Last Updated on October 17, 2019 by LawEuro
Case No: A1/2016/3131
Neutral Citation Number: [2018] EWCA Civ 33
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN’S BENCH DIVISION (TECHNOLOGY AND CONSTRUCTION COURT))
MARTIN BOWDERY QC SITTING AS A DEPUTY HIGH COURT JUDGE
[2016] EWHC 1669 (TCC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 25/01/18
Before :
LORD JUSTICE JACKSON
LORD JUSTICE UNDERHILL
and
LORD JUSTICE HICKINBOTTOM
– – – – – – – – – – – – – – – – – – – – –
Between :
| SOUTHERN GAS NETWORKS PLC | Appellant | |
| – and – | ||
| THAMES WATER UTILITIES LIMITED | Respondent |
– – – – – – – – – – – – – – – – – – – – –
David Hart QC and Jessica Elliott (instructed by Kennedys) for the Appellant
Andrew Rigney QC (instructed by Clyde & Co LLP) for the Respondent
Hearing dates: 13-14 December 2017
– – – – – – – – – – – – – – – – – – – – –
Judgment
Lord Justice Hickinbottom:
Introduction
1. Where supply of gas is interrupted, a customer is generally entitled to statutory compensation payments from his gas distributor. This appeal concerns the question of who should ultimately bear the cost of those payments where the interruption to the gas supply was caused by another services undertaker, in this case a water company which had negligently allowed water to escape from its pipes and enter nearby gas pipes. Is it the gas undertaker, or the water undertaker?
The Background
2. The appeal concerns statutory compensation payments made by the Appellant (“Southern Gas”) to its customers following discharge of water from pipes owned and operated by the Respondent (“Thames Water”). However, before turning to the facts of this case, it would be helpful to set out the relevant legislative provisions under which Southern Gas was required to pay their customers compensation (paragraphs 3-7) and under which it sought to reclaim these payments from Thames Water (paragraphs 8-9); and, very briefly, the problems that water ingress into gas pipes can cause (paragraph 10).
3. Section 33AA of the Gas Act 1986 gives the Gas and Electricity Markets Authority power to make regulations prescribing standards of performance for gas transporters; and section 33AA(3) makes provision for compensation for any failure to meet those standards in the following terms:
“If a gas transporter fails to meet a prescribed standard, he shall make to any customer or potential customer of a gas supplier who is affected by the failure and is of a prescribed description such compensation as may be determined by or under the regulations.”
4. The Gas (Standards of Performance) Regulations 2005 (SI 2005 No 1135) as amended (“the 2005 Regulations”) set the relevant standards, and, as the Explanatory Note states:
“They prescribe the sum which gas suppliers or gas transporters must pay to a customer by way of compensation for failure to meet specified standards of performance in respect of the services to be provided by such suppliers or distributors…”.
5. By regulation 7 of the 2005 Regulations, where the conveyance of gas to a customer’s premises is discontinued as a result of a failure of, fault in or damage to the pipeline system operated by the relevant gas transporter, and the conveyance of gas is not resumed to the customer’s premises within the prescribed period, that transporter is required to pay a prescribed sum to the customer in respect of that period and each succeeding period of 24 hours upon the expiry of which the conveyance of gas is not resumed. The “prescribed sum” and “prescribed period” are set out in Part 1 of Schedule 1 to the Regulations, as £30 for a domestic customer or £50 for a non-domestic customer, and 24 hours respectively. That means that, where a customer’s gas supply is interrupted for more than 24 hours, the gas distributor must pay him £30 (or, to a non-domestic user, £50) for every full 24-hour period until the supply is restored. These payments are known as “Failure to Supply Gas payments” or “FSG payments”.
6. That requirement is subject to a number of exceptions. As originally made, regulation 7(3)(e) excepted circumstances in which damage to the pipe-line was caused by “water which has escaped from a pipe owned by a water undertaker”; but that provision was repealed from 1 April 2008 by regulation 3(4) of the Gas (Standards of Performance) (Amendment) Regulations 2008 (SI 2008 No 696). None of the other exceptions is relevant to this appeal.
7. The scheme for compensation for failing to provide an appropriate gas service set out in the 2005 Regulations is far from unique. Many other services now have similar schemes. For example, the Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008 (SI 2008 No 594) establishes a similar compensation scheme where a water undertaker interrupts or cuts off the supply of water to premises.
8. The starting point in respect of the civil liability of water undertakers for escapes of water is section 209 of the Water Industry Act 1991 (“the WI Act”), which provides that, generally, a water undertaker is strictly liable for such events. So far as relevant to this claim, section 209 provides:
“(1) 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 otherwise provided in this section, for the loss or damage.
(2) A water undertaker shall not incur any liability under subsection (1) above if the escape was due wholly to the fault of the person who sustained the loss or damage or of any servant, agent or contractor of his.
(3) A water undertaker shall not incur any liability under subsection (1) above in respect of any loss or damage for which the undertaker would not be liable apart from that subsection and which is sustained—
…
(d) by any person on whom a right to compensation is conferred by section 82 of the New Roads and Street Works Act 1991 [“the NRSW Act”].
(4) The Law Reform (Contributory Negligence) Act 1945… shall apply in relation to any loss or damage for which a water undertaker is liable under this section, but which is not due to the undertaker’s fault, as if it were due to its fault.”
9. Section 82 of the NRSW Act displaces section 209 of the WI Act with a different strict liability provision applicable where losses resulting from the escape of water are suffered by either a street authority or another person who has apparatus in (including under) the street. So far as relevant to this appeal, under the general heading “Duties and liabilities of undertakers with respect to apparatus” and the particular heading “Liability for damage or loss caused”, section 82 provides:
“(1) An undertaker shall compensate—
(a) the street authority or any other relevant authority in respect of any damage or loss suffered by the authority in their capacity as such, and
(b) any other person having apparatus in the street in respect of any expenses reasonably incurred in making good damage to that apparatus,
as a result of the execution by the undertaker of street works or any event of a kind mentioned in sub-section (2).
(2) The events referred to in sub-section (1) are any explosion, ignition, discharge or other event occurring to gas, electricity, water or any other thing required for the purposes of a supply or service afforded by an undertaker which—
(a) at the time of or immediately before the event in question was in apparatus of the undertaker in the street, or
(b) had been in such apparatus before that event and had escaped there from in circumstances which contributed to its occurrence.
(3) The liability of an undertaker under this section arises—
(a) whether or not the damage or loss is attributable to negligence on his part or on the part of any person for whom he is responsible, and
(b) notwithstanding that he is acting in pursuance of a statutory duty.
(4) However, his liability under this section does not extend to damage or loss which is attributable to misconduct or negligence on the part of—
(a) the person suffering the damage or loss, or any person for whom he is responsible, or
(b) a third party, that is, a person for whom neither the undertaker nor the person suffering the damage or loss is responsible.
