FLOODING – PRIVATE LAW CLAIMS

By Camilla Lamont
Landmark Chambers

FLOODING: AN INCREASING PROBLEM

1. According to the Environment Agency website, around five million people in two
million properties live in flood risk areas in England and Wales. The site warns that
flooding is “30 times as costly as getting burgled”.

2. Such projections are causing concern to the insurance industry which may
increasingly seek to withdraw cover for properties in areas identified as being at flood
risk. A report commissioned by the Association of British Insurers (“The ABI”)1 states
that weather related claims on property insurance doubled to over £6 billion between
1998 and 2003 compared with the previous five years. The ABI points to the need for a
partnership approach between the industry and government to prepare for the effects of
climate change. The report contains this stark warning:

“If society takes no action to prepare for the impacts of climate change, weather-
related damage costs would continue to increase with inevitable consequences for
the price and availability of insurance”

3. Last summer’s devasting floods themselves resulted in the region of 165,000

insurance claims costing the insurers approximately £3 billion.

1
“A Changing Climate for Insurance” (8.6.04) available at www.abi.org.uk/climatechange

1
4. It will therefore become increasingly likely that property owners who have suffered
the effects of flooding will have not have adequate insurance cover to compensate them
fully or at all. The question therefore arises as to what private law remedies are
available to a property owner who is the victim of flooding.

CLAIMS AGAINST THE PERSON CAUSING THE FLOOD

5. The primary task is to identity the cause of the flood. Usually the flood water will
have directly emanated from neighbouring land or will have been caused or exacerbated
by flood defence measures taken on such land. It may also have been caused by the
activities of the public bodies responsible for water supply and sewerage.

6. The classic battle grounds for flooding claims are the common law doctrines of
nuisance, negligence and the rule in Rylands v Fletcher, which I shall deal with in turn.
The courts have increasingly been blurring the lines between these various common law
causes of action but they remain distinct.

NUISANCE

Direct action

7. A person commits a nuisance if he “does something on his own land which is not
confined to his own land but extends to the land of his neighbour by (1) causing an
encroachment on his neighbour’s land, when it closely resembles trespass, (2) causing
physical damage to his neighbour’s land or building or works or vegetation upon it, or
(3) unduly interfering with his neighbour in the comfortable and convenient enjoyment
of his land”.2

2
Clerk & Lindsell on Torts (19th ed) at para 20-06 (Sweet & Maxwell)

2
8. A clear example of a nuisance would be where a landowner of plot A deliberately
drains his land onto his neighbours land or artificially landscapes his land in such a way
as to cause water to drain from plot A to plot B3. On the same basis a person who
diverts a natural stream which causes flooding will be liable. In Greenock Corporation
v Caledonian Railway [1917] 1 AC 556 Lord Findlay LC said at page 572,

“It is the duty of any one who interferes with the course of a stream to see
that the works which he substitutes for the channel provided by nature are
adequate to carry off the water brought down even by extraordinary
rainfall, and if damage results from the deficiency of the substitute which he
has provided for the natural channel he will be liable”

9. The principle applies equally to the creation or diversion of artificial watercourses.

In Sedleigh Denfield v O’Callaghan [1940] AC 880 a grating had been fitted to the
entrance to a drainage pipe by the Defendant’s predecessor in title to prevent leaves or
other debris blocking the pipe. But the grating was fitted directly on the top of the pipe
such that during a heavy rainstorm, the pipe became choked with leaves and the
overflow from the pipe caused damage to the plaintiff’s premises. The House of Lords
held that the Defendant had adopted the nuisance consisting of the faulty grating.

The Common Enemy Rule

10. The “common enemy rule” represents an important limitation on liability from
direct acts as was first recognised in the Court of Session in 1741 in Farquharson v
Farquharson. The case report states:

“It was found lawful for one to build a fence upon his own ground, by the
side of the river, to prevent damage to his ground by the overflow of the
river, though thereby a damage should happen to his neighbour by
throwing the whole overflow in time of flood upon his ground. But it was
found not lawful to use any operation in the alveus”

3
Thomas v Gower RDC [1922] 2 KB 76; Foster v Warblington UDC [1906] 1 KB 648

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11. The alveus means an established watercourse (even if dry for part of the year or
from time to time) as opposed to a flood plain, which is an area of land liable to
flooding not contained in a specific watercourse or alveus.

