Water and Sewerage Services (Amendment) (Northern Ireland) Order 1985 (Hansard, 10 May 1985)

§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)
My Lords, I beg to move that the draft Water and Sewerage Services (Amendment) (Northern Ireland) Order 1985, which was laid before your Lordships' House on 27th March this year, be approved.
Your Lordships will see that this order follows in the steps of legislation made in recent years for England and Wales, and later for Scotland, to deal with liability for loss or damage caused by escapes of water from pipes belonging to water authorities. The matter arises from the virtual impossibility of insuring against water damage to agricultural or forestry land, while houses and buildings, on the other hand, are readily insured.
The farmer or forester in Northern Ireland is in the unfortunate position which his colleagues on this side of the Irish Sea faced until the past year or so. Though the Department of the Environment for Northern Ireland, as the water authority, may lay water mains across his land even in the face of his objections, he finds it extremely difficult to insure against loss or damage arising from escapes of water from those mains. The department is only liable to compensate for loss or damage resulting from its negligence. There is therefore a grey area, in which damage arises accidentally and the department may deny liability. The uninsured landowner then finds himself without redress and out of pocket.
The problem was corrected in England and Wales by Section 6 of the Water Act 1981, which was widely drawn and made the English and Welsh water authorities strictly liable for loss or damage caused in almost all circumstances, and not just in the case of agricultural or forestry land, However, the Scottish legislation, Section 57 of the Local Government and Planning (Scotland) Act 1982, was more tightly drawn and confined its cover to those suffering loss or damage resulting from an escape of water onto agricultural land or forestry land; that is, to those who could not normally obtain insurance cover.
The draft order follows closely the Scottish legislation. It does so in preference to the English model, because Section 57 of the Scottish Act of 1982 deals directly and specifically with the circumstances which the department seeks to cover in Northern Ireland, and at the same time does so at the minimum necessary expense to the public purse. These are the reasons for confining the operation of Article 3 of the draft order to escapes of water onto agricultural or forestry land. Article 3 of the draft order achieves its purpose by inserting a new Article 57A in the Water and Sewerage Services (Northern Ireland) Order 1973, 856 which legislates for the supply and distribution of water in the Province. The new article makes the Department of the Environment strictly liable for loss or damage caused by an escape of water from one of its mains onto agricultural land or forestry land.
There are certain in-built exceptions and modifications to the principle of strict liability; for example, where the injured party is himself either wholly or partly responsible for causing the escape of water, and where certain listed statutory undertakers are involved. These statutory undertakers are not strictly liable when they cause damage to the department's property, and it is considered that the department should not in turn be strictly liable to them.
My Lords, if I may sum up, the draft order does not take away any person's right to compensation if the department has been negligent and caused damage. It merely gives a measure of redress to agricultural and forestry landowners who may find themselves bearing the consequential cost of burst water mains on their land because of an inability to obtain insurance cover. I commend this order to your Lordships, and beg to move.

§ Lord Prys-Davies
My Lords, we are grateful to the Minister for having explained the terms of the draft order before the House. This is really the latest round, the Northern Ireland round—and I have a feeling that it will not be the last round—in a story which goes back to 1981. Up to 1981, in the absence of negligence the water undertakers were under no liability for damage or loss caused by the escape of water from their mains or their pipes. Then in 1981, so far as the law in England and Wales was concerned, the water undertakers became absolutely liable in the event of loss or damage caused by the escape of water from their pipes.
This result was achieved by Section 6 of the Water Act 1981 through an amendment which was introduced by your Lordships. That amendment was to cost the water undertakers dearly. It cost them about £40 million. Therefore, in 1982 the law relating to the liability of water undertakers in Scotland was amended. A Scottish amendment placed a much narrower duty on Scottish water undertakers, who are, of course, the local authorities—and that may well be part of the explanation. In Scotland, strict liability applies only in the case of damage or loss caused to agricultural land or forestry land.
But today, in 1985, we have an order before the House relating to liability of water undertakers not of England and Wales or of Scotland, but of Northern Ireland. It is interesting that the Government could have followed the rather narrower Scottish precedent or the broader England and Wales precedent. In the event, the order corresponds to the Scottish pattern. Therefore, in this order we have an example of the harmonisation of the law of Northern Ireland and the law of Scotland, whereas usually we are concerned with the mingling of the law of Northern Ireland and the law of England and Wales. However, the Scottish 857 precedent having been acceptable to the Northern Ireland Assembly, who are we to question it? We therefore approve the order.

§ Lord McNair
My Lords, I am advised by noble friends who know much more about Northern Ireland than I do, but who are unavoidably absent today, that on these Benches we have no objection to this order. To save myself, and the House, my saying this three times I would add that it applies to the second and third orders as well.

§ Lord Boyd-Carpenter
My Lords, may I ask my noble friend to clarify one point which may be particularly relevant to Northern Ireland? If the escape of water on to agricultural or forestry land is the result not of the negligence of the department or the occupier but of the act, perhaps the wrongful act. of a third party, does the occupier recover under the order? To take a specific example, let us suppose that someone lets off an explosion for some malicious purpose of his own and this fractures the water pipes and causes an escape of water, is the department liable?

§ Lord Lyell
My Lords, I thank all three noble Lords who have spoken. I thank first the noble Lord, Lord Prys-Davies, for summarising very accurately and concisely the legal ramifications in both England and Scotland. Clearly he has understood that we in Northern Ireland feel that it is right in this instance to follow the Scottish precedent of 1982.
I should also like to thank the noble Lord, Lord McNair, for his compliments on the order. I have no doubt that your Lordships will be grateful that he and his noble friends for whom he is speaking accept this order and we look forward to the approbation of the other orders. The noble Lord is saving the time of the House, and we are grateful.
As for my noble friend's question about a third party and the escape of water from a water main on to agricultural or forestry land, so far as I am aware the order does not indemnify the water authorities against a claim by the occupier should water escape due to an explosion. I am afraid that I do not have the particular information about whether the deed of causing the escape of water would be capable of being covered by insurance; I suspect not. Perhaps I may make inquiries and write to the noble Lord. I hope that it will be a brief and fairly accurate answer.

§ Lord Boyd-Carpenter
Fairly accurate, my Lords?

§ Lord Lyell
I hope that it will be accurate, perhaps more accurate than some, my Lords.

§ Lord Elwyn-Jones
The noble Lord has been bowled a fast one, my Lords.

§ Lord Lyell
Yes, my Lords; we had better not discuss the legal ramifications perhaps going back to 1798 and the 1800s of similar dramas in Irish history as to whether or not they were warlike acts. I have no record of misdeeds caused by explosion or other activities of this nature. If I may make inquiries, I shall 858 write to my noble friend. Incidentally, I am grateful to him for raising the point, since he has drawn attention to a gap in my knowledge.

The Lord Bishop of Norwich
My Lords, I should like the noble Lord to be encouraged also by the fact that the whole of the Bishops' Bench also wishes to support each of these three orders. I shall speak once only rather than three times and I am sure that I speak on behalf of the united Bench of Bishops in total support of the Government in this matter.

§ Lord Lyell
I am very grateful that the right reverend Prelate speaks, as he says, three in one, the trinity. I am grateful for the reception the order has received and I commend it.