I was uninjured but my bike had about £900-worth of plastics damage. I took photos on my smartphone showing the developer’s conspicuous sign and emailed the head office, politely asking for confirmation that they would meet the cost of repair.
The photos show a spread of mud panning out from the site entrance. However, the developer responded and said that mud had been generated by an electricity contractor and they were responsible.
This looks incredible as there is a lot of mud dropped by a lot of vehicles. I contacted the electricity company and they denied any liability. Do I press on? And If so, how?
This is actually a simple case in law, but involves a little-known legal concept called ‘nuisance’. The site developer is liable for material placed or deposited on the highway from its works. It has a duty in law, which dates back to the 13th century. While not well known. It has a pedigree.
I will avoid the very dry technical argument as to whether nuisance on the highway needs an element of negligence, as there clearly is negligence in running a building site which allows a slippery substance to get out onto the highway. You cannot non-negllgently spread mud all over the highway.
Secondly the electricity-contractor point, even if true, does not help the site developer because it has a duty to keep the road clear of material escaping from their land. This duty is ‘non-delegable’ – that is, it is always the landowner’s responsibility to stop the dangerous escape of substances. The same law applies to farmers driving livestock between fields and leaving muck on the road.
If someone puts dangerous material on the highway and someone else suffers actual harm to goods or person, they have sustained what the law calls ‘a special damage’ and have a claim. If you had to re-route but you are not hurt or had a direct expense, then you would have no cause of action, but the council does have the power to order a clean-up. In your case, you will need to either suck it up or go to the small claims court.
You will need to issue proceedings against the developer – forget about the electrical contractor. In the unlikely event of the developer not paying up once they receive a County Court summons, it is up to them, If they want to, to bring the electrical contractor in as a second defendant.
Because your claim will be in the small claims court, you do not have to go into great detail about the law but it is definitely worth mentioning the phrase “public nuisance” and stating that mud was allowed to go onto the carriageway negligently. Then set out your losses, with evidence of them, and the correspondence wherein the claim was denied.
Most County Court hearings will be heard by an experienced district Judge who will have come across the law of nuisance before. However, occasionally a Judge may not have heard of it and with little time to do his own research, I suggest you go to your local library, get out the first-year student law textbook on tort and make sure that you can refer the Judge to the relevant law. Just copy the parts that relate to public nuisance.
However, I would expect the developer to simply pay up, because this will not be the first claim like this and they must know that they are wrong, but it is a numbers game. If they reject 100 claims like yours, perhaps two or three will actually get taken all the way to the small claims court.
RiDE March 2019