Chetwynd & Anor v Tunmore & Anor

Section 48A of the Water Resources Act 1991 imposes strict liability where an abstraction causes loss or damage. The claimant need not prove that the damage was reasonably foreseeable. The claimant must, however, prove causation on the balance of probabilities. The ordinary “but for” test applies where competing hydrological causes produce the alleged loss. The material-contribution approach developed in cumulative disease and clinical-negligence cases does not extend to a materially different factual situation involving separate possible causes of falling water levels. A limited contribution from one abstraction will not establish liability where the loss would probably have occurred from other causes in any event.

The claimants owned a commercial fishery in Norfolk adjoining land owned by the defendants. The defendants excavated four lakes, which involved abstraction of groundwater. The claimants alleged that the excavation reduced water levels in their fishing ponds, causing fish losses, business losses and other damage.

The claim was brought under section 48A of the Water Resources Act 1991, and alternatively in negligence, nuisance and economic tort. The central issues were whether foreseeability was required under section 48A and whether the defendants’ abstraction caused the claimed loss. The court also considered the effect of competing causes, including climatic variation, groundwater flows, land-use change and drainage works.

1. Section 48A. The words of section 48A(1) impose liability where abstraction causes loss or damage. They contain no foreseeability qualification. The abstractor therefore bears the risk of loss or damage caused by the abstraction, whether or not that loss was foreseeable.

2. Causation. The claimants had to prove, on the balance of probabilities, that, but for the excavation of the lakes, the crucial lowering of water levels and consequent loss would not have occurred. The material-contribution approach in cumulative disease and clinical-negligence cases was confined to its distinctive factual context and did not apply here.

3. The evidence established that Lake 1 had only a limited effect on the artesian well and Pond A. Lakes 2 and 3 had little, if any, effect, and Lake 4 had no effect. Climatic variation was the predominant cause of fluctuating and reduced water levels. Other causes included groundwater inflow patterns, willow cultivation, drainage works and seepage to the river.

4. The claimants failed to prove that, without the defendants’ lakes, the water levels would probably have remained sufficiently high to avoid the alleged loss. The claim under section 48A therefore failed. The negligence and nuisance claims failed for the same want of causation. In any event, the court considered that the common-law right to abstract subterranean water flowing in undefined channels defeated those claims.

5. Judgment was entered for the defendants. The court made no damages or injunction order. Had liability been established, a mandatory injunction would have been adjourned because of the potential conflict with planning enforcement proceedings.