Contractor's Failure to Fix Should Leave Blame Unchanged

Owning a property at the top of a slope that was unstable presented a couple with obvious challenges, but when these were compounded by problems caused by leakage of water and sewage from a pipe lying in a trench at the bottom of their garden, they faced a serious problem.

The leakage, they claimed, further added to the instability of the slope and they became concerned that the additional slippage of their garden might cause damage to their house if it were to continue.

They brought a claim against the water company that was responsible for the sewerage system. In the end, the court concluded that the claim (which was brought under the law of nuisance) was not proven. What was more interesting, however, was that the water company had attempted to lay the legal blame on the contractors it had used to attempt to rectify the problem. The water company argued that by appointing specialist contractors to carry out remedial work, it had done as much as it could reasonably do and had therefore discharged its duty of care to the property owners. The homeowners had argued that the duty of care could not be delegated in that way.

The court found that if the contractors themselves had created the problem, the liability would have been able to be handed on to them. However, all they had failed to do was prevent the nuisance from persisting.

In that case, if the homeowners had been able to prove their case, the water company would have been liable.