East Suffolk Rivers Catchment Board v Kent

JurisdictionUK Non-devolved
JudgeThe Lord Chancellor,Lord Atkin,Lord Thankerton,Lord Romer,Lord Porter
Judgment Date09 December 1940
Judgment citation (vLex)[1940] UKHL J1209-1
Date09 December 1940
CourtHouse of Lords
East Suffolk River Catchment Board
and
Kent and Another

[1940] UKHL J1209-1

Lord Chancellor

Lord Atkin

Lord Thankerton

Lord Romer

Lord Porter

House of Lords

After hearing Counsel, as well on Thursday the 6th, as on Monday the 10th, Tuesday the 11th, Wednesday 12th, Thursday the 13th, Monday the 17th, Tuesday the 18th, Wednesday the 19th, Thursday the 20th, Tuesday the 25th and Wednesday the 26th, days of June last, upon the Petition and Appeal of East Suffolk Rivers Catchment Board of 21 Tower Street, Ipswich, in the County of Suffolk, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 3d of November 1939, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Henry Kent and Richard George Porter, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 3d day of November 1939, complained of in the said Appeal, be, and the same is hereby, Reversed, and that judgment be entered for the Appellants: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

The Lord Chancellor

My Lords,

1

On 1st December, 1936, there was an exceptionally high spring tide on the coast of Suffolk and this, reinforced by the influence of a northerly gale, caused the waters of the River Deben (which is tidal below Woodbridge) to rise so high as to wash over and break through in many places the ancient walls or banks, made of clay and stone, which ordinarily prevent the flooding of the adjoining marshland. The marshland inside the walls is at a lower level than ordinary high tides, and consequently if a breach is made in the walls the tidal water which enters will keep the marsh pastures flooded until the gap in the wall has been stopped, and the invading water has been drained away. There were no less than 22 breaches caused by this high tide in the walls of the River Deben alone, with the result that very extensive flooding took place. One of the most serious floodings occurred through a breach, estimated to measure 20 or 30 feet across, in the wall which guarded the marsh pastures of a farm belonging to the Respondent Porter, of which the Respondent Kent was the occupier. Some 50 acres of these pastures became and continued thus flooded.

2

The Appellants are the Catchment Board, constituted under the Land Drainage Act, 1930, for the main rivers of East Suffolk, and the River Deben is one of these. By section 6 of the Act the Catchment Board exercises the powers conferred by the Act on Drainage Boards, so far as concerns the main rivers, including the banks thereof, and drainage works in connection with the main rivers. These powers, by section 34 (i) ( a), include the power to repair any existing water course or drainage work, and the interpretation section (section 81) makes it plain that this includes the repair of such walls or banks as guarded the Respondents' farm until they were broken through. The Statement of Claim contained the allegation that the Appellants were under a duty to keep the Respondents' walls in efficient condition and, if a breach occurred, were under a duty "efficiently and with the utmost expedition" to repair any breach. This contention was, however, rejected by Mr. Justice Hilbery who tried the case, and in taking this view, which is plainly right, the learned judge was following and approving previous decisions by Mr. Justice du Parcq (as he then was) in the case of Smith v. Cawdle Fen, Ely (Cambridge) Commissioners, (1938) 4 A.E.Rep. 64, and Mr. Justice Stable in Gillett v. Kent Rivers Catchment Board (1938) 4 A.E.Rep. 810 at pp. 813, 814. Before the Court of Appeal, the Respondents no longer contended that the Land Drainage Act imposed on the Appellants a positive duty to intervene and undertake the repair of any breach, and the argument there and before this House has proceeded on the basis that the Appellants had statutory power to intervene, but were not under a duty to do so which could be enforced by action. It is to be noted, however, that under section 12 a Catchment Board which fails to exercise its powers may, in certain circumstances, be directed by the Minister of Agriculture and Fisheries with respect to the performance of its statutory functions.

3

If, therefore, the Appellant Board had remained entirely passive, it is agreed that the Respondents could not have succeeded in any action against them for non-feasance. But the Appellants did not remain inactive, but endeavoured to deal with all the breaches that had taken place in their area, amounting to about 30 in number, including the serious breach in the wall skirting the Respondents' land. In the other cases on the River Deben the Appellants seem to have been successful, but Mr. Justice Hilbery has found, and, following the Court of Appeal, I am prepared to accept the learned judge's finding on the facts, that the methods adopted and the staff employed in trying to repair the damage to the wall, with which we are concerned in this case, were so inefficient that, whereas the gap could, by the exercise of reasonable skill, have been closed and the flooding arrested in 14 days, this result was not in fact attained till after the lapse of 164 days. In the meantime, of course, the marsh pastures remained covered by salt water and the Respondents continued to suffer the damage which had been initiated by the breach in the wall. For the purpose of deciding the difficult and important issue of principle which now arises, details as to the Appellants' unsuccessful efforts do not matter, but it is convenient to state that it was only at the third attempt that the gap was successfully filled, and that in the view of the learned judge, who had a body of expert evidence before him, the earlier efforts of the Appellants, which consisted in attempting to build straight across the gap instead of building a semi-circular bastion out into the saltings and then reconstructing the wall behind this protection, had only the remotest possibility of success, and caused the delay.

4

The problem of law which now arises for solution is by no means an easy one. Its essential elements are these. (1) The Appellant Board were under no statutory duty to repair the breach, but they had the power to enter upon the land for the purpose of endeavouring to effect such repair and they did so enter. (2) It was the original breach in the wall, caused by the act of nature, which produced the flooding of the Respondents' land and it was the operations of the tide which kept it flooded; the efforts of the Appellants were directed to abating this damage. (3) If the Appellants had not shown such want of skill in trying to repair the wall, and if they had been served by an adequate well-trained staff, the gap in the wall would have been closed much sooner than it was and the flooding would have been more promptly abated.

5

The question is whether, in the above circumstances, the Appellants are liable to the Respondents in damages to such amount as would represent the net loss to the Respondents due to the delay in abating the flood. The Court of Appeal were divided on this issue. Lord Justice Slesser and Lord Justice MacKinnon thought that the Appellants were liable as for breach of duty to do their work with reasonable care and expedition. Lord Justice du Parcq differed and held that the Appellant Board was "not liable for damage suffered through failure to exercise its powers adequately or at all, even though the damage might have been averted or lessened by the exercise of reasonable care and skill."

6

It is not, of course, disputed that if the Appellants, in the course of exercising their statutory powers, had inflicted fresh injury on the Respondents through lack of care or skill, they would be liable in damages for the consequences of their negligent act. If, for example, the Appellants, by their unskilful proceedings had caused a further area of the Respondents' land to be flooded, or had prolonged the period of flooding beyond what it would have been if they had never interfered, they would be liable. But (apart from two minor matters, which it is agreed do not govern the main issue) nothing of this sort happened. The Respondents would have gained if the flooding had been stopped sooner; their complaint against the Appellants is that they did not act with sufficient skill to stop it more promptly; but the Respondents cannot point to any injury inflicted upon them by the Appellant Board, unless it be the Board's want of success in endeavouring to stop the flooding at an earlier date.

7

In order that the Respondents should succeed in this action, it is necessary that they should establish, not only that the Appellants were wanting in care and skill when exercising their statutory powers, but that they inflicted injury and loss upon the Respondents by their negligence. Lord Parker thus states the proposition in ( G.C.R. v. Hewlitt [1916] 2 A.C. 511 at p. 519)....

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