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Cite as: [2013] EWCA Civ 950, [2013] WLR(D) 329

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Neutral Citation Number: [2013] EWCA Civ 950
Case No: A1/2012/2888

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY, TECHNOLOGY AND CONSTRUCTION COURT
HIS HONOUR JUDGE HAVELOCK-ALLAN QC
1BS90303

Royal Courts of Justice
Strand, London, WC2A 2LL
30th July 2013

B e f o r e :

THE MASTER OF THE ROLLS (Lord Dyson)
LORD JUSTICE JACKSON
and
SIR STANLEY BURNTON

____________________

Between:
VERNON KNIGHT ASSOCIATES
Claimant/
Respondent
- and -

CORNWALL COUNCIL
Defendant/Appellant

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Richard Stead (instructed by Wansbroughs Solicitors) for the Appellant
Mr William Vandyck (instructed by Berrymans Lace Mawer) for the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Jackson:

  1. This judgment is in six parts, namely:
  2. Part 1. Introduction,

    Part 2. The facts,

    Part 3. The present proceedings,

    Part 4. The appeal to the Court of Appeal,

    Part 5. The law,

    Part 6. Decision.

    Part 1. Introduction
  3. This is an appeal by Cornwall County Council ("the council") against a decision that it is liable for damage caused by floodwater escaping from one of the roads in the county. The principal issue is whether the judge applied too high a standard of care, without having regard to all the relevant factors.
  4. The claimant is the owner of a holiday village in Cornwall. This suffered flood damage on two occasions, namely in November 2006 and September 2008.
  5. I shall refer to the Highways Act 1980 as "the 1980" Act". Section 41 (1) of the 1980 Act provides:
  6. "Duty to maintain highways maintainable at public expense.
    (1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway."
  7. Section 58 (1) of the 1980 Act provides:
  8. "Special defence in action against a highway authority for damages for non-repair of highway
    (1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic."

