, bays 44 to 76, and the whole of aisle 41.
67. None of the witnesses called on behalf of Freemans seemed to have any real recollection of the extent of the flood on 23 October 1998. It was accepted that the first flood was worse than any of the others. However, the only specific reference to damage following the flood on 23 October 1998 was in a Freemans internal memorandum dated 28 October 1998 written by a Mr. Scudder, who was not called to give evidence, in which there was reference to core samples being taken to assess damage to the floors in aisles 2, 39 and 40. There was also a somewhat equivocal reference in a maintenance log kept by Freemans, in the entry relating to 23 October 1998, to cardboard needing to be removed from aisle 15 and a manhole cover under racking in aisle 41 needing to be replaced.
68. In a memorandum dated 10 August 1999 to Mr. Keith Risk and others Mr. Barber recorded that the areas affected by the flood on 9 August 1999 were aisles 1, 2, 15 and 16 at the “Goods In” end and aisle 41.
69. So far as the available evidence goes, aisles 3, 4, 23, 25,26, 27, 29, 30, 31, 32, 33, 34 and 36, amounting, with adjacent racking areas, to approximately 31.7% of the total floor area of the Store, never were flooded at all. Of the aisles which were flooded, in the cases of only four aisles does it appear that the whole aisle was affected on any occasion. On the available evidence only aisles 1, 2, 15, 16, 39, 40 and 41 were affected by a flood other than that on 8 July 1997. Mr. Ballard undertook a radar survey to identify what he called “anomalous bond”, by which I understood him to mean areas in which the Jaypol seemed to be delaminating from the underlying FAMA, and reported the results in a paper dated 30 June 1999. That was before the third flood. He prepared a plan to show the areas of “anomalous bond”, which was put in evidence. That indicated significant areas of “anomalous bond” in aisles which seem never to have been flooded, as well as in areas in which flooding had been recorded. That does not seem to me to indicate that any reliable conclusion can be reached as to the effect of flooding from Mr. Ballard’s radar survey. Mr. Ballard also produced a report dated 15 August 2000 which included a table, Table 1, in which, amongst other things, he sought to record differences in “anomalous bond” readings for particular aisles as between 1999 and 2000. He attributed the increases which he reported to the effects of the flooding on 9 August 1999. Unfortunately many of the aisles in which increases were recorded were not flooded after 1997, namely aisles 3, 4, 5, 6, 7, 8, 9, 10, 13, 19, 24 and 30. On the evidence available aisles 3 and 4 had never been flooded. It appears, therefore, that Mr. Ballard’s table, far from supporting his contention that significant worsening of the condition of the floor of the Store was caused by the 1999 flood, seems to suggest that progressive deterioration was inevitable as a result of trafficking of the floor by Boss trucks after the initial application of Jaypol, as Mr. Slater suggested.
70. Mr. Ballard and Mr. Slater both agreed in cross-examination that rising damp was responsible for something of the order of 5% of the damage to the FAMA.
71. Mr. Coulson prepared his written opening on behalf of Freemans at a time before the claim against Wright had been settled. In that opening he submitted that, as I have found, damage to the FAMA floor of the Store was caused by the exposure of that floor to water, and the main sources of such water were the application of Jaypol in the aisles and the floods. Mr. Coulson’s submissions as to the principles of law which should be applied in relation to liability in respect of the causes of water which he identified were as follows:-

“4.4.1 Freemans claims against Wrights are in contract and in tort and against Railtrack they are in tort and under statute. Even if (which is denied) Wrights are not liable to Freemans in tort because the sums claimed amount to pure economic loss, this has no impact on the proper findings of causation which the Court is invited to make. Even if Freemans are permitted to maintain only a contractual cause of action against Wrights for the losses which it claims, both Defendants have caused Freemans’ loss and damage and both are therefore separately liable for the whole sum claimed.

