Flooding: Burden of proof in
each case and need to prove
causation
March 2017
Louisa Lieng
Solicitor, BLM
T +44 (0)23 8038 2301
E [email protected]
Flooding:
Burden of proof in each case and need to prove causation
Oldcorn v Southern Water Services Ltd [2017] EWHC 6C (TCC)
Oldcorn v Southern Water Services Ltd [2017] EWHC 6C (TCC) was a case following the 2012 floods in
England and reaffirms the challenges claimants face in bringing successful claims for flood damage. The
judgment is particularly valuable as it revisits key areas of law that we need to consider when bringing a
claim for flood damage. It also emphasises the importance of persuasive expert evidence needed to prove
causation.
Case summary
The claimant’s property was located in close proximity to the sea and only just above sea level. This meant
the property was at risk of flood damage due to effects of both rain and sea water.
There were a number of ditches which surrounded the property which allowed surface water to drain into
an underground pipe owned by the defendant. The underground pipe drained into a concrete bunker,
which then connected to some further pipes and chambers, which were described as a ‘Storm Water
System’. The Storm Water System was also owned by the defendant.
The purpose of the Storm Water System was two-fold:
i.
ii.
To discharge surface water out to sea and to ensure sea water was prevented from entering the
system; and
To provide storage in high tide when flows could not be discharged via the outfall.
The property flooded in 2009 following which the defendant installed a tideflex valve into the bunker, which
was designed as a further preventative measure to ensure sea water would not enter the underground pipe.
The property flooded again in 2012 and was damaged as a result. The property owners and claimant in this
case brought a claim against the defendant in negligence. The allegation made was that the tideflex valve
caused a reduced flow of water through the underground pipe which in turn caused water to back up and
to flood the property. The claimant also alleged that no risk assessment had been carried out and, ‘but for’,
the installation of the tideflex valve, the property would not have flooded. The defendant contended that
the property would have flooded in any event.
Judgment
The defendant was found negligent. However, the court were not satisfied on the balance of probabilities
that the flood would not have occurred without the introduction of the tideflex valve. In this case, the
experts for both sides had not considered the ‘but for’ test of causation, which is to say, ‘but for’ the
introduction of the tideflex valve, would the flood have occurred in any event and so the claim failed.
What this means for future flood claims
This judgment highlights how difficult it can be to prove causation in flood claims, because of the
sometimes devastating effects of those types of losses. The use of experts each time is important, as is the
need to challenge the view of the expert instructed on their opinion on causation. In this case, the claimant
plainly thought they had ‘done enough’ but the court thought otherwise.
Flooding: Burden of proof in each case and need to prove causation