  9. The purpose of sections 41 and 58 of the 1980 Act is to keep the highway safe for those who travel along it. Maintenance of the highway includes not only filling in potholes and so forth, but also ensuring adequate drainage. This is illustrated by Department for Transport, Environment and the Regions v Mott MacDonald Ltd [2006] EWCA Civ 1089, in which the Court of Appeal held that a highway authority could be liable for accidents caused by standing water on the highway.
  10. Sections 41 and 58 of the 1980 Act do not impose any duty on highway authorities to protect nearby property owners against flood damage. Such a duty arises, if at all, under the common law. The only relevance of these statutory provisions in the present litigation is that they establish the highway authority's duty to maintain the highways, including the associated drains.
  11. Both the witnesses and counsel in this case have used the word "hotspot" to describe a place where there is a high risk of flooding. I shall use the word "hotspot" in the same sense.
  12. After these introductory remarks, I must now turn to the facts.
  13. Part 2. The facts
  14. The claimant owns Honicombe Manor, St Ann's Chapel, near Callington, Cornwall. This property was formerly a manor house, but was developed into a holiday village during the 1970s and 1980s. At the northern edge of the holiday village there is a stone wall which runs for some distance and then stops. After the wall ends there is a line of trees. A road runs along the northern boundary of Honicombe Manor, which the council has designated C0250015. I shall refer to it as "Honicombe Road".
  15. To the north of Honicombe Road is an area known as the Donkey Park. The whole of this area overlooks the Tamar Valley and slopes down from north to south. Therefore, unless obstructed or diverted, after heavy rainfall water is liable to flood from the Donkey Park onto Honicombe Road and from there into the holiday village.
  16. In one section of Honicombe Road there is a dip. The bottom of this dip coincides with the point where the boundary wall of the holiday village ends. As a consequence surface water running off the Donkey Park tends to collect at the bottom of the dip. If that water is not carried away by drains, after it reaches a certain depth the water will surge past the end of the wall and into the holiday village.
  17. In or about 2000 the council installed a series of drains, gullies and a catchpit in the dip. These were and are sufficient to carry away all water which may collect there. However, these drains and gullies are not effective if the gratings through which water should enter become blocked with leaves, sticks and other debris. When the gullies are "fleeced over" is this way flooding is liable to occur.
  18. In order to discharge its duties under section 41 of the 1980 Act the council employs a company known as "CORMAC" to carry out road maintenance. CORMAC in turn provides numerous maintenance teams, each with responsibility for a defined area. CORMAC has assigned responsibility for the St Ann's Chapel area to a rural maintenance team known as Gang 606. At all material times the charge hand of Gang 606 was Mr Clive Olver. Mr Olver worked with one assistant. The area for which Gang 606 was responsible comprised about 12 square miles and 150 miles of road.
  19. Gang 606, like other rural maintenance teams, carried out cyclical maintenance. In other words, they visited each stretch of road in turn and carried out necessary maintenance work. Whenever it was necessary to do so, Gang 606 left off their routine work and went to deal with the emergencies or serious defects (known as "category 1 defects").
  20. CORMAC and the rural maintenance teams were not left entirely to their own devices. Officials from the council's highway department oversaw the work which CORMAC carried out. The council also employed safety inspectors, who checked every road in the county. The safety inspectors drew CORMAC's attention to all defects which they discovered. They classified serious defects as "category 1". These required remedial action with 24 hours.
  21. Having outlined the general arrangements made by CORMAC and the council, let me now turn to the events giving rise to the present claim. On Friday 24th November 2006 there was exceptionally heavy rainfall during the day. By 7 p.m. in the evening more than 25 millimetres of rain had fallen. Over the next five hours 38.8 millimetres of rain fell. There were also high winds. BBC online news report at 4.20 p.m. referred to torrential rain and flooding in the Callington and Launceston area. The gullies in Honicombe Road were blocked with leaves and debris. These had collected during the six week period since the most recent visit by Gang 606. Because the gullies were blocked, the rainwater could not escape. The dip in the road became flooded. During the evening flood water surged into the holiday village causing extensive damage. Mr Morris, the manager of the holiday village, telephoned the council at 7.45 p.m. and reported the incident.
  22. Although Mr Olver was not on standby duty that night, he was called by his supervisor and asked to deal with a number of flooding incidents. Mr Olver arrived at Honicombe Road at about 9.45 p.m. He waded into the swirling waters and succeeded in clearing the debris from the gratings over the drains. At once the flood started to abate and the waters steadily drained away.
  23. The flood damage caused to the holiday village on 24th November 2006 was subsequently quantified at 123,391.41. The claimant notified the council of its claim.
  24. The second incident occurred on Thursday 4th and Friday 5th September 2008. There was heavy rainfall on the Thursday. By 3 p.m. in the afternoon 19.2 millimetres of rain had fallen. During the night the dip in Honicombe Road became flooded. This was because leaves and debris prevented water escaping into the gullies. Once again flood water poured into the holiday village. Fortunately on this occasion the damage was less severe. It has been quantified at 18,233.77.
  25. The council's records of road maintenance during 2008 have been lost. It appears, however, from Mr Olver's diary that Gang 606's last maintenance visit to Honicombe Road before the flood was in early July 2008.
  26. The claimant maintained that the council was at fault for allowing floods to develop in November 2006 and September 2008. Accordingly the claimant brought the present proceedings in order to recover its losses.
  27. Part 3. The present proceedings
  28. By a claim form issued in Birmingham County Court on 3rd December 2010 the claimant claimed damages against the council for losses sustained during the two floods. The claimant pleaded that the council was in breach of its duty under section 41 of the 1980 Act and that the council was liable both in negligence and in nuisance for the escape of water.
  29. The council denied liability, averring that it had taken all reasonable steps to prevent flooding. The council also put forward a plea of contributory negligence, although it subsequently abandoned that plea.
  30. The action came on for trial in the Bristol Technology and Construction Court before His Honour Judge Havelock-Allan QC during October 2012. Mr Morris gave evidence for the claimant. Mr Olver and a number of council officials gave evidence for the defence.
  31. It was elicited from Mr Morris during cross-examination that before November 2006 the claimant's staff on a number of occasions went up to Honicombe Road and cleared debris from the gullies. This was because water was collecting in the dip and the claimant wished to avoid the risk of flooding.
  32. On the council's side Mr Olver was, for obvious reasons, a critical witness. His evidence was that the dip in Honicombe Road was the worst hotspot in the area for which he was responsible. At times of heavy rainfall it was Mr Olver's practice to break off from his other work and drive straight to Honicombe Road, so that he could clear any debris from the gratings over gullies.
  33. It emerged during cross-examination that Mr Olver devised and, in most instances, followed that extremely sensible practice on his own initiative. Neither the council nor CORMAC instructed Mr Olver to adopt these precautions. Indeed both the council and CORMAC were unaware of the severity of the flooding risk at Honicombe Road. This was because there was no procedure in place whereby rural maintenance teams were required to identify hotspots to their line managers.
  34. The judge handed down his judgment on 19th October 2012. He found for the claimant on liability and awarded damages in the agreed total sum of 141,625.18. I would summarise the judge's findings, reasoning and conclusions as follows:
  35. (i) The council owed a duty to do that which was reasonable in all the circumstances to prevent or minimise the known risk of flood damage to the claimant's property.

