Dunne Case Tort PDF

806 QUEI!)N'S BENCH DIVISION.
[1964J
C. A. DUNNE AKD ANOTHER v. NORTH WESTERN GAS BOARD

]963 AKD AKOTHER.
Oct. 8. 9,
10, 11; LAl\IBERT AND AXOTHER v. SAME.
Sellers.
Danckwerts DOYLE AND OTHERS v. S~U,[E.
and
Davies L.JJ.
[1956 D. No. 848.]

[1956 L. No. 1283.]
[1956 D. No. 1284.]
Rylands v. Fletch~r-Statutory undertaker-Applicability of rule-Gas

board acting 1mder statutory dut.y-Escape of gas from gas main
into sewers causing expl.osion in highu'ay-B?'eak in gas main
caused by burst wate?' main belonging to corporation-Whether gas
board liable- Whether corporation liable.
Nuisance-Statutory undertaker, liability oj-':'Highwa.y-Explosion-
Gas escape caused by burst water nwin belonging to corporation-So
negligence by gas board or corporation-Whether gas board liable
in nuisance-Om'poration acting under permissive powers only-No
clause 1'etaining liability in nuisance- Whether corporation liable.
Local G01Jernment-Nuisance-Statutory undertaking-Explosion in
highway-Escape o] gas caused by burst water main belonging to
corporation - No negligence by gas board or by corporation-
Whether either gas board or corporation liable.
Oausation- Nuisance - Highway - Escape o] gas causing explosion in
highway - Sole and effective cause of escape a burst water main
belonging to corporation-No [auit o] gas board-s- Whethe1' nuisance
" caused" by gas board.
On July 9, 1946, a number of explosions of coal gas took place at

manhole points in Liverpool, some causing craters, others merely
blowing the manhole covers into the air. The gas had escaped from
a broken gas main into the sewers, had travelled along them to
various points, becoming mixed with air and therefore highly
inflammable and explo ive. Exactly how the gas became ignited
was never established, but it was accepted that a stray match, a
cigarette end or even a spark from a nailed boot might have been
the cause of the initial ignition, which then spread to other points.
As a result a girl was thrown off her bicycle and injured, a married
couple were injured in their home, and so were two children playing
in the street. The gas main was found to have broken as the result
of a leak from a water main which caused the sewer beneath it to
collapse so that a large quantity of soil was washed away down the
sewer thereby removing support from the gas main and from the
water main itself, which was lying on top of and probably directly
against the ga main, though there may have been a small amount
of earth between the pipes. At the point where the gas main broke
(Reported by T. C. C. BARKwoRTH, Esq., Barrister-at-Law.]

2 Q.B. QUEEN'S BENCH DIVISION. 807
the surface of the road remained intact, the cavity caused by the C A.
loss of soil being completely concealed from above. The cavity was
1963
in no way caused by the explosions. Both the water main and the
sewers were controlled by the Liverpool Corporation; the gas main DUNNE
was controlled by the North Western Gas Board. 1).
1\OR'fH
In a consolidated action the plaintiffs sued the corporation and
WESTERN
the gas board claiming damages for negligence, nuisance and breach GAS BOARD.
of statutory duty under Parts II and IV of the Public Health Act,
1936, and relying on the rule in Rylands v. Fletcher (1868) L.R.
3 H.L. 330 and the doctrine of res ipsa loquitur. The gas board
issued third party proceedings against the corporation claiming
indemnity or contribution in the event of their being found liable
to the plaintiffs, and the corporation later issued similar pro-
ceedings against the gas board. At the conclusion of the trial the
judge allowed the corporation to amend their defence by retracting
an inadvertent admission, due to a mistake of law, to the effect
that they were acting under the Public Health Act, 1936, when at
the material time and place they were acting under section 6 and
Part IV of the Liverpool Corporation Act of 1921.
The judge found no negligence or breach of statutory duty on the
part of either of the defendants, either as gas, water or sewer
authority. He held that by necessary implication from the terms
of the Gas Act, 1948, the gas board were excused from liability
under the rule in Ryland.~ v. Fletcher, supra, but that he was
bound on the authority of Oharing Cross Electricity Supply 00. v.
Hydraulic Power 00. [1914] 3 K.B. 772; 30 T.L.R. 441, C.A. to find
them liable in nuisance for causing an escape of gas. He found that
the corporation were acting under their special Acts, which only gave
them power and imposed no duty to supply water, and therefore
held them liable under the rule in Rylands v. Fletcher as water
undertakers, though not as sewer undertakers. He held the
corporation not liable in nuisance.
Both defendants appealed, and the plaintiffs issued cross-notices
seeking to uphold the judgment on the grounds that the gas board
should have been held liable also under the rule in Rylands v.
Fletcher and that the corporation should have been held liable also
in nuisance and negligence in laying the water pipes in too close
proximity to the gas main (the findings of no negligence under the
other heads not being challenged):-
Held, (1) that the judge's finding of no negligence by the
corporation in laying the water pipes should be upheld (post, pp.
830-831).
(2) That the gas board, having merely carried out, without
negligence, the statutory duty imposed upon it, and the possibility
that gas might escape having been recognised by the Gas Act, 1948,
the gas board could not be held liable on a strict liability under the
rule in Rylands v . Fletcher, and for the same reasons could not
be held liable in nuisance. The gas board could not be said to have
collected gas in its pipes for its "own purposes" and allowed it
to escape (post, pp. 831, 832, 833).
Rylands v. Fletcher (1868) L.R. 3 H.L. 330 distinguished.
808 QUEEN'S BENCH DIVISION. [1964J
c. A. (3) That as the judge had found that the sole and effective cause
of the accidents was the bursting of the corporation's water mains,
1963
with which the gas board had nothing to do, that finding was itself
DUNNE sufficient to exonerate the gas board from liability (post, p. 833).
v. Midwood &: Co. Ltd. v. Manchester Corporation [1905J 2 K.B.
NORTH
597; 21 T.L.R. 667, C.A. and Charirvg Cross Electricity Supply Co.
WESTERN
GAS BOARD. v. Hydraulic Power Co. [1914J 3 K.B. 772; 30 T.L.R. 441, C.A.
distinguished.
Green v. Chelsea WatenEorks Co. (1894) 70 L.T. 547; 10 T.L.R.
259, C.A. and Smeaton v. !llord Corporation [1954J Ch. 450;
[1954J 2 W.L.R. 668; [1954J 1 All E.R. 923 applied.
(4) That although the corporation were acting, as water under-
takers, under their private Acts, which gave permissive powers
only and which contained no clause retaining liability in nuisance,
the corporation, against whbm negligence was not established, were
not liable either under the rule in Rylands v. Fletcher or in
nuisance (post, pp. 836-837).
Charinq Cross Electricity Suppl.y Co. v. Hydraulic Power Co.
[1914J 3 K.B. 772; 30 T.L.R. 441, C.A. distinguished.
Geddis v. Proprietors of Bann Reservoir (1878) 3 App.Cas.
430, H.L. considered.
Judgment of the presiding judge of the Liverpool Court of
Passage reversed.
Per curiam. Where undertakers act under a mandatory obliga-
tion, whether or not there is a saving clause not exempting them
from liability in nuisance, there is no liability in nuisance if what
has been done is that which was expressly required to be done, or
was reasonably incidental thereto (post, p. 835).
ApPEAL from G. Glynn Blackledge, Esq., Q.C., presiding

judge of the Liverpool Court of Passage.
On July 9, 1956, a series of 46 separate but almost concurrent
explosions of coal gas took place in an area of Liverpool lying
between Scotland Road and Vauxhall Road. Of these, 21
occurred at manhole points of the sewer system and caused
craters, while the remaining 25 caused no craters but 'blew the
manhole covers into the air. The coal gas had escaped from a
gas main into the sewers and had travelled along them, becoming
mixed with air and so becoming highly inflammable and explo-
sive. Exactly how the gas had come to be ignited was never
established, but it was accepted that a stray match or cigarette
end, or even a spark from a nailed boot, might well have been
the cause of the initial ignition, the ignition being subsequently
carried by the air and gas mixture in the sewer to other points
of exit. The area affected was about 250 yards by 350 yards of
a built-up housing and industrial district, lying to the east of
Vauxhall Road.
As a result of the explosions several people received relatively C. A.