(5) For the purposes of this section the persons for whom a person is responsible are his contractors and any person in his employ or that of his contractors.
(6) Nothing in this section shall be taken as exonerating an undertaker from any liability to which he would otherwise be subject.”
In this judgment, references to “section 82” are to section 82 of the NRSW Act.
10. This appeal concerns water discharge and ingress into the gas network. Such ingress can have a number of adverse effects, for example it can damage the devices which feed gas from the national high pressure network into the low pressure gas network used by consumers (“Pressure Reduction Installations”, or “PRIs”), or it may simply restrict the flow of gas, either of which may result in a fall in gas pressure to the extent that the use of gas appliances by a customer may be dangerous. For example, reduced gas pressure can result in flame failure and unburned gas entering a customer’s property, leading to a risk of fire and explosion. However, each customer has a valve between the gas network and his property (“the Emergency Control Valve”, or “ECV”); and the risks from water ingress into the gas main pipe can be eliminated by switching off that valve and thereby isolating the property from the gas main until the water is cleared from the pipe and regular gas pressure restored.
The Facts
11. Southern Gas is a statutory undertaker, which owns gas main pipes used to transport gas to its customers under the Gas Act 1986. It owns a gas main buried beneath Crofton Road, Orpington. Thames Water is also a statutory undertaker, responsible for supplying water to its customers under the WI Act. It owns a water main also buried below Crofton Road.
12. On 17 December 2012, Thames Water received notification of a burst water main in the Crofton Road area. It attended on 24 December, but took no action. On 29 December, water from the leak having bored a hole in a gas main pipe outside 356 Crofton Road, water entered the gas network causing blockages to a number of PRIs. In turn, that resulted in the gas supply to 1,683 properties being affected.
13. For safety reasons, and to effect the necessary repairs, gas supplies to individual customers’ properties were isolated by switching off the ECV for each customer. Over 80% of the 1,683 households had had their gas supply interrupted by water before their ECV was switched off. Nearly a hundred households had their gas supply interrupted for more than 24 hours before their ECV was switched off.
14. Work was then performed to remove the water and debris from the gas main, in stages. As gas supply was restored to areas of the network, customers’ ECVs were progressively switched back on. Initial reconnections were made on 31 December 2012. All ECVs had been turned back on, and gas supply restored to all properties, by 8 January 2013.
15. The customers affected by the Crofton Road interruption of gas supply claimed FSG payments from Southern Gas in the aggregate sum of £190,910; and Southern Gas claimed that sum against Thames Water under the provisions of Section 82(1)(b) of the NRSW Act and in negligence. Thames Water denied that the sums were recoverable under the statute; and, although it accepted that, in not properly maintaining the water pipes, it had breached any duty of care owed to Southern Gas, it denied it owed any such duty because (it contended) the statutory scheme had effectively ousted Southern Gas’s common law rights. The quantum of the claim in respect of the FSG payments was compromised in the sum of £178,000, subject to liability which was contested. In addition, Southern Gas claimed for loss and expense caused by water ingress, over and above the FSG payments. Thames Water accepted liability for that loss, and that part of the claim was compromised in the sum of £734,000.
16. The trial in respect of liability for the FSG payments came before Martin Bowdery QC sitting as a Deputy High Court Judge who, on 4 July 2016, dismissed both the statutory claim and the claim in negligence. In respect of the former, he held that the FSG payments claimed were not “expenses reasonably incurred in making good damage” for the purposes of recoverability under section 82 of the NRSA Act. In respect of the latter, he held that the statutory scheme excluded the operation of the common law.
17. Southern Gas now appeals against both elements of that determination. Before us, as before the Deputy Judge, David Hart QC and Jessica Elliott appeared for Southern Gas, and Andrew Rigney QC for Thames Water. I thank them all for their contribution to the debate.
Ground 1: The Statutory Claim
18. As his first ground, Mr Hart submitted that the Deputy Judge erred in concluding that the FSG payments were not recoverable from Thames Water under section 82 of the NRSW Act because, as a matter of construction, they were not “expenses reasonably incurred in making good damage”. That phrase, he contended, does not relate exclusively to those activities and materials which directly repair the physical damage. Rather, it merely requires a sufficient degree of connection – in time and in practice – to the repair process. In this case, the FSG payment period was coterminous with the period of repair. Furthermore, turning off the relevant customers’ ECVs (and, thus, their gas supply) was a sine qua non of making good the damage: the repairs could not be performed without switching off the ECVs and thus incurring the expense of FSG payments which, consequently, could properly be described as necessary to the repair process.
19. However, despite Mr Hart’s efforts, it is my firm view that the construction of section 82 adopted by the Deputy Judge was correct, for the following reasons.
20. Under section 82(1)(a), a street authority may recover “any damage or loss” it suffers as a result of works undertaken by a services undertaker or a section 82(2) event. Section 82(1)(b), which applies to claims by “any other person having apparatus in the street” (such as another service provider), is clearly more restricted: such a person can only recover “expenses reasonably incurred in making good damage”. Unlike the parallel provision in section 82(1)(a), this clearly excludes financial losses suffered consequent upon the physical damage. That is the ordinary meaning of the words used, made more abundantly clear by the use of the words “expenses” and the inclusion of the concept of “reasonableness” in section 82(1)(b).
21. As section 33AA(3) and the 2005 Regulations make clear (see paragraphs 3 and 4 above), FSG payments are sums which a gas transporter is required to pay customers as compensation for its failure to meet standards of performance by failing to provide a supply of gas to them. Where there is damage to a gas pipe that requires repair, FSG payments are a consequence of that damage, not the repair. Although it is true that any required repairs to the gas main pipes may necessitate isolating customers’ properties from the mains supply (by switching off their ECVs), the requirement to make such payments is triggered, not by the repairs as such, but by the interruption of the gas supply; and it continues until the supply is restored, irrespective of whether and when any remedial work is carried out to enable the supply to be resumed. In this case, it is noteworthy that, for most affected properties, the period for which FSG payments had to be made was not coterminous with the period of repairs. The gas supply was interrupted prior to the repairs being commenced, and prior to the ECV being switched off.
22. Of course, although dependent on the circumstances of any particular case, I accept that in many cases where there is an issue with low gas pressure because of water ingress into gas main pipes, the ECVs and the gas supply to properties will have to be switched off, not only for safety reasons, but also to enable the repairs to be effected. There may also be a temporal association between the period over which FSG payments have to be made and the period of any repairs – because, e.g., it may not be possible to restore gas to properties unless and until repairs are completed. However, as Mr Rigney submitted, none of this has the effect of converting statutory compensation payments attracted by the interruption of the gas supply into expenses incurred “in making good damage” which led to such interruption.
