In Thames Water vs Marcic (2004), Mr Marcic had lived in his house in Stanmore, Middlesex, since 1980. His property was frequently flooded by surface water and by backflow of foul water from the sewers in his lane. There had been serious incidents every year (bar one) from 1992 to 2000. Just 15 minutes of heavy rain was enough to cause flooding. He complained to his local authority and to Thames Water. Nothing was done. He built his own flood defence system in his garden at a cost of £16,000. Eventually he started proceedings against Thames Water for nuisance and for breach of human rights.
The sewers in the road were, when originally constructed, adequate; they had become inadequate because housing had increased in the area. Thames Water is responsible for 80,000 km of sewers serving 5.4 million properties. It had to operate a system of priorities to address sewerage inadequacies.
The water industry is regulated by the Water Industry Act 1991. Although the sewerage undertakers have a duty to provide and maintain effective drainage, this obligation is initially enforceable only by the director general of water services. He or she has an obligation to serve an enforcement order on the undertaker where there is non-compliance, but there are exceptions. Section 18(8) of the 1991 act states that the only remedies are found in the act itself. Although any person can sue where the water company has not complied with an enforcement order, the water company cannot be sued until such an order is in place.
The judge decided in favour of Mr Marcic because his human rights had been infringed. Article 8 of the Convention on Human Rights gives individuals a right to respect for private and family life; that was effectively infringed by the water authority because it had failed to take appropriate steps to prevent flooding to his home. The Court of Appeal also found for Mr Marcic on a different basis, that the water authority had been guilty of civil nuisance in that it had not done what was reasonable in all the circumstances to prevent hazards in its sewerage system from causing damage to a neighbour.
Negligent contractors or designers of defective sewerage systems can be sued by those directly affected
The House of Lords overturned both of these approaches. They found that the Water Industry Act scheme excluded any civil rights to sue for nuisance caused by the escape of sewage. The words of the statute, in particular Section 18(8), stated that the remedies for contravention of the statute were to be found within the statute; the director could (and generally would) serve an enforcement notice, get the offending water company to take steps to prevent flooding and if that did not work, the individual could then sue the water company direct for damages for its failure to do so.
There was no claim under the human rights legislation because the UK government had provided a reasonable statutory scheme for regulating the industry. The fact that the scheme malfunctioned, in that Thames Water responded to Mr Marcic's complaints in a tardy and insensitive manner, did not affect this.
Doubtless the water companies will be delighted with this decision. Even Mr Marcic will be content because the sewerage system outside his house was substantially improved. Others in Mr Marcic's position and their insurers (assuming they can get insurance) will not be so happy if they live in areas that are susceptible to flooding.
Robert Akenhead QC is a barrister specialising in construction law at Atkin Chambers and joint editor of Building Law Reports.