slight injuries: l\Iaureen Dunne, a girl of 16, was bicycling along 1963
Vauxhall Road and had just passed the manhole cover near
DUNNE
Green Street when the blast of an explosion nearby threw her V.
off her bicycle, injuring her and damaging her bicycle and NORTH
WESTERN
clothing; Patrick Lambert and his wife, Josepha Lambert, were GAS BOARD.
injured while respectively in the kitchen and on the verandah of
their home at 262, Hornby Street. They also suffered loss and
damage to their clothes and furniture, in part due to a flying man-
hole cover. Anthony and Margaret Doyle, two children aged res-
pectively seven and three, were injured whilst playing in Vescock
Street. When the expl ions started William Thomas Doyle,
their father, rushed out into the street to bring them to safety,
but was unable to do so before they were injured.
Investigation later that night disclosed that gas was escaping
from a broken 12-inch gas main below ground at the junction
of Vauxhall Road and Ashfield Street, where the road surface
remained intact but where a large crater below ground was dis-
covered, which had not been caused by an explosion. At this
point there was some seven feet below Vauxhall Road an egg-
shaped brick sewer with the narrow end downwards, four feet
six inches by three feet six inches, which was joined at the junc-
tion of Ashfield Street by a similarly constructed sewer, three feet
e.even inches by two fee't six inches, running down Ashfield Street
with a fall towards Vauxhall Road and entering the larger sewer
on a slight curve towards the north. The sewer was constructed of
two layers of bricks of normal size properly bonded, so that the
joints in the outer layer were not opposite to those on the inner
layer, lime mortar being used instead of cement. This sewer had
collapsed and about 70 tons of earth were entirely missing, which
must have been washed away down the sewer.
The sewer was built and controlled by the Liverpool Corpora-
tion, being laid over 100 years ago, Ashfield Street being already in
existence as a built-up area with sewers in 1855. Not far from
the junction with the main sewer in Vauxhall Road there was
a manhole in Ashfield Street which had at some time, probably
in 1886, been completely covered over by kerb stones some five
feet below ground with other material above. Inspection of the
sewer remained possible by travelling along the sewer. The
sewer was properly so inspected in October, 1954, and was found
to be in a reasonably safe condition, and likely to remain so for
some time. There was no trace of rats, and no evidence of the
percolation of water into the sewer. The sewer had not been
2 Q.B. 196-1-. 52
C. A. inspected for a long period before 1954, but there was nothing
1963 which should have put the gas board, or their predecessors, on
inquiry, or warned them that it was dangerous not to carry out
DUNNE
1). repairs before the date of the explosions. There was no damage
:KORTH to the sewer from acid vapour. The sealing off of the manhole
WESTERN
GAS BOABD. was found by the judge to be irrelevant.
The gas mains in the area were originally laid in 1873, and
the gas pipes had not been replaced since that date, being thus
over 80 years old. A 12-inch gas main had been laid along
Vauxhall Road, crossing at right angles the Ashfield Street
sewer and about three feet above it. A four-inch gas pipe led
off this main to supply Ashfield Street. The gas main was not
shown to have been defective'before it broke in the circumstances
which arose. The gas mains were under the control of the
North Western Gas Board, who were successors in title to the
Liverpool Gas Co., and the gas was maintained at the pressure
required by the statutory regulations, a pressure which would
not' put any appreciable strain on pipes if they were in good
order, or even if rusted to a fairly advanced degree. There was
some evidence that an hour or so before the explosions there
was a smell of gas, but no real attack was made upon the board's
inaction; they did all they could to detect the source of the
escape. The total loss of gas was some 500,000 cubic feet, but
much of this may have escaped after the explosions.
Although there was no regular system of inspecting the gas
pipes, apart from repairing breakages when found and making
new junctions when required, no fault was found by the judge
in the gas board's system of inspection and maintenance. Owing
to various considerations, such as the type of surrounding earth
and the presence or absence of water in the soil, which might
vary almost infinitely at unpredictable points and affect the
pipes in different ways, a system of test holes at certain points
might miss an area of graphitic corrosion by a few inches, so
that nothing short of the complete inspection of a pipe after
removal of the soil-causing considerable public inconvenience
if carried on as a general system-would be effective. Each
year some 10,000 excavations were made in the Liverpool area
on the older mains, carried out on the principle of inspecting
breakage areas rather than areas thought to be old enough to
be at risk. In 1951 the mains were, in fact, inspected and found
to be in a satisfactory state at three places within 200 yards of
Ashfield Street and Vauxhall Road. The corporation's workmen
subsequently broke up the defective gas mains with sledge. O. A.
hammers in the process of clearing up the cavity. 1963

In 1886, the Liverpool Corporation laid water mains in twelve-
DUNNE
and ten-inch diameter cast-iron pipes along Vauxhall Road with V
::\ORTH
a branch main along Ashfield Street from a junction at which
'''ESTER);
a system of valves allowed the flow to be regulated. The pipe GAS BO.~RD.
serving Ashfield Street crossed the gas main at right angles
and, according to the findings of the judge, "was lying on top
" of it and probably directly against it; though there may have
" been some small amount of earth between the pipes." Some
days after the explosions it was discovered that two adjacent
lengths (of nine fee,t each) of the water main in Vauxhall Road,
in the vicinity of the broken gas main and the collapsed sewer,
had cracked or burst over a length of eight feet in one case and
five feet in the other. Evidence was given that in the type of
earth in the area the type of pipes used should have a reasonably
safe life of 80 to 100 years, and that these particular ones were
ten years short of reaching their normal safe life. By a letter
of September 10, 1956, the town clerk of Liverpool informed
the general manager of the gas board that the claimants or their
solicitors should be informed that the explosion occurred because,
initially, a water main burst, and that, in those circumstances,
the claimants should communicate with the corporation.
On July 14, 1956, a writ [1956 D No. 848] was issued against
the North Western Gas Board and the Liverpool Corporation by
Margaret Dunne, as mother and next friend of Maureen Dunne,
claiming damages for negligence, nuisance and/or breach of
statutory duty. On November 5, 1956, two further writs [1956
L No. 1283 and 1956 D No. 1284] were issued against the same
defendants, one by Patrick and Josepha Lambert, and the other
by William Thomas Doyle as father and nex.t friend of Anthony
and l\1argaret Doyle, claiming damages for negligence and/or
breach of statutory duty and/or other duties. Those writs were
later consolidated, and similar statements of claim, in an amended
form, were redelivered on October 25, 1956.
Those statements of claim alleged that the Liverpool Corpora-
tion were the local authority responsible for the provision of
sewers and water supplies under Parbs II and IV of the Public
Health Act, 1936. Negligence and breach of statutory duty
were alleged against the gas board by failure to instal and main-
tain safe and proper pipes for the supply of gas, failure to inspect
the same adequately or at all, failure to ensure that they were
not subjected to unusual pressure from within, or otherwise, and
12 QUEEN'S BENCH DIVISION. . [1964J
c. A. by permitting gas to escape and/or become ignited and/or
1963 explode, and by failure to take all reasonable measures to prevent
the accidents. The statements of claim further alleged against
DU~XE
1'. the Liverpool Corporation negligence and/or breach of statutory
NORTH duty by failure to instal and/or maintain safe and proper sewers
WESTERN
GAS BOARD. and drains, and water mains, failure to inspect the same
adequately or at all, failure to ventilate the sewers and drains
adequately or at all, failure to ensure that the sewers and drains
were not subjected to unusual pressure from gas accumulated
in them or otherwise, and by permitting the gas to escape and/or
to become ignited and/or to explode, and by failure to ensure
that the water mains did-not leak, by permitting water to escape
from them, and by failure so to instal and/or maintain the
sewers, drains and water mains that they would not cause
damage to the gas board's pipes and equipment. The state-
ments of claim further stated that the plaintiffs would contend
that the happening of the explosions was by itself evidence of
negligence by the gas board and/or by Liverpool Corporation,
and alleged further and in the alternative that the pipes, equip-
ment, sewers, drains and water mains and the explosions con-
stituted a nuisance upon or adjacent to the highway for which
both defendants were liable. They further and in the alternative
alleged liability for the escape of gas and its consequences [under
the rule in Rylands v. Fletcher 1].
By their defence the gas board admitted that gas escaped
from a broken gas main and that it exploded, but denied that they
caused or permitted it to become ignited or explode, and denied
negligence, nuisance or breach of statutory duty, or that any
damage caused to the plaintiffs was the result of such alleged negli-
gence, nuisance or breach of statutory duty. Their defence further
alleged that the gas main broke as the result of the withdrawal
of underground support, and/or the downward pressure upon it
of the Liverpool Corporation's water main, and that the with-
drawal of underground support was caused by the collapse of the
corporation's sewer, which in turn was contributed to by a leakage
from the water mains, and that neither the withdrawal of support,
the downward pressure by the water main nor the leakage of
water from the main was due to any fault on their part, and
that they could not reasonably have foreseen the events that
occurred.
The defence of the Liverpool Corporation admitted that they
1 (1868)L.R. 3 H.L. sac.

were the local authority responsible under the Public Health Act, C. A.
1936, for the provision of sewers and water supplies, and relied 1963
on section 31 of the Act. They denied negligence, nuisance or
DU:-II'E
breach of statutory duty, and contended that if the condition of V.
the sewers, drains or water mains constituted a nuisance, such NORTH