23. Mr Hart submitted that the phrase “expenses reasonably incurred in making good damage” included the costs of everything necessary for remedial works to be performed; and so FSG payments were no different from (e.g.) the costs of fencing and lights that might be required for those works to be done. However, this submission fails to acknowledge the nature of FSG payments as compensation for loss of supply. Whilst, on the basis of Mr Hart’s submission, a claim for the costs of someone going round and physically turning off ECVs might fall within section 82(1)(b), the compensation payable for the failure of supply to customers, in my view, clearly does not.
24. For those reasons, which essentially reflect those of the Deputy Judge (at [19] and following of his judgment), I consider the construction of section 82(1)(b) he preferred – excluding FSG payments from the scope of “expenses reasonably incurred in making good damage” – was correct. I would refuse the appeal on Ground 1.
25. For the sake of completeness, I should say that Mr Rigney submitted that the construction excluding FSG payments from “expenses reasonably incurred in making good damage” is supported by section 96(1) of the NRSW Act, which is to the effect that any provision in the Act enabling the recovery of costs or expenses of taking any action “shall be taken to include the relevant administrative expenses of that… person including an appropriate sum in respect of general staff costs and overheads”. The way in which “an appropriate sum in respect of general staff and overheads” is to be calculated is set out in the Street Works (Recovery of Costs) (England) Regulations 2002 (SI 2002 No 2091) (“the 2002 Regulations”), which seek to attribute a proportion of overheads to the particular “chargeable job”. Section 96(1) and the 2002 Regulations were considered by His Honour Judge McGonigal sitting as a Deputy High Court Judge in British Telecommunications plc v Bell Cable Media (Leeds) Limited [2001] BLR 343, a case cited by the Deputy Judge below. Mr Rigney submitted that the 2002 Regulations set out the categories of costs recoverable under section 82 – and Judge McGonigal helpfully analyses those categories – and these do not include payments in the nature of FSG payments.
26. Section 96 certainly gives no support for the construction proposed by Mr Hart on behalf of the Appellant; and, in [4.21] of his judgment in the British Telecommunications case, Judge McGonigal did not include payments akin to FSG payments in the list of costs and expenses he considered fell within the scope of section 82(1)(b). However, FSG payments were of course not in issue in the British Telecommunications case – the relevant provisions were not enacted until the 2005 Regulations, several years after that case – and, speaking for myself, I do not find either section 96 or that case gives Mr Rigney any great assistance either. Neither deals with the issue before us, as to whether FSG payments are “expenses reasonably incurred in making good damage” because they are sufficiently referable to the particular remedial works, but rather the different issue of attribution of a proportion of general overheads to a particular job of remedial works.
27. Nevertheless, for the reasons I have given, in relation to the issue of whether FSG payments made fall within the phrase “expenses reasonably incurred in making good damage” for the purposes of section 82(1)(b), Mr Rigney does not need any further assistance in getting home on his submission that the Deputy Judge did not err in concluding that they did not.
28. I would refuse the appeal on Ground 1.
Ground 2: The Claim in Negligence
Introduction
29. In its alternative claim, Southern Gas sought to recover the FSG payments from Thames Water in negligence. Thames Water accepted that, if it owed a duty of care to Southern Gas to maintain its water pipes, it would have breached that duty in this case; and that that breach of duty would have resulted in recoverable loss and damage including the FSG payments. However, it contended that it owed no such duty, because the statutory scheme of section 82 of the NRSW Act ousted the common law. The issue therefore arises as to whether, on its true construction, section 82 – looked at discretely, or as part of a broader scheme comprising various sections of both the WI Act and the NRSW Act (including section 82) – provides a strict liability scheme for the expenses incurred in making good damage to apparatus in the street which is in addition to, or displacement of, the rights of the victim of that damage at common law. Whether section 82 in itself is a complete code which excludes common law liability, or whether the code is better seen as being broader, are not entirely distinct points – but the former can be conveniently dealt with first (paragraphs 30-58 below), before the broader proposition is considered (paragraphs 59-83 below).
Ouster by Section 82
30. The Deputy Judge held that section 82 in itself comprised a complete statutory code such that a cause of action in negligence was not available to Southern Gas. He did so on the basis that observations of this court in Yorkshire Electricity Distribution Plc v Telewest Limited [2006] EWCA Civ 1418 (“Yorkshire Electricity“) to that effect, if not binding upon him, were “very persuasive”, were in line with more recent authorities on ouster of common law rights (particularly R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54; [2011] 2 AC 15 (“CPAG“)), and were correct.
31. In Yorkshire Electricity, both parties had cables under the same streets of Bradford. Yorkshire Electricity regularly had to cut out pieces of the ducting containing Telewest cables to give their engineers sufficient room to work on their own cables. Telewest made a claim against Yorkshire Electricity under section 82(1)(b) for the cost of making good their ducting in four test cases. The judge at first instance (His Honour Judge Grenfell sitting as a Deputy High Court Judge) made findings of fact sufficient to dispose of the claims; but, in his judgment at [47]-[52], he considered the more general issue of whether, despite the availability of the section 82 remedy, Yorkshire Electricity could rely on negligence. He held that it could not, for two related reasons.
i) If a claim in negligence were to be maintained, that would be contrary to the purpose of the Act. As he put it (in [49]): “[The NRSW Act] was clearly intended to replace actions in negligence or in trespass to goods, where what is alleged is simply damage by one utility to the equipment of another in the course of working on its own equipment”.
ii) If a claim in negligence were to be maintained, then the absolute statutory defence in section 82(4) would be circumvented, and replaced by a claim for contributory negligence (which, in effect, would be no more than a partial defence). For example, in that case, if Yorkshire Electricity having to cut the ducting around the Telewest cables was the result of Telewest’s own negligence, Yorkshire Electricity would have a complete defence to a section 82 claim under section 82(4), but only a claim for contributory negligence in a claim against it in negligence. The existence of the section 82(4) defence to a claim under the statute is therefore inconsistent with an intention to retain the right to make a common law claim.
32. The Court of Appeal agreed that section 82 formed a complete code which excluded the operation of the common law. Buxton LJ (with whom Sedley and Dyson LJJ agreed) dealt with that issue thus:
“5. By section 82(1)(b) of the Act an undertaker shall compensate any other person having apparatus in the street in respect of any expense reasonably incurred in making good damage to that apparatus as a result of the execution by the undertaker of street works. That section imposes strict or absolute liability on the undertaker, a provision that is reinforced by section 82(3)(a) which provides in terms that the liability arises whether or not the damage or loss is attributable to negligence on his part or the part of any person for whom he is responsible. The only relief for the undertaker is found in section 82(4), which provides that his liability under section 82 does not extend to damage or loss which is “attributable to” misconduct or negligence on the part of any third party; or of the person suffering the damage or loss or any person for whom that person is responsible.
