The West Burn flowed in a channel considerably below the surrounding ground which drained into it and in particular was below the level of Inverkip Road. In 1908, in order to form a playground for children, the natural channel of the West Burn was altered. A culvert was constructed and the burn buried. The surface of the park thereafter sloped down to Inverkip Road, which had become the lowest level and the channel for surface water which formerly drained into the burn. In addition, the defendants constructed a paddling pool at the mouth of the culvert which obstructed the flow of water and it was admitted that those works obstructed about ‘half the flow of water which would otherwise go down the culvert’. Flooding occurred in 1909 and then on the occasion with which the action was concerned in August 1912. The question asked was whether the defendants could establish ‘damnum fatale’ in the law of Scotland, hich, would approximate to act of God in English law. Lord Shaw assumed that there was no difference on the topic between the law of England and that of Scotland.
Held: The appellants had failed to establish any defence: ‘It is true that the flood was of extraordinary violence, but floods of extraordinary violence must be anticipated as likely to take place from time to time. It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. Such damage is not in the nature of damnum fatale, but is the direct result of the obstruction of a natural watercourse by the defenders’ works followed by heavy rain’.
Lord Finlay LC, Lord Shaw
[1917] AC 556
Scotland
Cited by:
Adopted – Pemberton v Bright and Another CA 1960
A culvert had been altered and extended in 1926 and the entrance left uncovered and unprotected.
Held: The interference with the flow of water created a potential nuisance in that ‘heavy rain was always a potential danger unless properly . .
Cited – Bybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.220837