    (ii) The council knew or must be presumed to have known of the high risk of flooding at the Honicombe hotspot, especially during autumn when leaves fell.

    (iii) The council had a system in place to prevent the gullies becoming fleeced over with leaves and woodland debris. The system had two flaws, namely that rural maintenance teams were not required to identify hotspots to their line managers and there was no standard procedure requiring rural maintenance teams to check hotspots during bad weather.

    (iv) Despite these flaws the council's system was adequate. This was because Mr Olver knew the hotspots in his area and, on his own initiative, he went to check and clear them as necessary during bad weather.

    (v) By following that practice Mr Olver prevented flooding at Honicombe Road on a number of occasions. On two occasions, however, namely 24th November 2006 and 4th September 2008, Mr Olver did not follow his normal practice. This failure was the cause of the flood damage which the claimant suffered.

    (vi) There was no reasonable explanation or excuse for Mr Olver's failure to attend the Honicombe hotspot on those two occasions. Accordingly, on those two occasions the council was in breach of its duty to the claimant as an adjoining landowner.

  36. The council is aggrieved by the judge's decision. Accordingly it appeals to the Court of Appeal.
  37. Part 4. The appeal to the Court of Appeal
  38. By an appellant's notice filed on 7th November 2012 the council appealed against the judge's decision on liability on a number of grounds.
  39. The first and principal ground of appeal is that the judge applied too high a standard of care. The argument here is that the judge was required by a long line of authorities to take into account all the circumstances of the case and he failed to do so. Instead the judge focused too narrowly on the measures which were necessary to prevent flooding in Honicombe Road.
  40. There are other subsidiary grounds of appeal concerning the evidential burden and the effect of a postscript which the judge added in the last paragraph of his judgment.
  41. This appeal was heard on 8th July 2013. Oral argument was relatively short, as both counsel had set out their submissions clearly in writing.
  42. Before tackling the issues raised in this appeal, I must first review the law.
  43. Part 5. The law
  44. A discrete body of law has developed concerning the extent of a landowner's liability for natural nuisances. "Natural nuisances" is a term used by some commentators to describe nuisances which are caused by the operation of nature rather than any act of the landowner (see, for example, Clerk and Lindsell on Torts, tenth edition, chapter 20).
  45. The original rule was that the landowner was not liable for non-feasance in respect of natural nuisances. As the Lord Chancellor observed at the start of his speech in Rylands v Fletcher (1886) LR 3 HL 330, if the accumulation of water on the defendant's land had flowed onto the plaintiff's land by operation of nature, there could have been no liability. This "no liability" rule was accepted across the common law world. It was based upon notions of expediency and self-help. Way CJ in the South Australia Supreme Court pointed out the difficulties of imposing a positive obligation on landowners in Havelberg v Brown [1905] SALR 1 at 11:
  46. "Should such a legal duty apply in all cases, irrespective of age or sex? Should it be made applicable in spite of the absence or illness of the owner, or in the case of a fire out of his sight or without his knowledge? Is it to apply to a man who is weak or unskilful? The slightest reflection must show anyone how difficult it would be to frame a law that would be applicable to all cases and anyone who has seen, as most of us have, the frequent bush fires in the hills adjacent to Adelaide will understand that there really is no necessity for any such law. People not only extinguish dangerous fires from self-interest, and for the preservation of themselves and their families, but in the summer we see every week the whole countryside turning out and using the utmost endeavours to prevent danger to life and injury to the property of others."