12. The rule was applied to the erection of sea defences in R v The Commissioners of
Sewers for the Levels of Pagham (1828) 8 B & C 355. The Commissioners had
erected groynes and other works to defend the stretch of coast for which they were
responsible against the sea’s encroachment. But the consequence was that the sea
flowed with greater force upon adjoining land, whose owner brought proceedings. Lord
Tenterden CJ said at 361:

“I am . . . of opinion that the only safe rule to lay down is this, that each
land-owner for himself, or the commissioners acting for several land-
owners, may erect such defences for the land under their care as the
necessity of the case requires, leaving it to others, in like manner, to protect
themselves against the common enemy”

13. The rule was most recently examined in Arscott v The Coal Authority [2004]
EWCA Civ 892; [2005] Env. LR 6. That case concerned the flooding of a housing
estate in Aberfan, Methyr Tydfil, when the River Taff overflowed its banks. It was
accepted that the actions of the Coal Board, in raising the level of nearby Grove Fields
by the depositing of colliery waste or spoil onto it, was a material cause of the estate
being flooded, insofar as flood water which would otherwise have flowed onto Grove
Fields flowed instead onto the housing estate. However, Grove Fields themselves were
not flooded.

14. The Court of Appeal examined the common enemy principle in light of modern
authorities on the law of nuisance generally and Laws LJ articulated certain themes
which he considered would set the framework “to illuminate a reasoned basis for the
limits or edges of the common enemy principle”.

“We have, then, a constellation of themes within which the common enemy
rules has to be understood. They are: a bias in favour of natural user,
subject to its being no more than reasonably enjoyed; a bias (effectively a

4
 conclusive rule) against non nature user where that involves the escape of
something noxious onto a neighbour’s land; a bias against the harbouring
of a danger, a hazard, on one’s own land whether the hazard is natural or
man-made. And in no case will there be any liability without reasonable
foreseeability of damage”.

15. Essentially it was held that that the common enemy rule is subject to two particular
limitations which themselves operate as partial guarantors of reasonable user. Where
works done to protect land from the common enemy are within these limits, they may be
considered a natural use of the land which is prima facie also a reasonable use.
Applying this reasoning Laws LJ felt able to conclude that the common enemy rule
conforms with the general law of nuisance in that it,

“represents a resolution of the balance between self interest and duty to

neighbour which, in the broad context of land use of which it is a particular
instance, makes up the body of law called nuisance”.

16. The limitations are as follows. First, the law does not permit interference with the
alveus itself4. Secondly, the rule only permits a landowner defences on his land whose
effect will be that water which would otherwise have flowed onto his land will be
diverted onto his neighbour’s. It distinctly does not permit the landowner to take
measures so as to cause water which has already or will in any event come onto his land
to flow from it onto that of his neighbour. Laws LJ articulated the second limitation (at
para. 39) as follows:

“You are entitled to protect yourself against the common enemy’s

incursions; but if the incursion upon your land has already happened or is
about to happen, you may not export it to your neighbour. This is a
pragmatic drawing of the line”

17. The second limitation is illustrated by the facts of Whalley v Lancs and Yorks Ry
Co (1884) 12 QBD 131. By reason of unprecedented rainfall, a quantity of water had

4
R v Trafford (1831) 1 B & Ad 874: (1832) 8 Bing 204. Also see Laws LJ at [2004] EWCA Civ
892 at paras 35-36

5
 accumulated against one of the sides of the defendants’ railway embankment, to such an
extent as to endanger the embankment, when, in order to protect their embankment, the
defendants cut trenches in it by which the water flowed through, and ultimately on to the
land of the plaintiff which flooded. The defendants were held liable for the damage
caused by the flooding on the plaintiff’s land. They had no right to protect their
property by transferring the mischief from their own land to that of the plaintiff, even
though they had not brought the water on their land.

18. The common enemy rule is also subject to a further qualification. Such defensive
action may still be actionable if it is in some way excessive, as for instance as might
have arisen in Grove Fields had been raised to a height in excess of what was needed to
prevent it being flooded, and the extra height was an independent cause of damage to
the estate5.

Failing to act – the Leakey principle

19. The examples set out above all concern direct acts carried out on plot A which
caused flooding over plot B. It used to be thought that harm originating in some natural
condition of the land rather than from some individual act could not be actionable as a
nuisance. For example, it was previously thought that the landowner of plot A could not
be liable for water naturally draining off his land onto plot B. However the law of
nuisance has developed considerably and in some cases the owner of plot A will be
liable for failing to take action to prevent water flowing from plot A to plot B.

