Good news for contractors – Liability for concrete in sewer (Court of Appeal)

In Northumbrian Water Ltd v McAlpine Ltd [2014] EWCA Civ 685, Moore-Bick LJ gave the leading judgment upholding HHJ Behrens’ first instance judgment. Accordingly, a contractor was not liable for damage to a sewer caused when concrete entered it via a private drain from piling works.

Moore-Bick LJ has given the leading judgment dismissing an appeal against the judgment of HHJ Behrens, sitting in the Newcastle-upon-Tyne District Registry. After an escape of concrete from a building site into a sewer, a statutory undertaker claimed damages from a contractor in nuisance and negligence. The statutory undertaker’s claims failed.

The Court of Appeal considered authorities including:

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 and Transco plc v Stockport MBC [2003] UKHL 61, which referred to damage caused by unforeseeable escapes of a substance from the land. Clift and another v Welsh Office [1998] EWCA Civ 1273 and Andreae v Selfridge & Co Ltd [1938] Ch 1, which referred to foreseeable escapes, where the court considered whether a party had taken reasonable steps to keep the escape to a minimum.

The court considered that the authorities were consistent with, or distinguishable from, the judge’s ruling at first instance.

The judgment includes a helpful reminder that in Andrea v Selfridge, the Court of Appeal held that redeveloping the site using current methods “was to be regarded as a normal use of the land”. Further that, provided operations were carried on with reasonable skill and care so as to avoid as far as reasonably possible interfering with neighbours’ use and enjoyment of their land, “the noise and dust inevitably generated would not constitute a nuisance”.