Lee Dennis Oldcorn and Another v Southern Water Services Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge McKenna |
| Judgment Date | 23 January 2017 |
| Neutral Citation | [2017] EWHC 62 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2015-000042 |
| Date | 23 January 2017 |
[2017] EWHC 62 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge McKenna
(Sitting as a Deputy High Court Judge)
Case No: HT-2015-000042
Mr Neil Moody QC (instructed by Kennedys) for the Claimants
Mr Clifford Darton and Mr Paul Powlesland (instructed by Mayo Wynne Baxter Solicitors) for the Defendants
Hearing dates: 2, 3, 7, 8, 9 and 30 November 2016
INTRODUCTION
The Claimants, Lee Dennis Oldcorn and Judith Audrey Oldcorn, are the free-hold owners of a property known as 1 Davenport Road, Felpham, West Sussex ("the Property") which forms part of a housing development known as the Beach Road Estate ("the Estate") which was the subject of surface water flooding on the 11 th June 2012.
The Defendants, Southern Water Services Limited, are the local statutory sewerage undertakers and in this action the Claimants seek damages against the Defendants on the basis that they say that the flood damage they suffered at the Property was caused by negligence and / or nuisance on the part of the Defendants.
In summary what is said on behalf of the Claimants is that the flood was caused by the Defendants negligently inserting a tideflex valve into one of its own pipes, the effect of which was significantly to reduce flow through the pipe, which in turn led to water backing up behind the tideflex valve and, assert the Claimants, causing flooding of the Property. A pleaded claim under the rule in Rylands v Fletcher is however no longer pursued.
The claim is defended in respect of liability, causation and quantum save that, subject to liability, the parties have agreed a diminution in value claim in the sum of £50,000.
BACKGROUND
Felpham is on the coast. The Estate sits behind a sea wall and the Property is about 75 metres from that sea wall and has an AOD ("Above Ordnance Datum"), that is to say the height above mean sea level, of just 2.979 metres and is one of the closest houses to the sea.
The Property is at risk of flooding from both sea water and rain water owing to its low lying location and the nature and extent of the drainage installed on the Estate.
A ditch ("the Ditch") runs along the western boundary of the Property. It is one of a number of ditches which are located throughout the Estate. It is common ground that most of the Estate's roads simply drain into shallow ditches and grass verges that run alongside the highways and, of the road gullies that do exist, only four are connected to an underground pipe ("the Pipe") which is vested in the Defendants and which receives surface water from the road gullies and similar apparatus within its catchment, including the four road gullies to which I have already referred. Manholes or inspection chambers protrude into the Ditch with grilles that allow for surface water in the Ditch to drain down into the Pipe and water in the Pipe to percolate up, depending on the hydraulics of the situation at any given time.
The Pipe in turn drains into a concrete chamber ("the Bunker") owned by the Defendants which at the material time was divided into two chambers, number 3451 on the landward side and number 3452 on the seaward side. These chambers were connected by a 450mm diameter pipe which ran between them. Another 450 mm pipe then ran from the seaward chamber to an outfall on the beach. This system of pipes and chambers has been referred to in the pleadings as the "Storm Water System".
At high tide the outfall would be under water. Whenever the height of the tide was above the water level in the Storm Water System, then surface water flows would be prevented form discharging at the outfall. This is referred to as "Tide Lock".
It would appear that when originally constructed, there was what has been described as an elephant's trunk at the end of the outfall. That is a term used to describe the end of the pipe that is turned down at 90 degrees so as to face the beach. In more recent times the outfall has been fitted with a flap ("the Outfall Flap") which is intended to stop shingle and debris travelling up toward the Bunker.
In addition, within the Bunker, a tidal flap was located on the seaward side of the 450mmm diameter pipe between the two chambers ("the Chamber Tidal Flap"). This was intended to open to allow flows out from the Ditch and close so as to prevent sea water backing up into the system and flooding properties from the Ditch.
A penstock or gate valve was also fitted on the landward side of the 450mm diameter pipe, which was apparently intended to be operated manually. It is not entirely clear what the intended purpose of the penstock was but it is common ground that it had fallen into disuse long before the flood, the subject matter of this action. It might be that its purpose had been to provide a second line of defence against tidal ingress, or perhaps to enable operatives to seal off one from the other, the two chambers within the Bunker for maintenance and / or inspection purposes.