20. In Goldman v Hargrave [1967] 1 AC 645 the Privy Council held that an owner was
liable for damage caused by his failure to prevent a fire spreading from a tree struck by
lightening. Lord Wilberforce said, at page 657, that

“in comparatively recent times. . . the law has recognised an occupier’s

duty as one of a more positive character than merely to abstain from
creating, or adding to, a source of danger or annoyance”.

5
Arscott; Per Laws LJ at para. 40 - 41

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21. His Lordship went on to state that there existed a general duty upon occupiers in
relation to hazards occurring on their land, whether natural or man-made. He expressed
the duty of care thus:

“One may say in general terms that the existence of the duty must be based
upon knowledge of the hazard, ability to foresee the consequences of not
checking or removing it, and the ability to abate it. And in many cases. . . .
where the hazard could have been removed with little effort and no
expenditure, no problem arises. But other cases may not be so simple. In
such situations the standard ought to be to require of the occupier what it is
reasonable to expect of him in his individual circumstances.”

22. The principle was confirmed by the Court of Appeal in Leakey v National Trust
[1980] QB 485, CA where a natural hill in Somerset owned by the National Trust
slipped damaging the plaintiff’s adjacent property. Megaw LJ said at page 524 that an
owner owes a duty:

“. . .to do that which is reasonable in all the circumstances, and no more

than what, if anything, is reasonable, to prevent or minimise the known risk
of damage or injury to one’s neighbour or to his property. The
considerations with which the law is familiar are all to be taken into
account in deciding whether there has been a breach of duty, and, if so,
what that breach is, and whether it is causative of the damage in respect of
which the claim is made. Thus, there will fall to be considered the extent of
the risk; what, in so far a reasonably can be foreseen, are the chances that
anything untoward will happen or that any damage will be caused? What
is to be foreseen as to the possible extent of the damage if the risk becomes
a reality? Is it practicable to prevent or minimise, the happening of any
damage? If it is practicable, how simple or how difficult are the measures
which could be taken, how much and how lengthy work do they involve, and
what is the probable cost of such works? Was there sufficient time for
preventative action to have been taken, by persons acting reasonably in
relation to the known risk, between the time when it became known to, or
should have been realised by, the defendant, and the time when the damage

7
 occurred? Factors such as these, so far as they apply in a particular case,
fall to be weighed in deciding whether the defendant’s duty of care
requires, or required him, to do anything, and, if so, what”

Application of Leakey to flooding cases

(i) Liability to improve culvert

23. These general principles were applied in Bybrook Barn Garden Centre Ltd v Kent
CC [2001] BLR 55, CA to a case of flooding. In that case a garden centre was flooded
by water from a culvert maintained by the highways authority. When the culvert was
constructed it did not cause a nuisance. But water started to overflow from the culvert
when, for reasons unconnected with the highways authority, the volume of water
passing down the culvert increased.

24. The case failed at first instance by reason of the application of the authority in
Radstock Co-operative and Industrial Society Limited v Norton-Radstock UDC [1968]
1 Ch 605 where it was held that an owner would not be liable in nuisance for damages
caused by a pipe if the damage arose, not from any defect in the initial design of the
pipe, but from an increase in the volume of water not caused by the owner. The
principle in Rex v Bell (1822) 1 LJKB 42 of “that which is not a nuisance at the time it
is done cannot become so by length of time” was applied. In the Radstock Co-operative
case a local authority had laid a sewer across a bed of river. The sewer was properly
laid and maintained. And, at no time, was it moved or altered by the local authority.
But, many years after the installation of the sewer, the flow of water in the river
increased causing the river bed to become eroded. That erosion of the river bed exposed
the sewer causing eddying and turbulence which damaged the plaintiff’s property.

