Water into gas should not go

3 February 2018 by

Southern Gas Networks Plc v Thames Water Utilities Ltd 
[2018] EWCA Civ 33, 25 January 2018 – read judgment

When the supply of gas to your house fails, you are entitled to compensation from the gas undertaker for the inconvenience. If that failure has been caused by another utility’s burst water main, the gas undertaker may seek to recoup its expenses for repair to its own infrastructure and the compensation it has had to pay out to consumers. A simple enough picture.

But behind this straightforward seeming network of liabilities is a labyrinth of common law and statutory relationships whose exploration is not for the faint hearted.  As society’s dependence on the provision of energy, water and sewage services grew, during the Industrial Revolution and beyond, parliament had to think of ways to level the playing field between these increasingly centralised powers. This is not a trend that will go away, as the gas, electricity and fibre optic cables become ever more essential to the way we live our lives.

The question at the heart of this case is quite simple. Who ultimately bears the costs of payments to the consumer where interruption to their gas supply was caused by a water company who negligently allowed water to escape from its pipes and enter nearby gas pipes. Was it the gas undertaker, or the water undertaker?

It is all a matter of statutory construction, not just in terms of construing the relevant provisions in street works legislation and, potentially, in water services legislation, but looking at the background of the statute as a whole.

Factual and legal background

In December 2012 Thames Water were alerted to a burst water main in Orpington in the south east of London. It attended on 24 December, but took no action. On 29 December, water from the leak bored a hole in a gas main.  The gas supply to 1,683 properties was lost.

The affected customers claimed Failure to Supply Gas (FSG) payments from Southern Gas, and Southern Gas in turn claimed that sum against Thames under the relevant street works legislation.

Southern Gas made a claim under the statute for repairs needed to the network. Thames accepted liability for that loss, and that part of the claim had been compromised in the sum of £734,000.

Thames said that nothing else was due beyond such repair costs.

The remaining bone of contention was the liability for the FSG payments to the consumers. In 2016 the High Court dismissed both the statutory claim and the claim in common law negligence.

On this appeal, there were two unresolved points of argument. The first was whether the gas company could claim under the statutory scheme for reimbursement from the water company the money that it had to spend on compensating its customers for the interruption to their gas supply.

Everything turned on Section 82(1)(b) of the NRSW Act, which imposes an obligation on an undertaker such as Thames Water to compensate Southern Gas for certain losses caused by an event arising from the utility operators’ apparatus. So far, so good.  Section 82(1)(b) is a strict liability package which entails the straightforward reimbursement by one utility of the other utility’s repair expenses as a result of any damage flowing from the former, whether negligent or not.

Arguments before the Court

Argument 1

But the scope of the money awardable in section 82(1)(b) is precisely worded – not just any loss or damage, just

expenses reasonably incurred in making good damage

Souther Gas argued that such “expenses” included the costs of compensation payable for the failure of supply to customers. Thames Water contended that this customer compensation was excluded from the statutory scheme.

The Court of Appeal agreed with the Deputy Judge below that the FSG payments did not come within the strict liability statutory scheme.

Argument 2

But what about a claim in negligence at common law for the FSG payments? This is because under the common law it could claim against  Thames Water the  losses it had suffered in paying its customers that had been consequent upon the physical damage (the damage to the gas network caused by the water getting in).

Thames denied any such duty of care in negligence, saying that the statutory scheme under section 82 of the NRSW Act (limited though it may be in the case of 82(1)(b)) ousted the common law.

The arguments turned on whether section 82 should be looked at discretely, as a complete code which excludes common law liability, or whether this was not a conclusion that could be reached in the light of section 82(6) which says

Nothing in this section shall be taken as exonerating an undertaker from any liability to which he would otherwise be subject

The Court of Appeal (Hickinbottom LJ giving judgment) overturned the finding of the court below on the ouster point.

section 82 properly construed does not oust any common law remedies available to a person with street apparatus which is damaged by works performed by an undertaker [para 85]

So Southern Gas recovered these losses.

Reasoning behind the judgment

Considerable attention was paid to comments about section 82(6) by the Court of Appeal in an electricity/cable television case, where one party had damaged the apparatus of the other undertaker. The facts of that case (Yorkshire Electricity Distribution Plc v Telewest Limited [2006] EWCA Civ 1418 were distinguishable from the instant case, in that it was said that the victim of the damage, Telewest, was to largely to blame, and therefore it fitted perfectly within the statutory compensation scheme. However, in the present case the court below had found this to be persuasive in his determination that section 82 itself comprised a complete statutory code such that a cause of action in negligence was not available to Southern Gas.

But, looking at a range of cases where the ouster point has been debated, particularly the Child Action Poverty Group decision (R (CPAG v Secretary of State for Work and Pensions [2010] UKSC 54), this Court of Appeal echoed Sir John Dyson’s view that

The court should not be too ready to find that a common law remedy has been displaced by a statutory one, not least because it is always open to Parliament to make the position clear by stating explicitly whether the statute is intended to be exhaustive.” [para 34]

In the instant case, the Court of Appeal was persuaded that Parliament intended the statutory provision to co-exist with the common law remedy. They were convinced of this particularly because legislation preceding the NRSW Act had non-exoneration provisions in respect to several types of utility damage. The 1950 Public Utilities Street Works Act did not spare undertakers from any liability to which they were subject (e.g. section 18(4)), and, elsewhere in that Act, it is expressly stated that statutory compensation did not exonerate an undertaker from any liability to “any other person”.

Courts should be slow to displace common law remedies, particularly where it would be perfectly open to Parliament to say so in express terms.  As Hickinbottom LJ points out,

had the draftsman wished to say that common law rights were ousted, there were better ways in which he could have expressed himself.

In any event the non-exoneration clause was clear and unambiguous on its face. Section 82(6) of the NRSW Act expressly preserves the common law rights of a person having street apparatus who also has a claim against an operator under section 82.

Hickinbottom LJ also considered at paras 67 – 83 a wider ouster argument arising out of the water industry legislation. He decided that this did not help Thames Water’s arguments on ouster but added some observations which will be of considerable interest to those contemplating suing water companies in respect of sewerage problems. For this particular issue see my post on Dobson and others v Thames Water Utilities Ltd [2011] EWHC 3253, which followed Dobson v Thames Water Utilities Limited (No 1) [2007] EWHC 2021 (TCC); [2008] 2 All ER 362.

It is believed that there may not be an appeal against this judgment, and hence Southern Gas has recovered the money it paid out to its customers.

David Hart QC and Jessica Elliott of 1 Crown Office Row (instructed by Jillian Raw of Kennedys) acted for Southern Gas on this appeal. They were not associated with this post.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. Geoffrey says:

    When I investigated and mediated (informally) a matter between the same parties, years ago, Christmas load had resulted in low gas pressure and the booster at the Henley Brewery had drawn water into the main. Arguably it was an unexpected consequence. In general, now we have higher pressure gas supplies, it is hard to see how water should enter the gas main unless both were broken and the gas pressure fell as a result of the leak.
    Could you direct me to someone who can discuss the facts?

    1. Yes, old water mains burst, ran out for some time, despite complaints from local people, and drilled into gas mains causing it to fail after some days. It is a mechanism of failure which happens remarkably often.

  2. ma says:

    Try even contacting wessex water….

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: