Sedleigh-Denfield v O’Callagan [1940] AC 880

An occupier of land was held liable for flooding caused by a blocked pipe laid by a trespasser. The court found they 'continued' and 'adopted' the nuisance, as they knew of the pipe's existence and failed to maintain it.

Facts

The respondents, the trustees of a religious society, occupied land that had a ditch on its boundary. Without the respondents’ knowledge, a local council, acting as a trespasser, laid a 15-inch pipe in this ditch to carry away water. The work was poorly executed, as no guard or grate was placed at the pipe’s inlet, creating a risk that it could become blocked with debris. Some years later, the respondents’ servant, tasked with cleaning the ditch, became aware of the pipe’s existence and its purpose. He cleaned debris from the area twice a year. However, during a heavy rainstorm, the pipe became blocked with leaves and other material, causing water to overflow from the ditch and flood the appellant’s adjacent property, causing significant damage.

Issues

The central legal issue before the House of Lords was whether an occupier of land is liable for a private nuisance that they did not create, but which was created on their land by a trespasser. Specifically, the court had to determine if the respondents’ knowledge of the pipe and their subsequent inaction or use of it rendered them legally responsible for the resulting damage.

Judgment

The House of Lords unanimously allowed the appeal, finding the respondents liable for the nuisance. Their Lordships held that an occupier who knows of a nuisance on their land, even if created by a trespasser, and fails to take reasonable steps to abate it, is liable. The court established the principles of ‘continuing’ and ‘adopting’ a nuisance.

Viscount Maugham

Viscount Maugham articulated the core test for liability, distinguishing between creating and continuing a nuisance. He held that knowledge, actual or constructive, was key to establishing responsibility. He stated:

In my opinion an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He may be said to ‘adopt’ it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.

He found that the respondents’ servant had knowledge of the pipe, and this knowledge was imputed to the respondents. By using the ditch and pipe for their own drainage purposes, they had ‘adopted’ the nuisance.

Lord Atkin

Lord Atkin agreed, clarifying that the duty on an occupier arises from their knowledge of the hazard. He explained the nature of an occupier’s duty in these situations:

The occupier of land is liable for a continuance of a nuisance created by a trespasser or predecessor in title, if he continues or adopts the nuisance, or, more accurately, if, with knowledge or presumed knowledge of its existence, he fails to take any reasonable means to bring it to an end when he has ample time to do so.

He concluded that the respondents, through their agent, ‘clearly ‘continued’ the nuisance’ as they had full knowledge of its defective condition and failed to remedy it.

Lord Wright

Lord Wright emphasised that liability requires a degree of personal responsibility, but not necessarily a deliberate act or negligence in the traditional sense. The duty is to act upon gaining knowledge of the nuisance:

Though the occupier is not an insurer, he has a duty on him to use reasonable care to check and control a nuisance on his land of which he knows, even though it was created by a trespasser.

He found that once the respondents became aware of the risk posed by the unguarded pipe, they had a duty to their neighbour to take reasonable care to abate it, which they failed to do.

Lord Romer

Lord Romer focused on the concept of ‘adoption’. He reasoned that the respondents’ servant, by regularly clearing the ditch to facilitate drainage from their own fields, was actively using the culvert. This use amounted to an adoption of the artificial watercourse:

…he proceeded to utilise the existence of the culvert for the purpose of getting rid of the water from his employers’ field… The Respondents, therefore, by their agent, were making use of the culvert for their own purposes and must be taken to have adopted it with all its defects.

Implications

This landmark decision significantly developed the law of private nuisance. It established that an occupier’s liability is not confined to nuisances they have created. The case created the modern rule that an occupier is also liable for nuisances created by third parties (including trespassers) or arising from natural causes if they ‘adopt’ or ‘continue’ the nuisance. The ‘continuation’ of a nuisance is defined as having knowledge (or presumed knowledge) of its existence and failing to take reasonable steps to bring it to an end. This principle laid the foundation for subsequent cases concerning hazards on land, such as Goldman v Hargrave and Leakey v National Trust, confirming a measured duty of care on occupiers to protect their neighbours from known hazards on their property.

Verdict: Appeal allowed. The judgment of the Court of Appeal was set aside and the original trial judgment in favour of the appellant (Sedleigh-Denfield) was restored.

Source: Sedleigh-Denfield v O'Callagan [1940] AC 880