6. To dispose of an issue that was raised before us, though not in the event affecting the outcome of any particular case, we are satisfied that these provisions form a complete code, excluding the operation of the common law, in respect of the subject-matter that they address, the execution of street works under the authority of statute or of a licence. It would be very odd if Parliament had provided relief based on strict liability, but with a specific exemption, if it intended the common law of negligence nonetheless to continue in parallel with that scheme. That view is not displaced by section 82(6), providing that the section does not exonerate an undertaker “from any liability to which he would otherwise be subject”. That saving, as Mr Cousins QC [Leading Counsel for Yorkshire Electricity] argued, is in the nature of the avoidance of doubt, and is directed at liability to third parties other than those listed as benefiting from the imposition of strict liability. If the draftsman had intended to say that the imposition of statutory liability between particular parties was without prejudice to rights of action at common law between those parties he had at his disposal much clearer and more direct ways of expressing himself.”
33. In considering Judge Grenfell’s view as to whether section 82(1)(b) allowed recovery when there was no financial loss, Buxton LJ added this:
“The judge thought, we would respectfully think correctly, that the provision that there should be recovery even in a case where there had been no ‘economic’ (i.e. financial) loss showed that the statutory scheme was different from, and intended to replace, the common law.”
34. Although these observations were in an ex tempore judgment and were obiter – in [6], Buxton LJ expressly recognised that the issue did not affect the outcome of the cases before the court – the court recognised the general importance of the issues raised in the appeal, and Buxton LJ indicated that his purpose was to “say a good deal about the law and its implications” (see [3]). Mr Rigney submitted that, although that case concerned damage caused by an undertaker performing street works rather than any section 82 event, there is no justification for any distinction to be drawn in this context. The unequivocal view expressed by Buxton LJ – that section 82 excluded rights of action at common law – was consequently, at least, highly persuasive in this case.
35. Mr Rigney identified various strands which, he submitted, supported Buxton LJ’s conclusion, as follows.
i) Mr Rigney referred to a line of House of Lords/Supreme Court cases, ending with CPAG, but including Johnson v Unisys Limited [2001] UKHL 13; [2003] 1 AC 518 and Marcic v Thames Water Utilities Limited [2003] UKHL 66; [2004] 2 AC 42, and the tax cases Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49; [2007] 1 AC 558, Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19; [2008] 1 AC 1174 and Monro v Revenue and Customs Commissioners [2008] EWCA Civ 306; [2009] Ch 69; and also two more recent decisions of the Supreme Court (Investment Trust Companies v Revenue and Customs Commissioners [2017] UKSC 29; [2017] 2 WLR 1200 and Littlewoods Limited v Revenue and Customs Commissioners [2017] UKSC 70; [2017] 3 WLR 1401). He submitted that these cases provided authority for the proposition that, where a statute provides an express remedy in relation to events or circumstances which is inconsistent with or more limited than a remedy provided in respect of those events or circumstances at common law, the common law remedy will be excluded because Parliament, by providing for the remedy it has, will have evinced the intention to exclude any other remedy.
ii) In section 82 of the NRSW Act, Parliament gives a person with apparatus in a street a remedy against an undertaker where there was a section 82(2) event in respect of the undertaker’s concern, including a discharge, which damaged that apparatus. That remedy is restricted to compensation for “expenses reasonably incurred in making good damage”. That is more limited than the remedy provided in respect of those events at common law. Therefore, on the principle derived from the authorities, the common law remedy is excluded.
iii) As Buxton LJ indicated in Yorkshire Electricity at [30], quoted at paragraph 33 above, the fact that recovery under section 82(1)(b) is possible even where there the owner of the street apparatus has suffered no financial loss is also an indication that it is intended to replace remedies at common law.
iv) That is also in line with the purpose of section 82, which, by granting a limited remedy but on a strict liability basis, is designed to avoid consideration of issues of negligence. That is underscored in section 82(3), which provides that liability of an undertaker under section 82 arises “whether or not the damage or loss is attributable to negligence on his [i.e. the undertaker’s] part…”.
v) Section 82(4) provides that liability does not arise if the damage or loss is attributable to misconduct or negligence on the part of the person suffering the loss or damage (or anyone for whom he is responsible), or a third party. That provides a complete defence. Consequently, where the damage or loss is attributable to negligence on the part of the victim, principles of contributory negligence will not apply. I pause there to note that this differs from section 209 of the WI Act (quoted at paragraph 8 above), under which the application of contributory negligence is expressly reserved by section 209(4). Mr Rigney submitted that to grant a statutory remedy with a complete defence in these circumstances is inconsistent with allowing an alternative common law remedy subject only to the principles of contributory negligence.
vi) Section 82(6) is not directed at all to liability of the undertaker to street authorities and other persons with the street apparatus, but only towards the undertaker’s liability to third parties. It is included for the avoidance of doubt. That was Buxton LJ’s view. The Deputy Judge in this case concluded that that is the unambiguous meaning of section 82(6), such that any excursion into the background of the provision is unnecessary.
vii) However, Mr Rigney submitted, such an excursion would not assist Southern Gas, because the predecessors to section 82, unlike section 82 itself, expressly included non-exoneration provisions in relation to liabilities between the parties to which the sections applied.
viii) That underlines the point made by Buxton LJ in Yorkshire Electricity at [6], that, if the draftsman of section 82 had wished to preserve common law remedies as between the parties identified in section 82(1), “he had at his disposal much clearer and more direct ways” of doing so (as used by the draftsmen of the predecessors to section 82).
ix) Standard textbooks in the area quote Yorkshire Electricity for the proposition that section 82 forms a complete code excluding the operation of the common law, without demur (see, e.g., paragraph 3-2020 of the Encyclopaedia of Highway Law and Practice (2017), and paragraph 17-74 (especially footnote 4) of Cross on Local Government Law (9th Edition) (2017)).
x) The decision of the Sheriff of Tayside, Central and Fife in Scotland Gas Networks Plc v Scottish Water [2011] Scot SC 195 does not undermine this analysis. That case proceeded on the basis of a consensus between counsel that Yorkshire Electricity was wrong to consider that section 82 ousted common law rights; and so the issue was not fully argued. That consensus was – and, insofar as the Sheriff’s decision runs contrary to Yorkshire Electricity on this issue, it is – wrong; and the analysis and conclusion of Buxton LJ in Yorkshire Electricity were right.
36. Mr Rigney put forward his submission that section 82 ousted rights at common law with force. It is supported by the strongly worded observations of Buxton LJ in this court in Yorkshire Electricity, the analysis of which the Deputy Judge below clearly considered was correct. Nevertheless, after particularly careful consideration, I am unable to accept it, for the following reasons.
