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Concrete Escape Into Sewer Not a Nuisance

In a test case which entailed authoritative analysis of the law of nuisance, a water company whose sewer was blocked by concrete in a freak accident has failed to convince the Court of Appeal that it is entitled to compensation for its loss.

A construction company was erecting a new building which required the pouring of large amounts of concrete into foundation piles. Concrete had leaked into a Victorian drain, and thence into a main sewer, where it set, causing a serious blockage.

The water company, which incurred major expense in sorting out the problem, sued the construction company, alleging negligence and nuisance. Both heads of claim were dismissed by the High Court on the basis that the construction company could not have reasonably foreseen the presence of the hundred-year-old drain.

In rejecting the water company’s appeal on the negligence issue, the Court of Appeal noted that the drain did not appear on modern charts of the area and was only marked on a 1908 plan that was kept at a local museum. The Court rejected the contention that a reasonably competent and careful contractor could have been expected to search local archives for several hours to ascertain whether a drain that had existed on the site 100 years previously had survived into the 21st Century.

The Court accepted that liability in nuisance had traditionally been regarded as strict in the sense that it does not depend upon proof of negligence. However, in dismissing the water company’s appeal on that issue as well, the Court found that the construction company’s use of the land had been reasonable and that the escape of concrete into the sewer had not been reasonably foreseeable.