Bell brought proceedings in private nuisance against Northumbrian Water Ltd (“NWL”) after the slippage of clay from their land into a nearby stream had removed support from their garden, leading to fears that the landslip would eventually cause subsidence. The basis of Bell’s claim was that NWL had abandoned significant lengths of sewer in the area which were now leaking sewage and rainwater into the clay hill and saturating it, causing a series of rotational shears to the hill.
The first hurdle that Bell’s nuisance claim would have to surmount was that NWL were under a statutory duty pursuant to s94 (1) of the Water Industries Act 1991 (“the Act”) to maintain the pipes and ensure that the area around them was effectively drained, and the Act already provided a statutory scheme for enforcement which was inconsistent with common law liability in nuisance: Marcic v Thames Water Utilities Ltd (2003) UKHL 66.
However, in Dobson v Thames Utilities Ltd (2007) EWHC 2021 TCC Ramsey J determined that a similar statutory scheme would not protect the Defendant against common law liability if the nuisance resulted from a negligent failure at an operational level rather than resulting from broader strategic decisions made by the authority. Whether a particular failure fell on one side of the line or the other was a matter of fact and degree, and Ramsey J contrasted an allegation that a particular filter should be cleaned against one which would require a major plant to be renewed in order to illustrate the difference.
Saffman J considered that this was the former type of case and an action in nuisance could therefore lie:
“Applying those principles I am satisfied that in general terms the matters about which the Claimant complains fall on the side of the line that permits an action to lie. Broadly what are those matters? They are that the Defendant failed to maintain the pipe or adequately repair defects in it. In the circumstances of this case I am satisfied that in general terms these are operational in nature rather than what I have termed “"strategic”". They are more akin to cleaning a filter than major plant renewal.”
Counsel for Bell accepted that such liability in nuisance would be fault based, and so the claim faced two additional factual hurdles: first, Bell would have to establish a causal link between NWL’s failure to maintain the sewage pipes and the rotational shears which threatened subsidence; and second, Bell would have to prove that NWL was at fault.
Saffman J determined the causation issue against Bell on the basis that he was convinced by expert evidence suggesting the saturation of the ground was due to a drainage channel excavated by Bell in 1995 and widened in 2014 rather than the abandoned sewage pipes. As this was also not a case where a finding of material contribution was appropriate (as could be made in disease and clinical negligence cases) Bell’s claim in nuisance could not surmount the causation hurdle and would therefore fail.
Accordingly, Saffman J dismissed the claim.
[For more information, please refer to the case judgment.]