Nawaz v United Utilities Water Plc
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp |
| Judgment Date | 22 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1479 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 2013 |
| Docket Number | Case No: B2/2013/1186 |
[2013] EWCA Civ 1479
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON COUNTY COURT
(HIS HONOUR JUDGE BUTLER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Case No: B2/2013/1186
Mr Richard Moore (instructed by Farleys LLP) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
(As Approved)
This is a renewed application for permission to appeal against the order of HHJ Butler QC following a trial in which he dismissed the claim by the applicant, Mohammed Nawaz, against United Utilities Water Plc on two grounds: first, that his claim was non-justiciable in consequence of the provisions of the Water Industry Act 1991; and second, in any event, because he had failed to prove that the defendant had been negligent. The defendant is a sewage undertaker and responsible for the sewers under St Edmund's Street, which runs adjacent to the applicant's property. The claim arose out of a flood which took place at the applicant's property at 2 Lewis Street, Great Harwood, Lancashire on 7 October 2008. It was the applicant's contention at trial that the flood to the depth of some nine inches was caused by a blocked sewer under St Edmund's Street, running adjacent to the property as I have said, and the failure of the defendant to cleanse the sewers or inspect them.
The contention made on behalf of the applicant today by Mr Richard Moore of counsel, who appears on his behalf and who appeared before the judge at the trial, is that the judge was wrong to conclude that the claim was not justiciable under section 19 of the Act on the basis of the decision of the House of Lords in Marcic v Thames Water Utilities [2003] UKHL 66 because in this case, unlike Marcic, the relevant duty sought to be enforced under the Act, viz to cleanse the sewers, did not only arise under the Act but existed as a parallel duty at common law. See, for example, Baron v Portslade UDC at [1900] 2 QB 588, which decided a statutory duty to cleanse under section 19 of the Public Health Act 1875 did not affect the right to bring an action in negligence. See also Dobson v Thames Water Utilities [2007] EWHC 2021, a decision on a preliminary issue of Ramsey J, in which he held that the failure to cleanse or maintain the sewer was capable of maintaining an action for negligence in operational matters. It is submitted that the judge was also wrong to decide that Dobson did not apply because he wrongly construed it to apply to negligence in operating the systems that the defendant had decided on, but not the choice of which system to operate, which is not a matter of operational negligence.
As for the decision on negligence itself, it is contended that the judge wrongly applied the decision of the Court of Appeal in Ward v Tesco Stores Ltd [1976] 1 WLR 810. Mr Moore says it was not for the applicant to show what a reasonable system would have been. It was for the defendant to show that it had instituted and...
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