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Law Report: Strict liability for water pollution: Cambridge Water Co v Eastern Counties Leather plc - Court of Appeal (Sir Stephen Brown, President, Lord Justice Mann and Lord Justice Nolan), 19 November 1992

A person who by his actions, whether deliberate or accidental, caused the contamination of underground supplies of water, which another landowner was entitled to abstract in an uncontaminated condition, was strictly liable in the tort of nuisance under the rule in Ballard v Tomlinson (1885) 29 Ch D 115.

The Court of Appeal allowed an appeal by the plaintiff, Cambridge Water Co, against the dismissal by Mr Justice Kennedy on 31 July 1991 of its claim against Eastern Counties Leather plc for injunctive relief and damages in respect of the pollution of ground water. The pollution had prevented the plaintiff, a statutory water company, from continuing to supply to the public water pumped from its Sawston Mill borehole.

Piers Ashworth QC, and Lawrence West (Barlow Lyde & Gilbert) for the plaintiff; Philip Vallance QC, and David Hart (Berrymans & Co) for the defendants.

LORD JUSTICE MANN, giving the judgment of the court, said that in 1976 the plaintiff purchased land at Sawston Mill, which had a 30m (98.43ft) borehole through which water could be pumped from the chalk aquifer below. The water was 'wholesome' in accordance with then current standards of water quality; but in 1980 a European Council directive (No 80/778/EEC) required member states to fix water quality values by reference to specified parameters, including the maximum admissible concentration of organochlorine compounds such as tetrachloroethane, or perchloroethane (PCE).

The plaintiff discovered an unacceptably high level of PCE in the water from Sawston Mill. It ceased pumping water from there and carried out an investigation, as a result of which it claimed the PCE had originated from the defendant's premises in Sawston.

The defendant had been using organochlorines, including PCE, as solvents for the degreasing of pelts in its leather tanning processes. But, although it ceased using PCE in 1976, the judge found that spillages of PCE had contaminated, and continued to contaminate, the ground water, and there remained a significant reservoir of PCE within the chalk itself.

The judge rightly rejected the plaintiff's claim that the defendant was liable under the rule in Rylands v Fletcher (1868) LR 3 HL 330.

The rule, which made a person liable for the event of an escape of something non-natural which he had brought onto his land, rather than for his actions, was inapposite to the present case, where liability attached by reason of the defendant's actions in spilling PCE.

This case was not distinguishable from Ballard v Tomlinson (1885) 29 Ch D 115, which was the leading authority on a landowner's 'natural' right to abstract, in an uncontaminated condition, such naturally occurring water as came beneath his land by percolation through undefined underground channels.

It was immaterial both that the plaintiff and defendant were not adjacent landowners, because the same aquifer was beneath the surface of each ownership, and that Tomlinson had caused the contamination by deliberately putting filth and waste into a well on his land, while the defendant's PCE had been spilt completely by accident. The situation was one where negligence played absolutely no part.

Where the nuisance was an interference with a natural right incidental to ownership, then the liability was a strict one.

Paul Magrath, Barrister