Northumbrian Water Ltd v McAlpine Ltd

Liability in private nuisance does not depend on proof of negligence, but it remains controlled by reasonable use and foreseeability. An occupier making normal and reasonable use of land is not liable for an isolated escape that was neither intended nor reasonably foreseeable, unless the claim falls within the rule in Rylands v Fletcher. Damages are recoverable only for harm of a reasonably foreseeable type.

Physical damage does not, by itself, impose strict liability in nuisance. A continuing and foreseeable interference caused by construction works differs from an undetected and unforeseeable escape. Ordinary urban redevelopment is a normal and reasonable use unless unusual methods or other circumstances make the interference unreasonable.

A contractor undertaking urban redevelopment installed concrete piles beside a public sewer. Concrete escaped through an unknown disused drain, entered the sewer and caused a partial blockage. The sewerage undertaker sought its removal costs in negligence and nuisance.

The disused drain appeared only on a 1908 plan held in museum archives. It had not been shown on current sewer plans or detected by the ordinary site investigations. The High Court dismissed the claim in [2013] EWHC 1940 (TCC), finding no negligent investigation and no foreseeable escape or damage.

The central issues on appeal were whether reasonable care required a search of the museum archives and whether physical damage caused by an isolated escape attracted liability in nuisance despite the absence of negligence or foreseeability.

1. Appeal dismissed. The judge was entitled to reject the negligence claim. A reasonably competent contractor was not shown to have been required to conduct a prolonged search of local museum archives for a century-old drain which normal investigations had not revealed. The appellant had produced no expert evidence that the investigations fell below the required standard.
2. Liability in nuisance is strict only in the sense that reasonable care does not authorise an activity which unreasonably interferes with a neighbour's use of land. Liability remains controlled by the principle of reasonable user. Normal urban redevelopment using ordinary construction methods is a reasonable use unless the methods or surrounding circumstances make it otherwise.
3. The speeches in Cambridge Water and Transco established three relevant principles. First, reasonable use of land does not attract liability merely because interference occurs. Secondly, outside the rule in Rylands v Fletcher, an isolated escape does not create liability where it was neither intended nor reasonably foreseeable. Thirdly, damages in nuisance require harm of the type suffered to have been reasonably foreseeable.
4. The contractor knew that concrete could enter underground voids near a pile shaft. That did not make it reasonably foreseeable that concrete would migrate beyond the site and enter a neighbouring sewer through an unknown disused drain. The construction method was not shown to be unusual or generally liable to cause problems for adjoining owners.
5. Clift v The Welsh Office and Andreae v Selfridge & Co Ltd concerned continuing operations whose interference or damage was apparent and foreseeable. They did not establish a general rule of strict liability whenever nuisance causes physical damage. Hoare & Co v McAlpine was also inapplicable because it involved continuing vibration and was decided under Rylands v Fletcher, rather than an unforeseeable isolated escape.
6. The escape and consequent damage were unforeseeable. Since no claim was advanced under Rylands v Fletcher, the nuisance claim also failed.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously in [2014] EWCA Civ 685. The rejection of the claims in negligence and nuisance was upheld.
2. High Court, Technology and Construction Court: In [2013] EWHC 1940 (TCC), His Honour Judge Behrens, sitting as a Deputy High Court Judge, dismissed both claims. He found no negligent failure to investigate the site and no reasonably foreseeable escape or damage.