Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685

Key point

While in the tort of nuisance the escape of a dangerous substance must be reasonably foreseeable for damages to be recovered, in Rylands v Fletcher tort the escape need not be reasonably foreseeable.

Facts

Concrete escaped from D’s construction site to C’s sewer through a disused private drain.

The private drain was not discovered in extensive searches, but was subsequently found by one of D’s employees in a plan held in a local museum.

C claimed in nuisance for the cost of removing the concrete from its sewer.

The judge had ruled that the escape of concrete was not foreseeable as C could not have been reasonably expected to search museum archives.

Issue

Is D liable in nuisance even though the escape of concrete was not reasonably foreseeable?

Held (Court of Appeal)

D is not liable in nuisance as the escape of concrete through the disused pipe was not reasonably foreseeable.

Moore-Bick LJ

Three important principles can be derived from the speeches of Lord Goff in Cambridge Water and Lord Hoffman in Transco:

  1. Liability in nuisance is strict, in the sense that it does not depend on proof of negligence
  2. Unless the case could be brought within the rule in Rylands v Fletcher, the defendant was not liable for damage caused by an isolated escape, i.e., one that is not intended or reasonably foreseeable
  3. Foreseeability of the type of harm suffered by the claimant was necessary: [18]

The judge was right to hold that D was not negligent in failing to discover the drain and it follows from his finding that the escape of concrete through the drain is not reasonably foreseeable: [19]