Business Clinic: Raw sewage contamination – can I claim?

Whether it’s a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here Russell Reeves, partner and head of agricultural litigation, Thrings, advises on potential legal action against a water company over sewage contamination.

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Q Raw sewage has contaminated some of our crop and grassland. The source of the sewage is the water company. I am led to believe that I cannot sue the water company for the damages I have suffered.

Is this correct and, if so, what options are there for me to seek recompense for the damage suffered?

A Without further information as to the source of the sewage and why you believe a claim cannot be pursued against the water company, my initial advice is that the water company is the most appropriate party to bring a claim against.  

They have a statutory duty in such circumstances and this position is supported by extensive case law.

Rylands v Fletcher [1868] first established the principle that a person who keeps a dangerous substance on their land which escapes and causes damage to a neighbour’s property, may be held strictly liable for the damage caused.  

Strictly liable means there is no defence. This has since been entrenched in legislation and built on by modern case law to meet contemporary problems.

For example under section 209(1) of the Water Industry Act 1991, the undertaker (water company) is strictly liable for any loss or damage “where an escape of water, however caused, from a pipe vested in a water undertaker causes loss or damage.”

However, it is important to note that they might not be liable if the escape was your fault or the fault of a contractor, agent or servant employed by you.

Without knowing what caused the raw sewage to contaminate your crop and grassland, you may or may not be able to hold the water company liable under this section.

Negligence and nuisance

The High Court in Oldcorn v Southern Water Services Limited [2017] also held that a duty in negligence and nuisance can sometimes arise.

A claim for negligence and nuisance essentially means that, due to an act or omission by the water company, damage has been caused to your land.

As a consequence, your rights as an owner have been infringed and you have lost enjoyment or use of your land.

For example, in this case it was held that the failure to sufficiently maintain a system designed to reduce the risk of flooding gave rise to a claim in negligence and nuisance for the subsequent flooding which damaged the claimant’s land.

It’s important to be aware though that the effect of your claim cannot enforce the undertaker’s statutory duty in a way that is inconsistent with the act.

For example, negligence and nuisance does not arise where you claim there were not enough sewer systems or that they were not large enough.

This is because there is procedure in the act where complaints must be made to Ofwat to seek resolution rather than bringing a claim against the water company.

Instead, an example of an acceptable claim would be that a failure to inspect or maintain the system caused the raw sewage to escape onto your land, as well as the subsequent contamination.

Consider expert opinion

Another important take away from Oldcorn v Southern Water Services Limited is that you must prove that if it weren’t for the breach of duty, the raw sewage escaping onto your land would not have occurred.

Subject to the facts of your case, it may be necessary to seek an expert opinion on this point to evidence whether the escape would have occurred irrespective of the water company’s actions.

This can be obtained before or after you make a claim, however it may be beneficial to know from the outset whether you can prove this point.

Ultimately seeking legal advice will be your first step in bringing forward a claim as a specialist solicitor can advise on your specific facts.

The Environment Agency has confirmed that sewage leakages into England’s rivers and seas at the hands of water companies doubled last year compared with 2022.

As a result, claims of this nature may become more prevalent.  

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