This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
In a recent decision the court considered whether Northumbrian Water Ltd (NWL) was liable in relation to the subsidence of land adjoining a leaking sewage pipe.
Mr and Mrs Bell owned a bungalow situated on a steep slope which had become saturated and unstable, causing subsidence of their land. Mr and Mrs Bell alleged that the collapse of the slope was caused by sewage leaking from a pipe and from fluid being conveyed along the trench in which the pipe sat. NWL was responsible for the maintenance of the pipe.
The claim against NWL was founded in nuisance which can be characterised in simple terms as the unlawful interference with the use or enjoyment of land; an occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on its land and must do what it is reasonable in the circumstances to avoid that interference.
NWL denied that the subsidence was caused by the leaking pipe. However it contended that, even if the subsidence was shown to be caused by leaks in the pipe, it had discharged its duty of care to Mr and Mrs Bell because it had arranged for an independent contractor to repair the pipe. A party is not normally liable in nuisance for an independent contractor’s work unless that work involved some special risk or hazard or if that person could reasonably have foreseen that the work he had instructed the independent contractor to undertake was likely to result in a nuisance.
The judge however pointed out that, on the facts of this case, the alleged nuisance already existed when the independent contractor undertook its work on behalf of NWL. The independent contractor may have failed to abate the nuisance, but it had not caused it. In those circumstances, NWL could not rely on the “independent contractor defence” because where a nuisance continues, “the person affected by it is entitled to look to the creator of that nuisance to stop it and to seek redress from him…”.
It follows that, where nuisance already exists and an independent contractor undertakes unsuccessful remedial works, the creator of the nuisance remains liable for it. Depending upon the facts, it may be that the occupier will have contractual or other rights against the independent contractor who failed to remedy the problem. It is only where an independent contractor is appointed to undertake works and, during those works, it creates a nuisance which did not previously exist (for example, because of the manner in which it undertakes the works) that the occupier may have a defence.
On the facts of this case, the court found against Mr and Mrs Bell in any event because it was not satisfied that there was a causal link between the subsidence and the leak in the pipe. In particular, the Judge was persuaded by expert evidence that the saturation of the ground was likely due to a drainage channel excavated by Mr Bell rather than leaks from the sewage pipe.
This article was first published by Ground Engineering.