37. It is unnecessary to quote at length from the cases to which I have already referred. The following propositions can be drawn from them.
i) Where Parliament has legislated for a statutory remedy to apply in certain circumstances, whether that remedy ousts any common law remedy which would or might have arisen on the same facts depends upon whether, on the true construction of the particular statutory provisions, Parliament intended that provision to oust, or co-exist with, the common law remedy. The courts will not maintain a common law remedy in the case of an evident intention of Parliament to displace it (see, e.g., Johnson v Unisys at [58] per Lord Hoffmann and [80] per Lord Millet, Deutsche Morgan Grenfell at [19] per Lord Hoffmann, and CPAG at [27] per Sir John Dyson JSC).
ii) Where that intention is not express, the threshold for inferring ouster of common law rights is high; but it is not helpful to approach the question on the basis that there is a presumption against ouster. Nor, before common law rights are displaced, does ouster have to be a necessary implication, in the sense that the common law remedy is only displaced if, as a matter of logic, it cannot co-exist with the statutory regime (although, of course, common law remedies can be ousted by such necessary implication) (CPAG at [31] per Sir John Dyson).
iii) Whether common law remedies are ousted is dependent upon the true construction of the particular statutory provisions. However, where the statutory remedy covers precisely the same ground as the common law remedy, the latter will almost certainly have been excluded by necessary implication (ibid at [33]). Furthermore, where the statutory regime provides a special or qualified remedy, it may (although not necessarily will) be inferred that Parliament intended to exclude any common law remedy that would or might arise on the same facts (see, e.g., Deutsche Morgan Grenfell at [19] per Lord Hoffmann, and at [135] per Lord Walker of Gestingthorpe).
iv) The identification of some differences between the statutory scheme and the common law remedy will not necessarily lead to an inference that Parliament intended the former to oust the latter. As Sir John Dyson put it in CPAG at [34]:
“The question is not whether there are any differences between the common law remedy and the statutory scheme. There may well be differences. The question is whether the differences are so substantial that they demonstrate that Parliament could not have intended the common law remedy to survive the introduction of the statutory scheme. The court should not be too ready to find that a common law remedy has been displaced by a statutory one, not least because it is always open to Parliament to make the position clear by stating explicitly whether the statute is intended to be exhaustive. The mere fact that there are some differences between the common law and the statutory positions is unlikely to be sufficient unless they are substantial…. The question is whether, looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended by [sic] coexist with it.” (emphasis in the original).
Rather than “incompatible”, in Total Network at [130] Lord Mance used the phrase “positively inconsistent”.
38. The question before this court is whether, on its true construction, section 82 provides a strict liability scheme for the expenses incurred in making good damage to apparatus in the street which is in addition to, or displacement of, the rights of the victim of that damage at common law.
39. In considering that issue, it is clear that we must grapple with the issue of construction from scratch. Yorkshire Electricity does nothing to relieve this court of that burden.
40. Mr Hart submitted that Yorkshire Electricity could be distinguished from this case, because it concerned damage to street apparatus caused by street works rather than a section 82(2) event; but I can see no reason why there should be any difference in principle as to approach.
41. But, in my respectful view, the assistance we can derive from Yorkshire Electricity is limited. Buxton LJ’s observations in that case were clearly – indeed, expressly – obiter; and, as the issue of ouster was not determinative in the cases before the court, the extent of the debate on the issue of ouster in that case is not clear. Certainly, the court does not seem to have considered the history of the provision that is now found in section 82. The issue is dealt with very briefly by Buxton LJ in one paragraph (namely, [6]) of his judgment. Although, in [3], Buxton LJ indicated that the court proposed to say “a good deal about the law and its implications”, Mr Hart submitted, with some force, that that seems to be a reference to the issues dealt with in his judgment from [9] onwards rather than on the issue of ouster. As the issue concerns statutory construction, the mere fact that Buxton LJ considered section 82 to exclude common law remedies as between the same parties is not in itself persuasive, and Scotland Gas Networks (in which the issue was not debated) and the text books to which we were referred (which merely stated Buxton LJ’s conclusion) are of no assistance to us; although, of course, it is necessary to consider Buxton LJ’s substantive analysis – which the Deputy Judge below found compelling.
42. I will of course deal with all the matters upon which Mr Rigney relied in support of the opposite conclusion; but it seems to me that the short answer to the issue lies in section 82(6):
“Nothing in this section shall be taken as exonerating an undertaker from any liability to which he would otherwise be subject.”
In my view, on its face, this expressly retains any liability an undertaker might have over and above its liability under the strict liability provisions of section 82.
43. Buxton LJ in Yorkshire Electricity at [6], considered that this saving was “in the nature of the avoidance of doubt, and is directed at liability to third parties other than those listed as benefiting from the imposition of strict liability”. However, I find that difficult: given that section 82 is in the part of the NRSW Act that deals with “Duties and liabilities of undertakers with respect to apparatus” and is solely concerned with such liabilities, it would be peculiarly unnecessary and inappropriate to confirm that section 82 does not displace or otherwise adversely affect the undertaker’s liabilities to those without street apparatus, who clearly have no rights under, and are entirely unaffected by, section 82. It seems to me, with respect, that in that regard there is no possible doubt to avoid. In any event, section 82(6) is not written in terms of liability to only third parties: it is written in more general terms. Had the draftsman intended it to be restricted to liabilities to third parties, he could (and, in my judgment, would) have said so.
44. Therefore, although I appreciate that the Deputy Judge held that, clearly and unambiguously, section 82(6) applied only to an undertaker’s liabilities to third parties, in my view, on its face and with reasonable clarity and lack of ambiguity, it expressly retains common law remedies that are or might be available to those with a strict liability claim under section 82.
45. However, even if I am wrong in considering section 82(6) to be unambiguous, then, with respect to the Deputy Judge, I do not consider that it is arguable that it clearly and unambiguously has the construction which he favoured. In those circumstances, to ascertain its true meaning and scope, it would be appropriate to look at the history of the provision (just as Lord Brown of Eaton-under-Heywood in CPAG, at [7], looked at the history of section 71 of the Social Security Administration Act 1992).
46. The Public Utilities Street Works Act 1950 (“the PUSW Act”) was passed following the publication of the Report of a Joint Committee of the House of Lords and the House of Commons chaired by Lord Carnock, which recommended that liability of statutory undertakers under the Gasworks Clauses Act 1871 (which applied to both gas and electricity undertakers, and did not exonerate undertakers from claims at common law) should be maintained and extended to water undertakers, with legislation being introduced to provide a new code applying to all utilities.
47. The 1950 Act provided for liability for damage caused by works carried out by utilities (including water) in three separate sections: damage to property of street and bridge authorities or managers was covered by section 18(1), damage to property of transport authorities by section 19, and damage to property of other utilities by section 26. Each contained a non-exoneration provision. For example, section 18(4) provided:
“… [T]he preceding provisions of this section shall not exonerate undertakers from any liability to which they are subject apart from the preceding provisions of this section, whether to a street authority or street managers, to a bridge authority or managers or to any other person.”
