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Why flooding might not be a total washout

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Another dreadful period of winter weather has once again raised the spectre of flooding for thousands of households across the country.

Flooding is devastating. Destroying homes and belongings and sending family life into chaos. Often homes that sit on flood planes are refused insurance and families often don’t know where to turn.

Once the waters have receded and the chaos has subsided it’s inevitable that questions will be asked and answers demanded. Why me? How could this happen?

The specific causes of a flood can be extremely complex. Natural events yes, but the evidence appears to point to flooding becoming more frequent. Experts point to increased urbanisation and large scale developments situated on flood planes as contributory factors to the problem.

The cause of a flood can be difficult to understand or prove. There will be complex factors, some natural, some potentially man made. But if the cause of a flood can be proven then the legal position might be simpler to understand.

If the cause of the flood is a completely natural event, then a claim will not be possible. However if it can be shown that a flood on your property is, at least in part, caused by the actions of another then a claim might be possible.

Historically the most significant area of law relating to flooding claims is nuisance. Nuisance has been described as:-

“An act or omission which is an interference with or disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land or of some easement, profit or other right used or enjoyed in connection with land”

A successful remedy could result in an injunction, which might help to prevent future instances of flooding. Damages can also be claimed for loss resulting from the nuisance.

Nuisance claims brought as a result of flooding could fall into two categories.

1. Nuisance created by a person exercising a statutory duty or power

A Water Utility Company is responsible for the sewerage system in an area. The Highway Authority is responsible for a high number of surface drains. Both are typical examples of a person (or company) exercising a statutory duty.

Where a statute imposes a duty on a person to perform acts the person doing those acts has no liability to third parties providing the acts are done without negligence.

If a flood is caused by a company exercising a statutory duty then any claim will be extremely difficult. It will be necessary to prove negligence which is more difficult to prove than nuisance.

2. Nuisance other than in the exercise of a statutory duty or power.

The position is very different in cases other than those relating to a statutory duty or power.

In the case of Greenock Corporation v Caledonians Railways [1917] 1 AC 556 it was stated:-

“It is the duty of anyone who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which is provided for the natural channel he will be liable.”

If it can be shown that flooding has been caused by someone diverting the natural flow of a watercourse then a claim might be possible.

Legal action should never be considered lightly. But in a situation where home life has been devastated, victims may find solace in the answers that can be provided.