Northumbrian Water Ltd v Sir Robert McAlpine Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice McFarlane,Lord Justice Christopher Clarke |
| Judgment Date | 20 May 2014 |
| Neutral Citation | [2014] EWCA Civ 685 |
| Docket Number | Case No: A1/2013/2092 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2014 |
[2014] EWCA Civ 685
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE-UPON-TYNE DISTRICT REGISTRY
(TECHNOLOGY AND CONSTRUCTION COURT)
His Honour Judge Behrens
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice McFarlane
and
Lord Justice Christopher Clarke
Case No: A1/2013/2092
Mr. Andrew Singer (instructed by Paul Kelly) for the appellant
Mr. Jonathan Mitchell (instructed by Hill Dickinson LLP) for the respondent
Hearing date: 2 nd April 2014
This is an appeal against the order of His Honour Judge Behrens, sitting as a Deputy Judge of the High Court, dismissing the appellant's claim against the respondent for loss and damage caused by an escape of concrete from a building site into one of its public sewers.
The appellant, Northumbrian Water Ltd, is a statutory sewerage undertaker which provides sewerage services in the area of Newcastle-upon-Tyne. One of its sewers runs under Newgate Street, close to the city centre. The respondent, Sir Robert McAlpine Ltd, is a construction company which at the time in question was carrying out redevelopment works on a site adjacent to Newgate Street. The redevelopment of the site required the sinking of a large number of concrete piles to support a new building. Shafts were drilled using an earth auger and filled with concrete to create piles. The site had been redeveloped on a number of previous occasions, most recently in the 1970s when a significant amount of excavation was carried out, and before work started ground conditions were extensively investigated. The nature and extent of the investigations led the respondent to believe that there were no unidentified obstructions below ground level that were likely to be affected by, or interfere with, the works, but unfortunately that was not the case. At some earlier date a private sewer which connected to the public sewer running under Newgate Street had been laid under part of the site at a depth of over 3 metres below ground level. It was not shown on the appellant's current plans of the sewer system, but it did appear on a plan dating from 1908 held in the Newcastle Discovery Museum which was later found by one of the respondent's employees following up a private enquiry. At least 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 to enable the connection to be made is unknown and does not matter for present purposes. When concrete was poured to form the pile it was able to escape from the shaft into the drain and thence into the appellant's sewer, where it set and caused a partial blockage. The appellant brought these proceedings to recover the substantial expense it had incurred in removing the obstruction.
The appellant sought to recover its loss in nuisance and negligence. It alleged that the respondent had failed to take reasonable care to identify the existence of underground services formerly present at the site and had failed to take adequate precautions to ensure the safety of the public sewer. At the trial one of the principal issues was whether the concrete found in the sewer had come from the respondent's works, but the judge found that it had and there is no appeal from that finding.
The judge dismissed the claim in negligence. He was not persuaded that the respondent should have searched the archives in the Discovery Museum (which contained the only plan showing that a previously unknown drain had once been laid beneath the site, all or part of which might therefore still be present), or that it should have carried out additional investigations of any kind. Nor was he persuaded that the respondent or its sub-contractor had been negligent in carrying out the piling work. The judge also dismissed the claim in nuisance. Having considered the decisions in Cambridge Water Co. v Eastern Counties Leather Plc [1994] 2 A.C. 264 and Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, [2004] 2 A.C. 1, he considered that the events constituted an isolated escape of materials from the site for which liability could arise only under the rule in Rylands v Fletcher (1866) L.R. 1 Ex. 265, (1868) L.R. 3 H.L. 330, on which the appellant placed no reliance. For good measure he held that the damage caused to the sewer by the escape of concrete was in any event not foreseeable in the sense used in Overseas Tankships (UK) Ltd v Miller Steamship Co. Pty (The 'Wagon Mound' (No. 2)) [1967] 1 A.C. 617.
The claim in negligence
Although Mr. Singer put the claim in nuisance at the forefront of his argument, it is convenient to consider the claim in negligence first.
It was not in dispute that the respondent owed the appellant a duty to take reasonable care to avoid causing damage to its property in the vicinity of the works, including the sewer. The critical question was whether it had done so. Although in its particulars of claim the appellant made several allegations, they all came down to the same complaint, namely, that the respondent had failed to take proper measures to investigate the site and to identify the existence of the disused drain. Foremost among its criticisms was the failure of the respondent to search the archives in the Discovery Museum and to discover the existence of the 1908 plan on which the drain was shown, although the appellant also alleged that the piling work had not been carried out with reasonable skill and care. In the event the latter complaint was not pursued at trial and the case depended entirely on the adequacy of the measures taken by the respondent to investigate the site before starting work.
The judge was not satisfied that the respondent had failed to exercise reasonable skill and care in that respect. In particular, he was not persuaded that it should have searched the archives in which the 1908 plan was later found or that it should have carried out any investigations in addition to those which it had undertaken. The site had been extensively redeveloped in the 1970s, which made it unlikely in the respondent's eyes that any earlier drains had survived. The judge had heard evidence from the respondent's employees responsible for investigating the ground conditions and noted that no expert evidence had been called to support the appellant's case that the respondent had failed to exercise reasonable skill and care in that regard.
In my view the judge was right to dismiss the claim in negligence. Although the respondent's witnesses accepted that there was a recognised risk, when pouring concrete into a shaft of this kind to create a pile, that some might escape into voids in the sub-soil, there was no reason in this case to think that it might migrate beyond the borders of the site, much less into a sewer under the adjoining road. The 1908 plan was discovered only after a search lasting several hours of the museum archives by one of the respondent's employees, a search which was itself instigated only by an unforeseen problem which had by then occurred involving an apparently unconnected sewer. In its particulars of claim the appellant had advanced no other criticism of the respondent's site investigations and consistently with that had not sought to call expert evidence in support of its case that it had fallen short of the standard to be expected of a reasonably competent contractor. In my view the judge was entitled on the evidence before him to reject the contention that a reasonably competent and careful contractor would have searched local museum archives for several hours to ascertain whether a drain had existed on the site a hundred years earlier and might have survived the previous redevelopment even though it had not been detected by normal investigation measures.
The claim in nuisance
Mr. Singer for the appellant submitted that the judge was wrong to regard the escape of concrete in this case as an isolated event, because it occurred during, and as part of, continuing construction operations. He submitted that in those circumstances the claim in nuisance should succeed regardless of negligence on the respondent's part, because nothing more than physical damage to the appellant's sewer was required to render the respondent liable. In support of that submission he relied on the decisions in Clift v The Welsh Office [1998] 4 All E.R. 852 and Hoare & Co. v McAlpine [1923] 1 Ch. 167. However, in so far as it was necessary to establish fault, he relied on the fact that the respondent's own witnesses had accepted that there is a risk when carrying out piling operations of this kind that concrete may escape into voids in the ground adjacent to the shaft.
Mr. Mitchell for the respondent submitted that liability arises in nuisance only if the defendant is at fault in the sense that his conduct has been unreasonable. He argued that redeveloping a site in a built-up area of a city using the methods adopted in this case did not involve an unreasonable use of the land, at any rate in the absence of any reason to suppose that it would interfere with the use and enjoyment of their land by neighbouring owners. In his submission the escape of concrete into the appellant's sewer was an isolated and unforeseen event for which the...
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