  47. Society has changed over the last century and the common law, as always, has adapted to those changes. There is now liability on landowners for non-feasance in respect of natural nuisances. Nevertheless the common law rules imposing such liability still bear the imprint of an earlier age. The landowner's liability is described as a "measured duty" and it is subject to qualifications not usually found in the law of tort.
  48. Two major decisions mark the development of the common law, namely Sedleigh-Denfield v O'Callaghan [1940] AC 880 and Goldman v Hargrave [1967] AC 645. In Sedleigh-Denfield the House of Lords held landowners liable for the escape of water which they could have prevented by taking a simple and obvious step. In reaching this momentous decision the House of Lords approved the dissenting judgment of Scrutton LJ in Job Edwards Ltd v Birmingham Navigation Proprietors [1924] 1 KB 341. The House of Lords' decision was widely welcomed by textbook writers and commentators.
  49. In Goldman the Privy Council on an appeal from the High Court of Australia held the defendant liable for the escape from his land of fire caused by a lightning strike. Simple precautions were available to extinguish the fire, which the defendant had failed to take. Lord Wilberforce, delivering the judgment of the Board, described the measured duty of the landowner in cautious terms at pages 663-664. The standard was what it was reasonable to expect of the occupier in his individual circumstances. The court had to take into account the defendant's resources and abilities, as well as the fact that the hazard had been thrust upon him through no fault of his own. Lord Wilberforce said that what was needed was "a balanced consideration of what could be expected of the particular occupier as compared with the consequences of inaction".
  50. In Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 the National Trust was held liable for soil and rubble falling from its land onto the plaintiffs' properties. In the course of a lengthy judgment Megaw LJ held that Goldman represented the law of England as well as Australia. Both Shaw and Cumming-Bruce LJJ agreed, although Shaw LJ expressed substantial misgivings as to the course which the law of England was taking.
  51. Megaw LJ discussed the scope of the defendant's duty at pages 524-527. He stated that the defendant was required to do no more than was reasonable to prevent or manage the known risk of damage. This involved consideration of a host of factors concerning the foreseeable risk, the available preventive measures and the resources of the defendant.
  52. In Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836 the Court of Appeal overturned an official referee's decision that the owner of an undercliff was liable for a landslip which damaged the plaintiffs' hotel. Stuart-Smith LJ delivered the leading judgment, with which Schiemann and Tuckey LJJ agreed. Stuart-Smith LJ examined the scope and extent of the defendant's measured duty in considerable detail. He derived assistance from the House of Lords' decision in Caparo Industries Plc v Dickman [1990] 2 AC 605. Caparo was a case in which auditors were held to owe no duty of care to potential investors, a key consideration being that it was not "fair, just and reasonable" to impose such a duty. Stuart-Smith LJ adopted this test for a new purpose, namely as an aid to determining the scope of a landowner's measured duty in respect of natural nuisances. He attached particular significance to the fact that the defendant in the instant case could not have foreseen the extent of the risk to the hotel without commissioning extensive geological investigations. He concluded that it was not fair, just and reasonable for the defendant's duty to extend that far.
  53. In Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2002] 1 AC 321 both the Court of Appeal and the House of Lords held a highway authority liable for damage which the roots of one of its trees were causing to nearby buildings. Lord Cooke of Thorndon (with whom Lord Steyn, Lord Browne-Wilkinson, Lord Clyde and Lord Hutton agreed) stated that the extent of the defendant's duty was determined by reference to "the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability". He regarded the resources and abilities of both the claimants and the defendant as relevant matters.
  54. In Green v Lord Somerleyton [2003] EWCA Civ 198 the Court of Appeal held that similar principles applied where naturally flowing water caused damage to the property of a nearby land owner. In that case floodwater emanated from the defendants' marsh and caused damage to the claimant's marsh. The Court of Appeal, applying the concept of reasonableness between neighbours, held that the defendant's duty did not extend to an obligation to maintain barriers against occasional flooding.
  55. In Lambert v Barratt Homes Ltd [2010] EWCA Civ 681 surface water flowing from land belonging to Rochdale Metropolitan Borough Council on occasions flooded the claimants' properties, causing damage. The Technology and Construction Court judge in Leeds held Rochdale liable for breach of its measured duty, but the Court of Appeal reversed that decision. Sir Anthony May P, delivering the judgment of the court, said that the council's duty did not extend to constructing drainage ditches and a catchpit at their own expense. He noted that the council had funds far in excess of those available to the individual claimants. On the other hand local authorities were under a degree of financial pressure. Their resources were held for public purposes and were not generally available for the benefit of private persons. The claimants as householders were likely to be insured. Furthermore they had a remedy against the construction company which had built their houses.
  56. I must confess to some doubt as to whether the availability of insurance is a relevant consideration, as stated in paragraph 22 of Lambert. I prefer to leave open for future decision whether the observations in paragraph 22 of Lambert concerning the relevance of the availability of insurance are sound.
  57. In a number of the authorities courts have observed that in this area of law the defendant's liability in nuisance is effectively the same as his liability in negligence: see e.g. Leakey at 514 G-H and Delaware at paragraph 31.
  58. Where then does the law now stand in relation to the liability of land owners for non-feasance in respect of natural nuisance? I would not presume to paraphrase the vast body of learning which has accumulated on this topic. Nevertheless I extract from the authorities discussed above the following principles which are relevant to the determination of this appeal:
  59. (i) A landowner owes a measured duty in both negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damage to neighbouring properties.