25. However the Court of Appeal in the Bybrook Barn case held the approach in
Radstock-Cooperative was inconsistent with the duty recognised in Leakey and
Goldman to prevent or minimise the risk of damage to neighbouring property caused by
natural or non-natural hazards occurring on land. Waller LJ said

8
 “This is a case where a private landowner has suffered damage from
flooding caused by a culvert built by and under the control of the highway
authority. The highway authority had the means of preventing the flooding
by enlarging the culvert at some costs, but basically without great difficulty.
It is not a case where it would be right to conduct a general inquiry as to
the budget available to the highway authority or as to its backlog”

(ii) No distinction between natural and artificial features

26. In Green v Lord Somerleyton EWCA [2002] Civ 198, the Court of Appeal had to
examine the liability of an owner of a lake (“Fritton Lake”) in respect of water naturally
draining from that lake and flowing downhill and flooding the claimant’s marshes
(Priory Marshes). Fritton Lake was a medieval man-made lake on the Norfolk broads.
Counsel for the defendant submitted that the Leakey duty did not arise in relation to
“naturally flowing water”. That submission was rejected by the Court of Appeal for the
reasons stated by Jonathan Parker LJ at paragraph 84,

“If reasonableness between neighbours is the key to the solution of

problems concerning encroaching tree roots, I can see no reason in
principle why it should not also be the key to the resolution of a dispute
such as has arisen in the instance case. The more so because I cannot draw
any sensible distinction in this respect between unreasonably allowing fire
to escape onto a neighbour’s land (the situation in Goldman v Hargrave,
where the defendant was held liable for resulting damage) and
unreasonably allowing floodwater to do so”

27. In any event Jonathan Parker LJ, at paragraph 81, explained the practical difficulties
of drawing a distinction between naturally and artificially flowing water as follows:

“. . .in the context of the English landscape a distinction between “natural”

and “artificial features” is an inherently uncertain foundation on which to
rest a decision as to the existence of liability in nuisance”

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28. The Court of Appeal considered whether the Leakey duty had in fact been breached
on the facts of the case. They held it had not. As Jonathan Parker LJ said at paragraph
107
“What then, should the Trustees have done? As to the clearing of the
Blocka Run there can be no doubt that a joint effort by the Trustees, Mr.
Green and the other riparian owners to clear the Blocka Run would have
substantially reduced . . . . the risk of water from the lake flowing onto
Priory Marshes. But it does not lie in [the claimant’s] mouth to complain
that the Trustees failed to initiate any such joint effort when he did not
attempt to do so himself. Moreover, the clearance of the Trustees’ stretch
of the Blocka Run would have been of questionable effect unless [the
claimant’s] stretch. . . .was also cleared. I accept [the] submission that the
clearing of the Blocka Run would be disproportionate in terms of cost to the
damage likely to be caused to Priory Marshes by intermittent flooding”

29. In general, therefore, one must treat the “pre” Leakey cases on flooding with some
caution. The following questions must be addressed,

• has the flooding emanated from other land?

• has the owner of the neighbouring land failed to act reasonably (viewed
subjectively) in failing to prevent or reduce the reasonably foreseeable
consequences of the flooding risk?

• has the failure to take such steps as are reasonable caused the loss complained
of?

• was the loss suffered by the claimant a reasonably foreseeable consequence of

the failure to act?

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 THE RULE IN RYLANDS V FLETCHER

30. In Rylands v Fletcher (1886) LR 1 Ex 265l (affirmed in (1886) LR 3 HL 330)

Blackburn J expressed the rule thus,

“We think that the true rule of law is, that the person who for his own
purposes brings on his land and collects and keeps there anything likely to
do mischief if it escapes must keep it in at his peril, and , if he does not do
so, is prima facie answerable for all the damage which is the natural
consequence of its escape”.

31. The principle difference between nuisance and Rylands v Fletcher liability is that in
nuisance the claimant must show that the defendant acted unreasonably and was
therefore at fault. The rule in Rylands v Fletcher provides for strict liability if the
preconditions are satisfied. The distinction between the two causes of action was
narrowed by the confirmation in Cambridge Water Company Co Ltd v Eastern
Counties Leather plc [1994] 2 AC 264 that foreseeability is an essential ingredient of
claims under the rule in Rylands v Fletcher in the same way that it applies to nuisance
and negligence. In Arscott v The Coal Authority, Laws LJ treated the rule in Rylands v
Fletcher as merely a species of nuisance6.

32. It is generally accepted that “a person who accumulates water by way of non-natural
user is bound to keep it from doing damage at his peril whether it is collected in a
reservoir, pipe, canal, drain or mound of earth”7. Rylands v Fletcher was itself a case
where a reservoir dam had burst flooding Mr. Fletcher’s coal mine. In Smeaton v Ilford
Corporation [1954] 1 All ER 923 at 933 Upjohn J concluded that “to collect into a
sewer a large volume of sewage, inherently noxious and dangerous and bound to cause
great damage if not properly contained, cannot be described, in my judgement, as a
natural user of land”.

