As an illustration of the perils of a claim in nuisance, here is Yianni v Shakeshaft [2014] EWCA Civ 1639 [Not on Bailii. We’ve seen a transcript]

Ms Y is the leaseholder of a flat below that of Mrs & Mr Shakeshaft, who had a tenant in theirs. There had been repeated leaks, and floods, into Ms Y’s flat over a period of 4 years or so, originating in the Shakeshaft’s flat above and causing considerable damage. Ms Y had brought a claim which, by the time it reached trial at first instance, was purely a claim in nuisance against Mrs & Mr S for the water originating in their flat.

At first instance, the Circuit Judge broke the claim down as follows:

1. Water ingress in December 2007

2. Further water ingress in December 2008

3. Some lesser leaks in January 2009

4. Flood from washing machine in the S’s flat in about May 2009 (following a first flood from the washing machine in April 2009, which was – quite properly – not claimed for)

5. Water ingress in September 2010, apparently with further leaks to June 2011

The actual cause of the problem (apart from the washing machine) was a cracked waste pipe from the shower to the waste stack. The pipe was half buried in the floor. The lower part of the pipe and junction could not be seen by a visual inspection, as it was encased in concrete.

In  (failed) responses to the complaints of flooding, Mrs & Mr S had (in order as above)

1. regrouted the bathroom.

2. replace the old hip bath with a shower, regrouting the bathroom.

3. told their tenants to keep the shower drain free of obstruction

4. (Separate issue – a stopcock had been installed 4 weeks after the first washing machine flood, but not before a second one had occurred).

5. After too-ing and fro-ing about possible causes, surveyors confessing themselves bewildered, and the expense and practicalities of breaking up the bathroom floor (and the difficulties in obtaining permission required from the freeholder to take up the floor), eventually the cause was discovered and repaired.

The first instance CJ stated he followed Sedleigh-Denfield v O’Callaghan [1940] AC 880 and Lord Wright:

The liability for a nuisance is not, at least in modern law, a strict or absolute liability…he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it.

So the question was whether the actions of Mrs & Mr S were such as to be those of reasonable user once notified of the nuisance, acting without undue delay. In each instance, the CJ found that the steps taken were those of ‘reasonable user’ such that Mrs & Mr S could not be found to have continued or adopted the nuisance, despite the 4 years it took to remedy the cause of the floods (except the washing machine – but there 4 weeks to prevent reoccurrence was found to be the action of a reasonable user).

Ms Y sought permission to appeal to the Court of Appeal, but it was refused.

Mr Paget relied on obligations in the lease by the defendants to their occupying tenants, but, as it seems to me, that is not something of which Miss Yianni can take any advantage. Likewise he sought to rely on obligations in the lease from the freeholder to the defendants, but that is not a cause of action on which the defendants were sued, therefore it seems to me to be that the obligations under that lease are also irrelevant for present purposes. The same is true of statutory obligations to the defendants’ occupying tenants.

It seems to me the force of Mr Paget’s submission is undermined by Lord Wright’s reference to undue delay. How can one judge what is undue delay without having regard, certainly to the nature of the problem and its consequences, but also to what efforts are reasonably required to work out what is the cause of the problem and to see to it being resolved? Mr Paget submits that the judge was wrong to apply a reasonableness test as regards what the defendants did and caused to be done, and the time under which those things were done, between December 2007 and June 2011. It seems to me that that is a submission which is legally untenable.

Mr Paget does not challenge the judge’s factual findings as to what was done and the difficulties that the defendants experienced in working out the cause. In particular, although he criticises the judge’s finding, he has to accept that the judge found that the freeholder objected in early 2011 to the defendants undertaking the works that he says were necessary, and which it turned out were indeed necessary. But, as it seems to me, if the freeholder was taking the position that the defendants are not entitled to open up the floor, then it cannot be said that the defendants were unreasonable in not doing so immediately.

So with respect to Mr Paget’s able arguments and with a great deal of sympathy for Miss Yianni’s traumatic experience over a lengthy period, it seems to me that there is no reasonable prospect that the judge could be demonstrated, on an appeal to the Court of Appeal, to have adopted the wrong approach. To the contrary, it seems to me that he applied exactly the right approach and he made findings which are not, and cannot be, challenged, which led to his conclusion that the defendants were not liable because there was no question of unreasonable delay, or unreasonable lack of effort, in the course of action followed once they were on notice of the problem.

Permission to appeal refused.

This is harsh on Ms Y, who suffered repeated floods over 4 years without, it turns out, having any remedy against the owners of the flat causing the flood. But it is a cautionary lesson that ‘taking reasonable steps’ to abate a nuisance can still fall a long way short of actually abating it without being unreasonable.