WESTERN
nuisance was not caused, created or continued by them. On GAS BOARD.
May 24, 1956, the gas board issued third party proceedings against
the corporation, claiming indemnity or contribution in the event
of their being found liable, and on January 4, 1958, the corpora-
tion issued similar third party proceedings against the gas board,
likewise claiming indemnity or contribution.
In their defence to the third party proceedings the Liverpool
Oorporation relied on section 31 of the Public Health Act, 1936,
and alleged that if the explosions were due to an escape of gas
from the broken gas main, that was solely caused' either by a
breach of statutory duty under section 1 (1) (a) of the Gas Act,
1948, in allowing gas to escape, or by a nuisance caused by the
condition of the gas main, or, alternatively, by the board's negli-
gence in carrying out their duties. Those allegations were denied
by the gas board. Each defendant also claimed damages in
respect of their own losses against the other, but those claims
were dropped at the hearing.
At the hearing on January 4, 1960, the judge allowed the
corporation, at a very late stage, to amend their defence by
striking out the plea that they acted under the Public Health
Act, 1936, an admission which was made purely as the result
of a mistake of law, and substituting therefor a plea that they
were acting under section 6 and Part IV of the Liverpool Corpora-
tion Act, 1921. The amendment was allowed, on stringent
conditions as to costs, in view of the fact that the case was in
the nature of a test action which the judge had been asked to
try" with great care and at special length," to use the judge's
words; and the value of the decision would be lost if it were
decided on wrong grounds. The private Acts under which the
corporation claimed to be acting, unlike the Public Health Act,
1936, contained no clause retaining liability for nuisance.
The presiding judge delivered judgment on November 14, 1961,
and found that there was no negligence on the part of either of
the defendants either as gas authority, water authority or sewer
authority. He said: "On the one hand the facts, as I find
"them, support the view that the sewer was adequate and the
., gas pipes were adequate, while the water pipes were found
.. to have split along two sections. From this, it would seem
..J
814 QUEEN'S BENCH DIVISION . [1964 J
C. A. .. that the prima facie evidence should be that the defective
1963 .. water pipes were the cause. On the other hand, the second
.. defendants contend that the splits in the water pipes may well
DUlS":\E
v. .. have been caused by the underground explosions shaking them.
~ORTH .. It was also pointed out that they were still embedded in soil
WESTERN
GAS BOARD. .. and that after the underground crater had been formed they did
.. not to any substantial degree project into the crater. This
.. brings me to the question of whether the underground hole
.. in Ashfield Street was caused by the explosions or whether
.. it was due to water percolation from leaking pipes having
.. gradually travelled down until it entered the sewer and thus
.. caused the destruction, with consequent loss of earth which
.. removed the normal support from the gas pipes which were .
.. in my view properly, only constructed to remain stable if
.. the earth support remained. The view I accept is that the
., water burst, although only found some days after the explosions,
., must have occurred some weeks or months before the explosions;
" that the water travelled downwards, probably through the old
.. trenches dug when the sewerage and gas systems were laid;
,. and that after erosion of the soil began at the sewer level,
" a stage was eventually reached when the soil had leaked away
,. in a semi fluid condition to such an extent as to leave a hole
.. at the side of the sewer arch. The safety of the sewer arch
.. depended on the support of the rammed earth around it and
.. once this disappeared beyond a certain degree, the collapse
.. of the arch would be inevitable. I do not accept Mr. Cowan
.. Hill's theory of inefficient ramming of the surrounding earth:
•. there is no factual evidence of it. He assumed it to support a
" theory and I cannot go along with him so far. Althoughany
., rammed earth may receive water more easily than undisturbed
.. earth, I did not feel such confidence in Mr. Cowan Hill's
" evidence as would warrant my accepting his theory. From
.. this stage, things would progress more quickly for the
.• earth still being washed down from the split pipes would run
" direct into the sewer. Finally, a larger collapse of the sewer
.. arch would occur and a large quantity of earth not yet eroded
.. would lose the support of the arch. At this stage tons of earth
.. may have been lost down the sewer quite quickly and a large
,. gap have formed under the gas pipes. There was no sign of
" burning or explosion at the site of the cavity and I think the
.. proper inference is that the closed crater at Ashfield Street was
.. not produced by explosion but by the escape of water, resulting
.. in the progressive destruction I have outlined. I see no reason
2 Q.B. QUEEN'S BENCH DIVISION. 8Hj
"why, in the absence of an explosion at the site, I should infer C. A.

"that the other more distant explosions probably caused the 1963
" cracks in the water pipes. I am satisfied that the bursting of the
DO:;NE
s , second defendants' pipes was the sole and effective cause of v.
"these accidents and that the sewer and gas pipes were at the NORTH
WESTERN
" outset in proper and adequate condition." GAS BOARD.
The judge proceeded to find that there was no breach of statu-
tory duty on the part of either defendant. He held that where,
as here, the gas board as undertakers were given the duty and
not merely the power to supply gas under pressure, they were
excused by necessary implication by Schedule 3 to the Gas
Act, 1948, from liability under the rule in Rylands v. Fletcher,»
He held, however, that he was bound on the authority of Oharing
Crose Electricity Supply 00. v. Hydraulic Power 00.3 to find
them liable in nuisance for causing an escape of gas. He then
found that the corporation were acting under their private special
Acts and that the relevant material section was section 35 of
the "Waterworks Clauses Act, 1847, made applicable by section 6
of the Liverpool Corporation Act, 1921, under which, in the
circumstances, the corporation had permissive powers only .. The
corporation were empowered to act on a requisition by enough
owners or occupiers to be able to pay enough water rate to pro-
vide one-tenth of the expenses involved, but could not be
compelled to do so without an agreement to take the supply £01'
three successive years, of which there was no evidence. He
therefore held the corporation liable under the rule in Rylands
v. Fletcher 4 as water undertakers. As sewer undertakers, he
found that the corporation had not collected anything in their
sewers or allowed anything to escape therefrom, and, accordingly,
the corporation were not liable under the rule in Rylands v :
Fletcher 4 as sewer authorities.. The judge further found that,
as the sewer was not under pressure, was in good order, and
adequately drained the street until attacked by water from with-
out, its collapse did not constitute a nuisance, and that there being
no negligence by the corporation in respect to the water main, the
corporation was not liable in nuisance as water undertakers either.
Accordingly, the judge awarded the following damages to the
respective plaintiffs: To Maureen Dunne, £35; to her mother,
Margaret Dunne, £13 9s. 6d. in respect of damage to Maureen's
bicycle and clothes; to Patrick Lambert, £18 8s. Od., and to
2 r.a. 3 H.L. 330. ~ L.R. 3 H.L. 330.

3 [1914] 3 R.B. 772, C.A.
816 QUEEN'S BENCH DIVISION. [1964 ]
c. A. Josepha Lambert, his wife, £130; to Anthony Doyle, £100; to
1963 l\Iargaret Doyle, £35; and to William Thomas Doyle, £12 19s. 2d.
in respect of damage to his children's clothes.
DUKl\E
v. On August 18, 1962, the judge held that the defendants
NORTH
were not joint tortfeasors, and ordered that judgment should be
WESTERN
GAS BOARD. entered for the gas board in the third party proceedings; that they
were entitled to a contribution from the corporation of 75 per
cent. of any sum paid by them to the plaintiffs or any of them
by way of damages and/or costs, and also that the gas board
were entitled to receive 75 per cent. of their party and party
costs of the third party proceedings. A stay of execution
pending appeal was granted on March 11, 1963; the judgment
was finally signed on March 26, 1963.
Both defendants appealed. The gas board appealed on the
grounds that the judge had misdirected himself and was wrong
in law in holding that they were liable or that they "caused"
the alleged or any nuisance, and that, on the evidence, the judge
ought not to have so found, and in the third party proceedings
they appealed against the holding that they were entitled to
recover only 75 per cent. and not the whole from Liverpool
Corporation. Liverpool Corporation appealed on the grounds
(1) that the judge had misdirected himself and was wrong in
holding that they were liable; (2) that there was no sufficient
evidence on which the judge was entitled to find that the escape
of gas from the gas board's pipes was caused by a withdrawal of
support from the pipes, resulting in their breaking, which with-
drawal of support was caused by the action of water leaking
from the corporation's water mains; (3) that the judge was wrong
in law in holding that the corporation were absolutely liable with-
out proof of negligence for the leakage of water, which resulted in
the escape of gas, which exploded' and injured the plaintiffs, and
caused them loss and damage; (4) that on the evidence the judge
ought to have found that the corporation was entitled as against
the gas board to an indemnity at common law or, alternatively,
to a 100 per cent. contribution under the Law Reform (Married
Women and Tortfeasors) Act, 1935, or in the further alternative
to a contribution in excess of 25 per cent.
The plaintiffs issued respondent's notices whereby they con-
tended (1) that the judge's judgment against the gas board should
be affirmed, on the ground, additional to those set out in the
judgment, that the gas board were in breach of the duty owed by
2 Q.B. QUEEN: S BENCH DIVISION. 817
them under the rule in Rylands v. Fletcher 5; and (2) that the C. A.
judgment against the Liverpool Corporation should be affirmed 1963
on the following grounds, additional to those in the judgment:
DUNNE
(1) That the judge should have held that the corporation were V.
liable in nuisance in causing or permitting a leak of water from NORTH

WESTERN
their water mains. (2) That the judge should have held that the GAS BOARD.
corporation were liable in nuisance in causing or permitting
the sewers to collapse. (3) That the judge should have held that
the corporation were liable in negligence and/or nuisance in that
there was a serious risk of the invasion of water into their sewer
from the soil above their sewer in view of the weight of their
water mains lying immediately on top of and against the gas
mains of the gas board which introduced a foreseeable risk against
which it was the duty of the corporation to make proper pro-
vision. (4) That the judge should have held that the corporation
took no proper precautions against the risks entailed by the
dangerous adjacence of their water mains as laid on the gas board's
gas mains and that they were in breach of their statutory obliga-
tions under section 42 of 7 & 8 George 4, c. xxxvi," in permitting
the said gas mains to be laid under and so close to the corporation's
water mains. (5) That the judge erred in giving leave to the
corporation, after the trial was closed except for judgment, to
amend their defence by withdrawing their admissions that they
were the local authority for the provision of water supplies by
virtue of Part IV of the Public Health Act, 1936, and substituting
therefor that at the material time and place they supplied water
pursuant to section 6 and Part IV of the Liverpool Corporation
Act, 1921. (6) That the judge should have held the corporation
liable for a breach of section 23 of the Public Health Act, 1936.
(7) That the judge should have held the corporation liable for
a breach of section 119 of the Public Health Act, 1936:
At the hearing before the Court of Appeal, the plaintiffs
ceased to rely upon the fourth ground given in their respondent's
notice for affirming the judgment against the corporation. They
also sought leave to amend the notice to allege negligence, but
were refused leave. The judge's findings of fact were not
disputed.
Andrew Rankin and E. Somerset Jones for the North 'Western
5 L.R. 3 H.L. 330. the County Palatine of Lancaster with