6
[2004] EWCA Civ 892 at para. 28.
7
see Clerk & Lindsell on Torts (19th ed) at para 21-36

11
33. However since the rule in Rylands v Fletcher was first formulated the courts have
demonstrated a reluctance to apply it. That has been done primarily by refusing to
extend the doctrine to natural use and use which benefits the community8 In the
Cambridge Water case Lord Goff commented that the term natural should have its
ordinary meaning and expressed the hope that the courts may feel less pressure to
extend the concept of natural use. However, in a subsequent decision, Ellison v
Ministry of Defence (1996) 81 BLR 101, it was held that insofar as natural rainwater
was diverted by berms constructed on the MOD’s land, the construction works were an
ordinary use of land which were not themselves dangerous.

34. The proper scope of the rule in Rylands v Fletcher was examined by the House of
Lords. In Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61;
[2003] 3 WLR 1467 it was held that the provision of a water supply under normal mains
pressure to a block of flats by means of a 3 inch thick connecting pipe from the water
main, though capable of causing damage in the event of an escape, did not amount to the
creation of a special hazard constituting an extraordinary use of land. Therefore the
council was not liable under Rylands v Fletcher in respect of damage to a gas pipe
caused by the collapse of a disused railway embankment owned by it which had in turn
been caused by a leak from the water pipe. It was further held that since the damage to
the claimant’s gas main occurred on the council’s own land, there had been “no escape”
for the purposes of the rule. Lord Hoffmann said at paragraph 46,

“A useful guide in deciding whether the risk has been created by a “non-
natural” user of land is therefore to ask whether the damage which
eventuated was something against which the occupier could reasonably be
expected to have insured himself. Property insurance is relatively cheap
and accessible; in my opinion people should be encouraged to insure their
own property rather than seek to transfer the risk to other by means of
litigation”

35. Flood damage is the classic type of loss in respect of which insurance cover is taken
out. The ability of the majority to take out insurance cover may unduly penalise those

8
Rickards v Lothian [1913] AC 263

12
 who find it difficult or impossible to take out cover. The House of Lords also confirmed
that as the rule in Rylands v Fletcher was a special form of nuisance and that, as with
nuisance, damages for personal injury may not be recovered. Whilst their Lordships
declined to take the radical step of abolishing the rule altogether it is clear that their
Lordships clearly considered the rule to be exceptional. It is unlikely in the majority of
cases that a claim under Rylands v Fletcher will be made out and it would be unwise
solely to rely on the rule without also framing the claim in nuisance and or negligence
(if applicable).

NEGLIGENCE

36. One tends to find, in respect of activities carried out on adjoining land which cause
flooding, that claims are made under the principles of nuisance and Rylands v Fletcher
as opposed to negligence. It can be difficult to establish that the defendant owed a duty
of care and or that the defendant acted in breach of any duty owed. For example in
King v Liverpool City Council [1986] 1 WLR 890 it was held that a local authority
owed no duty of care to a tenant of a flat in a building owned by it to prevent the
damage caused by vandals damaging water pipes in a vacant flat. However negligence
may be useful where the cause of the flood has not emanated on the claimant’s land but
has been caused by the claimant, for example a local authority.

37. An example of a flooding claim in negligence is A Prosser and Son Ltd v Levy
[1955] 1 WLR 1224 where a local authority was held liable in negligence for failing to
take reasonable steps to prevent a flood from a pipe in the corridor of a property which
burst causing damage to the defendant tenant’s office. In that case the authority was
aware of the existence and condition of the pipe. Given the potential scope of the
Marcic principle to prohibit any claim being made in nuisance (absent negligence),
framing a claim in negligence may be essential.

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 CLAIMS AGAINST PUBLIC BODIES AND STATUTORY UNDERTAKERS

38. In the ordinary course of events public bodies will, in respect of their day to day
activities, be potentially liable in nuisance, negligence and under the rule in Rylands v
Fletcher in the same way that private individuals are. For example the defendants in
both Transco and Bybrook Barn were public bodies. In those cases however, the
activities conducted by the public bodies were not carried out pursuant to their statutory
obligations. However, special considerations apply to the liability of public bodies and
bodies undertaking statutory duties.