4.4.2 Provided that the Court is satisfied that both Defendants caused or materially contributed to Freemans’ loss, the issue becomes one of apportionment or contribution. Even if one cause is regarded as less important than the other both Defendants are still liable since their negligent act materially contributed to Freemans’ loss and damage.

4.4.3 This principle was identified and applied in the well-known House of Lords case, IBA v EMI and BICC (1980) BLR 1 at 37, where an aerial television mast collapsed from two separate causes operating at the same time. The less important of the causes was negligent design by sub-contractors, but they were held liable on the basis that their negligence materially contributed to the collapse notwithstanding that Lord Fraser of Tullybelton considered that the other cause was “by far the more important” (at 37).

4.4.4 The issue of causation in circumstances where only contractual causes of action against two Defendants are available has also been expressly considered by the Courts. Again, the Court may make a finding in favour of the Claimant in respect of the whole sum against one or other or both of such Defendants. Moreover, that is right whether or not the causes are strictly of equal efficacy. For example, Lord Maugham in Imperial Bank of Canada v Begley [1936] 2 All ER 367 at 375 expressly states that the Claimant could sue both or either of such Defendants subject to not recovering more than the total sum due. The same point was made in the judgment of His Honour Judge Fay Q.C. in Hutchinson v Harris (1978) 10 BLR 19 (quoted in the commentary to the Court of Appeal decision in the same case at page 22 and approved in the Judgment). In that case the Employer had a contractual cause of action against the contractor for poor workmanship and a contractual cause of action against the architect for failing to supervise the contractor. His Honour Judge Fay QC regarded this as a case of concurrent breaches of contract producing the same damage:

“…In my judgment the plaintiff has an action against both, although she cannot obtain damages twice over”.

4.4.5 In the light of these authorities “cause or material contribution” is the appropriate test of legal causation where the contractual cause of action against the Defendant mirrors the tortious cause of action in circumstances where, but for the possibility of Wrights’ success on the pure economic loss argument, the Court would hold that both tortfeasors caused the loss and damage and would hold either or both liable.

4.4.6 Taking contractual causes of action alone the test is sometimes described as being whether the act or omission was “an effective cause” of the damage. The contract-breaker is liable so long as his breach was “an” effective cause of his loss: the Court need not choose which cause was the most effective. In County Ltd. and another v Girozentrale Securities [1996] 3 All ER 834 a Claimant Bank (County) was engaged to underwrite a share placement scheme. The Bank engaged the Defendant brokers (Gilbert Elliott) to make the placement. The brokers made representations to potential placees (purchasers of the shares) that fell outside the terms of their engagement letter. On the basis of these representations the placees were subsequently able to withdraw from the share placement resulting in losses to the Bank. The Court at first instance found that there were various causes of the Bank’s loss and since the broker’s breach was not of equal efficacy with the Bank’s own failings in managing the placement transaction it was not the effective cause and the claim was dismissed. On appeal the Court of Appeal reversed the trial judge’s decision finding that the fact that another cause also contributed to the occurrence of the loss did not require the Judge to choose which cause was the more effective; it was sufficient that the brokers’ breach was an effective cause. In the words of Beldam LJ:

“For my part I would not agree that the conduct of County could be regarded as of greater efficacy but, even if it could, it certainly did not displace the efficacy of Gilbert Elliott’s breach. Accordingly, I would hold that Gilbert Elliott was in breach of the terms of its engagement as brokers and that its breach caused County the loss claimed.”

4.4.7 In summary, if the Court is satisfied that either or both Wrights or Railtrack caused or materially contributed to or was an effective cause of the damage, Freemans succeed on causation against both Wrights and Railtrack.”