6 An Act to extend the powers of water, to Harrington and Toxteth
an Act of His present Majesty, for Park, in the said County.
supplying the Town of Liverpool in 27th May, 1827.
C. A. Gas Board. The pressure of gas maintained by the board was
1963 found by the judge at all times to be the correct one, and that
finding must be accepted. If the judge were right in law extra-
DUNNE
V. ordinary results would follow. Oharing Cross Electricity Supply
NORTH 00. v. Hydraulic Power 00.7 is distinguishable because the board
WESTER~
GAS BOARD. here were acting under a statutory power and performing a
statutory obligation (see Gas Act, 1948, s. 1 (1) (a)), whereas
in the Oharing Cross case 7 the powers concerned were permissive
only. The authorities were reviewed in Smeaton v. !lford Cor-
poration 8 and Upjohn J. there correctly stated the law. There
is no liability on the board for an escape of gas in the absence of
negligence, and negligence has not been established. Midwood if;
00. Ltd. v. Manchester Oorporation 9 is indistinguishable from the
Oharing Cross case,10 as Kennedy L.J. pointed out in the latter
case; but both cases are distinguishable from the present case,
the difference being that between " permissions and powers" and
"statutory duty." The judgments in the Court of Appeal in
Midwood's case 11 are, in fact, obiter because of the finding in
that case as to negligence; also, the defendants in that case were
a private body acting for profit.
In Hammond v. Vestry of St. PancraeJ? where the wording
of the relevant section was susceptible of meaning either that an
absolute duty was cast on the defendants or that they were merely
bound to exercise reasonable care, it was held that the benefit
of the doubt should be given to the statutory body. In Hanson
v. Wearmouth Ooal 00.13 the gas company had been guilty of
negligence and that fact, by itself, distinguishes it from this case.
One of the difficulties arising from the Oharing Cross case 14is to
understand the actual ground for the decision: it is submitted
that that case is distinguishable on the basis that in one case
there was a mere power, whereas in the other there was a duty;
if that submission be wrong, then the Oharing Oross case 14 must
be wrongly decided. In respect to an escape of gas, which they
are compelled to supply, a gas company would not be liable under
paragraph 42 of Schedule III to the Gas Act, 1948, unless they
were negligent: see per Upjohn J. in Smeaton v. !lford Corpora-
tion,15 and per Romer J. in Stretton's Derby Brewery Co. v.
7 [1914J 3 K.B. 772; 30 T.L.R. 11 [1905] 2 K.B. 597.

441, C.A. 12 (1874)L.R. 9 C.P. 316.
8 [1954J Ch. 450, 461; [1954J 2 13 (1939) 55 T.L.R. 747; [1939] 3
W.L.R. 668; [1954J 1 All E.R. 923. All E.R. 47, C.A.
9 [1905J 2 K.B. 597, C.A. 14 [1914J 3 K.B. 772.
10 [1914J 3 K.B. 772. 15 [1954J Ch. 450.
Mayor of Derbu,": See also Green v. Chelsea Waierioorks C. A.

CO.11
1963
A second question in this case is whether the gas board caused
DUN~E
the nuisance in any event. The judge found that the "sole r,
" cause" of what occurred was what took place underground, NORTH
WESTER~
and in this the gas board played no part either of commission or GAS BOARD.
omission. It could not be said that the causa causans was the
presence of the gas in the pipes-it had to be there, and at
pressure, and if it escaped through no fault of the board its
escape could not be said to have been " caused" by the board.
The fracture of the gas pipe was due to the subsidence of the
soil. If the judge is right most extraordinary results would
follow-if, e.g., a corporation workman were to put a pick through
a gas pipe, the gas board would, on the judge's ruling, be liable.
The liability would be even stricter than that in Rylands v.
Fletcher 1S because there are defences which can be pleaded
against that liability. Here the board did not "cause" the
nuisance, if any; a gas board cannot properly be said to have
caused a nuisance by escape of gas if such escape occurs without
negligence.
Glyn Burrell Q.C. and I. H. Morris Jones for the Liverpool
Corporation. The private Acts of the Liverpool Corporation,
whether mandatory or permissive, afford protection to the cor-
poration against liability under the rule in Rylands v. Fleicher+"
To show that the corporation was acting under the mandatory
provisions of those private Acts it would have been necessary
to show a demand by a sufficient number of ratepayers at the
material times in the last century and an agreement by them to
pay one-tenth of the cost of the works and to take a supply of
water for three years or more, and here in 1956 it was found
impossible to prove the cost of the works, etc., to show that it
was the mandatory provisions which applied. The gas board can
rely upon a mandatory duty, albeit one coupled with a " nuisance
" clause." It has been held that in the case of a mandatory
duty the presence or absence of such a clause is immaterial and
that where there is a mandatory duty the undertakers get
immunity to cover the required or incidental acts. But the
corporation can only set up their permissive powers. The Liver-
pool Corporation Waterworks Act, 1847, by section 45, incorporates
the Waterworks Clauses Act, 1847, and under section 27 of that
16 [1894] 1 Ch. 43l. 18 L.R. 3 H.L. 330.

17 (1894) 70 L.T. 547; 10 T.L.R.
259, C.A.
822 QUEEN'S BENCH DIVISION. [1964]
C. A. this fact is as fundamental as the unaccountable omission of
1963 Lord Sumner to appreciate that in iVlidwood's case 31 there was
a finding of negligence. The point on which the Charing Oross
DUK:"E
V. case 38 is commonly regarded as an authority is not on the
~ORTH standard of the duty owed, but on the point that the rule in
"\VESTERN
GAS BOARD. Rylands v. Fletcher 39 applies not only to adjoining landowners
but also to adjoining undertakers.
Section 7 of the Reservoirs (Safety Provisions) Act, 1930,
lays down that where damage is caused by the escape of water
from a reservoir constructed after the commencement of the Act,
the fact that it was so constructed shall not exonerate the under-
takers from any liability there would otherwise have been. This
sort of provision, however, has not been extended to anything
but reservoirs. There is no liability for the non-negligent escape
of water from pipes in the absence of nuisance. If the corporation
is held liable it will be the first case where a water undertaker
has been held liable without negligence. As a last resort, were it
necessary so to do, it would be submitted that Rylands v.
Fletcher 39 does not apply to local authorities. If Parliament
gives power for a thing to be done, Rylands v. Fletcher 39 does
not apply except where there is a clause retaining liability in
nuisance. (See per Lord Blackburn in Geddis v. Proprietors of
Bann Reservoir.40)
Edward Wooll Q.C. and Henry L. Lacks for the plaintiffs.
Accepting the judge's findings of fact does not involve acquiescence
in the inferences which he drew from those facts. The facts here
are vital. It is not conducive to the good name of English law
that after seven years the plaintiffs have not received any dam-
ages-assuming that they are ultimately successful-though the
hearing of evidence ended in March, 1960. It was undoubtedly
water escaping from the mains which led to the soil beneath the
gas and water mains being washed away, which in turn caused
the gas main to crack and allowed about 500,000 cubic feet of
gas to escape into the sewers. The ignition of the resulting
explosive mixture of gas and air was a reasonably foreseeable
incident, the least spark from a pedestrian's shoe being enough
to set it off.
The judge was wrong in holding that there was no negligence.
The onus of proof as to absence of negligence rests on the defen-
dants in this type of case, where the happening of the explosions
31 [1905] 2 K.B. 597. 39 L.R. 3 H.L. 330.

38 [1914] 3 R.B. 772. 40 (1878) 3 App.Cas. 430, 455.
s itself evidence of negligence, and where res ipsa loquitur has C. A.

neen pleaded. The judge failed to deal with this contention. 1963
~t the trial the corporation would not admit that the letter of
DUNNE
September 10, 1956, written by the town clerk to the general e.
manager of the gas board was an admission of liability, admitting NORTH
·WESTERN
~s it did that the explosions occurred because of a burst water GAS BOARD.
main, and that in the circumstances claimants should communi-
iate with the corporation. It is the duty of the corporation to
explain the cracks which appeared in their pipes. The doctrine
)f res ipsa loquitur applies because the matter was entirely under
;heir control. See Moore v. R. Fox &; SonsY
[SELLERSL.J. The last passage in the headnote would appear
lo rule you out.]
Rylands v. Fletcher 42 is only directly applicable to the gas
board. It was argued in Perro v. Kendricks Transport LtdY
,hat the doctrine of Rylands v. Fletcher 44 did not apply to per-
sonal injuries, but the case was decided on the assumption that
It did. See also M1lsgrove v. Pandelis 45 and Read v. J. Lyons &;
Co. Ltd. ,46 which show that for the rule to apply there must be
sn escape of something dangerous from the defendants' land
which is being put to a "non-natural" user. Here the user
was certainly not natural, but it is doubtful how far the doctrine
.s applicable. It is a difficult burden to justify the decision of
Rylands v. Fletcher 47 and its principle of absolute liability.
Charing Cross Electricity Supply Co. v. Hydraulic Power CO.48
and Midwood &; Co. Ltd. v. Manchester Corporation 49 are both
admittedly cases where there was a power rather than a duty.
[Leave to amend the notice of appeal to allege negligence was
then sought.]
[SELLERS L.J. We do not think that we should allow an
amendment, but the claim in negligence must be limited to the
plaintiffs' third ground of appeal against the corporation.
Argument must be tied down to the facts as found by the judge.]
As to Rylands v. FletoherF" it is submitted that the doctrine
Ices extend to personal injuries, and that while it does not prima
facie extend to consequences solely attributable to a third party,
41 [1956] 1 Q.B. 596; [1956] 2 45 [1919J 2 K.B. 43; 35 T.L.R.