It is noteworthy that this provision expressly stated that the statutory compensation remedy available to street and bridge authorities or managers under section 18 did not exonerate an undertaker from any liability “to any other person”. Section 19(3) was in materially identical terms. Section 26(7) was in different terms – but with an identical effect (see Yorkshire Electricity Board v British Telecommunications plc [1986] 1 WLR 1029 at page 1036C per Lord Bridge of Harwich with whom the rest of the Appeal Committee agreed) – namely:
“Obligations and liabilities imposed on operating undertakers by the preceding provisions of this section shall be in addition to, and not in substitution for, obligations and liabilities to which they are subject apart from those provisions…”.
48. It is uncontroversial that, as assumed in cases such as Department of Transport v North West Water Authority [1984] 1 AC 336 (which held that a person could not be liable for nuisance in the execution of a statutory duty, rather than power), these three sections did not displace the common law remedies otherwise available to any of the undertakings etc which had the benefit of one of the statutory remedies provided.
49. In the Department of Transport Review of the Public Utilities Street Works Act 1950 chaired by Professor Michael Horne (“the Horne Report”), the general liability of undertakers for damage caused by their works to other service providers, as found in the PUSW Act, was discussed. The Horne Report recorded (at paragraph 18.1) that the Committee had not received any representations that suggested that the arrangements set out in section 18, 19 and 26 were regarded as inequitable or not working satisfactorily; and the Report itself did not suggest that there should be any substantive change to that liability. It did, however, recommend, that the effect of the North West Water Authority case should be reviewed.
50. The NRSW Act was passed, in part, to implement the recommendations of the Horne Report. Section 82 was introduced to replace section 18, 19 and 26; and, to that extent, was a consolidation provision. The effect of the North West Water Authority case was overturned by section 82(3)(b), which made clear that liability under that section arises even where the undertaker is acting pursuant to a statutory duty.
51. Mr Rigney submits that the absence in section 82 of any specific non-exoneration provision operating in relation to liabilities between parties to which the section applies is telling; because such specific provision existed in each of its predecessors. However, in my view, that change merely reflects the evolution of drafting styles over the years. Although Buxton LJ, Deputy Judge Bowdery and, in his turn, Mr Rigney said that, had the draftsman wished to say that the imposition of statutory liability between particular parties was without prejudice to rights at common law between those parties “he had at his disposal much clearer and more direct ways of expressing himself”, that point is, at best, neutral – because, equally, had the draftsman wished to say that common law rights were ousted, there were better ways in which he could have expressed himself. But, as I have indicated, in my view section 82(6) is clear and unambiguous on its face; and, certainly, it would be quite remarkable if the substantive change in respect of the liability of statutory undertakers suggested by Mr Rigney had been introduced as a result of section 82, particularly given the terms of section 82(6).
52. For those reasons, I consider section 82(6) is determinative of Ground 2.
53. However, in any event, looking at matters as a whole, I do not consider that there is any “incompatibility” or “positive inconsistency” between the common law remedy and the statutory remedy. In my view, on the true construction of section 82(1)(b), in respect of damage to street apparatus by an undertaker, Parliament intended the statutory regime (of strict liability with recovery limited to expenses of making good, with a complete statutory defence in respect of damage attributable to the misconduct or negligence of the person suffering the damage or a third party) to run with, and not displace, common law rights (with its requirement to prove negligence, but with full financial recovery, subject to a defence of contributory negligence).
54. Of course, when compared with common law remedies, the statutory remedy is restricted in that only “expenses reasonably incurred in making good damage to that apparatus” are recoverable. But, in my view, that element cannot be considered in isolation. Although both remedies arise out of the same events and circumstances, they do not cover precisely the same ground, because the statutory remedy does not require proof of negligence. There is therefore no logical inconsistency between the two: it would be perfectly open to Parliament to consider that, when street apparatus is damaged by a section 82 event, the person having that apparatus in the street should be paid the costs of repair on a strict liability basis, but, if he wishes to recover anything more, then he must prove negligence. The question is whether that was Parliament’s intention here.
55. For the reasons I have given, in my view section 82(6) is sufficient to answer that question positively. Nothing within the scheme suggests that Parliament did not intend there to be two different schemes in play, with the limited statutory remedy being available even without proof of negligence, as had been the case under the PUSW Act before it.
56. At first instance in Yorkshire Electricity, Judge Grenfell said that the purpose of section 82 was “that there should be no need for considerations such as negligence or wrongful interference with goods”, which was a main plank of his analysis and conclusion that it displaced common law actions (see paragraph 31 above). However, on any view, the section did not eradicate all consideration of such matters, because section 82(4) requires consideration of whether the relevant damage is attributable to the misconduct or negligence of the person suffering the damage or a third party which is the foundation of a statutory defence. It is true that liability under the section is strict and does not require any consideration of whether the undertaker was itself negligent – section 82(3) confirms that to be the case – but, in itself, that does not lead to a conclusion that Parliament intended to alleviate an undertaker from damage over and above the expenses of making good recoverable under section 82 when that damage was caused by its own negligence, subject to the usual rules about such claims (including contributory negligence).
57. For those reasons, I do not consider section 82 of the NRSW Act, looked at alone, displaces the common law rights of a person whose apparatus is damaged by an undertaker performing works or a section 82(2) event.
58. However, Mr Rigney submitted that, if section 82 looked at alone could not be regarded as a scheme that displaced such common law rights, then it did when looked at as part of a broader scheme. It is to that which I now turn.
Ouster in the context of the broader scheme
59. Mr Rigney submitted that the fact that section 82 of the NRSW Act is, or is part of, a complete code which excludes common law liability is reinforced by the broader scheme relating to the maintenance of water supply, found within sections 18-22, 37 and 209 of the WI Act, and sections 81-82 of the NRSW Act, seen together. The Deputy Judge agreed, concluding that “these sections provide a complete statutory code which excludes the operation of the common law” (see [34] of his judgment).
60. Part III of the WI Act is headed “General duties of water undertakers”. Section 37(1)(b) imposes upon a water undertaker a general duty “to develop and maintain an efficient and economical system of water supply within its area, and to ensure that all such arrangements have been made… for maintaining, improving and extending the water undertaker’s water mains and other pipes, as are necessary for securing that the undertaker is and continues to be able to meet its obligations under this Part [of the Act]”. By section 37(2), that duty “shall be enforceable under section 18 above” by the Secretary of State or the Water Services Regulation Authority (“Ofwat”) established under section 1A.