    (ii) In determining the content of the measured duty, the court must consider what is fair, just and reasonable as between the two neighbouring landowners. It must have regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the costs of such measures and the resources of both parties.

    (iii) Where the defendant is a public authority with substantial resources, the court must take into account the competing demands on those resources and the public purposes for which they are held. It may not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage.

  60. Thus it can be seen that the judge is required to carry out a somewhat daunting multifactorial assessment. That is not surprising. In 1905 Chief Justice Way of the South Australia Supreme Court warned that this would be the consequence if the common law should develop in the way that it subsequently did.
  61. Fortified by this review of the authorities, I must now address the issues in the present appeal.
  62. Part 6. Decision
  63. Mr Stead on behalf of the council submits that in determining the extent of the council's duty the judge failed to take into account the following matters:
  64. (i) Most of the floodwater came from Donkey Park, which was owned by a third party. The council did not exacerbate the flow of flood water, but took steps to reduce its effect.

    (ii) The council was only an adjoining owner by reason of its position as a highway authority. Bearing in mind the many demands upon the council's resources, the court should not impose unduly onerous requirements.

    (iii) The council had an adequate system in place, as found by the judge. Honicombe Road was a secondary road on which there had only been two floods in the eight year period since the drains were installed.

    (iv) The claimant was able to and did insure against the damage suffered.

