In previous blog posts we looked at the latest Supreme Court decision* relating to the law of nuisance. This was a landmark decision dealing with what activities might constitute a legal nuisance, and in what circumstances the Court may grant an injunction preventing the nuisance.
Hot on the heels of that decision comes another decision relating to nuisance, this time from the Court of Appeal**. This case dealt with whether a contractor could be held liable for losses resulting from hitting an old sewer during piling operations.
The contractor, Sir Robert McAlpine (McAlpine), was developing a site in Newcastle city centre. During piling operations, the contractor hit an old sewer. Concrete from the piling escaped into the old sewer, and then into the main sewer, causing a major blockage.
Both McAlpine and Northumbrian Water were not aware of the existence of the old sewer. It did not appear on any of the plans supplied to McAlpine by Northumbrian Water, and its existence was only confirmed afterwards on a plan from 1908, discovered by McAlpine after a search of the local archives which lasted several hours.
Nevertheless, Northumbrian Water pursued claims in negligence and nuisance against McAlpine for its losses, which amounted to over £300,000.
In order to succeed in negligence, Northumbrian would have to show fault on McAlpine’s part. However, there was no evidence of this and the Court found that McAlpine had carried out all the necessary ground investigations and it could not have been expected to carry out such a lengthy search of local archives.
However, since a claim in nuisance does not require fault, Northumbrian Water pursued an alternative claim in nuisance. In the rather unusual circumstances of the case, the Court of Appeal found that the concrete leakage did not constitute a nuisance on McAlpine’s part because:
1. it was an isolated incident;
2. piling operations of this sort are a ‘reasonable’ use of the land;
3. whilst McAlpine might have realised that some concrete from the piling might escape into the sub-soil, it could not have realised that it would escape from the confines of the site and into the main sewer; and
4. the old sewer only appeared on a 1908 plan that was only discovered after a search of local archives that lasted several hours.
This is undoubtedly a sensible decision. However, it does raise an interesting question as to the extent to which a defendant would have to search to find documents to escape liability. For example, would the Court have held McAlpine liable if it had found the 1908 plan after a search of half an hour, rather than several hours? My feeling is that it might well have done.
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*Coventry v Lawrence
**Northumbrian Water Limited v Sir Robert McAlpine