Davies & Anor v Campfield & Anor

On an appeal involving nuisance, negligence and flooding, an appellate court should respect the trial judge’s findings of primary fact where they are supported by the evidence. Expert theories should be tested against those facts; the court need not determine an abstract mechanism before deciding what happened.

Where one expert’s theory fits the findings and another does not, the trial judge may prefer the former. A claimed regulatory permission is effective only if the evidence identifies sufficiently specific works or conduct that the permission authorised. For foreseeability, it may be enough that use of premises for business purposes associated with an existing business was reasonably foreseeable. The fact that the business was operated by an independent sole trader does not, without more, alter that conclusion.

The claimants operated a funeral business and a related stone masonry business on neighbouring land. They alleged that works carried out by the defendants in 2009 diverted a watercourse and caused serious flooding between 2009 and 2015. They claimed in nuisance and negligence.

After a three-day trial, HHJ Jarman QC found for the claimants. The defendants appealed, challenging the factual findings, the assessment of competing expert evidence, causation, the alleged permission for the diversion works, and the finding that harm to the third claimant was reasonably foreseeable. Permission to appeal was refused on paper by Singh J but granted by Newey J at an oral hearing.

1. Appeal dismissed. The trial judge was entitled to find that flooding before 2009 had been less severe, that the 2009 diversion caused the more serious flooding, and that the 2015 reversal works had an immediate beneficial effect.
2. The defendants’ proposed method of analysis was wrong in principle. The judge was not required to decide first whether flow rate or water volume was the relevant mechanism and then use that conclusion to determine the primary facts. He was entitled to determine the primary facts and test the competing expert theories against them. The proper approach was to fit the theories to the primary facts, rather than fit the primary facts to a preferred theory. Where one theory fitted the findings and the other did not, the judge was entitled to prefer the former.
3. The judge was entitled to reject the alleged 300mm clay pipe and the resulting alternative flow route. The absence of evidence of the pipe despite searches by the defendants, the authority and the experts outweighed the evidence said to support its existence. The decision not to conduct a site visit did not undermine the findings because the experts had independently visited the site and searched for the pipe.
4. The alleged permission was not established. The evidence showed that a meeting had occurred and that steps to prevent flooding on a footpath had been discussed. It did not show that the defendants had been authorised to divert the water onto route B, or to use any route they chose. The letters relied upon were unspecific, and the judge was entitled to find that the defendant’s recollection was inaccurate.
5. The finding concerning the third claimant was also sound. It was reasonably foreseeable that the shed would be used for business purposes associated with the funeral business. It made no difference that the stone masonry business was operated by an independent sole trader, provided that the third claimant pursued his own claim.

• High Court (Chancery Division): Appeal from the County Court at Cardiff dismissed.
• County Court at Cardiff: HHJ Jarman QC found for the claimants after trial.
• Permission to appeal was refused on paper by Singh J and granted by Newey J at an oral hearing.