The claimants alleged that the excavation of lakes by the defendants on the defendants’ land, and the abstraction of underground water as a result, had adversely affected the claimants’ fishery, in particular the water levels in the ponds therein. They issued a claim against the defendants, inter alia, under section 48A of the Water Resources Act 1991, seeking damages for the loss of fish from the ponds, the loss of income from the fishery, the costs of remediating the ponds, expenses incurred and for loss of amenity. The defendants denied liability on the basis that, under section 48A, they could only be liable for loss or damage caused by the abstraction which could reasonably have been foreseen by them and that, in any event, the claimants had failed to prove on the balance of probabilities that the defendants' abstraction of water by the excavation of the lakes was the effective cause of the claimants’ alleged loss or damage.
On the claim—
Held, claim dismissed. (1) Although section 48A(3) of the 1991 Act provided that a claim brought under section 48A should be treated as one in tort for breach of statutory duty, it was clear that the actual breach was not the abstraction of water but the causing of loss or damage by the abstraction, there being no limitation or qualification in relation to the loss or damage or its type. Foreseeability of the loss or damage in question was not required. An abstractor was strictly liable under the section for all loss or damage caused, whether or not such loss was foreseeable (paras 22, 23).
(2) The “but for” test applied to the issue of causation. It was not sufficient for the claimants to prove that the abstraction was a significant cause of or made a material contribution to their loss. Where the defendant had discharged the evidential burden of showing that there were other possible causes, it was for the claimant to prove that it was more likely than not that the abstraction had been the cause of the damage. By reason of the variety of causes for the variability or lowering of water in the ponds, the claimants had failed to prove on the balance of probabilities that, but for the excavation of the lakes, their loss and damage would not have occurred. Accordingly, the claim under section 48A of the 1991 Act would be dismissed (paras 33, 131, 132).
Wayne Beglan (instructed by Simon Jackson Solicitors, Worcester) for the claimants.
Wayne Clark and Joe Ollech (instructed by Mills & Reeve LLP) for the defendants.