Chetwynd & Chetwynd v Tunmore & Tunmore [2016] EWHC 156 (QB)
Chetwynd & Chetwynd v Tunmore & Tunmore [2016] EWHC 156 (QB)
Judgment has been handed down in this complex and long running dispute between neighbouring fishery owners in Norfolk. Wayne Clark and Joe Ollech, instructed by James Hordern of Mills & Reeve LLP, acted for the successful defendants in a claim made against them by neighbouring owners in respect of alleged loss and damages caused to their fishery by the excavation of lakes on the defendants’ land, and the abstraction of underground water as a result. The central allegation was that by the excavation of these lakes the defendants had lowered the local water table leading to damage to property, loss of fish stocks, loss of income and profits from a commercial fishery business. The claimant sought damages and extensive injunctive relief by way of requiring the defendants to restore the damaged land and in carrying out significant works of reinstatement to the defendants’ own land.
The case required consideration of extensive and detailed expert reports on multiple disciplines relating to hyrology and hydro-geology, fisheries management and property valuation. The case was of particular interest because it is the first time the court has considered the nature of the statutory tort created by s.48A of the Water Resources Act 1991 and its scope. The case also required detailed consideration of issues of causation in the context of multiple and cumulative causes, and was complicated by an overlap between the private law remedies sought inter partes and an ongoing enforcement process at the local authority level in respect of the land concerned.
The case was heard over the course of two weeks by HHJ Reddihough, sitting as a judge of the High Court. In dismissing the claim the court held, inter alia, that liability for damage caused by the abstraction of water within the meaning of s.48A of the Water Resources Act 1991 is strict and not limited by reference to reasonable foreseeability of damage. This represents a dramatic change from the previous common law position, with which the court agreed, that there can be no cause of action whether in nuisance or otherwise for damage caused by the abstraction of water percolating through unknown and undefined channels underground. The only requirement under s.48A was that the loss and damage be caused by the abstraction.
The court also held that the “but for” test applied to this issue of causation, and where the defendants had discharged the evidential burden of showing that there were other possible causes then it was for the claimants to prove that the abstraction was the effective cause of the damage. In finding for the defendants the court held that the line of authority in disease and clinical injury cases (Bonnington Castings -v- Wardlaw [1956] A.C. 613, McGhee -v- National Coal Board [1973] 1 W.L.R.1; Fairchild -v- Glenhaven Funeral Services Limited [2003] 1 A.C. 32, Bailey -v- The Ministry of Defence [2009] 1 W.L.R. 1052 etc), substituting “material contribution” for the “but for” test could not be extended to the present case. This was not a case where there was one agent with multiple contributors or cumulative or consecutive causes where the state of scientific knowledge could not prove exactly how damage occurred, but only whether it was a material cause. This case drew a closer analogy to Wilsher -v- Essex AHA [1988] A.C. 1074, a case where there were distinct causes which operated in a different way and might have caused the injury, but the claimant could not establish which cause either caused or contributed to his injury.
The claimants were unable to meet the necessary but for test, and the claim was dismissed.
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