    (v) The claimant caused or contributed to the flood damage as a result of

    a) having filled in an old ditch and having altered the topography of the land;
    b) not clearing gratings over the gullies on 24th November 2006 and 4th September 2008.
  65. I accept that factors (i), (ii), (iii) and (v) (b) fell to be taken into account. In view of paragraph 22 of Lambert, I shall assume in the council's favour (without deciding) that factor (iv) is relevant. I do not accept that factor (v) (a) is relevant. It was pointed out to Mr Stead during argument that this was a reference to construction works carried out many years ago, when the holiday village was built. Since then new drains have been installed to carry away surface water from Honicombe Road. It is a feature of many villages across the country that ponds or ditches dug out by our forefathers have been filled in and new drainage arrangements, often subterranean, have been installed. This is a consequence of progressive urbanisation and other developments across the landscape. The court must determine the duties of landowners and local authorities by reference to the current arrangements, rather than historic events.
  66. In the latter part of his judgment the judge identified each of the factors in Mr Stead's list and he clearly had them in mind. Nevertheless he treated as critical the fact that, on two occasions and for no good reason, Mr Olver departed from his normal practice and failed to attend the Honicombe hotspot during exceptionally heavy rainfall.
  67. I accept that the judge could have explained more fully why he discounted the other circumstances upon which Mr Stead relied. Nevertheless, in my view the matters which the judge emphasised in reaching his decision were the critical factors in this case.
  68. I should, however, address the specific matters in Mr Stead's list. As to factor (i), it is quite true that the water which collected on Honicombe Road came from external sources beyond the council's control, but that is true in many of the flooding cases. It is also true that the council took measures to reduce the effect of the flooding. Nevertheless those measures were not implemented on the two dates in issue.
  69. As to factor (ii), it is correct that the council is a highway authority with a large network of roads to maintain and the principal duty of preserving the safety of road users. On the other hand, precisely the same measures were needed both to protect motorists against flooded roads and to prevent flood damage occurring to adjacent properties. These measures were to check and clear the drains.
  70. The point which Mr Stead makes about resources is an important one and cannot be lightly dismissed. On the other hand the present case is far removed from Lambert, upon which Mr Stead relies. In Lambert the local authority was criticised for not installing infrastructure works to prevent floods from occurring. The authority made the fair point that those works would be expensive and it could not be criticised for failing to expend its resources in that way. In the present case, by contrast, the council decided that the flood risk in Honicombe Road was serious enough to warrant special infrastructure works. The council carried those works out in about 2000, installing drains, gullies and a catchpit. The complaint in this case is that, for no good reason, the council failed to make proper use of that installation.
  71. In my view, even after making due allowance for the pressures on local authorities, the measured duty on the council did require it to take reasonable steps to keep that drainage installation functioning properly.
  72. As to factor (iii), the judge took into account that the council had an adequate system in place, despite certain specific flaws which he identified. He took into account the character of Honicombe Road and the fact that only two floods had occurred since the new drains were installed. If there was some good reason why the system failed on those two occasions (such as lack of resources or other more urgent work for Gang 606) that would probably have absolved the council from liability. But there was no such good reason. On both occasions the heavy rainfall occurred during normal working hours. On both occasions Mr Olver was available. He was not called upon to deal with some other more pressing emergency. Nevertheless, contrary to his usual practice, Mr Olver continued dealing with routine maintenance work. He did not break off from that work in order to attend to hotspots, in particular the Honicombe hotspot which was the worst in his area.
  73. As to factor (iv) (if relevant), the claimant was able to insure against flood damage and no doubt it did so. The present action is, presumably, a subrogated claim. Property owners need to insure because neither the council nor anyone else can eliminate all risks of flooding. As Mr Stead fairly pointed out, the council cannot be everywhere all the time. Nevertheless, I do not see how the availability of insurance is of any great relevance to the present situation. This is a case where Gang 606 could and should have prevented the flood by following normal practices. The council was not required to deploy any additional resources.
  74. I have already dealt with factor (v) (a). As to factor (v) (b), there is some scope for criticising the claimants. It would have been sensible if Mr Morris had sent one of his staff up to check on the drains in Honicombe Road during the heavy rainfall on the two critical dates. On the other hand, that cannot constitute a complete defence to the claim. The drains along Honicombe Road were the property of the council and were the principal responsibility of the council. The allegations of contributory negligence, which may possibly have been viable, were not pursued.
  75. Let me now draw the threads together. Whilst I accept that there are limits on what can be expected from local authorities in relation to flood prevention, I do not accept that the judge applied too high a standard of care in the present case. He properly took into account all the relevant circumstances. Although he was carrying out a multifactorial assessment, he properly highlighted those factors which were particularly significant. I therefore reject the council's first and principal ground of appeal.
  76. I can deal more briefly with the other subsidiary grounds of appeal. Mr Stead conceded, with characteristic fairness, that he was unlikely to succeed on these grounds if he failed on his main ground of appeal.
  77. The first point raised is that the judge erred in placing the evidential burden on the council to establish what Mr Olver was doing on the two critical dates. It was not for the council to establish why Mr Olver did not attend the Honicombe hotspot.
  78. I do not accept this argument. Where the council's staff and CORMAC's staff were working on any given date is a matter peculiarly within the council's knowledge. The claimant can only establish these facts by examining the disclosed documents or cross-examining the defence witnesses. It emerged from that cross-examination that on both the relevant dates Mr Olver was engaged upon cyclical maintenance work in his area and there was no reason why he could not break off to deal with hotspots.
  79. The final point raised concerns a postscript to the judgment in which the judge said that, given the present state of knowledge, the claimant may be less likely to succeed in a future flooding claim. I attach no significance to this postscript. It is drafted in tentative terms. It reflects the fact that the claimant has learnt a great deal both from the expert reports exchanged and from the evidence given during the trial. Like the judge I am not prepared to speculate about the outcome of future litigation, given what both parties have learned during the present proceedings.
  80. In the result therefore, for the reasons set out above, I would uphold the judgment of the judge. If my Lords agree, this appeal will be dismissed.
  81. Sir Stanley Burnton:

  82. I agree that the appeal must be dismissed for the reasons given by Lord Justice Jackson.
  83. Like him, despite what was said in Lambert, I should like to express my doubts as to the relevance to the measured duty of the availability to the claimant of insurance against flooding. The availability of insurance is not normally relevant to a duty in tort. I can think of no case in which a claim in tort has been rejected on the ground that it is a subrogated claim. Insurance is funded by the premiums paid by insureds, and the premium will be increased if the existence of insurance excludes or reduces the highway authority's measured duty. Furthermore, if an occupier or landowner's claim is rejected on the ground that he had insurance, the insurer may well exclude cover in respect of flood damage for the future: indeed, doubts as to the extent of the measured duty may itself lead to an exclusion of cover. I cannot think that it would be appropriate for the Court to have to inquire as to the insurance market in any case in which the question arises. However, as my Lord has stated, we did not hear argument on this question, and it could not affect the result of this appeal.
  84. The Master of the Rolls:

  85. I agree that the appeal must be dismissed for the reasons given by Lord Justice Jackson.


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