61. Under section 18 of the WI Act, where satisfied that a water undertaker is contravening a relevant statutory requirement, the Secretary of State or Ofwat may serve a “final compliance notice”. Where any act or omission constitutes a contravention of any such statutory requirement, “the only remedies for… that contravention (apart from those available by virtue of [section 18]), shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting… such a contravention” (section 18(8)). However, where an enforcement order is made, then it is enforceable by any person who may be affected by contravention of it (section 22).
62. Other provisions of the WI Act, however, expressly confer private rights of action on identified persons. Some do so to enable a private individual to enforce rights that exclusively arise from the WI Act itself. For example, section 41(1) imposes a duty on a water undertaker to provide a water main sufficient for domestic purposes, and section 41(2) confers onto a relevant property owner a right of action to require the provision of such a water main. Other private rights are conferred, not to enforce rights established by the WI Act itself, but where a water undertaking would or may otherwise have a liability under the common law in any event. For example, section 209 of the WI Act (quoted at paragraph 8 above) gives those suffering damage as a result of an escape of water from a pipe vested in a water undertaker (who would or may in any event have common law rights in negligence or nuisance) a right to sue that undertaker for damages on the basis of strict liability. In Bowden v South West Water Services Limited [1997] 3 CMLR 330 at [47], Carnwath J (as he then was) said of the specific rights in the WI Act and its sister statute in the regulation of water services, the Water Resources Act 1991:
“These specific references make it unlikely that Parliament intended other duties, where there is no such reference, to give rise to similar rights.”
He went on to say (in [48]) that he considered the provisions of the two water statutes to constitute an elaborate “regulatory code” analogous to the social welfare legislation reviewed in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, and that the expectation, in the absence of any indication to the contrary, is that such a code is enforceable in public, not private, law.
63. Mr Rigney submitted that sections 81 and 82 of the NRSW Act could be regarded as falling within the same scheme. Section 81, he submitted, could be regarded as a provision parallel with section 37 of the WI Act enforceable through section 18 of that Act. It provides that statutory undertakers (including water undertakers) shall maintain street apparatus to the reasonable satisfaction of the street authority, failing which, there is also a public law remedy – the street authority may execute any emergency works which are required as a consequence of such failure. I have already quoted and described the effect of section 82: in short, it provides a statutory monetary remedy for street authorities and those who have street apparatus, where they are adversely affected by a statutory undertaker’s works or a section 82(2) event.
64. Finally, Mr Rigney relied upon Stovin v Wise [1995] 2 AC 923 at page 952 (as recently adopted by Lloyd Jones LJ (as he then was) in Barratt Homes Limited v Dwr Cymru Cyfyngedig (No 2) [2013] EWCA Civ 233; [2013] 1 WLR 3486 in the context of a claim that a sewerage undertaker’s failure to satisfy a private owner’s right under section 106 of the WI Act to have his drains or sewer connect with the undertaker’s public sewer gave rise to a private right to claim damages for breach of statutory duty), where Lord Hoffmann said that, if a statutory duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed.
65. On the basis of that analysis, Mr Rigney submitted that, not only does section 82 contain its own complete code, but it also forms part of a wider statutory code pursuant to which the operation of the common law is excluded so far as any failure to maintain is concerned.
66. However, I am unpersuaded that these submissions materially support Mr Rigney’s cause.
67. First and overridingly, this appeal does not concern the relationship between public law and private law remedies, central to the WI Act; nor is it concerned with whether a statutory duty gives rise to a private right to compensation for breach. It concerns the scope of the express private law monetary remedy provided by section 82, and whether the grant of that statutory remedy excludes common law rights and remedies which, it is uncontroversial, would be available but for any ouster. The answer to that issue lies in the construction of section 82. Of course, that section has to be seen in its proper context, but I do not consider that any significant assistance can be derived from looking at the very different provisions in the WI Act, where Ofwat as regulator is a basic (although, I accept, not exclusive) instrument through which enforcement is effected. I do not consider section 81 of the NRSW Act assists Mr Rigney in this argument; particularly as, although it provides a public law remedy for a failure to maintain street apparatus, that is expressly without prejudice to any other means of securing compliance with the duty to maintain that apparatus (section 81(7)). None of the authorities to which we were referred suggest that the NRSW Act (which applies to all statutory undertakers, and was, as I have explained, derived out of legislation that did not apply to water undertakers) and the WI Act (which applies only to water undertakers) should be read together in the form of a single code. Indeed, in Bowden, in relation to the enforceability of water undertakers’ obligations, following a magisterial review of the relevant UK provisions (in which he did not refer to the NRSW Act), Carnwath J said in terms that it was the provisions of the water legislation (i.e. the WI Act and the Water Resources Act 1991) that constituted “an elaborate regulatory code”. Far from section 82 being part of that scheme, liability of a water undertaking to a street authority or persons having street apparatus damaged by that undertaking’s works or a section 82(2) event is carved out of the scheme applicable to water undertakings, and given its own specific provision in a different Act which is applicable, not just to water undertakings, but service undertakings generally.
68. For that reason alone, I do not consider that consideration of the WI Act provisions assists in ascertaining the true construction of section 82 of the NRSW Act.
69. However, Mr Rigney also faces the difficulty that there is authority to the effect that, even where the section 18 procedure is available under the WI Act, some private rights remain.
70. Dobson v Thames Water Utilities Limited (No 1) [2007] EWHC 2021 (TCC); [2008] 2 All ER 362 concerned the general duty on a sewerage undertaker under section 94(1) of the WI Act, namely:
“(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere), and so to cleanse and maintain those sewers… as to ensure that that area is and continues to be effectually drained; and
(b) to make provision for the emptying of those sewers and further provision (whether inside its area of elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers”
That duty, like the duty with regard to water supply under section 31, shall be enforceable under section 18 (section 94(3)).
71. In Dobson (No 1), the claimants, who lived near a sewage treatment works, complained that odours and mosquitoes from the works caused a nuisance. Because the claim was based upon an allegation that the odours etc resulted from the defendant water undertaker’s failure effectually to deal with the contents of the sewer, the claimants were effectively seeking to enforce duties which arose under section 94(1)(b). The issue arose as to whether the availability of the section 18 enforcement procedure precluded the claimants from bringing a common law claim in nuisance or negligence.
72. Relying on Marcic v Thames Water Utilities Limited [2003] UKHL 66; [2004] 2 AC 42, Ramsey J held that it did not. He concluded that the claimants were precluded from bringing claims which required the court to embark on a process which was inconsistent with the statutory process under the WI Act, but not from bringing a claim in nuisance or negligence where, as a matter of fact and degree, the exercise of adjudicating on the cause of action brought did not involve any inconsistency with that statutory process. The boundary between the two was difficult to draw; but, Ramsey J considered, may depend upon the distinction between “policy” and “operational” matters. This reasoning was followed by His Honour Judge Saffman sitting as a Deputy High Court Judge in Bell v Northumbrian Water Limited [2016] EWHC 133 (TCC), and by His Honour Judge McKenna sitting as a Deputy High Court Judge in Oldcorn v Southern Water Services Limited [2017] EWHC 62 (TCC); [2017] Env LR 25.