W.L.R. 342; .[1956] 1 All E.R. 182, 299, C.A.
J.A. 46 [1947J A.C. 156; 62 T.L.R.
42 L.R. 3 H.L. 330. 646; [1946J 2 All E.R. 471, H.L. (E.).
43 [1956] 1. \V.L.R. 85, 90; [1956J 47 L.R. 3 H.L. 330.
l All E.R. 154. 159, C.A. 48 [1914J 3 K.B. 772.
44 L.R. 3 H.L. 330. 49 [1905J 2 K.B. 597.
50 L.R. 3 H.L. 330.
C. A. it does so extend where those consequences could be reasonably
1963 foreseen. See Nichols v . Maisland 51; Rickards v. Lothian 52;
North Western Utilities Ltd. v. London Guarantee and Accident
DUNNE
V. Co. 53; Hanson v. Wearmouth Coal Co. 54 and Dominion Natural
NORTH Gas Co. v. Collins and Perkins,": It is not admitted that any
WESTERN
GAS BOARD. facts have been proved which exempt either defendant from
liability under Rylands v. Fleicher+" Here there was an unnatural
user of land and the defendants who occupied the land under
licence failed to keep in a dangerous commodity which they had
accumulated there.
As to nuisance, both defendants have, it is submitted, been
found liable on different grounds. The position of the gas board
would seem to be governed by the Gas Act, 1948, Sch. III, para.
42, which enacts that nothing shall exonerate an area board for
nuisance caused by them. The board contends that the nuisance
was not" caused" by them, but if that is so, who did" cause"
it? Unless it is to be held that the escape was exclusively
attributable to the action or inaction of the corporation, the board
must be liable, at least, contributorily.
[SELLERSL.J. If a workman put a pick through the gas pipe,
who do you say caused the escape?]
The act would be that of a stranger-the man with the pick-
and it would be unreasonable to hold the gas board liable pro-
vided that they acted promptly in shutting off the supply of gas.
[SELLERSL.J. I would say that that was right, but if the
gas pipes here collapsed because of the cavity, is that not
similar?]
Very; if in fact the gas board was not to blame for the collapse
it is hard to see how they can be liable in nuisance. Considering
nuisance generally, a defendant is not liable for a nuisance which
is the inevitable consequence of that which is authorised by
statute, but it must be inevitable. If the escape were due to the
faulty laying of the gas mains different considerations might apply.
The gas board might still be liable under Rylands v. Fleicher+"
though not in nuisance, since they have accumulated a dangerous
thing in their pipes, but unless one is prepared to argue that the
gas main ought to remain strong enough to do without subjacent
51 (1876) 2 Ex.D. 1; affirming 54 (1939) 55 T.L.R. 747; [1939] 3

(1875) L.R. 10 Ex. 255. All E.R. 47, C.A.
52 [1913] A.C. 263; 29 T.L.R. 281, 55 [1909] A.C. 640; 25 T.L.R. 831,
P.C. P.C.
53 [1936] A.C. 108; 52 T.L.R. 93, 56 L.R. 3 H.L. 330.
P.C.
~ Q.B. QUEEN'S BENCH DIVISION. 825
.upport, it must be conceded that Rylands v. Fletcher 56 would C. A.

iot appear to apply to this case. 1963
As to the corporation, by section 86 of the Liverpool Corpora-
DUNNE
don Act, 1921, the corporation shall not create or permit the 1>.
sreation or continuance of any nuisance. In Midw"Ood &; Co. Ltd. NORTH
WESTERN
r, Manchester Corporation+' though the defendants were a public GAB BOARD.
mdertaking empowered to lay electricity cables, they were held
iable in nuisance apart from any question of negligence. That
:ase was followed in Charing Cross Electricity Supply Co. v.
'{ydraulic Power Co. 58 Both cases were correctly decided and
rupport the plaintiffs' case. The latter case shows that the cor-
)oration , in addition to liability under the rule in Rylands v.
"'letcher,59 are also liable in nuisance.
Rankin in reply. The rule in Rylands v. Fletcher 59 was dis-
russed and extended in Nichols v. Marsland. 60 But see Salmond
m Torts, 13th ed., p. 575. To establish liability under the rule
me must show ,(a) that something has been brought onto the
and for the defendant's" own purposes" and (b) that the user
~fthe land is a " non-natural user." The liability under the rule
n Rylands v. Fletcher 61 is really merely a special class of
iuisanee. See the argument of Sir Hartley Shawcross in Read
r. J. Lyons & Co. Ltd.62 It is nothing more than a set of cir-
sumstances enjoining a particular standard of care. It is difficult
;0 see how the gas board here can be said to have collected the
~as in the pipes for its .. own purposes." See North Western
Utilities Ltd. v. London Guaraniee and Accident Co., 63 Perry v.
Kendricks Transport Ltd., 64 Rickards v. Lothian,":
There is no liability on a gas board for an escape of gas
iccurring without the board's knowledge, consent or negligence:
ihat is, that the board knew or ought to have known of the escape
n time to correct it and avoid its mischievous effects. The gas
icard did not lay down the pipe that fractured, they were forced
)y nationalisation to take it over. They cannot be said on any
view to have caused any nuisance in respect of it.
It is submitted (1) that Rylands v. Fletcher 66 does not apply
.o gas undertakings and (2) that to establish nuisance the gas
ooard must be shown to have been negligent. See Price v.
56 L.R. 3 H.L. 330. 62 [1947] A.C. 156.

57 [1905] 2 K.B. 597. 63 [1936] A.C. 108.
58 [1914] 3 K.B. 772. 64 [1956] 1 W.L.R. 85.
59 L.R. 3 H.L. 330. 65 [1913] A.C. 263.
60 (1876) L.R. 2 Ex.D. l. 66 L.R. 3 H.L. 330.
61 L.R. 3 H.L. 330.
2 Q.B. 1964. 53 (1)
C. A. South M eiropoliiasi Gas 61 and the arguments of Sir Edward
1963 Clarke Q.C. in that case. Effect must be given to paragraph 42
of Schedule 3 to the Gas Act, 1948, but only subject to the
DUNNE
V. existing law, and account must therefore be taken of Price' s
NORTH 'case 61 which was part of that existing law. It is hard to believe
WESTERN
GAS BOARD. that Parliament meant to render gas undertakings liable in
nuisance if they acted properly in performance of their duty.
See Hammond v. VestTy of St. Pancrae+" pel' Brett M.B.
Miduiood'« case 69 presents the only difficulty, but that case is
distinguishable; Mr. Lachs, for the plaintiffs, said that that was
a case where permissive powers were granted, but it is submitted
that a close study of Midwood's case 69 shows that the statute
was a mixed one, both giving powers and imposing duties. Thete
was no obligation to lay the electric cable, but once it was done
certain obligations arose. Midwood's case 69 ·was not one of
nuisance in the discharge of a duty,' but of negligence in the
exercise of a power-the damage flowed from the negligent
system employed. See also Robinson-Scott v. Robinson-Scott 10
which shows that a case may be decided on two grounds, without

either being obiter. The Reservoir Safety Provisions Act, 1930,
and the Nuclear Installations Act, 1959, both impose liabilities,
with no defence to Rylands v. Fletcher 71 liability, but this is a
different class of case.
The corporation is liable in nuisance, not on account of the
burst water main but in laying the main where they did on top
of the gas main. (Compare the Public Utilities Street Works
Act, 1950.) Mr. Glyn Burrell's argument was that bursts were
inevitable from time to time. When, therefore, the water mains
were laid in 1886 they must have known that if a burst occurred
it might undermine the support for the gas main, thus creating
a situation of danger of which they knew or ought to have known.
The judge says it was foreseeable and it is submitted, therefore,
that the laying of the water main gave rise to a nuisance that
manifested itself in 1956. The corporation would be liable
whether or not there were a " nuisance clause" in the Act under
which they were acting. The fact that they may have been under
a statutory duty to put the pipes in may be a defence to liability
under the rule in Rylands v. Fletcher 11 but not in nuisance.
67 (1895) 65 L.J.Q.B. 126; 12 70 [1958] P. 71; [1957] 3 W.L.R.

T.L.R. 31, D.C. 842; [1957] 3 All E.R. 473.
68 (1874) L.R. 9 C.P. 316. 71 L.R. 3 H.L. 330.
69 [1905] 2 K.B. 597.
Nuisance is not an isolated act. In Bolton v. Stone 72 liability C. A.

did hot arise from the isolated fact that a cricket ball chanced to 1963
hit someone in the street; it arose from the practice of carrying
DUNNE
on the game of cricket in close proximity to the road. Similarly, V.
in Read v. J. Lyons &; Co. Ltd.73 the liability did not arise from NORTH
WESTERN
the isolated explosion but from the carrying on of a dangerous GAS BOARD.
activity. Here the corporation's liability should rest on their
action in laying the mains in such a way as to give rise to potential
danger, because burst mains were known to be inevitable.
[Section 86 of the Liverpool Corporation Act, 1921, was also
referred to.]
Glyn Burrell Q.C. in reply. Mr. Rankin's argument depends
upon the fallacy that burst pipes are commonly foreseeable. It
would be almost impossible to prevent the various pub1ic services
coming together at various places.
SELLERSL.J. This is the judgment of the court.

