UK: Nuisance And The Independent Contractor: Your 'Get Out Of Jail Free' Card?

Will the appointment of an independent contractor protect you from liability for nuisance? In our latest alert, we consider the recent case of Bell v Northumbrian Water [2016] and the court's view on this issue.

In this decision, the court considered the tortious claim of nuisance against Northumbrian Water (NW) in relation to one of their sewerage pipes. One of the defences raised by NW was that, when problems arose, NW had appointed an independent contractor to advise upon and effect a remedial solution.

The facts of the case

Mr and Mrs Bell (the Bells) own a property called Dene Lodge which sits at the top of a slope. Nearby is a sewerage pipe owned by NW - NW has the statutory duty to maintain the pipe, with other associated obligations. The slope, which is to the east of Dene Lodge, is unstable and there is slippage from it into a stream which lies at the bottom of the slope.

The Bells claimed that sewerage / water from the pipe had escaped at various times (because of faults in the pipe) and that this, along with surface water collecting in the trench in which the pipe sat, had saturated and weakened the slope, causing landslip. It was alleged that, as a result, support has been removed from the Bells' garden and it has started to slope towards the stream; the Bells' concern extended to the future stability of their house.

Much of the judgment addresses the question of causation in respect of which the Bells were ultimately unsuccessful and their case failed.

The court also considered, however, whether NW was able (in principle) to avoid liability on the basis that, when first advised of possible leakage from the pipe and at all times thereafter, it had appointed independent contractors to advise on solutions and carry out remedial work. For example, it was the independent contractors appointed by NW who designed remedial schemes, decided not to remove the whole of the pipe and trench (after parts were abandoned), and undertook grouting of the pipe.

Along with various other lines of defence, NW argued that, in appointing independent contractors to advise upon and effect a remedial scheme, it had discharged its duty of care to the Bells by doing all that it could reasonably have done. To counter this, it was argued on behalf of the Bells that NW's duty was non-delegable and so, NW remained responsible for preventing the nuisance: "How [NW] accomplish[ed] that was immaterial".

The law

Put simply, a 'nuisance' is created by the unlawful interference with the use or enjoyment of land or some right over it. In order to establish liability, that interference must be substantial or unreasonable and in breach of a duty of care to a neighbouring occupier of land. In accordance with that duty, an occupier has to do what is reasonable in those specific circumstances in order to avoid such interference occurring.

The English common law, however, has long recognised a 'defence' that is available to the land occupier in certain types of nuisance claims that arises where the occupier appoints an independent contractor to carry out work for him. There is often a belief that liability can be avoided simply by making such an appointment.

Like so much in the law of course, the real story is not that straightforward.

It is certainly true that in many cases, an alleged wrongdoer can avoid liability in tort if an independent contractor is appointed but the law equally recognises another linked and long established principle: 'vicarious liability' which provides for an employer to be liable, in certain circumstances, for the acts of its employees or agents. Combining these principles, a court will consider the nature of the activity that is causing the nuisance, the extent to which the alleged wrongdoer (here NW) could have reasonably foreseen that the work instructed to be carried out by the contractor would cause a nuisance, and the relationship between the occupier and the contractor.

Case law gives the following example: a Bank employed a contractor to carry out work on the first floor of a building where the claimant occupied the second and third floors. The works resulted in dust and noise which the Judge concluded amounted to nuisance. Despite the fact that the nuisance emanated from the contractor's works, the Bank was held liable as the dust and noise were (to put it simply) an inevitable result of those works.

Compare this to a situation where the nuisance results from the particular manner in which the contractor has carried out the works, in which case the contractor would, in principle, be liable.

The judgment

The view of Mr Justice Saffman in Bell v Northumbrian Water was that, in terms of the "independent contractor defence", there is a clear distinction between the two following situations:

  1. where an independent contractor is appointed to undertake works and during those works itself creates a nuisance by its own acts/omissions; and
  2. (as here) where, as the Judge put it: "the [alleged] nuisance existed absent the involvement of any contractors and all that can be said is that the contractors failed to abate it".

Here, the independent contractors did not actually create the problem and so, in principle, NW could not have avoided liability to the Bells simply by the appointment of the contractors.

The lessons to be learned

Bell v Northumbrian Water [2016] serves as a reminder that for a landowner/occupier, appointing an independent contractor does not represent a 'get out of jail free card' for any ongoing nuisance.

Quite rightly, in the first instance, the law will look to the actual wrongdoer for a remedy, and not allow avoidance of that liability simply because it had the forethought to appoint an independent contractor in circumstances where the nuisance was already ongoing or likely to occur.

Whether the alleged wrongdoer then has an action for breach of contract or in negligence against the independent contractor is another question - this of course may not assist the alleged wrongdoer if there are significant limitation or solvency issues relating to the potential claim against that contractor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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