Marcic v Thames Water Utilities Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Phillips M.R. |
| Judgment Date | 07 February 2002 |
| Neutral Citation | [2002] EWCA Civ 64 |
| Docket Number | Case No: A1/2001/1771 and A1/2001/1930 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2002 |
[2002] EWCA Civ 64
Lord Phillips M.r.
Lord Justice Aldous and
Lord Justice Ward
Case No: A1/2001/1771 and A1/2001/1930
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
His Honour Judge Richard Havery QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Stephen Hockman, QC and Peter Harrison (instructed by South & Co. for Peter Marcic)
David Pannick, QC and Michael Daiches (instructed by Thames Water Legal Services for the Thames Water Utilities Ltd)
This is the judgment of the Court.
Introduction
Mr Peter Marcic lives in Stanmore, Middlesex. His house is situated within the extensive area within which Thames Water Utilities Limited ("Thames") provide sewers for the removal of sewage and surface water. Since June 1992 these sewers have, on occasion, discharged both surface water and foul water into Mr Marcic's front garden and thence into his back garden. This has damaged the fabric of his house, though he has successfully taken steps to prevent it getting inside his home. In these proceedings Mr Marcic claims damages from Thames for the damage that he has sustained.
Mr Marcic is not alone in his plight. In Thames' area there are many thousands of households facing the risk of internal or external flooding as a consequence of discharge from overburdened sewers. Thames has fought this case as an important test case because of the implications that it has for their liability to these households.
This is not the first claim that has been brought against a sewerage undertaker in respect of damage caused by discharge from overcharged sewers. The law reports disclose a series of actions where such claims have been advanced, spanning well over a century. A few have succeeded but most have failed.
In this action His Honour Judge Havery, QC, has resolved a number of issues of liability and measure of damage. He held that he was bound by authority to dismiss claims by Mr Marcic founded in Rylands v Fletcher L.R.3 H.L 330, nuisance and negligence. He considered whether a claim could be founded upon breach by Thames of duties owed under statute, or upon a negligent failure to exercise statutory powers and concluded that it could not.
Judge Havery then turned to consider a claim by Mr Marcic founded on an alleged breach by Thames of the Human Rights Act 1998. He held that Thames had, since the Act came into force, infringed Mr Marcic's right to respect for his home under Article 8 of the Human Rights Convention and his right to the peaceful enjoyment of his possessions under Article 1 of the First Protocol to the Convention. It followed that Thames were in breach of section 6(1) of the Human Rights Act. The Judge held that damages for this breach should be assessed by reference to its effect on the value of Mr Marcic's home on the premise that Thames would be taking no steps to prevent the flooding in the foreseeable future.
Both parties have appealed against Judge Havery's decision. Thames have challenged his finding that they have contravened the Human Rights Act. Mr Marcic has contended that the Judge erred in rejecting his claims based on common law and statute, thereby depriving him of his entitlement to damages in respect of the period before 2 October 2000, when the Human Rights Act came into force.
Before summarising the rival contentions of law and exploring the issues that they raise, we propose to set out the material facts relating to both Mr Marcic and Thames and the relevant provisions of the Water Industry Act 1991, under which Thames derive their powers and duties. We are assisted in our task by the careful analysis of the facts made by Judge Havery. This has not been challenged by either party and we shall incorporate some of the Judge's findings in our judgment.
The flooding experienced by Mr Marcic
Mr. Peter Marcic, who is now in his early sixties, lives at number 92, Old Church Lane, Stanmore, Middlesex. That property is a substantial family house with a front garden and a large rear garden. It lies within a residential area in a street of individually-built houses. It dates from the inter-war period. Mr. Marcic bought the property in the mid-1970s. He began to live in the property in 1980 and has lived there ever since. The property is frequently flooded. It lies at or near the lowest point in Old Church Lane. It was first significantly affected by flooding on 9 th June 1992. Since then it has been regularly and seriously affected by flooding and back flow of foul water from the defendant's sewer system.
