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Sir Robert McAlpine Ltd (McAlpine) was developing a site when concrete escaped while a pile was being created by one of McAlpine鈥檚 sub-contractors. The pile was close to a private drain connecting to a Northumbrian Water Ltd (Northumbrian) operated sewer. Despite thorough site investigations and research by McAlpine prior to the piling works, neither McAlpine nor Northumbrian were aware of the private drain. Shortly after this, sewage backed up into nearby premises. Northumbrian found concrete in its sewer and claimed the costs of its removal from McAlpine in negligence and nuisance.

It was held that McAlpine was not liable in negligence or nuisance. Key points from the judgment were as follows:

• It was held that the concrete came from McAlpine鈥檚 sub-contractor. The test was whether it was more likely than not that the concrete in the sewer was the same as that used by McAlpine鈥檚 subcontractor and so although the expert evidence was inconclusive, the decision was made by having regard to all the evidence.
• The negligence claim failed because Northumbrian had failed to establish that the investigation and piling operation had not been carried out with reasonable skill and care. It was not obvious that McAlpine should have carried out any further research and no criticism was made of McAlpine鈥檚 site investigations nor the conduct of the piling. No expert evidence had been submitted as to the level of investigation that might be expected in such a development.
• The nuisance claim failed as it was held that as the drain鈥檚 existence was not reasonably foreseeable, the ensuing damage to the sewer was also not reasonably foreseeable. Although Northumbrian had not raised the strict liability Rylands v Fletcher rule (which also required the damage to be reasonably foreseeable), the Court dismissed its application on the basis of failure to establish the reasonable foreseeability of damage. The presumption was that Northumbrian had not raised the rule in any event because it could not satisfy the 鈥渕ischief or danger鈥� test.
  
  Katherine Tulloch is a senior associate in the Construction and Engineering team at Taylor Wessing