This is an appeal from a judgment of the presiding judge of
the Liverpool Court of Passage in consolidated actions arising out
of a number of separate but almost concurrent explosions of
coal gas in some neighbouring streets of Liverpool on the evening
of July 9, 1956.
Both the defendants, the North Western Gas Board as gas
undertakers and the Liverpool Corporation as water undertakers,
have been held liable without proof of negligence on the part of
either of them. The injuries sustained and, consequently, the
damages are relatively slight, but the decision holding them liable
is said to be of general importance to the two defendants, and
the litigation has been prolonged over the intervening years,
during which the plaintiffs' claims have been strenuously but, it
is to be regretted, not speedily contested.
The plaintiff Maureen Dunne, a girl of 16, was cycling along
Vauxhall Road when an explosion blew her off her bicycle. The
plaintiffs Mr. and Mrs. Lambert were injured in or about their
home, 262, Hornby Street, and some damage was done in part
by a flying manhole cover. The plaintiffs Anthony and Margaret
Doyle, young children, were injured by explosions whilst playing
in Vescock Street.
72 [1951] A.C. 850; [1951] 1 73 [1947] A.C. 156.

T .L.R. 977; [1951] 1 All E.R. 1078,
H.L.
2 Q.B. 1964. 53 (2)
c. A. Apart from one contention which can conveniently be dealt
1963 with separately and later in this judgment, the judge's findings
of fact and his conclusions that no negligence had been established
DUNNE
v. against either defendant have not been challenged before this
NORTH
WESTERN
court. The facts so found therefore stand and we restate them
GAS BOARD. briefly before considering their effect in law on the respective
defendants' liability to the plaintiffs.
The explosions which caused these accidents arose from gas
which had escaped from a gas main and travelled along a sewer
becoming mixed with air and so becoming highly inflammable
and explosive. How exactly the gas had come to be ignited was
not established but it was accepted that a stray match or cigarette
or a spark from a boot would be enough and would be a probable
cause of an initial ignition, which might well be carried to ignite
other concentrations of gas and air. The question for inquiry was
how the gas escaped in this way.
'I'he area affected was about 250 yards by 350 yards of a
built-up housing and industrial district to the east of Vauxhall
Road. There were some 46 explosions, of which 21 occurred at
manhole points of the sewer system and caused a crater, and of
which the remaining 25 caused no crater but blew the manhole
covers into the air.
Investigation disclosed that gas had escaped from a broken
twelve-inch gas main below ground at the junction of Vauxhall
Road and Ashfield Street where the road surface .was intact but
where there was concealed a large crater not caused by an
explosion.
Some seven feet below Vauxhall Road lies an egg-shaped
brick sewer four ft. six ins. by three ft. six ins., and at the junction
of Ashfield Street a similarly constructed sewer three ft. eleven
ins. by two ft. six ins. running down Ashfield Street, with a fall
towards Vauxhall Road, enters the larger sewer on a slight curve
towards the north. These sewers, built and controlled by the
Liverpool Corporation under statutory powers, are known to have
been in existence over 100 years, and it would seem that the road
surface had been built up above them so that the crown of the
sewer was further below the surface than when originally built.
No complaint is now made in respect of the sewer and no more
detailed description of it or the sewer system is necessary although
it played its part in the sequence of events as found by the judge.
In 1873 a gas main twelve inches in diameter had been laid
along Vauxhall Road crossing at right-angles the Ashfield Street C. A.

sewer and about three feet above it. A four-inch pipe led off this to 1963
supply Ashfield Street. The pipe line had served the 80 years
DUNNE
without renewal and was not shown to have been defective before v.
it broke in the circumstances which arose. The gas was at the NORTH
WESTERN
pressure required by statutory regulations, and the gas board's GAS BOARD.
system of inspection and maintenance were not found to be at
fault.
In 1886 the corporation laid a water main along Vauxhall Road
in a ten-inch diameter cast-iron pipe line and from this was a pipe
line serving Ashfield Street. This pipe crossed above the gas
main at right-angles and in the findings of the judge " was lying
.. on top of it and probably directly against it though there may
.. have been some small amount of earth between the pipes."
'I'here was thus proximity of the three services, which, as the
judgment points out, is necessary in all closely inhabited indus-
trial areas and, it might be said, generally desirable from several
points of view.
The sequence of events which the judge found as the most
probable, and which this court must accept, is that in the vicinity
of the junction in question two adjacent lengths (of nine feet
each) of the water main in Vauxhall Road had cracked or burst
over a length of eight feet in one and five feet in the other, water
had escaped in a quantity and for a duration of time sufficient to
enable it to percolate down through the hard earth, which covered
and to some extent strengthened the sewer, so that it removed or
weakened the surrounding and supporting earth and attacked the
bricks and the mortar and brought about a collapse of the sewer.
The initial collapse of the sewer was probably increased by the
water carrying earth into the sewer and this resulted in a large
quantity of the earth being lost down the sewer leaving a large
cavity. The gas main became suspended and unsupported in
this cavity and as a consequence broke and released a large
quantity of gas under pressure. The gas found its way along the
sewer system to the points where explosions occurred.
The judge concludes his investigation of the facts by saying :
" I am satisfied that the bursting of the second defendants' pipes
.. [that is, the water pipes] was the sole and effective cause of
" these accidents and that the sewer and gas pipes were at the
" outset in proper and adequate condition"; and he adds that in
view of his findings both defendants succeed on the issue of
negligence in respect of the execution of their duties as gas
authority, water authority and sewer authority.
330 Q<UE1l:N'S BENCH Orv1SHlN. [1964J 2
c. A. The judgment then proceed's to find' no breach of statutory
1963 duty on the part of either defendant. It exonerates the gas board
from a liability under Ry~ands v. Fietcker 1 but finds them liable re
DUNNE
11. in nuisance. The corporation as water undertakers are found h.
Jl./ORTH liable under Ry~ands v. Ftetcher 1 but Bot liable for nuisance.
WIIST!mN
GAS BOARD. Before this court both defendants admit that there would have fi
been liability if negligence had been established, but both assert CI
that there is no liability on the facts as found in the judgment or t
otherwise. d
The plaintiffs by a cross-notice seek to uphold the judgment tl
in their favour on the ground that the gas board were in breach b
of duty owed by them under the rule in Rylands v. Fletcher 1
and that the corporation were liable also in nuisance in causing u
or permitting a leakage of water from their mains. The allega- f~
tions of the corporation's alleged breaches of statutory duty were tl
not pressed before us.
Before dealing with the respective contentions on these issues
which were advanced with sustained and skilful argument by the
counsel who addressed us, it is convenient to deal with the plain-
tiffs' third ground of cross-appeal, which received some support
in argument from counsel for the gas board. It alleges negligence
in the corporation which, if established, would unquestionably
leave the corporation liable.
The argument was that the corporation were negligent or
liable in nuisance in laying the water pipes where they did in
1886 and in retaining them in that position because it was known
that water pipes may leak notwithstanding reasonable care being
1
t
taken and therefore it was foreseeable, with ordinary care, that o
water might penetrate down to a sewer and create a cavity and n
take away the support of the gas main, as it did here in fact, ·with
the probable consequences which ensued in this case. The
submission was that the water pipes were placed in too close
proximity to the gas main and should have been placed far
enough away to make it unlikely instead of probable that such an
occurrence would take place.
The evidence was that a leakage of water would normally
reveal itself by a wet surface above it and, without any lack of
care in this case, none was observed, and such a symptom may
not have occurred. The judgment finds that such an accident
" would have been very difficult to foresee and would have had
"little weight in the balance of judgment of an engineer in
1 (868) L.R. 3 H.L. 330.

.,
"deciding whether a special system of inspection should be c. A.

.. devised at points of such proximity." Similarly, we think, in 1963
regard to the initial lay-out. Over the many years this seems to
DUNNE
have been a unique occurrence. v.
We see no reason, on this ground, for departing from the NORTH
WBSTBRN
findings of the judgment of no negligence on the part of the GAS BOARD.
corporation, and in themselves the pipes with the water within
them were not a nuisance. The liability, if any, of either of the
defendants must therefore be established on some ground other
than negligence and on the basis that their lay-out was not a
breach of duty.
Both of the defendants carry out their relevant undertakings
under statutory authority, with a distinction between them Ui:l
far as this case is concerned. The North Western Gas Board, as
the successors of the Liverpool Gas Co., are the statutory
authority responsible for the supply of gas in this area and their
acts relevant to this case were enforced by statutory obligation
or duty. The Liverpool Corporation are the statutory authority
responsible for both the sewers and the water supply and ill
respect of water they acted under permissive powers only. In
some circumstances statutory provisions could make the supply
of water compulsory but the corporation were not able to prove
that this had been the case in this area, the evidence being in the
distant past, though it may well have been so.
But clearly in so far as gas and water were brought into this
locality they were so brought under statutory authority and for
the general benefit of the public for whom such facilities were
obviously provided. They escaped and did damage without any
negligence on the part of the defendants or of anyone else. It is
not a case of an independent contractor having been negligent, as
was the case in Rylands v. Fleiclier," which brought about a
decision in wide terms imposing liability on a landowner for things
which escaped from his land, whereas in the present time the
defendants' liability in that case could simply have been based on
the defendants' failure of duty to take reasonable care to protect
the adjacent mines which were known to be there or which ought
to have been discovered with reasonable care, and in respect of
such a duty it is no answer to say that the failure was that of an
independent contractor. The water in that case escaped through
negligence and the occupier's duty to his neighbour was not
performed.
2 L.R. 3 H.L. 330.

---- _ -.-------
..

