Cambridge Water Co Ltd v Eastern Counties Leather plc [1993] UKHL 12 (09 December 1993)

A tannery's historical, gradual chemical spills contaminated a water company's borehole. The House of Lords held the defendant was not liable, finding the environmental damage was not a reasonably foreseeable consequence, thereby establishing foreseeability of harm as an essential element for liability in nuisance and Rylands v Fletcher.

Facts

The respondent, Eastern Counties Leather plc (ECL), operated a leather tannery in Sawston, Cambridgeshire. In their tanning process, they used a chemical solvent, Perchloroethene (PCE). Over many years, small quantities of PCE were spilt onto the concrete floor of their facility. These spillages seeped through the floor and into the chalk aquifer below ground. The appellant, Cambridge Water Co (CWC), owned and operated a borehole at Sawston Mill, located 1.3 miles downstream from ECL’s premises. The borehole was used to extract water for public supply. In 1983, testing revealed that the water from the borehole was contaminated with PCE at a level that rendered it unfit for human consumption under a new EC Directive. CWC was forced to abandon the borehole and develop a new water source at a cost of approximately £1 million. CWC sued ECL for damages based on negligence, nuisance, and the rule in Rylands v Fletcher.

Issues

The central legal issues before the House of Lords were:

1. Whether ECL could be held liable under the tort of private nuisance for the contamination of CWC’s water.
2. Whether ECL could be held liable under the rule in Rylands v Fletcher for the escape of the PCE from their land.
3. Crucially, whether foreseeability of the relevant type of damage is a prerequisite for liability in damages under both nuisance and the rule in Rylands v Fletcher.

Judgment

The House of Lords unanimously allowed the appeal, overturning the Court of Appeal’s decision and holding that ECL was not liable. Lord Goff of Chieveley delivered the leading judgment.

Reasoning of the House of Lords

Lord Goff conducted a detailed historical analysis of the law of nuisance and the rule in Rylands v Fletcher, ultimately concluding that they were intrinsically linked and that foreseeability of harm was a necessary component of both.

Relationship between Nuisance and Rylands v Fletcher

Lord Goff clarified that the rule in Rylands v Fletcher should not be seen as a distinct tort, but rather as an extension of the law of private nuisance to cover liability for isolated escapes from land. He stated:

…it would in my opinion be more satisfactory and lead to a more coherent body of common law principles if the rule were to be regarded as essentially an extension of the law of nuisance to cases of isolated escapes from land.

The Requirement of Foreseeability

The core of the decision rested on the a_pplication of the concept of remoteness of damage. Lord Goff held that the principles of foreseeability established in negligence cases, particularly by the Privy Council in The Wagon Mound (No. 2) [1967] 1 A.C. 617, which applied foreseeability to public nuisance, should also apply to private nuisance and Rylands v Fletcher. He reasoned that it would be illogical for liability in these related torts to be stricter than in negligence regarding the foreseeability of the type of harm.

It is widely accepted that foreseeability of damage of the relevant type is an essential element in the tort of negligence… it is now established that it is also an essential element in the tort of nuisance… it would be strange if foreseeability of damage of the relevant type should be a prerequisite of liability in nuisance but not a prerequisite of liability under the rule in Rylands v. Fletcher.

Applying this principle to the facts, Lord Goff concluded that the damage suffered by CWC was too remote. At the time the spillages occurred, it was not reasonably foreseeable that the small quantities of PCE would seep through the ground over a distance of 1.3 miles and contaminate CWC’s borehole. The scientific understanding of the behaviour of solvents in aquifers was not sufficiently advanced for such a consequence to be foreseen by a reasonable person in ECL’s position.

Non-Natural Use of Land

Although the case was decided on the foreseeability point, Lord Goff also commented on the ‘non-natural use’ element of Rylands v Fletcher. He disagreed with the trial judge and indicated that the storage of significant quantities of chemicals on industrial premises constituted ‘an almost classic case of non-natural use’. However, this finding did not alter the final outcome.

Implications

The decision in Cambridge Water is a landmark in English tort law and environmental law. Its primary implication was to harmonise the law by confirming that foreseeability of the relevant type of harm is a prerequisite for the recovery of damages in nuisance and under the rule in Rylands v Fletcher. This significantly curtailed the ‘strict’ nature of the Rylands v Fletcher rule; while liability remains strict in that a defendant can be liable despite taking all reasonable care to prevent an escape, there is no liability if the resulting damage was itself unforeseeable. Furthermore, Lord Goff suggested that imposing strict liability for environmental damage, particularly for ‘historic pollution’, was a matter best addressed by Parliament through legislation rather than by judicial development of the common law.

I incline to the opinion that, as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the courts.

Verdict: Appeal allowed. The defendant, Eastern Counties Leather plc, was held not to be liable.

Source: Cambridge Water Co Ltd v Eastern Counties Leather plc [1993] UKHL 12 (09 December 1993)