| Date | 16 April 1997 |
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| Judgment | Ellison and Headlong -v- The Ministry of Defence ORB 18 November 1996, [1997] 7 Bliss 13 |
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| The Issue | Damage by flood water to properties adjacent to building operations. |
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| Implication |
Discussion of the nature of liability in the tort of nuisance and under the rule in Rylands -v- Fletcher. |
printThe carrying out of building operations may involve one of the parties in liability to a third party for injury to person or property. Such liability may arise in the tort of nuisance or under the rule in Rylands -v- Fletcher which was discussed in the case of Ellison and Headlong -v- The Ministry of Defence. The case concerned flooding on land adjacent to Greenham Common air field. The air field is now being, for the most part, dismantled and the runways dug up, the intention being to return most of it to open common land. At the time of the events in question it was a NATO air base for which B52 bombers had the capacity to deliver nuclear bombs. Greenham Common is on a plateau above the surrounding land not far from Newbury. There is one runway and two taxi-ways, one of which is 2.8km long and has been described as the longest taxi-way in Europe. The presence of so much concrete on the common naturally disturbed the drainage which previously existed, and accordingly a complex system of drainage had been installed which for the purpose of this action was referred to as the "natural" drainage. Works were being undertaken for the Ministry of Defence for the construction of four bulk fuel installations for the storage of aviation fuel. The works included storage tanks, roads, services, control buildings and other facilities and involved substantial excavation and soil disposal for the construction of the underground tanks. On 10 August 1986, whilst these works were underway, a severe summer storm passed over the airfield. The Ellison and Headlong families lived and operated small businesses in the valley adjacent to the site. At about 7.30pm Mrs Ellison saw that water was coming in through the back door. She tried to stem the flow with towels and started to mop the kitchen floor. She then noticed waves of water lapping the kitchen windowsill. Once the flood had passed the devastation was enormous. The force of the water had carried Mrs Ellison's car out of their garage. Some of the family's belongings were retrieved from railway lines a mile down stream. The Ellisons and Headlongs claimed damages from The Ministry of Defence under the law of nuisance and according to the rule enunciated in Rylands -v- Fletcher. They claimed that at the time of the storm, works were being carried out on the air field for the Ministry of Defence and that the flood was caused by interference with the natural drainage as a result of those works. The doctrine of Rylands -v- Fletcher is best described by quoting the judgment of 1866 where it was said "We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". That decision was extensively considered in the House of Lords in 1994 in the case of Cambridge Water Company -v- Eastern Counties Leather plc where it was made plain, if it was not already plain, that the rule in Rylands -v- Fletcher only applies to things which are brought onto land and does not apply to things which are naturally upon it. On that basis His Honour Judge Peter Bowsher QC held that the defendants could not be liable in Rylands -v- Fletcher because what escaped from their land was something naturally upon it, that is rainwater. A liability would arise only if the construction works could be said to have created a large accumulation of water which escaped causing loss and damage. This brought into play the subsidiary concept of "non-natural use" of the land. In Rickards -v- Lothian it was said that the principle in Rylands -v- Fletcher would not come into play unless the land was put to "some special use bringing with it increased danger to others and not merely the ordinary use of the land or such a use as is proper for the general benefit of the community". Considering this aspect Judge Bowsher had no doubt that the works were for the benefit of the community and held that the works were not essentially dangerous in themselves. A further question to be considered was whether foreseeability of harm of the relevant type was an essential element of liability either in nuisance or under the rule in Rylands -v- Fletcher. Citing from previous authorities Judge Bowsher was satisfied that this indeed was the case and furthermore that the Ministry of Defence were not in any way at fault for failing to foresee the risk of what in fact happened or the damage that resulted. Judge Bowsher concluded by saying "to my regret and contrary to my sympathies in the case I find that as a matter of law judgment must be given for the defendants".
CJ-9715
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