72. It is, I think, apparent from the quotation from Mr. Coulson’s written opening set out in the preceding paragraph that in his submission the loss with the cause or causes of which I need to be concerned in this action is that expense to which it is said that Freemans has been, or will be, put as a result of the need to carry out repairs to the floor of the Store. The decisions to which he referred me on the question of the recoverability of damage were all cases in which one amount of loss had more than one cause. Mr. Reynolds, whose written opening submissions were prepared after, and in response to, those of Mr. Coulson, submitted that Mr. Coulson’s approach was flawed, because the true nature of the proper enquiry was what physical damage to the floor of the Store had been caused by the respective activities of Wright and Railtrack, or, more correctly, by matters for which they respectively were liable in law to Freemans. The relevant part of Mr. Reynolds’s written opening was in the following terms:-

“39. D3 can only be liable for the damage which it caused. Furthermore, it can only be liable for the damage which it caused consequent on any breach of duty/nuisance by it. The floor was defective by the time of the flood on 8.7.97. The flooding merely brought to light the existing defects. At most the flood exacerbated the pre-existing damage to a limited and indefinable degree. This is not a case of concurrent torts/causes of damage. The causes of the damage are sequential. It is, therefore, necessary for the Court to identify the damage caused by D3 which is additional to that caused by D1/D2.

40. The Claimant contends (para.4.5 of the Claimant’s opening) that D3 is liable in full for all the damage to the floor, and that questions of apportionment only relate to the contribution proceedings between the Defendants. This analysis is rejected by D3. The cases of IBA v EMI and BICC (1980) 14 BLR 1, Imperial Bank of Canada v Begley [1936] 2 All ER 367 and Hutchinson v Harris (1978) 10 BLR 19, upon which the Claimant relies, are not relevant since they are all cases of concurrent torts/ causes of damage. In IBA at p. 37 Lord Fraser said that:

“This accident was the result of two separate causes operating at the same time.”

In Hutchinson v Harris at p. 22 His Honour Judge Fay QC stated that:

“It is a case of concurrent breaches of contract producing the same damage.”

County Ltd v Girozentrale Securities [1996] 3 All ER 834 concerned the question of whether a breach of contract remained an effective cause of loss despite the claimant’s own conduct…

41. The relevant cases are Holtby v. Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 and Rahman v. Arearose Ltd [2001] QB 351 which deal with instances of sequential torts/causes of damage. The former case concerned a claimant suffering from asbestosis which was contributed to by a number of previous employers. The claimant contended that each was liable for the whole of his damage. The Court of Appeal rejected that contention. Stuart-Smith LJ said at 428j that:

“He will be entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution…. The question should be whether at the end of the day and on consideration of all the evidence, the claimant has proved that the defendants are responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense.”

43. The case of Rahman v. Arearose Ltd was decided at the same time as, and without reference to, Holtby. Nevertheless, the Court of Appeal reached the same conclusion in the case of a claimant who suffered one injury as the result of an assault and a second injury as the result of negligent surgery in the attempt to treat the claimant following the assault. Both cases follow on from the decision in Performance Cars Ltd v. Abraham [1962] 1 QB 33…”

