28/01/2020
Introduction
Roger Carver discusses a recent escape of water claim which the Claimants initially won in the Small Claims Court, but which was then successfully appealed. Roger acted on behalf of the Defendant’s insurers.
The Facts
The Claimants, Mr C and Mr T, brought separate claims against the Defendant, Mr B. On 22 July 2017 an escape of water occurred from Mr B’s property. Mr C telephoned Mr B to alert him to the escape. Mr B arrived back at his flat to turn off his water, but not before water had seeped into Mr C’s flat below, and Mr T’s flat below that.
It was discovered that the leak was in a feed to the sink in the bathroom of Mr B’s flat. The pipework in question was concealed behind a bathroom panel.
The claims were heard at trial together in the Small Claims Court.
At the trial, the District Judge found that there was no evidence that Mr B had been negligent. Nevertheless he concluded that strict liability applied, by virtue of the rule in Rylands v Fletcher. The District Judge stated that:
“What is necessary for [the Claimants] to prove is that there was an escape of water and that caused damage to their properties…I have seen no evidence that [Mr B] was negligent, but that is not necessary”
The Appeal
The decision was appealed on the basis that the District Judge was wrong in finding that Rylands v Fletcher applied, and that the claim should be dismissed as there was no evidence of negligence on Mr B’s part.
Happily the appeal Court agreed. Applying the decision in Transco v Stockport, the Judge found that the using water for drinking and other domestic purposes within a block of flats was not an unusual or extraordinary use of the land, and therefore did not fall within the rule in Rylands v Fletcher.
The appeal was allowed. In addition, as the District Judge in the original trial had explicitly found that there was no evidence that Mr B had been negligent, the claim was dismissed, and did not have to be sent back for a fresh trial.
Escapes of Water
The law of nuisance, and the application of the strict liability rule in Rylands v Fletcher, can be tricky enough to untangle at the best of times. When dealt with in the confines of the Small Claims Court, the intricacies of the case law are perhaps understandably not expanded on at great detail. That said, this was not our first experience of strict liability being applied erroneously to a routine escape of water within a Small Claims trial. It is hoped that this example will come as welcome reassurance to landlords, occupiers and insurers of multiple occupancy buildings that the correct decision can eventually be reached.
The insurance team here at Bevan Brittan provides a comprehensive service to buildings and contents insurer clients. Click here to view our team sheet.
We send out news updates to clients and contacts in this market from time to time, particularly on issues relevant to the personal liability cover that is included in most policies. A recent example of a case we were involved in is above. Are these updates the type of thing that you, or any of your colleagues, might be interested in receiving from time to time? We try to focus only on selected updates that are of specific interest and use to buildings and contents insurers, so rest assured we will not be clogging up your inbox!
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