Under the road there are a foul water sewer and a surface water sewer. Mr. Marcic's property has a dual, or combined, drainage system. That is to say, the surface water from the roof and the ground flows into the same drain as the sewage. The combined effluent flows into the foul water sewer under the road.
At times of heavy rain, the footpath between the road and Mr. Marcic's property becomes flooded with surface water, sometimes emerging from the overcharged surface water sewer. The foul water sewer can also become overcharged by reason of widespread local use of combined drainage systems. The parties' drainage experts agreed that it is also possible that householders, concerned about surface water flooding at times of heavy rainfall, lift the covers of the inspection chambers within their properties, thereby allowing accumulated surface water to enter the foul sewer.
Water on the ground in Mr. Marcic's front garden is collected from the patio through metal grilles overlying gullies which run beside the house and debouch into his foul drainage. When the foul water sewer is overcharged, the foul water backs up and can force open the manhole cover in Mr. Marcic's front garden, thereby escaping into the garden. If the flood water in his front garden is sufficiently deep, however, the manhole does not open. In that case the foul water backs up through the grilles into the overlying surface water.
Mr. Marcic has made some boards to put at the front of his property as a defence against flooding. They are not entirely satisfactory since water can pass both underneath and over the top. He cannot keep them in position permanently since they impede access to the premises. It takes him about 15 minutes to set them up in the evening or when he considers a flood to be imminent, and five minutes to take them down in the morning or after a flood has subsided.
In 1992, it took half an hour of heavy rainfall to cause flooding incidents at Mr. Marcic's property. The problem remained roughly the same until 1996. Since 1996 the position has progressively deteriorated. Only 15 minutes of heavy rainfall or some hours of steady drizzle are now sufficient to cause flooding.
When the front garden is flooded, the water reaches the brickwork of the walls of the house both below and above the level of the damp course. The water often rises to about 3/4 inch below the level of the front door threshold. Before carrying out some works on his property, Mr Marcic had to open his side gate and garage doors to let the water run through to the back garden, bypassing the house. That caused the back garden to be immersed. Water lay there for a few days. When it subsided it left deposits of sludge and debris. Mr Marcic has had built a manhole connected to pipes so that some flood water is carried back from his front garden underneath the garage and to the bottom of his back garden. That has to some extent alleviated the damage to the back garden. He considers that it is only by having carried out those works that he has prevented floodwater from entering his house. He has spent some £16,000 on that system.
The principal incidents of flooding were two in number in 1992; one in each of the years 1993, 1994, 1995 and 1996; two in 1997; none in 1998; four in 1999 and four or five in 2000.
Mr Marcic described the effect of the flooding in a witness statement. That description has not been challenged. It was as follows:
"My house has been badly affected. Damp and a musty smell are present in my front dining room for months after each flooding. Cracks are visible all over the walls and ceiling, some quite large, showing signs of subsidence. My house is a detached property where I have spent a good part of my life trying to do it up and make it into a home. I now cannot so easily part with it, yet I find it very difficult to live with the mess. Any measures to remove the damp and its effects, such as the subsidence, are pointless until the regular flooding is prevented.
The garden is also affected. On most occasions the floodwater contains levels of organic (oily) contaminants that run off streets and tarmac which poison the plants. At one time after heavy flooding I tried to use a garden hose to wash off the oily sheen from the surface but I only managed to disperse it. Some fully-grown conifers and shrubs have died. The soil has become contaminated and consolidated through persistent flooding, resulting in poor drainage. The vegetation has become poorly as water-logging deprives the roots of oxygen and drowns them. Those plants that do thrive are moss and weeds which are in abundance."
The Judge accepted the following evidence of a structural engineer, jointly instructed by the parties, of the damage caused by the flooding to Mr Marcic's home:
"There has been no subsidence or heave of the external walls of the house…..
There has been subsidence of parts of the concrete ground floor slab resulting in cracking...
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