PUBLIC HEALTH ACT 1936 (AMENDMENT) (Hansard, 6 July 1977)

§ Mr. Clement Freud (Isle of Ely)
I beg to move, That leave be given to bring in a Bill to amend the Public Health Act 1936. In four instances in my constituency constituents have suffered distress and financial hardship. Each case has involved a constituent in substantial legal costs and, but for the inherent decency of the solicitors of Wisbech, many of them would now be bankrupt. After two years none of those concerned has seen any real light at the end of the tunnel, despite the promise by local authorities or the Anglian Water Authority that the cases might receive an out-of-court settlement.
The common predicament of these four cases is that each constituent had sewerage or drainage works in his street. In one case, an elderly couple had bought a house for their retirement and within months of their moving in a main sewer was built within a few feet of the house. In this case the Anglian Water Authority's agents advised the couple to move out because of the danger of the house collapsing into the newly dug trench. My constituents moved out and had to stay out in a caravan at the bottom of their garden for 10 weeks before they were given the all-clear to return. Their claim for compensation has gone from water authority to district council to county council with no success to date.
Two other cases concerned filling stations situated between traffic lights put up by the drainage-sewerage contractors. As a result, cars, though not totally unable, were obviously utterly unwilling to spend the time required to get into the forecourt of these filling stations. Since anyone who needs petrol is already mobile, it is obvious that substantial losses were sustained by the garage proprietors.
The fourth case concerned a village store situated on what was turned into a single carriageway to enable the water authority's agent to put in a main drain. In this case the village store remained virtually inaccessible for 12 months; for that year there was no way in which anyone in a car could use the car park of 1247 the village stores, and the lady in question finally went out of business last November.
In each case total sympathy was expressed by the contractors, the local authority and the water authority. They were helpful and hopeful, but it is, I accept, the duty of any legal adviser to protect his employer from making payments if he can possibly help it. In each case Section 278 of the 1936 Public Health Act, the section under which claims for compensation and loss of earnings are brought, was invoked and found to be so totally open to interpretation or misinterpretation that no awards have been made.

§ Mr. Speaker
Order. I am sorry to interrupt the hon. Gentleman, but he is advancing something very much like a case for an Adjournment debate. He must now outline the reasons why the House should give him permission to bring in the Bill.

§ Mr. Freud
I am very grateful, Mr. Speaker. That was the next matter on my brief. I had a three-minute preamble.
Section 278(1) of the 1936 Act says: Subject to the provisions of this section, a local authority shall make full compensation to any person who has sustained damage ". That seems fairly clear, were it not for subsection (3), which states No person shall be entitled by virtue of this section to claim compensation on the ground that a local authority have in the exercise of their powers under this Act declared any sewer or sewage disposal works". It is the conflict between those two subsections that has made it so easy for the local authorities to get out of doing what would appear to be their duty.
Also, as the legal adviser to the water authority has pointed out, at present the current and the prospective loss must be compensated for at the same time. Once the claim is settled and the compensation paid, the claimant cannot reopen the matter. Paragraph 19 of the Third Schedule to the Water Act, which relates to the laying of water mains and drains, provides for the paying of compensation from time to time. That is what I should like to have added to Section 278.
It is sometimes said that when there is an irreconcilable inconsistency between two provisions in the same statute—as there is between subsections (1) and (3) 1248 of Section 278—the later should prevail. However, that is doubtful and the better view seems to be that the court must determine which is the subordinate provision. Clarification here is another change that I should like to see made to Section 287.
Section 278(2) provides for an arbiter to assess the damage for any sum up to £50. That Act, however, was enacted in 1936, when £50 represented 12½ weeks of the national average wage. The sum is therefore quite out of date and I would propose to raise it to £2,000. But my main contention is that, although the arbiter is empowered to assess the amount, he is not authorised to determine the rights and wrongs of the case, nor to consider submission on points of law. It is here also that I propose amendment.
There is a general lack of clarity in Section 278, which is to the detriment of many of my constituents affected by substantial drainage and sewerage works. It is the council's contention that construction or nuisance must be on the plaintiff's property. That appears at first sight to be reasonable, until one reflects that road works, which are on the council's property, that is, on the highway, can make access or egress impossible for the customers of a small business. That provision ought to be removed.
The legal adviser of the water authority says in a letter: It has been judicially said that in order for a claim to arise under Section 278 it is necessary for the claimant to show that he has a claim at common law, but, by reason of the statutory authority contained in the Act, his right is not to claim for damages but for compensation, the amount of which, if necessary, is to be settled by arbitration. Further, if the authority act unreasonably or are negligent so as to exceed the scope of the statutory authority, then the claimant must seek his remedy in the courts, since his right then becomes one of entitlement to damages and not one of claim to compensation. When the question of negligence comes up, it is unclear whether negligence is poor work or dilatory work. When a sewerage drain takes a year to be laid, I suggest that negligence is manifested by undue delays. It is such delays which have caused a great deal of financial suffering.
The legal adviser's letter goes on: There are no decisions that I have been able to find in the higher courts dealing with the question of whether or not there is any 1249 right to compensation for loss of profits arising out of the laying of sewers in the public highway. I do know that it is the attitude of at least one water authority that no right to compensation arises under Section 278, although I am not aware of whether or not the authority considers there to be a right of damages at common law. I should like the Government Law Officers to re-examine Section 278 in the light of what I have said.
I think that it will be appreciated that it is the lack of clarity in the Act that has caused such great expenditure on legal advice to my constituents. Even if Section 278 had said that no one shall have any claim on anyone, anyhow, anywhere, it would have saved my constituents great legal costs. For these reasons, I ask permission of the House to amend the Act.