Marcic v Thames Water Utilities Ltd

A sewerage undertaker that owns and controls sewers from which flooding emanates may owe a common-law duty in nuisance to take reasonable steps to abate it, even where the hazard arose from an inherited system and increased third-party use. Reasonableness includes the undertaker’s resources and every available step, including acquiring land and exercising statutory powers.

Once the nuisance is established, the burden shifts to the undertaker to prove an adequate defence. The Glossop line does not bar a claim concerned with damage caused by the undertaker’s drainage of other property. The [2002] EWCA Civ 64 decision also held that the statutory enforcement scheme under the Water Industry Act 1991 did not prevent common-law claims.

Mr Marcic’s property had repeatedly flooded since 1992 through discharges from Thames Water’s overloaded foul and surface-water sewers. The system had originally been adequate but became insufficient after increased third-party use. Thames had statutory duties and powers under the Water Industry Act 1991.

The Technology and Construction Court dismissed claims based on Rylands v Fletcher, nuisance, negligence and breach of statutory duty, but held that Thames had infringed Mr Marcic’s rights under the Human Rights Act 1998. Both parties appealed. Thames argued that the statutory enforcement mechanism was Mr Marcic’s only remedy. Mr Marcic challenged the rejection of his common-law and statutory claims. The central issue was whether he had an actionable claim in private nuisance.

1. Disposition. Thames’s appeal was dismissed and Mr Marcic’s cross-appeal was allowed. The matter was remitted for determination of damages.
2. Statutory duty. The court held that sections 18(8) and 22 of the Water Industry Act 1991 prevented an action founded directly on breach of the sewerage duty in section 94 where no enforcement order had been made. Section 18(8) did not exclude a common-law claim that did not depend on alleging breach of the Act.
3. Nuisance. Applying Goldman v Hargrave [1967] AC 645 and Leakey v National Trust [1980] 1 Q.B.485, the court held that an owner or controller of land from which a nuisance emanates must take reasonable steps to abate it, even where the hazard arose without its involvement. Thames had knowledge of the flooding, controlled the sewerage system and operated it commercially. Its resources were a relevant consideration.
4. Practicality and statutory powers. The duty could include acquiring land and exercising statutory powers. Reasonableness had to be assessed by reference to every step open to Thames. The court rejected the argument that statutory powers had to be disregarded. Thames failed to show that its priorities made prevention impracticable.
5. Glossop. The earlier line of authority did not bar the claim. Mr Marcic was not seeking an order requiring Thames simply to provide adequate public drainage; he complained that Thames’s drainage of other property caused discharges damaging his land. The statutory-authority defence also failed because Thames did not establish that the nuisance was inevitable if the statutory undertaking were operated with reasonable care.
6. Human rights. The court was not persuaded that the judge had erred in finding interference with Article 8 and Article 1 of the First Protocol. However, common-law damages capable of providing just satisfaction displaced any damages otherwise available under section 8(3) of the Human Rights Act 1998, making Thames’s appeal on the Convention issue academic. The court expressed further observations about compensation and proportionality as unanswered questions.

1. Court of Appeal: Thames’s appeal was dismissed and Mr Marcic’s cross-appeal was allowed. The matter was remitted to Judge Havery for assessment of damages.
2. Queen’s Bench Division, Technology and Construction Court: Judge Havery dismissed the common-law and breach-of-statutory-duty claims, but found a breach of the Human Rights Act 1998 and awarded damages on that basis.