The Defence of Statutory Authority

39. Even if a common law claim could otherwise be made out, a public body may have
a complete defence of “statutory authority”. This principle was first raised by Lord
Blackburn in Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455-
456,
“. . .it is now thoroughly established that no action will lie for doing that
which the legislature has authorised, if it be done without negligence,
although it does occasion damage to anyone; but an action does lie for
doing that which the legislature has authorised, if it be done negligently.
And I think that if by reasonable exercise of the powers, either given by
statute to the promoters, or which they have at common law, the damage
could be prevented it is, within this rule “negligence” not to make such
reasonable exercise of their powers”

40. The effect of this principle is to exclude the application of the rule in Rylands v
Fletcher to works constructed or conducted under statutory authority. In the absence of
negligence in the manner in which the works are carried out, there will be no liability.
For example in Green v Chelsea Waterworks Co (1894) 70 LT 547 a water main
belonging to a waterworks company, which had been authorised by Parliament to lay
the main, burst. There had been no negligence on the part of the waterworks company.

14
 The waterworks company were held to have no liability in respect of flooding to the
claimants’ premises.

41. In Allen v Gulf Oil Refining Ltd [1981] AC 1001 at 1011 Lord Wilberforce said,

“It is now well settled that where Parliament by express direction or by

necessary implication has authorised the construction and use of an
undertaking or works, that carries with it an authority to do what is
authorised with immunity from any action based on nuisance. The right of
action is taken away. . .To this there is made the qualification, or condition,
that the statutory powers are exercised without “negligence” that word
here being used in a special sense so as to require the undertaker, as a
condition of obtaining immunity from action, to carry out the work and
conduct the operation with all reasonable regard and care for the interests
of other persons. ”

42. In X (minors) v Bedfordshire County Council [1995] 3 All ER 353 it was

confirmed that a local authority does not owe a tortious duty of care in exercising a
discretion conferred on it by statute but does owe a duty of care for the manner in which
such works as it decides to carry out are in fact carried out.

Common Law Duty excluded by Statutory Scheme

43. In several cases under the Public Health Acts 1875 and 1936 the courts held that the
failure of a sewerage authority to construct new sewers did not constitute an actionable
nuisance. Those Acts had a special procedure for enforcement of the statutory duty
which was held to be exhaustive9.

44. In Marcic v Thames Water Utilities Ltd [2003] 3 WLR 1603 the House of Lords
held that a statutory sewerage undertaker was not liable at common law in respect of
serious and repeated external sewer flooding suffered by the plaintiff. When

9
Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102; Smeaton v Ilford Corporation
[1954] Ch 450

15
 constructed the public sewerage system was sufficient to meet any usage which could
then reasonably be anticipated. However due to subsequent housing development in the
area the sewers became overloaded as a result of the volume of water entering surface
water sewers higher up the catchment area. At the date of the action the public
sewerage system was inadequate and during spells of rain Mr. Marcic’s garden was
repeatedly flooded with foul sewage. The House of Lords held that Thames Water was
not liable in common law nuisance under the Leakey principle.

45. The House of Lords examined the statutory scheme of regulation under the Water
Industry Act 1991. Under that Act, the undertaker is under a statutory duty “to provide,
improve and extend a system of public sewers and so to cleanse and maintain those
sewers as to ensure that the area is and continues to be effectually drained”. It was not
in doubt that the undertaker was in breach of this duty in failing to provide an adequate
system.

46. However under the 1991 Act the responsibility for enforcing the undertaker’s duties
lies in the hands of a regulator with powers of enforcement whose decisions are subject
to judicial review. The statutory scheme provides a procedure for making complaints to
the regulator which the plaintiff had chosen not to pursue. Their Lordships considered
that the regulator was in a better position to carry out the balancing exercise between the
interests of the person subject to sewer flooding and the interests of those, including the
customers, who would have to finance the cost of constructing more sewers and that in
those circumstances imposing a liability in nuisance would be inconsistent with the
statutory scheme. The House of Lords also considered that the balance of competing
interests struck by the scheme as a whole was not in breach of the Human Rights Act
1998.