73. Ramsey J considered that, in Marcic, the boundary he had identified fell between building new sewers on the one hand, and cleaning and maintaining sewers on the other. In Marcic, the plaintiff’s garden suffered repeated flooding by sewage discharge caused by overloading of the section of the sewerage system as a result of increased usage following the connection of third parties to the sewerage system as of right. The claimant sued the defendant water undertaker in nuisance and under the Human Rights Act 1999. The House of Lords concluded that the claim should be dismissed; but, Ramsey J considered, their Lordships left open the possibility of private causes of action for a failure to cleanse or maintain the sewer, as opposed to a failure to build new sewers.
74. Mr Rigney submitted that Marcic and Dobson (No 1) were not relevant to this claim, because they were concerned with section 94 obligations in respect of sewers which does not form part of the scheme upon which he relies, which relates to the maintenance of water pipes and escapes of water; and escapes of sewage have no special provisions corresponding to section 209 of the WI Act. But, if section 94 is considered relevant because analogous to section 37 and the rest of the water supply scheme, he submitted that Ramsey J’s analysis is wrong, for two reasons.
75. First, it elides the duty to maintain a sewer with the duty to cleanse it, whereas, in Baron v Portslade Urban District Council [1900] 2 QB 588, the Court of Appeal held that, although there was no common law right of action in nuisance in respect of a failure to maintain sewers, there was such a right of action in relation to a failure to cleanse them.
76. Second, it proceeds on the basis that the difference between policy and operations is a valid distinction to inform a decision as to whether a common law duty of care arises, whereas it has been said that “the distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not” (Stovin v Wise at page 951C-D per Lord Hoffmann, Lord Hoffmann setting out his reasons for considering the distinction inadequate at pages 951D-952A).
77. For the reasons I have given above, it is unnecessary for me to determine whether Dobson (No 1) is good law; and, in my view, reconsideration of the issues raised in Ramsey J’s judgment, and by Marcic, should be undertaken in a case in which those issues are live. In considering them in this appeal, we are in my view a very long way away from the facts of this case and the true construction of section 82, upon which this appeal turns and in respect of which I do not consider the issues arising under section 94 of the WI Act assist.
78. However, out of deference to the arguments of Counsel, I make the following three comments.
79. First, if Mr Rigney wishes to rely on a broad scheme incorporating provisions of the WI Act as well as the NRSW Act as excluding common law remedies, then in my view he cannot ignore the authorities on section 94 and the other provisions that relate to the sewerage system. Section 94 is, in my view, a part of the coherent regulatory scheme in respect of water services to which Carnwath J referred in Bowden; and is subject to the same section 18 enforcement scheme as section 37.
80. Second, I do not find Marcic an easy case. On the relevant issue, there were two substantive speeches, those of Lord Hoffmann and Lord Nicholls of Birkenhead. Lord Hope of Craighead agreed with Lord Nicholls; but Lords Steyn and Scott of Foscote expressly agreed with both substantive judgments. As a result, there must be a presumption that the speeches of Lords Hoffmann and Nicholls are consistent or, at least, reconcilable.
81. However, their respective analyses appear to be very different. The claimants’ case was based on the proposition that the only way in which his flooding would cease was if a new sewer was constructed. Lord Hoffmann (at [52]-[54]) held that, by virtue of section 18(8) of the WI Act, if a failure to improve the sewers to meet the new demand gave rise to a cause of action at common law, it was not excluded by the statute; but, he said, the courts had consistently held that a failure to construct new sewers was no such a nuisance. On the other hand, despite the last sentence of [22] – in which he paraphrased section 18(8) – Lord Nicholls appears to assume that the failure to improve the sewers to meet the new demand would give rise to a cause of action at common law but for the statutory limitations on the enforcement of sewerage undertaker’s drainage obligations, notably in section 18. I find those two analyses difficult to reconcile. In Dobson (No 1), Ramsey J purported to reconcile them only by ignoring Lord Nicholls’ analysis, in favour of an observation Lord Nicholls made at [34] which (Ramsey J considered) “strongly suggests” that he would have considered the position different had the case concerned a failure to clean or maintain the sewers. Before us, Mr Hart understandably submitted that, looked at as a whole, Marcic was authority for the proposition that section 18(8) meant that the availability of the section 18 enforcement scheme did not preclude common law remedies in respect of the section 94 duty, irrespective of whether the line between available and non-available remedies suggested by Ramsey J in Dobson (No 1) was correct.
82. Third, although it is unnecessary to decide the point on this appeal – and I would decline to do so – I am currently unpersuaded by Mr Rigney’s submission that the common law drew a distinction between a duty to cleanse a sewer (common law remedy attached), and a duty to maintain a sewer (no common law attached). In my view, the distinction drawn in Baron v Portslade Urban District Council between a duty to cleanse (under, then, section 19 of the Public Health Act 1875) and a duty to maintain a sewer (under section 15 of the same Act) did not turn on whether a common law remedy would generally attach, but whether such a remedy was ousted in the case of the duty to maintain (but not the duty to cleanse) by section 299 of the 1875 Act. The difference between the two reflects the differences, as I see them, between the analyses of Lord Hoffmann and Lord Nicholls on Marcic. However, neither Lord Hoffmann nor Lord Nicholls suggested that there was the distinction between the duty to maintain a sewer and the duty to cleanse it suggested by Mr Rigney, and suggested by him as one reason why Ramsey J’s analysis in Dobson (No 1) was wrong.
83. However, for the reasons I have given, it is unnecessary – and, in my view, inappropriate – to resolve issues that might have been left by Dobson (No 1) and/or Marcic in this appeal.
Ouster: Conclusion
84. I consider section 82(6) of the NRSW Act expressly to preserve the common law rights of a person having street apparatus who also has a claim against an operator under section 82. It is determinative of the Parliamentary intention with regard to the issue of ouster of common law rights. Looking at the whole of section 82 in its proper context, there is nothing that persuades me that Parliament intended to oust the common law rights of such a person.
85. I have therefore concluded that, in relation to this issue, the Deputy Judge was wrong. In my view, section 82 properly construed does not oust any common law remedies available to a person with street apparatus which is damaged by works performed by an undertaker, or by a section 82(2) event.
86. Consequently, I would allow the appeal on Ground 2, quash the order dismissing the claim, and make an order allowing the claim and entering judgment for the Appellant in the agreed sum.
Lord Justice Underhill:
87. I agree.
Lord Justice Jackson:
88. I also agree.
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