Transco Plc v Stockport Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN |
| Judgment Date | 16 February 2001 |
| Neutral Citation | [2001] EWCA Civ 212 |
| Docket Number | Case No: QBENF 1999/1302.A2 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 2001 |
[2001] EWCA Civ 212
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H. H. JUDGE HOWARTH SALFORD DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Latham and
Mr. Justice Cresswell
Case No: QBENF 1999/1302.A2
QBENF 1999/1118/A2
Mark TURNER Q.C. & Stephen DAVIES (instructed by Berrymans Lace Mawer for the Appellant)
Robert STERLING for B.G. Transco plc (instructed by for the First Respondent)
Ian FOSTER (instructed by O'Neil Patient for Reddish Vale Golf Club, the Second Respondent)
(As Approved by the Court
This is the judgment of the Court.
Introduction
Before the court is an appeal from orders made by HH Judge Howarth on 28 July and 17 August 1999. As we understand it, the evidence had been given in November 1998, Final Submissions were in January 1999, a written judgment was handed down on 7 May 1999 and it appears that the Judge was asked on 28 July to make various further findings by way of elucidation of his judgment which he did then and there. For the hearing of this appeal those further findings have been treated by all sides as incorporated in the judgment.
The main issue in this appeal is whether an owner of a block of flats is liable to his neighbour for damage done by water which, without negligence on the part of the owner, has escaped under pressure from a 3" diameter service pipe under his control. That strict liability is said to arise under the rule in Rylands v Fletcher (1868) LR 3 HL 330 on the basis that what the owner was doing amounted to a non-natural user of land.
On Monday 28 September 1992 a disused railway embankment owned by Stockport MBC ["Stockport"] partially collapsed. The collapse exposed, and left unsupported, a high pressure gas main owned by British Gas plc ["BG"]. Spoil from the collapse fell onto an adjacent golf course owned by Reddish Vale Golf Club ["the Golf Club"]. BG took immediate steps to avert any risk of damage to the gas main by restoring support. In so doing, it incurred expense, agreed in the sum of £93,681.55, on remedial works. The Golf Club claimed to have suffered significant losses as a result of damage and the disturbance to its golf course.
Both BG and Golf Club sued Stockport to recover their losses. They both alleged that Stockport was liable (a) under the rule in Rylands v Fletcher, (b) in nuisance, and (c) in negligence. BG also alleged that Stockport had interfered with its right of support for the gas main.
After a trial lasting 8 days, His Honour Judge Howarth, sitting as a Judge of the Technology and Construction Court in Salford, gave judgment in favour of BG and the Golf Club against Stockport. The essential findings of fact made by the learned Judge, most of which were common ground at trial, are set out below.
The embankment collapsed as a result of having become saturated with water at the point of collapse. The embankment had been constructed in the 19th century by a railway company using local clay and sandy soils.
An 11 storey block of flats, owned and managed by Stockport, known as Hollow End Towers lies to the east of the embankment, north of the point of collapse. It was built for Stockport on filled ground in the 1960s. The whole area to the east of the embankment was used for landfilling by Stockport in the 1950s, prior to development. Between Hollow End Towers and the embankment lies a natural valley, which was also landfilled and then grassed over.
Water was supplied by the statutory undertaker from the mains under the control of the water undertakers to the bottom of Hollow End Towers. At the bottom of the Tower, the water undertakers' main comes to an end. Water thereafter passes through a 3" internal diameter asbestos cement water pipe ("the service pipe") which is owned by and under the control of Stockport. The service pipe and the water passing through it were of no benefit to either claimant.
The water which saturated the embankment at the point of collapse had emanated from a crack in the service pipe. The internal area of the cross section of the service pipe is between 16 and 36 times as great as the internal area of an ordinary domestic supply pipe leading to an average single house from a water main under the road.
The fracture in the service pipe occurred below the tank room floor which is in the basement of the tower block. The tank room contains two large tanks which hold 1000 gallons of water each into which tanks runs mains water from the pipe. The water from these tanks is pumped into tanks on the roof of the tower block. The 66 flats in the block receive their water supply from those roof tanks.
In the week-end prior to the collapse, water was seen to emanate from a "spring" in the grassed over area between Hollow End Towers and the embankment. The learned Judge made no express finding about the way in which water emanating from the fractured water pipe found its way to the "spring". It seems that the water gradually soaked up the area which had been filled until it could no longer act as a sponge. Then the water exited at the "spring".
The water then ran onto and then down a pathway, which led onto a linear pathway running along the top of the embankment. The linear pathway was a leisure facility constructed by Stockport in 1979. They had acquired the embankment from the railway authority. Both pathways were made of compacted stone and thus were relatively impervious to water. Additionally, by reason of the effects of use over time, both pathways had become slightly concave. For those reasons, the water did not simply percolate into the embankment at the point of issue, nor did it drain into a French drain running alongside the linear pathway. Instead, it ran some 200m along the linear pathway and then percolated into the embankment via a crack in the ground, in sufficient quantity and in such a manner as to cause a collapse of the embankment at that point. Vast quantities of water must have escaped through the fracture in the service pipe.
The void left by the collapse exposed a 27 metre length of 16" high pressure gas main which was unsupported for the whole of that length. If a fracture had occurred in the gas pipe, gas would have escaped and a devastating explosion might have resulted. Prompt action had to be taken in the interests of public safety. It was taken by BG at its own expense.
The debris from the landslip covered a large area of the tenth green of the golf course and caused various other items of damage on or under the golf course.
Damage of the relevant type was a broadly foreseeable consequence of the fracture.
Strict liability under the rule in Rylands and Fletcher
It would be possible to have a legal principle that, whether or not A is negligent, A is responsible for damage which is caused to B by things escaping from A's land onto B's land. That however does not represent our law. We have as a general or default position that, absent proof of more, A is not responsible. However, to that default position there are a number of exceptions. Some are created by Statute. One example of that is now contained in s.209 of the Water Industry Act 1991 which provides: -
"Where an escape of water, however caused, from a pipe vested in a water undertaker causes loss or damage, the undertaker shall be liable, except as otherwise provided in this section, for the loss or damage" .
It is common ground that this section has no direct application to the pipe with which we are concerned. Nor is it argued that the existence of this section gives a clear indication of what public policy should be in relation to service pipes not vested in a water undertaker. So we must look to the case law. Each such case is inevitably decided on its own facts. In some those facts have been held to justify the imposition of absolute liability; in others it was regarded as inappropriate to impose such a liability. The judgments are expressed at a certain degree of abstraction and, while the verbal formulation of the relevant principles has varied, it is clear that, in general, strict liability has been held to attach only to out of the way or unusual actions by a landowner in accumulating water onto his land.
In dismissing the appeal in Rylands v Fletcher Lord Cairns L.C. said this at p.338:
"the principles on which this case must be determined appear to me to be extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so, by leaving, or by interposing, some barrier between his close and the close of the defendants in order to have prevented that operation of the laws of nature . On the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural...
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