Category Archives: Rylands v Fletcher

Contractor not liable in nuisance for event and type of damage that were not reasonably foreseeable

Three important themes can be gleaned from the decisions in Cambridge Water Co. v Eastern Counties Leather Plc [1994] and Transco Plc v Stockport Metropolitan Borough Council [2003].

1. Though liability in nuisance has traditionally been regarded as strict, i.e. it does not depend on proof of negligence, if the defendant’s use of his land is reasonable, he will not be liable in nuisance for interference with his neighbour’s enjoyment of his land.

2. Unless the case fits within the rule in Rylands v Fletcher, the defendant is not liable for damage caused by an “isolated escape”, i.e., one that is not intended or reasonably foreseeable.

3.Foreseeability of harm of the type suffered by the plaintiff is necessary if the defendant is to be liable in damages for nuisance.

In Northumbrian Water Ltd v McAlpine Ltd [2014] one of Northumbrian Water Ltd (appellant)’s sewers ran under Newgate Street, close to Newcastle city centre. Sir Robert McAlpine Ltd (respondent) was carrying out redevelopment works adjacent to Newgate Street.

The redevelopment required the sinking of a large number of concrete piles. Shafts were drilled using an earth auger and filled with concrete to create piles.

The site had been redeveloped several times before and a significant amount of excavation had been carried out. Before work started ground conditions were extensively investigated. So the respondent believed that there were no unidentified obstructions below ground level that were likely to be affected by, or interfere with, the works.

Unfortunately a private sewer which connected to the public sewer under Newgate Street had been laid under part of the site at a depth of over 3 metres.

It was not shown on the appellant’s current plans of the sewer system, but did appear on a 1908 plan, held in a Newcastle Museum, later found by one of the respondent’s employees who was following up on a private enquiry.

Part of the drain had survived the previous redevelopments and was still connected to the public sewer.

In the course of drilling the shaft to form pile No. 215 an open connection was created with the surviving drain. Whether the auger broke into the drain or simply passed close to an existing fracture (enabling the connection to be made) was not known

So, when concrete was poured to form the pile it was able to escape from the shaft into the drain and then into the appellant’s sewer. There it set and caused a partial blockage.

The appellant sued to recover the major expense it had incurred in clearing the obstruction.

The Court of Appeal held that such redevelopment of land in an urban context could only be regarded as normal and reasonable, save where it involved unusual methods of working.

Constructing concrete piles by the method adopted in this case was not unusual or liable to trouble neighbouring landowners.

The respondent, or the people it was responsible for, knew that concrete can seep out of shafts drilled for piles into surrounding voids in the sub-soil.

But there was no reason to think that the respondent should, because of that, have foreseen the possibility that concrete might escape the confines of the site and find its way into neighbouring land.

Had it not been for the abandoned drain, there was no reason to think that it would have done.

The respondent was not negligent in failing to discover the existence of the drain and so the escape of concrete into the appellant’s sewer was not reasonably foreseeable.

So the respondent was not liable to the appellant in nuisance.

The claim in nuisance failed because the escape of concrete from land occupied by the respondents and the resultant damage to the appellant’s sewer were not foreseeable.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.