47. Further consideration was given to the principles enunciated in Marcic by Ramsey J
in Dobson v Thames Water Utilities Ltd [2007] EWHC 3031 (TCC). That raised a
preliminary point as to whether the claimants could pursue a common law or HRA 1998
remedy against the Defendant for loss of amenity suffered as a result of odours and
mosquitoes emanating from the Defendant’s sewage works. It was held that as the
Claimants were seeking to enforce duties which arose under s.94(1)(b) of the Water
Industry Act 1991, “to effectually deal” with the contents of sewers, the principle in

16
 Marcic would preclude a claim in nuisance based on the Leaky principle absent any
negligence.

48. However, it was held that the statutory scheme and Marcic did not necessarily
preclude a claim of nuisance involving negligence. In Marcic, Ramsey J indicated, the
boundary fell between building new sewers and cleaning and maintaining the existing
sewers. Ramsey J said:

“If there is a fault in the form of negligence and if there is a different cause
of action which is not inconsistent and does not conflict [with the statutory
scheme] then I consider there is nothing to preclude a claim being made on
that basis. Policy matters are less likely to do so. It must be a question of
fact and degree. Where an allegation is tantamount to requiring major
plant renewal that will fall on one side of the line whilst an allegation that a
filter should be cleaned will lie on the other side. The mere fact that the
effect of the cause of action is to enforce the duty in s. 94(1) does not in
itself preclude the cause of action.”

49. Therefore, before one seeks to impose a liability on a statutory undertaker in

nuisance or under the rule in Rylands v Fletcher it is necessary to examine the statutory
scheme under which the undertaker operates. If that scheme regulates the duties of a
statutory undertaker and provides alternative remedies for breach of statutory duty, it
may well prove inconsistent with the imposition of a common law duty. Therefore the
claimant will be restrained to his rights and remedies under that scheme. Mr. Marcic
should have complained to the regulator and, if so advised, sought to judicially review
any decision the regulator may have made not to enforce the undertaker’s duties.

Statutory remedies

50. In some cases the statutory scheme under which the regulator operates will impose
liability beyond that at common law. For example the Water Industry Act 1991, s.209
(1) provides that where an escape of water, however caused, from a pipe vested in a
water undertaker causes loss or damage, the undertaker shall be liable, except as

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 otherwise provided in this section, for the loss or damage. Sub-section (3) provides that
the undertaker shall not be liable to public gas suppliers.

51. On the other hand Lord Nicholls in Marcic expressed concern as to the inadequacy
of the protection conferred by the statutory scheme in respect of sewers. He said at
paragraph 44,

“[the aspect of concern] is the uncertain position regarding payment of

compensation to those who suffer flooding while waiting for flood
alleviation works to be carried out. A modest statutory compensation
scheme exists regarding internal flooding: see paragraph 7B of the Water
Supply and Sewerage Services (Customer Service Standards) Regulations
1989 (SI 1989/1159) as amended by SI 1993/500 and SI 2000/2301. There
seems to be no statutory provision regarding external sewer flooding.
Some sewerage undertakers make payments, others do not. They all
provide a free clean up and disinfecting service, including removal of
residual effluent”.

CLAIMS AGAINST THIRD PARTIES

Vendors

52. What remedies are open to victims of flooding who cannot point to a cause of the
flooding other than the propensity of the premises to flood in certain weather
conditions?

53. If a purchaser buys premises which are prone to flooding the doctrine “buyer
beware” applies. If X purchases a cottage overlooking a stream or situated on a sea
cliff, it does not really lie in X’s mouth to sue the person from whom she purchased the
cottage when it subsequently floods. The principle “caveat emptor” was re-affirmed in
Sykes v Taylor Rose [2004] EWCA Civ 299 where it was held that a vendor owed no

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 duty to tell the purchaser that a gruesome murder had taken place at the property some
years earlier.

54. It will generally be difficult to sue a vendor for claims in respect of flooding unless
the vendor is guilty of misrepresentation. It is therefore extremely important to “ask the
right questions” before contracts are exchanged. If a client is purchasing a property,
especially where that property is openly at risk of flooding, such enquiries might include
the following:

• whether the property has been flooded, requesting details of each and every
instance of flooding;
• whether the vendor has made any insurance claims in respect of flooding
• whether the property is currently insured against flooding and whether any
insurance company has refused to provide insurance cover for flooding;
• whether the vendor has any reason to believe that the property is at risk of
flooding.

55. If the vendor answers any such enquiries untruthfully and it can be shown that the
misrepresentation induced the purchaser to enter into the contract, the purchaser would
have the right to rescind the contract and or seek damages for misrepresentation.

