Dear all,

I have always thought that Stephens is wrongly decided, because it

over-stretches the Bradford v Pickles "principle" that if the defendant

has "the right" to extract the water then the claimant must have "no

right" to complain. It is one thing for there to be no action in

nuisance following Bradford v Pickles, but quite another thing for the

same reasoning to deny a duty of care in negligence.  Worse, the Court

of Appeal suggested that the result would have been the same even if the

claimant had suffered personal injury: "It seems to us an inevitable

logical consequence of the reasoning of their Lordships in Bradford

Corporation v. Pickles that the claim in that case would have no less

failed if the defendant's activities had resulted in subsidence of

buildings or even personal injury".  And following the fact pattern of

the case, this would presumably still apply even if the defendant had

been warned in advance of the risk of personal injury and carried on

regardless!

Best wishes

Janet

Donal Nolan wrote:

> Hi Jason

>  

> The water that was extracted was water percolating under the

> defendant's land, and it had been held in the earlier case of

> /Langbrook Properties v Surrey CC /[1969] 3 All ER 1424 that even

> where this resulted in the abstraction of water from underneath the

> claimant's neighbouring land, with the consequence that the claimant's

> land or buildings were damaged, no claim would lie.  This was also

> consistent with /Popplewell v Hodkinson/ (1869) LR 4 Ex Ch 248, where

> it was held that a landowner did not have the right to have his land

> supported by water.  /Stephens /holds that this is so even if the

> claim is brought in negligence.  Fleming was critical of

> /Stephens/ (104 LQR 183), and the Restatement, Second, takes a

> different position (see para 818).    

>  

> Donal

>

>     ----- Original Message -----

>     *From:* Jason Neyers <mailto:jneyers@uwo.ca>

>     *To:* obligations@uwo.ca <mailto:obligations@uwo.ca>

>     *Sent:* Tuesday, May 26, 2009 6:41 PM

>     *Subject:* ODG: Stephens v Anglian Water Authority

>

>     Dear Colleagues:

>

>     I would be interested to find out your thoughts on /Stephens v

>     Anglian Water Authority/. I have a gut feeling that it is wrongly

>     decided since there seems to me to be a difference between

>     preventing something from getting to the claimant and taking away

>     something that is already on the claimants land. This distinction

>     seems to be missed by the court when they argue that English law

>     gives a 'right' to a land-owner to drain water from her land,

>     which in the context of /Bradford Pickles/ seems better described

>     as a privilege rather than a 'claim-right'.

>

>     Any thoughts,

>

>     --

>     Jason Neyers

>     Associate Professor of Law &

>     Cassels Brock LLP Faculty Fellow in Contract Law

>     Faculty of Law

>     University of Western Ontario

>     N6A 3K7

>     (519) 661-2111 x. 88435

>