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Nuisance claims relating to spillages onto another's land

Background

In Northumbria Water Limited v Sir Robert McAlpine Limited the claimant was the statutory sewerage undertaker in the Northeast of England. The defendant was a building contractor engaged in a redevelopment of Newcastle city centre in 2008. A subcontractor of the defendant had been pouring concrete whilst engaged in piling works. One particular hole experienced seepage from within.

Following the pouring of concrete a nearby private business complained of sewage backing up at its premises. Investigations located a private drain hitherto unknown to both parties. This was located near the piling hole and led to the main sewer.

The claimant expended approximately £300,000 in removing concrete which had set in the main sewer and in February 2011, issued proceedings in both negligence and nuisance to recover these monies. The court held that the concrete in the sewer was that which had seeped from the piling hole.

The negligence claim

The claimant argued that the defendant had not had sufficient regard for the presence of the public sewer.

The court rejected the claim holding that the defendant had demonstrated that it had taken reasonable care to identify any services on site with substantial investigations beforehand and monitoring during the works. The court held that redevelopment at the site in the 1970's had both obscured the drain and made it reasonable for the defendant to assume that the drain had been closed. The drain was only discovered in documentation dating from 1908, which was found by the defendant in a museum records department. It was not reasonable to expect the defendant to investigate this beforehand. There was no negligence.

The nuisance claim

The claimant did not claim under the rule in Rylands v Fletcher, which imposes strict liability on the defendant for damage caused by the release from its land of something, which if it were to escape, would be likely to cause "mischief" or "damage." Instead the claimant claimed in nuisance. This was, the court concluded, because the claimant felt it would struggle to pass the "bringing something onto one's land which is likely to cause mischief" element of the test.

Nevertheless, the claimant argued that strict liability could apply in a nuisance claim for a single spillage event such as this and that all that was required was the spillage and foreseeable damage.

The defendant argued firstly that isolated escapes did not attract strict liability in nuisance. In consequence, in the absence of negligence by the defendant, the nuisance claim must fail. Secondly, the defendant argued that any damage to the main sewer had not been reasonably foreseeable.

The court rejected the claim in nuisance finding firstly that an isolated escape of something in nuisance did not attract strict liability. Strict liability is an onerous burden and the rule in Rylands v Fletcher only applies strict liability because it also requires the presence of something which is intrinsically likely to cause damage if it escapes. In the absence of such a substance, i.e. a straightforward nuisance case, negligence is required to occasion liability. If not, the law in Rylands v Fletcher would not be needed.

Secondly, the court held that damages in nuisance must indeed be reasonably foreseeable and that they were not in this case. The only way that this damage could occur to the main sewer was if concrete entered through a drain. As the presence of the drain was not and could not have reasonably been known, the damage could not have been reasonably foreseeable.

Summary

The case highlights that in nuisance cases relating to single escapes of a substance onto another's land, strict liability only applies if the test for Rylands v Fletcher is passed. This requires the substance to be something which is likely to cause mischief or damage if it escapes. Because strict liability is onerous, this is not an easy threshold to pass. Claimants should be aware of the reluctance of courts to impose strict liability. Conversely, those bringing hazardous substances onto their land must be very aware that they risk liability for an escape even if they are not at fault.

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