Conveyancers

56. There will be no remedy against the vendor if the appropriate pre-contract enquiries
are not even made. One can in turn imagine situations in which it would be held that a
conveyancer acted negligently in failing to make sufficient enquiries of the vendor.
Imagine a situation in which a client who has made an offer to buy a property
subsequently informs her lawyer that she is concerned about the proximity of a stream at
the back of the garden and wishes to find out if the property is prone to flooding. The
subsequent failure of her solicitor to make any necessary pre-contract enquiries directed
at this issue would probably amount to negligence. Likewise, a conveyancer with local
knowledge of flooding in a particular area may negligent in failing to make such
enquiries as it would be reasonable to make in all the circumstances. If in doubt, ask.

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57. As with all claims in negligence, it is not sufficient merely to establish a breach of
duty and in order to establish liability it must be shown on a balance of probabilities that
had those questions been asked the answers would have alerted the client to the
proposed problems and that she would not have bought the property as a result. If the
flooding which is suffered by the purchasing client occurred for the first time after the
purchase, no blame can lie at the door of the vendor or the solicitor. Even had the
solicitor made the enquiry, the answer would not have identified a flooding risk.

Surveyors

58. Prior to purchasing a property most buyers and mortgagees commission a survey. It
is clearly within the surveyor’s retainer to report on the condition of the property. The
exact scope of the surveyor’s duties will depend on the type of survey requested. Whilst
it is well established that a surveyor instructed by the mortgagee owes a duty of care to
the buyer, banks and building societies tend only to request a valuation survey. If a
buyer is thinking of purchasing a property on a flood plain or near to a river or other
potential source of flooding it would be sensible to request a full building survey. This
increases the chances that signs of historic flooding may be detected. If a reasonably
competent surveyor should have appreciated that the property was at risk of flooding
and or detects signs of recent and or historic flooding, a duty to warn arises10. Failure
to do so would probably be negligent and result in liability as set out above.

Architects/ Engineers

59. What if the flooding of a building is as a result of a defect in the design or manner in
which the building was constructed? In some cases it may be possible to sue the
architect, engineers or builders at fault, but any such claim will be difficult. In many
cases the flooding will be suffered by purchasers from the original client who instructed
professionals in respect of the original construction. The House of Lords held in
Murphy v Brentwood District Council [1991] 1 AC 398 that a builder owes a duty of
care to a subsequent occupier to avoid causing personal injury or damage to the other
property of the occupier. It was held in Baxall Securities Ltd v Sheard Walshaw

10
Alliance & Leicester BS v Shepherd [1995] G.W.D. 11-608

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 Partnership [2002] EWCA Civ 9 that the same duty also applies to architects. In that
case a subsequent occupier of a warehouse suffered damage to goods caused by
flooding caused by the inability of the roof drainage system to cope.

60. However it was also held in Baxall that if a defect in design or build should
reasonably have been identified by a surveyor acting for a purchaser this will be
sufficient to either negative the duty of care or break the chain of causation. In that case
a survey had been carried out but the surveyor had negligently failed to identify the
defect. The architect was held not liable. On the basis of this authority, it will only
generally be possible to sue the architect or surveyor for a latent defect in design or
build which could not reasonably have been detected by a professional building
surveyor on a pre-purchase survey. However, the reasoning in the Baxall case was
described as not “wholly satisfactory” in Pearson Education Ltd v The Charter
Partnership Ltd [2007] EWCA Civ 130. In that case however, the design defect was
truly latent and so the architect had no defence even if the Baxall reasoning were
applied. As to the criticisms of Baxall, Lord Phillips said this at paragraphs 32-33,

“. . . If an architect who has the primary responsibility for producing a safe

design produces a defective design, it is not obviously fair, just and
reasonable that he should be absolved from any liability in tort in respect of
its consequences on the ground that another professional could reasonably
be expected to discover his shortcoming. . .So far as the second principle is
concerned, it is not obvious why a failure of a person, put at risk by a
defective design, to take due care for his own safety or that of his property
should break the chain of causation rather than amount to contributory
negligence”.

61. On the usual principle that recovery for pure economic loss is excluded as set out in
D & F Estates Ltd v Church Commissioners for England [1989] AC 177 and Murphy
v Brentwood it will generally not be possible for a claim to be made for loss suffered to
the value of the building per se as a result of the defective design. However, this is
fairly academic as most flooding claims will by definition result in damage to “other
property” of the owner.

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 CAMILLA LAMONT
LANDMARK CHAMBERS

clamont@landmarkchambers.co.uk

22 April 2008

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