In summary, the purpose of the Storm Water System was effectively two-fold: to enable surface water flows to be discharged out to sea via the outfall and to ensure that seawater was prevented from flowing into the system. The Ditch and the over-size pipe below the Ditch were intended to provide storage when flows couldn't be discharged via the outfall, that is to say at times of Tide Lock.
THE 2009 FLOOD
On the 9 th and 10 th of February 2009, the Property flooded during heavy rain (a 1 in 4 event) and a high tide. The flood waters consisted mainly of sea water caused by tidal ingress into the Storm Water System.
The Claimants contend that the 2009 flood occurred as a result of a failure of the Chamber Tidal Flap in the Bunker or of the Outfall Flap and sued the Defendants in negligence and nuisance. The claim was included in these proceedings but was settled prior to trial.
It was following the 2009 flood that the Defendants took the decision to install a tideflex valve into the Bunker. The particular tideflex valve chosen by the Defendants was a series 37G tideflex ("the Tideflex"). It is made of rubber and is in the shape of a duckbill. There is an issue between the parties as to when exactly the Tideflex was installed. It is the Defendants' case that it was fitted in February 2010. Be that as it may, it is common ground that it had to be refitted on or about the 25 th November 2010 after it was found to have been dislodged from its fittings. The Tideflex was in place when the Property flooded in 2012 and it is also common ground that the presence of the Tideflex caused some head loss, although there is disagreement between parties as to the extent of that head loss.
THE 2012 FLOOD
At about 1am on the 11 th June 2012, the Property began to flood. The Claimants' then-expert, (instructed in connection with the 2009 flood) Mr Cowan (who has since retired) attended the same day and took a series of photographs and measurements. He found that the flood waters had reached an AOD of 3.6 metres within the locality of the Property.
The flood occurred during what the meteorological society has described as 1 in 215 year rainfall event or a 1 in 944 year event if both the 10 th and 11 th June 2012 were considered together. There was extensive flooding over a large part of the South Coast.
As a result of the heavy rain, surface water collected around the Property, it being one of the lowest points in the Estate and eventually flooded the Property.
It is the Claimants' case that but for the installation of the Tideflex, more rain water would have drained into the Pipe and the flood waters would have peaked just below the threshold of 2.976 AOD, at which the Property floods. The Defendant's case by contrast, is that the rainfall was so heavy that flooding would have occurred in any event.
It is common ground that the most appropriate method by which to establish causation is through expert hydraulic modelling. In this regard the Claimants rely on the evidence of Mr Richard Allitt, one of the foremost hydraulic modellers in the country, whilst the Defendants rely on the evidence of Mr Andrew Drinkwater, a civil engineer who has not in fact built his own model but relied on a model developed by the Defendants and its consultants.
EVENTS FOLLOWING THE 2012 FLOOD
Following the 2012 flood, the Tideflex was inspected on the 22 June 2012 and in December 2012, a quotation obtained
"… for knocking a hole in the dividing wall bigger than the incoming pipe diameter, so there is no flow restriction and also putting in a new Tideflex valve on the incoming pipe in the corner"
Thereafter the existing flap valve on the 450mm diameter pipe, i.e. the Chamber Tidal Flap and the Tideflex were removed and a 1.5m x 1.5m hole cut in the dividing wall and a new flap valve installed on the incoming over-size pipe.
THE ISSUES
The following issues fall to be determined:
i) The relevant legal framework to be applied including the extent, if any, of the Defendants' common law duty to prevent the Property from flooding; whether the Property enjoyed a right of drainage into the Pipe and, if so, the extent of that right and if not, the consequences for the Claimants' claim and whether the Defendants are entitled to take advantage of the so-called common enemy defence.
ii) The extent of the flooding at the Property.
iii) Whether the installation of the Tideflex was negligent.
iv) Whether the Property would have avoided flooding "but for" the presence of the Tideflex.
v) Quantum.
OVERVIEW OF THE EVIDENCE
The Court has heard evidence from Mr and Mrs...
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