Vernon Knight Associates v Cornwall Council

A landowner owes a measured duty in negligence and nuisance to take reasonable steps to prevent natural hazards on its land causing damage to neighbouring property. The duty depends upon what is fair, just and reasonable between neighbours. The court must assess foreseeable risk, available precautions, their cost, and the resources of both parties.

A public authority’s competing public demands may limit the duty, particularly where substantial new infrastructure would be required. However, an authority that has installed drainage to manage a serious flood risk may be required to keep it functioning by reasonable use of existing resources. The relevance of a claimant’s insurance to that assessment remains unresolved.

The claimant owned a holiday village adjoining a highway maintained by the council. Surface water collected in a dip in the road and, when leaves and debris blocked the installed gullies, entered the village. Floods in November 2006 and September 2008 caused agreed damage of £141,625.18.

The claimant sued in negligence and nuisance, alleging that the council had failed to maintain the highway drainage. The Technology and Construction Court held the council liable. Although its system was generally adequate, its operative had, without good reason, failed on both occasions to check the known and serious flooding hotspot during heavy rainfall.

The council appealed, principally contending that the judge had imposed too high a standard of care by failing properly to weigh all relevant circumstances and the demands on its resources.

1. Appeal dismissed. Jackson LJ’s reasons were agreed by Sir Stanley Burnton and the Master of the Rolls. The judge had not imposed an unduly high standard of care.
2. Highways Act 1980 sections 41 and 58 did not themselves impose a duty to protect adjoining owners against flood damage. Their relevance was that the council, as highway authority, had a duty to maintain the highway and its drainage. The adjoining owner’s claim was governed by the common law of negligence and nuisance.
3. A landowner owes a measured duty to take reasonable steps to prevent natural occurrences on its land causing damage to neighbouring property. The duty requires a multifactorial assessment of what is fair, just and reasonable between the neighbours. Relevant matters include the foreseeable risk, available preventative measures, their cost, and each party’s resources. A public authority’s resources must be assessed with regard to its competing public responsibilities.
4. The council’s resource pressures did not absolve it here. Unlike the authority in Lambert v Barratt Homes Ltd [2010] EWCA Civ 681, the council had already installed the drains, gullies and catchpit needed to deal with the recognised flood risk. The required precaution was to use the existing installation properly by checking and clearing it. On each occasion the operative was available during normal working hours, was not diverted by a more urgent task, and had no good reason for departing from his normal practice of attending this worst hotspot.
5. The origin of the water outside the council’s land, the claimant’s insurance, and the claimant’s ability to inspect the gullies did not change that conclusion. The court left open whether insurance is generally relevant to the measured duty. Sir Stanley Burnton also expressed doubt that it should be relevant.
6. The judge was entitled to rely on evidence about the operative’s activities, which was peculiarly within the council’s knowledge and was established by disclosure and cross-examination. The postscript concerning possible future claims had no significance.

• Court of Appeal (Civil Division). The council’s appeal against liability was dismissed.
• Technology and Construction Court, Bristol District Registry. His Honour Judge Havelock-Allan QC held the council liable in negligence and nuisance for the two floods and awarded agreed damages of £141,625.18 on 19 October 2012.