C. A. The present case is therefore on its facts different : from
1963 Rylands v. Fletcher 2 in that respect, and in all the circumstances
it scarcely seems accurate to hold that this nationalised industry
DUNNE
tJ. collects and distributes gas for its" own purposes."
NORTH Gas, water and also electricity services are well-nigh a
WESTBRN
GAS BOARD. necessity of modern life, or at least are generally demanded as
a requirement for the common good, and one or more are being
taken with considerable despatch to every village and hamlet in
the country with either statutory compulsion or sanction. It
would seem odd that facilities so much sought after by the com-
munity and approved by their legislators should be actionable at
common law because they have been brought to the places where
they are required and have escaped without negligence by an
unfore~een sequence of mishaps. A sequence of events may be
just as unforeseeable and unavoidable, and as extraneous to an
individual or a supplier of services, as an act of God is recognised
to be.
In the course of the sustained arguments of counsel we have
been referred to a large number of authorities and it is necessary
that reference should be made to some of these decisions, although
all are decided on different facts and in different circumstances.
It was not in dispute that the gas board were under mandatory
powers to supply gas and, by section 1 (1) (a) of the Gas Act,
1948, " . . . to develop and maintain an efficient, co-ordinated
"and economical system of gas supply for their area and to
"satisfy, so far as it is economical to do. so, all reasonable
" demands for gas within their area: " and that the gas supplied
in the area under consideration was supplied under statutory
obligation, including the pressure at which it was supplied, and
we do not further refer to the establishment and general obliga-
tions of this undertaking nationalised by the Act of 1948.
By the Third Schedule of the Act power is given to break up
streets for .the purpose of supplying gas, and owners and occupiers
of premises have the right to demand supply. within the pro-
visions and limitations of the Schedule. We quote two para-
graphs of this Schedule. Paragraph 33: "Where any gas escapes
" from any pipe of an area board, they shall, immediately after
" receiving notice thereof in writing, prevent the gas from escap-
" ing, and if they fail within twenty-four hours from the service
" of the notice effectually to prevent the gas from escaping, they
" shall be liable, on summary conviction, to a fine not exceeding
2 L.R. 3 H.L. 330.

QUEEN'S BENCH DIVISION. 833
.. five pounds for each day during which the gas continues to C. A .
"escape after the expiration of the said twenty-four hours." 1963
Paragraph 42: .. Nothing in this Act shall exonerate an area
DUNNE
" board from any indictment. action, or other proceeding for any V.
" nuisance caused by them." Paragraph 33 contemplates that NORTH
WESTERN
gas may from time to time escape and no breach of the gas GAS BOARD.
board's obligation in that event has been established. They acted
promptly and efficiently as soon as they knew.
The position, therefore, is that the gas board did what the
statute imposed upon it, without negligence and, as an incident
of their statutory operations, it had been recognised that gas
might escape. We would therefore hold, as the judge has done,
that the gas board cannot be liable on a strict liability under the
Rylands v. Fletcher 3 rule, but we would go further and say that
they cannot be .held liable in nuisance either for the same reason.
No breach of duty in these circumstances has been established.
Further, we have already cited the judge's finding that the
sole and effective cause of the accidents was the bursting of the
corporation water pipes, with which the gas board had nothing to ,
do, and this finding, which seems wholly acceptable, would itself
exonerate the gas board from liability.
These conclusions seem to us to be supported by authority,
including Cl-z,aring Cross Electricity Supply Co. v. Hydraulic
Power CO.4 (where Lord Sumner presided in the Court of Appeal),
on which the judge relied to the contrary effect.
Green v. Chelsea Waterworks CO.5 was a case of a burst water
main, and the judgment of this court, pronounced by Lindley
L.J., exonerated the water company, who had statutory obliga-
tions. If Lord Sumner was right in finding a fundamental dis-
tinction in the Charing Cross case," it was a clear distinction in
favour of the gas board, for he pointed out that in Green 'v .
Chelsea Waterworks CO.7 there was an obligation to supply water
to the public whereas in the Charing Cross case 8 there was only
power. Lord Sumner stated the principle," .•.... if the legis-
"lature has directed and required the undertaker to do that
" which caused the damage, his liability must rest upon negligence
.. in his way of doing it and not upon the act. itself." Lord
3 L.R. 3 H.L. 330. 6 [1914] 3 K.B. 772, C.A.

4 [1914] 3K.B. 772; 30 T.L.R. 7 70 L. T. 547, C.A.
HI, C.A. 8 [1914] 3 K.B. 772, C.A.
s (1894) 70 L.T. 547; 10 T.L.R. 9 Ibid. 781.
259, C.A.
C. A. Sumner then referred 10 to a clause not exempting the defendants
1963 in that case from liability for nuisance.
In the light of that, Upjohn J., considering the case in
DUNNE
fl. Smeaton v. Illord Corporation, II regarded the terms of Lindley
NORTH L.J. 's statement of the law in the Chelsea Waterworks case 12 as
WESTERN
GAS BOARD. too wide, and added.P " It was really a case where the inevitable
" result of carrying out the statutory duty would result in damage
" from time to time and so by necessary implication the statute
., excused the company from liability where there was no negli-
., gence upon the principle exemplified in Metropolitan Asylum
" District Managers v. Hill,":" It is not easy to contemplate
a case where the inevitable result of doing what a statute required
would result in damage except directly to property' interfered
with, but it could be contemplated, as here, that the result might
do so. Gas, water and electricity all are capable of doing damage,
and a strict or absolute liability for any damage done by them
would make the undertakers of these services insurers.
In Smeaton v. Illord Corporaiion;": a case concerning a sewer
which discharged its sewage from time to time, Upjohn J.
reviewed helpfully, in our view, many of the authorities referred
to in the present argument. In considering the words "not to
"create a nuisance" in section 31 of the Public Health Act,
1936, the judge said 16: " ••• it must be taken as settled that
" the proper construction to be given to the section is to exclude
" liability for escapes in the absence of negligence and, therefore,
" to negative the rule in Rylands v. Fletcher 17: see Hammond
•• v. Vestry 01 St. Pancras 18 "; and he quotes Romer J. in
Strettcn'e Derby Brewery 00. v. Mayor 01 Derby,19 dealing with
section 19 of the Public Health Act, 1875, which provided that
sewers should be kept so as not to be a nuisance, as follows 20:
". . . it has long since been held-c-and I take it to be now
"settled-that by reasonable construction of an Act such as
" this the liability in circumstances like the present, though not
" in form limited, is in fact limited to cases where the public
" authority has been guilty of negligence, or, as it is sometimes
" expressed, of want of reasonable care and diligence."
10 [1914] 3 KB. 772, 782. 15 [1954] Ch. 450.

II [1954] Ch. 450, 477; [1954] 2 16 Ibid. 477.
W.L.R. 668, 685; [1954] 1 All E.R. 17 L.R. 3 H.L. 330.
923, 936. 18 (1874) L.R. 9 C.P. 316.
12 70 L.T. 547, C.A. 19 [1894] 1 Ch. 431.
13 [1954] Ch. 450, 477. 20 [1954] Ch. 450, 477.
14 (1881) 6 App.Cas. 193, H.L.
We agree. Where there is a mandatory obligation with a

saving or nuisance clause, as here, or without one as in the 1963
Chelsea Waterworks. case.:" there would be, in our opinion, no
DUNNE
liability if what had been done was that which was expressly V.
NORTH
required by statute to be done or was reasonably incidental to WESTERN
that requirement and was done without negligence. GAS BOARD.
This it would seem would have been the view of the trial
judge had it not been for Lord Sumner's judgment in the
Charing Cross case,22 but with respect we do not think that the
decision affected this case. The defendants, the hydraulic com-
pany, had permissive and not mandatory powers; and, further,
on causation the judge had already found here that the leakage of
the water was the sole and effective cause of the accident.
In Hanson v. Wearmouth Coai CO.23Lord Goddard, delivering
the judgment of the Court of Appeal, referred to the Charing
Cross caseY' He said 25: "We read his [the trial judge's] judg-
" ment as meaning that, even if the coal company had tortiously
"interfered with and broken the main, that case showed that
" the escape of gas must be regarded as proximately caused by
"the pressure which the gas company maintained in the pipe
" and not by the fracture. We do not think that the court was
" there laying down any such doctrine, which would certainly
"appear to have startling results. We think that the court
"meant no more than that the nuisance which resulted from
"the fracture in that case was the escape of water at high
"pressure, and that, as the hydraulic company maintained this
"pressure, they were responsible for the resulting nuisance.
"They had not in mind the possible liability of another party
" who, by a tortious act, enabled the water to escape." .
Whether the bursting of .~he water pipes was tortious or not-
it certainly was not malicious-it was an occurrence completely
beyond the control of the gas board, and it was that event which
imposed itself on the gas board's gas supply system carried out
under statutory obligation in that area and which was the cause
of the accident to the various plaintiffs. (See the observations of
Jenkins L.J. in Perry v. Kendricks Transport Ltd.26)
Before us, Midwood & Co. Ltd. v. Manchester Corporaiion,"
21 70 L.T.547, C.A. 25 55 T.L.R. 747,749, C.A.