73. In the light of my findings of fact set out earlier in this judgment the position in this case is that, as a result of the laying of Jaypol over FAMA in the aisles in the Store, Freemans, as from the date of the application of the Jaypol, had a floor which was damaged in that as a result of the application of Jaypol water had been able to attack the FAMA and the bond between the Jaypol and the FAMA was weak. As a result of the trafficking of the floor by the Boss trucks used by Freemans the floor of the aisles would progressively deteriorate and it would require total repair or replacement within about seven years of the laying of the Jaypol. That was the state in which the floor was before the first of the episodes of flooding, that on 8 July 1997. As a result of that flood, in the areas which water reached the nature of the damage to the already doomed floor was exacerbated and the timing of the need for repair or replacement was accelerated. Consequently, I accept the submissions of Mr. Reynolds as to the principles of law which I ought to apply to a determination of questions of causation. As matters turned out, by the end of the trial it seemed that there was no difference between the parties as to the principles of law applicable to different factual situations. Mr. Coulson accepted that, if I found the facts as I have in relation to causation, the principles for which Mr. Reynolds contended were the correct ones. While maintaining the submissions set out in his written opening, Mr. Coulson accepted that if I accepted the evidence of Mr. Ballard the logical conclusion had to be that all of the damage sustained by Freemans after October 1996 had been caused by Railtrack’s breaches of duty. Thus the question of apportionment between causes had ceased to be a live issue.
74. Potentially some cost might have been associated with the advancement of the date as at which total repair of the floor had to be undertaken, for example as a result of the need to fund the necessary expenditure at an earlier date than would otherwise have been necessary. However, it may also be that the advancement of the date of repair was financially neutral. At all events, no evidence was led before me in relation to the additional cost, if any, to Freemans of the advancement of the date at which repairs to the floor of the Store were carried out. I think that Mr. Coulson accepted that, if I found that the floor of the Store would have needed total repair or replacement within seven years, as Mr. Slater said, there was no evidence that Freemans had suffered any loss as a result of any breach of duty on the part of Railtrack.
75. By the end of the trial the situation in relation to damages was that, subject to questions of liability and causation, and subject to two matters which I shall mention in a moment, quantum was agreed at a sum of £560,000 plus interest, but subject to a credit of £350,000 in respect of the sum which Wright had agreed to pay in settlement of the claims against it in this action. The two matters to which the agreement of the sum of £560,000 was also subject were, first, the contention on behalf of Railtrack that a deduction should be made in respect of the cost to Freemans of maintaining and repairing a floor defective in any event as the result of the application of Jaypol, and second, the assertion on behalf of Railtrack that it was unnecessary to fill voids under the slab of the floor of the Store with resin as part of the repair works undertaken on the advice of Mr. Ballard.
76. On the material put before me Freemans has not, in my judgment, demonstrated that it has suffered any loss as a result of the instances of flooding for which I consider that Railtrack would be responsible in law to Freemans were there evidence that Freemans had suffered loss as a result of such flooding. There was no evidence that works of repair to the floor of the Store were any more extensive or any more expensive as a result of the episodes of flooding. In those circumstances the claims of Freemans against Railtrack must fail for want of proof of loss.
77. Had there been evidence of loss suffered by Freemans as a result of the flooding of the floor of the Store on 8 July 1997, or on 23 October 1998, or on 9 August 1999, then, in principle, it seems to me that the evaluation of that loss would need to take into account the condition of the floor as it was before any of the floods occurred, and thus any expenditure to which Freemans was already committed to maintain or repair the floor as a result of defects already present in it. In reaching my conclusion that Freemans has not demonstrated that it has suffered any loss as a result of any of the instances of flooding I have in fact taken that consideration into account, for my conclusion on the evidence is that it has not been proved that any of the expenditure which has proved to be necessary to repair the floor is expenditure which would not have been necessary even if there had never been any flood.
78. The issue in relation to the filling of voids under the slab of the floor of the Store is as to whether it was necessary to fill those voids as part of the scheme of repair of the floor of the Store. Mr. Ballard advised that such was necessary and it has been done. Mr. Slater considers that it has not been demonstrated that it was necessary to fill the voids. There was no dispute between Mr. Ballard and Mr. Slater that there were voids under the floor slab of the Store, as was revealed by the fact that, when repair works were undertaken which involved inserting resin grout into the floor, the quantities of resin used showed that significant amounts were going into voids under the slab. In broad general terms, Mr. Ballard took the view that the voids could only have been created by water flowing through the FAMA and the concrete slab beneath and that the elimination of the voids was necessary in order to drive out the water, which would otherwise be a continuing hazard to the floor. Mr. Slater took the view that there was no reason to suppose that the voids were not naturally occurring, although he accepted in cross-examination that the location of the voids, as logged by Mr. Ballard’s surveys, moved over time and that that could only happen as a result of the action of water. Mr. Coulson submitted that it was not necessary or appropriate for me to consider whether the filling of the voids was in fact required. He submitted that the correct approach to an element of claim such as the cost of filling the voids was that adopted by H.H. Judge Newey Q.C. in The Board of Governors of the Hospital for Sick Children v. McLaughlin & Harvey Plc (1990) 6 Const. LJ 245. In that case H.H. Judge Newey Q.C. had expressed the opinion, at page 245 of the report, that a claimant:-

