Cambridge Water Co v Eastern Counties Leather plc ((1994) 2 AC 264, 306) [1994] 2 WLR 53 - (Applied)

Issue

Nuisance - Where the company sought damages against a tannery which had permitted perchloroethane to percolate into the aquifer, thereby rendering the water unusable for the purposes of public supply;

Court:

 Court of Appeal (Civil Division)

Act, Regulation or Reference:

Occupiers Liability Act 1957

Date: 1997

Facts

Cambridge Water Co. purchased a borehole in 1976 to extract water to supply to the public. In 1983 it tested the water to ensure that it met minimum standards for human consumption and discovered that it was contaminated with an organochlorine solvent. On investigation, it emerged that the solvent came from the Eastern Counties Leather plc tannery, about 1.3 miles from the borehole.

Since the tannery opened in 1879 until 1976, the solvent it used had been delivered in 40 gallon drums which were transported by fork lift truck and then tipped into a sump. Since 1976, solvents had been delivered in bulk and stored in tanks. It was then piped to the tanning machinery. There was no evidence of any spills from the tanks or pipes, and it was concluded that the water had been contaminated by frequent spills under the earlier system. Cambridge Water Co. claimed damages against Eastern Counties Leather plc alternatively for negligence, nuisance and under the rule in Rylands v. Fletcher.

The Decision

At first instance it was found that Eastern Counties Leather plc could not have foreseen this type of damage and, therefore, disallowed the claims in nuisance and negligence. Further, it was found that the actions of Eastern Counties Leather plc constituted a natural use of the land and consequently dismissed the claim based on the rule in Rylands v. Fletcher.

Cambridge Water Co. Ltd. successfully appealed. Eastern Counties Leather plc then appealed to the House of Lords.

The House of Lords unanimously found that Eastern Counties Leather plc was not liable for the water contamination. The main issue was whether the foreseeability of the damage suffered by Cambridge Water Co. was relevant to a claim under the rule in Rylands v. Fletcher. The Lords accepted the original finding that a reasonable supervisor employed by Eastern Counties Leather plc would not have foreseen that the solvent would leak from the tannery floors down into the water source. It was thought at the time that any spilt solvent would evaporate and that the only foreseeable risk was that if large quantities were spilt, someone might be overcome by the vapour.

Notes

A case in English tort law that established the principle that claims under nuisance and Rylands v Fletcher must include a requirement that the damage be foreseeable; it also suggested that Rylands was a sub-set of nuisance rather than an independent tort, a debate eventually laid to rest in Transco plc v Stockport Metropolitan Borough Council.
The Cambridge Water Company were a company responsible for providing potable water to the inhabitants of Cambridge and the surrounding areas. In 1976, they purchased a borehole outside Sawston to deal with rising demand. In 1980, a European Directive was issued requiring nations of the European Community to establish standards on the presence of perchloroethene (PCE) in water, which the United Kingdom did in 1982. It was found that the Sawston borehole was contaminated with PCE that had originated in a tannery owned by Eastern Counties Leather. Prior to 1980, there was no knowledge that PCE should be avoided or that it could cause harm, but the Cambridge Water Company brought a case against Eastern Counties Leather anyway.

The case first went to the High Court of Justice, where Kennedy J dismissed claims under nuisance, negligence and Rylands v Fletcher because the harm was not foreseeable. His decision was reversed by the Court of Appeal of England and Wales, who cited an "obscure decision" to justify doing so.[1] The case then went to the House of Lords, where a decision was read by Lord Goff on 9 December 1993. Goff first countered the Court of Appeal decision, restoring Kennedy's dismissal of the case, before moving on to the deeper legal points. Based on the original decision in Rylands, Goff argued that it had always been intended for foreseeability of harm to be a factor, something not previously put into law by the English judiciary. He then stated that Rylands was arguably a sub-set of nuisance, not an independent tort, and as such the factors which led him to including a test of foreseeability of harm in Rylands cases also imposed such a test on all nuisance cases.

The decision in Cambridge Water Co made an immediate change to the law, for the first time requiring foreseeability of harm to be considered in cases brought under Rylands v Fletcher and the general tort of nuisance. It was also significant in implying that Rylands was not an independent tort, something later concluded in the Transco case. Goff's judgment has been criticised on several points by academics, who highlight flaws in wording which leave parts of the judgment ambiguous and a selective assessment of Rylands that ignores outside influences.