22 [1914J 3 K.B. 772, C.A. 26 [1956J 1 W.L.R. 85, 90; [1956]
23 (1939) 55 T.L.R. 747: [1939] 3 1 All E.R. 154, 159, C.A.
All E.R. 47, C.A. 27 [1905J 2 K.B. 597, C.A.
24 [1914J 3 K.B. 772, C.A.
c. A. a decision of the Court of Appeal, was strongly relied on by the
1963 plaintiffs, but we are of opinion when its facts are understood
that it is clearly distinguishable from the present case. There
DUNNE
e. an electric main had been laid in bitumen and when the main
NORTH fused the bitumen became volatilised into an inflammable gas
WESTERN
GAS BOARD. which accumulated for some time and then exploded, causing a
fire by which the plaintiffs' goods were damaged. A clause in
the statute authorising the supply of electrical energy in the
defendants' district stipulated that nothing therein contained
should exonerate them from any indictment, action or other pro·
ceeding for nuisance in the event of any nuisance being caused
by them. The corporation were held liable apart from negligence
on the ground of nuisance, although in fact there was also a
finding of negligence. The corporation were given permissive
powers, and in certain circumstances the corporation might be
under obligation to owners or occupiers of premises to supply
electricity from a main, but nowhere did the statute require the
main to be laid in bitumen and it was the burning of the bitumen
and the gas which it gave off which caused the explosion and
created the nuisance. The use of bitumen was not necessarily
incidental to the laying of an electric main and since electric
mains may fuse it was an unsuitable as well as an unnecessary
material to use and there was no statutory protection. No such
circumstance is to be found in the present case.
In our judgment no liability has been established against the
gas board.
With regard to the claim against the Liverpool Corporation,
there seems to have been some confusion at the trial as to what
statutory powers governed their operation concerning the supply
of water, but before us it was accepted that the relevant statute
was the Liverpool Corporation Waterworks Act, 1847, section 45
of which incorporates the Waterworks Clauses Act, 1847. See-
tion 27 of the latter Act is as follows: .. Nothing in this or the
.. special Act shall prevent the undertakers from being liable to
.. any action or other legal proceeding to which they would have
.. been liable for any damage or injury done or occasioned to any
.. mines by means or in consequence of the waterworks, in case
.. the same had not been constructed or maintained by virtue of
.. this Act or the special Act."
Section 86 of the Liverpool Corporation Act, 1921, was also
referred to, but the judge held, as we think rightly, that the
section does not make the corporation liable for causing or
creating a nuisance in the circumstances of the present case.
There is, therefore, no "nuisance section" to be considered in C. A.

the corporation's case, and although some of their water under- 1963
taking may have been carried out under statutory obligation the
DUNNE
present liability has to be assessed on the basis that they operated 11.
under permissive powers only. In this respect it resembles the NORTH

WESTERN
Charing Cross case 28 but differs materially from it in that in that GAS BOARD.
case there was a section retaining liability for nuisance and it

was submitted to us that in the absence of an express clause
preserving liability for nuisance there is no case where liability
has been placed upon a water undertaking, as here, without the
proof of negligence. \Ve find the Charing Cross case 28 not free
from difficulty. It is binding on us, but, as we think, is
distinguishable as we have indicated.
In the present case the water escaped, as far as can be ascer-
tained, into the corporation sewers and was carried away safely.
In its course down three or four feet it carried away the inter-
vening earth. It was not shown to whom this earth belonged.
The gas board laid no claim to it though they did aver that they
were entitled to its support or at least not to have it removed by
the flow of water of the corporation. The corporation did not
intentionally discharge the water in the manner in which it
entered the sewer, it was an escape. It is clear that water may
escape without negligence and as an incident of its provision in
pipes, for example by reason of frost Or at joints. In our opinion
the cases establish that in such circumstances a water authority
is not liable under the strict rule in Rylands v. Fletcher 29 or in
nuisance.
In Geddis v. Propriciors of Bann Reservoir 30 Lord Blackburn
said 31: "For I take it, without citing cases, that it is now
"thoroughly well established that no action will lie for doing
" that which the legislature has authorised, if it be done without
"negligence, although it does occasion damage to anyone; but
"an action does lie for doing that which the legislature has
" authorised , if it be done negligently. And I think that if by a
" reasonable exercise of the powers, either given by statute to
" the promoters, or which they have at common law, the damage
" could be prevented it is, within this rule, 'negligence' not to
" make such reasonable exercise of their powers. I do not thin k
" that it will be found that any of the cases (I do not cite them)
28 [1914] 3 K.B. 772, C.A. 30 (1878) 3 App.Cas. 430, R.L.

29 L.R. 3 R.L. 330. 31 Ibid. 455.
2 Q.B. 1964. 54
•
838 QUEEN'S BENCH DIVISION. '[1964J
C. A. are in conflict with that view of the law"; and Lord Hather-
1963 ley 32 distinguishes the Geddis case 33 from that of Crackneii v.
Thetford Corporaiion.t+ See also Harrison v. Southwark and
DUNNE
v. Vauxhall Water 00.35
NORTH o doubt because of Lord Sumner's judgment in the Oharing AG
'WESTERN
GAS BOARD. Cross case,36 the presiding judge attached importance to the
water being under pressure, but in this respect there was no
abnormal pressure, it was at the material time in accordance
with the corporation's statutory powers.
\Ve would therefore exonerate the Liverpool Corporation from
liability also, as negligence was not established against them.
Before concluding this judgment we should add that it was
desired by one or other of the defendants to keep open (a) the
question whether the Rylands v. Fletcher 37 doctrine can be
applied in the case of personal injuries and (b) whether it applies AC
to local authorities. There are, we think, to be found observa-
tions which might preclude this court from saying that the
doctrine 01' rule may not apply in both cases but in our view
the defendants are both entitled to succeed without pursuing
these more doubtful contentions.
We would allow both the appeals and enter judgment for each
of the defendants accordingly.
Appeals allowed.
A
Judgment entered fat both defendants. Nu
order as to costs in Court of Appeal savc
for taxation of respondent-plaintiffs'
costs under Schedule 3 to Legal Aid and
Advice Act.
Leave to appeal to House of Lords refused. B
Solicitors: Olifford Turner &; 000. for William Rudd, Freeman

&; Getley, Luierpool ; Cree, Godfrey &; Wood for T. Alker, Town
Clerk of Liverpool; Mawby, Barric &; Letts for Silverman, Liver.
more &; 00., Liverpool.
32 3 App.Cas. 430, 448, H.L. 35 [1891] 2 Ch. 409.

33 Ibid. 430. 36 [1914] 3 K.B. 772, C.A.
34 (1869) L.R. 4 C.P. 629. 37 L.R. 3 H.L. 330.
END OF VOLUME 2 AND OF QUEEN'S BENCH SERIES FOR 1964.

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806 QUEI!)N'S BENCH DIVISION.

C. A. DUNNE AKD ANOTHER v. NORTH WESTERN GAS BOARD

[1956 D. No. 848.]

Rylands v. Fletch~r-Statutory undertaker-Applicability of rule-Gas

On July 9, 1946, a number of explosions of coal gas took place at

(Reported by T. C. C. BARKwoRTH, Esq., Barrister-at-Law.]

ApPEAL from G. Glynn Blackledge, Esq., Q.C., presiding

As a result of the explosions several people received relatively C. A.

subsequently broke up the defective gas mains with sledge. O. A.

hammers in the process of clearing up the cavity. 1963

1 (1868)L.R. 3 H.L. sac.

the sewers, drains or water mains constituted a nuisance, such NORTH

"why, in the absence of an explosion at the site, I should infer C. A.

2 r.a. 3 H.L. 330. ~ L.R. 3 H.L. 330.

liable in nuisance in causing or permitting a leak of water from NORTH

Andrew Rankin and E. Somerset Jones for the North 'Western

5 L.R. 3 H.L. 330. the County Palatine of Lancaster with

7 [1914J 3 K.B. 772; 30 T.L.R. 11 [1905] 2 K.B. 597.

Mayor of Derbu,": See also Green v. Chelsea Waierioorks C. A.

16 [1894] 1 Ch. 43l. 18 L.R. 3 H.L. 330.

31 [1905] 2 K.B. 597. 39 L.R. 3 H.L. 330.

s itself evidence of negligence, and where res ipsa loquitur has C. A.

41 [1956] 1 Q.B. 596; [1956] 2 45 [1919J 2 K.B. 43; 35 T.L.R.

51 (1876) 2 Ex.D. 1; affirming 54 (1939) 55 T.L.R. 747; [1939] 3

.upport, it must be conceded that Rylands v. Fletcher 56 would C. A.

56 L.R. 3 H.L. 330. 62 [1947] A.C. 156.

which shows that a case may be decided on two grounds, without

67 (1895) 65 L.J.Q.B. 126; 12 70 [1958] P. 71; [1957] 3 W.L.R.

Nuisance is not an isolated act. In Bolton v. Stone 72 liability C. A.

SELLERSL.J. This is the judgment of the court.

72 [1951] A.C. 850; [1951] 1 73 [1947] A.C. 156.

along Vauxhall Road crossing at right-angles the Ashfield Street C. A.

1 (868) L.R. 3 H.L. 330.

2 Q.B. QUEEN'S BENCH DIVISION. 831

"deciding whether a special system of inspection should be c. A.

2 L.R. 3 H.L. 330.

832 QUEEN'S BENCH DIVISION. [1964J

2 L.R. 3 H.L. 330.

3 L.R. 3 H.L. 330. 6 [1914] 3 K.B. 772, C.A.

10 [1914] 3 KB. 772, 782. 15 [1954] Ch. 450.

We agree. Where there is a mandatory obligation with a

21 70 L.T.547, C.A. 25 55 T.L.R. 747,749, C.A.

There is, therefore, no "nuisance section" to be considered in C. A.

under permissive powers only. In this respect it resembles the NORTH

case there was a section retaining liability for nuisance and it

28 [1914] 3 K.B. 772, C.A. 30 (1878) 3 App.Cas. 430, R.L.

Solicitors: Olifford Turner &; 000. for William Rudd, Freeman

32 3 App.Cas. 430, 448, H.L. 35 [1891] 2 Ch. 409.

END OF VOLUME 2 AND OF QUEEN'S BENCH SERIES FOR 1964.

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