“…can only recover as damages the costs which the defendant ought reasonably to have foreseen that he would incur and that the defendant would not have foreseen unreasonable expenditure. Reasonable costs do not, however, mean the minimum amount which, with hindsight, it could be held would have sufficed. When the nature of the repairs is such that the plaintiff can only make them with the assistance of an expert’s advice, the defendant should have foreseen that he would take such advice and be influenced by it.”

In the present case, submitted Mr. Coulson, it was foreseeable that, if left with a defective floor, Freemans would seek expert advice as to what to do about such defects. Freemans consulted Mr. Ballard. Mr. Ballard advised that Freemans should undertake the filling of the voids with grout. Consequently, the costs of undertaking the works which Mr. Ballard recommended, and which were in fact undertaken, are recoverable without more. He also submitted that I should hold that Mr. Ballard’s advice was correct in any event.
79. On general principle a person who has been the victim of a tort or a breach of contract must seek to mitigate the loss caused by such tort or breach of contract. It is well-established that the duty is only to act reasonably to mitigate the loss. At least in some circumstances, if a claimant, in the course of acting reasonably to seek to mitigate his loss, in fact aggravates his loss, he may be able to recover in respect of the aggravated loss from the defendant – see Halsbury’s Laws of England, 4^th edition, Volume 12(1) paragraph 1041 and the cases cited in footnotes 7 and 8 thereto. It will no doubt, in many cases, be relevant to a consideration of whether a claimant has acted reasonably to address the questions whether he sought, and acted upon, appropriate expert advice. If he has acted upon appropriate expert advice, then, whether he has in fact reduced or increased his loss, expenditure incurred on expert advice is likely to be recoverable as part of his damages. However, whether this is so or not seems to me, with great respect to H.H. Judge Newey Q.C., to depend not upon any question of foreseeability of what the victim of a tort or a breach of contract is likely to do, but upon established principles of the doctrine of mitigation. The application of those principles will mean that the answer in any case to the issue of what is recoverable and what is not will depend not upon the answer to the question, “Was what was done done on expert advice”, but on the more general question whether the claimant acted reasonably to seek to mitigate his loss. While it may be a very extreme case, it is possible to envisage a case in which the advice given by an expert to a victim of a tort or of a breach of contract is so patently excessive in what is recommended that it is not reasonable to act upon such advice, even though given by an apparently appropriate person. In such a case it would be contrary to principle to permit recovery of sums spent in reliance upon the advice of the expert, but the formulation of H.H. Judge Newey Q.C. upon which Mr. Coulson relied would seem to require that recovery be allowed.
80. In the circumstances of the present case, had I been satisfied that Freemans had demonstrated that it had suffered loss as a result of any of the three instances of flooding upon which reliance was placed, and that such loss included the cost of remedial works to the floor of the Store, I should not have been inclined to disallow the cost of filling voids under the floor slab. I am not entirely persuaded that the filling of those voids was actually necessary, but I am satisfied that Mr. Ballard advised Freemans that such voids should be filled, and that that work was done. Even if not strictly necessary, the work was done to mitigate the consequences of damage to the floor of the Store, and done reasonably, in my judgment.

Conclusion

81. In the result, although I am satisfied that Railtrack is liable both strictly, under s.68 of the 1845 Act for failing to maintain the Culvert so as to ensure that it did not become blocked, and in nuisance in respect of each of the instances of flooding about which complaint was made in this action, the claim of Freemans against Railtrack fails for want of proof of loss suffered as a result of any of the three instances of flooding additional to the loss suffered by reason of the application of Jaypol in the aisles of the floor of the Store over the FAMA. The claim is therefore dismissed.