Commercial claims in Negligence and Private Nuisance

Commercial claims in Negligence and Private Nuisance

The commercial lawyers at Bahamas law firm ParrisWhittaker provide expert litigation advice to businesses seeking to claim compensation for damage caused by the actions of another party.   

A recent ruling followed a case in which the UK courts were required to consider the interrelation between a number of legal doctrines: negligence, private nuisance and claims under the so-called Ryland v Fletcher rule.

What is the background to this case?

Northumbrian Water Limited (NW) is a statutory sewerage undertaker in the UK.  One of its sewers was a private sewer connected to the public sewer network, located three meters below ground level and not recorded on the company’s network plans. It was, however, recorded on a plan in museum archives.

McAlpine, a construction and civil engineering company, was redeveloping land in the area and undertook investigations by reference to NW’s plans and on site tests to determine were certain things, including sewers, were located on the development site.  The existence of the sewer was not identified, and during redevelopment works, a drill shaft (through which concrete was poured) entered the sewer resulting in concrete making its way up the sewer into the public network, causing a partial blockage to the network.

It cost a significant amount for NW to carry out the remedial work and consequently claimed its costs from McAlpine on the basis of negligence and private nuisance.  NW contended that McAlpine was negligent in failing to take reasonable care to identify the existence of the sewer and thereafter to take steps to protect the public network.

Nuisance is a tort involving interference by one occupier of land with the use or enjoyment of the land, or of rights or interests in land, of another and where a claim is made in damages, damage is an essential ingredient of the cause of action.

What was the decision?

Negligence: The Court of Appeal agreed with the trial judge that there was no evidence showing McAlpine had failed to exercise reasonable care and skill in carrying out its site investigations; and there was no reason to suspect the concrete would escape beyond the site boundary into the sewer concerned

The Appeal judge helpfully put in simple terms:

“In my view the judge was entitled on the evidence before him to reject the contention that a reasonably competent and careful contractor would have searched local museum archives for several hours to ascertain whether a drain had existed on the site a hundred years earlier and might have survived the previous redevelopment even though it had not been detected by normal investigation measures.”

Private nuisance: the Court found that McAlpine’s redevelopment works was a reasonable use of its land.  There was no evidence to suggest the piling works had been carried out other than with reasonable care and skill; nor that the works had been carried out in a manner which caused unreasonable interference to NW.  The damage caused to the sewer was not foreseeable.  The Court clarified that private nuisance consists of the interference in the comfortable and convenient enjoyment of land and was not related to actual damage to the land.

What does this ruling mean?

Businesses and commercial organisations are welcoming the clarity this ruling brings to the law on negligence and private nuisance. A claim for damages in private nuisance does not require that negligence must first be established.

Liability will only arise if the damage caused was foreseeable.  If the use of the land is reasonable, and operations are carried out with reasonable care and skill to avoid as far as reasonably possible interfering with neighbours’ use and enjoyment of their land - there will be no liability, even in instances where there is some interference with their use and enjoyment.

In addition, a claim can also be made under the so-called Rylands v Fletcher rule: where there is an isolated escape causing damage (it must also be expressly pleaded).  It is irrelevant whether the damage caused by such escape is unintended or unforeseeable. 

How can we help?

The commercial litigation lawyers at ParrisWhittaker provide expert advice on the options for claiming compensation from another party as a result of damage caused.  If you are considering claiming compensation contact us now for clear, strategic advice and representation.