Marcic v Thames
Richard Venters
Water UK
June 2002
The Court of Appeal has held Thames liable in private nuisance and under
the European Convention on Human Rights for the sewage flooding of Mr
Marcic’s property. If the company’s appeal to the House of Lords is
rejected, the case will bring a major shift in the law of nuisance applying to
those providing public services under statute, writes Richard Venters.
The facts
Peter Marcic owns a house and gardens at about the lowest point of Old
Church Lane, Stanmore. At times of heavy rainfall, Mr Marcic’s gardens
are subject to sewage flooding due to the resulting backing up of the public
sewers in Old Church Lane. Although the house itself has not been flooded
(perhaps due to the remedial drainage works undertaken by Mr Marcic), it
appears that the house has suffered some subsidence as a result of the
flooding. The backing up of the sewers is the result of these having become
inadequate due to the number of property owners who have exercised their
legal right to connect to the sewers.
Statutory regime and economic regulation
The statutory regime under which Thames operates is contained in the Water
Industry Act 1991 as amended. Under the Act, Thames has been appointed
sewerage undertaker for the area of Mr Marcic’s property.
The charges that Thames may collect from its customers for carrying out its
functions are subject to a price cap imposed by the Director General of
Water Services. The price cap is fixed by the Director every five years
following a “periodic review”. In carrying out these reviews, the Director
has made allowance for the construction of works which will gradually
reduce the number of properties subject to internal sewer flooding, but he
has not made any allowance for properties subject to external flooding, such
as that owned by Mr Marcic.
Mr Marcic therefore brought legal proceedings against Thames for breach of
statutory duty, nuisance, negligence, and breach of the European Convention
on Human Rights. The judge at first instance dismissed all these claims
other than those based on the European Convention. However, the Court of
Appeal also found for Mr Marcic on the basis of private nuisance.
Private nuisance
In finding Thames liable to Mr Marcic, the Court of Appeal referred to the
developments that had taken place in the law of nuisance:
 private nuisance consists of the interference by the owners or
occupiers of property with the use or enjoyment of neighbouring
property;
 liability for nuisance extends to nuisances caused by third parties
(for example trespassers) which are then continued or adopted by
the owners or occupiers1;
 such liability can also be incurred when a hazard arises by natural
causes, but the owner or occupier of the land on which it arose then
fails to take reasonable steps to prevent the hazard from escaping
onto neighbouring property2;
 however, under “the Glossop line of authority” it has been the
position that a sewerage undertaker could only be held liable in
nuisance when it was guilty of misfeasance – that is its actions
contributed towards the nuisance, but could not be held liable in
cases of non-feasance – that is when it had not taken any actions
that had contributed to the nuisance.
Thames liability for nuisance
In finding Thames liable in nuisance, the Court of Appeal came to the
following conclusions:
 the source of the flooding, and therefore the nuisance, was the
public sewers owned and operated by Thames;
Sedleigh-Denfield v O’Callaghan (1940) and Job Edwards Ltd v Birmingham Navigation (1924)
Goldman v Hargrave !967) and Leakey v National Trust (1980)

Glossop v Heston & Isleworth Local Board (1879), Attorney General v Guardians of the Poor of Dorking
(1881), Jones v Llanrwst UDC (1911), Hesketh v Birmingham Corporation (1924), Pride of Derby and
Derby Angling Association v British Celanese (1953), Smeaton v Ilford Corporation (1954), Dear v
Thames Water (1992).
1
2
 the inadequacy of the sewers had been caused by the number of
property owners who had exercised their legal rights to connect to
the public sewers;
 accordingly Thames were not guilty of misfeasance, but they were
liable in nuisance because i) they had adopted and continued the
nuisance; ii) taking into account their resources and statutory
powers, they had failed to discharge the onus of proof that they had
taken all reasonable steps to prevent the flooding of Mr Marcic’s
property; and iii) “the Glossop line of authority” could not survive
the developments in the law of nuisance reflected in the SedleighDenfield, Goldman and Leakey cases.
European Convention on Human Rights
The Court of Appeal upheld the decision of the judge at first instance that
Thames had infringed Mr Marcic’s human rights under:
 Article 8: right to respect for private and family life, and home;
and
 Article 1 of Protocol 1: right to the peaceful enjoyment of
possessions, in that a fair balance had not been achieved between
the competing interests of the individual and the community as a
whole.
Conclusions
If Thames’ appeal fails, the Court of Appeal’s judgement will mark a
significant change in the law of private nuisance as it applies to sewerage
undertakers, and perhaps also to the privatised utilities generally. In this
connection, the greater exposure of the privatised utilities to actions for
nuisance may well have an adverse impact on the ability of the economic
regulators to control costs and thus limit the charges payable by customers.
rventers@water.org.uk